Drunk Driving Accident

New York State Consolidated Laws : Vehicle & Traffic

ARTICLE 31
ALCOHOL AND DRUG-RELATED OFFENSES
AND PROCEDURES APPLICABLE THERETO

S 1193. Sanctions.

S 1193. Sanctions. 1. Criminal penalties. (a) Driving while ability
impaired. A violation of subdivision one of section eleven hundred nine-
ty-two of this article shall be a traffic infraction and shall be
punishable by a fine of not less than three hundred dollars nor more
than five hundred dollars or by imprisonment in a penitentiary or county
jail for not more than fifteen days, or by both such fine and imprison-
ment. A person who operates a vehicle in violation of such subdivision
after having been convicted of a violation of any subdivision of section
eleven hundred ninety-two of this article within the preceding five
years shall be punished by a fine of not less than five hundred dollars
nor more than seven hundred fifty dollars, or by imprisonment of not
more than thirty days in a penitentiary or county jail or by both such
fine and imprisonment. A person who operates a vehicle in violation of
such subdivision after having been convicted two or more times of a
violation of any subdivision of section eleven hundred ninety-two of
this article within the preceding ten years shall be guilty of a misde-
meanor, and shall be punished by a fine of not less than seven hundred
fifty dollars nor more than fifteen hundred dollars, or by imprisonment
of not more than one hundred eighty days in a penitentiary or county
jail or by both such fine and imprisonment.
(b) Driving while intoxicated or while ability impaired by drugs;
misdemeanor offenses. A violation of subdivision two, three or four of
section eleven hundred ninety-two of this article shall be a misdemeanor
and shall be punishable by a fine of not less than five hundred dollars
nor more than one thousand dollars, or by imprisonment in a penitentiary
or county jail for not more than one year, or by both such fine and
imprisonment.
(c) Felony offenses. (i) A person who operates a vehicle in violation
of subdivision two, three or four of section eleven hundred ninety-two
of this article after having been convicted of a violation of subdivi-
sion two, three or four of such section or of vehicular assault in the
second or first degree, as defined, respectively, in sections 120.03 and
120.04 of the penal law or of vehicular manslaughter in the second or
first degree, as defined, respectively, in sections 125.12 and 125.13 of
such law, within the preceding ten years, shall be guilty of a class E
felony, and shall be punished by a fine of not less than one thousand
dollars nor more than five thousand dollars or by a period of imprison-
ment as provided in the penal law, or by both such fine and imprison-
ment.
(ii) A person who operates a vehicle in violation of subdivision two,
three or four of section eleven hundred ninety-two of this article after
having been convicted of a violation of subdivision two, three or four
of such section or of vehicular assault in the second or first degree,
as defined, respectively, in sections 120.03 and 120.04 of the penal law
or of vehicular manslaughter in the second or first degree, as defined,
respectively, in sections 125.12 and 125.13 of such law, twice within
the preceding ten years, shall be guilty of a class D felony, and shall
be punished by a fine of not less than two thousand dollars nor more
than ten thousand dollars or by a period of imprisonment as provided in
the penal law, or by both such fine and imprisonment.
(d) Alcohol or drug related offenses; special vehicles. (1) Except as
provided in subparagraph four of this paragraph, a violation of subdivi-
sion one, two, three or four of section eleven hundred ninety-two of
this article wherein the violator is operating a taxicab as defined in
section one hundred forty-eight-a of this chapter, or livery as defined
in section one hundred twenty-one-e of this chapter, and such taxicab or
livery is carrying a passenger for compensation, or a truck with a GVWR
of more than eighteen thousand pounds but not more than twenty-six thou-
sand pounds and which is not a commercial motor vehicle shall be a
misdemeanor punishable by a fine of not less than five hundred dollars
nor more than fifteen hundred dollars or by a period of imprisonment as
provided in the penal law, or by both such fine and imprisonment.
(1-a) A violation of subdivision one of section eleven hundred nine-
ty-two of this article wherein the violator is operating a school bus as
defined in section one hundred forty-two of this chapter and such school
bus is carrying at least one student passenger shall be a misdemeanor
punishable by a fine of not less than five hundred dollars nor more than
fifteen hundred dollars or by a period of imprisonment as provided in
the penal law, or by both such fine and imprisonment.
(2) A violation of subdivision five of section eleven hundred ninety-
two of this article shall be a traffic infraction punishable as provided
in paragraph (a) of this subdivision. Except as provided in subparagraph
three or five of this paragraph, a violation of subdivision one, two,
three, four or six of section eleven hundred ninety-two of this article
wherein the violator is operating a commercial motor vehicle, or any
motor vehicle registered or registrable under schedule F of subdivision
seven of section four hundred one of this chapter shall be a misdemea-
nor. A violation of subdivision one, two, three or four of section elev-
en hundred ninety-two of this article shall be punishable by a fine of
not less than five hundred dollars nor more than fifteen hundred dollars
or by a period of imprisonment as provided in the penal law, or by both
such fine and imprisonment. A violation of subdivision six of section
eleven hundred ninety-two of this article shall be punishable by a fine
of not less than five hundred dollars nor more than fifteen hundred
dollars or by a period of imprisonment not to exceed one hundred eighty
days, or by both such fine and imprisonment. A person who operates any
such vehicle in violation of such subdivision six after having been
convicted of a violation of subdivision one, two, three, four or six of
section eleven hundred ninety-two of this article within the preceding
five years shall be punishable by a fine of not less than five hundred
dollars nor more than fifteen hundred dollars or by a period of impri-
sonment as provided in the penal law, or by both such fine and imprison-
ment.
(3) A violation of subdivision one of section eleven hundred ninety-
two of this article wherein the violator is operating a motor vehicle
with a gross vehicle weight rating of more than eighteen thousand pounds
which contains flammable gas, radioactive materials or explosives shall
be a misdemeanor punishable by a fine of not less than five hundred
dollars nor more than fifteen hundred dollars or by a period of impri-
sonment as provided in the penal law, or by both such fine and imprison-
ment.
(4) (i) A person who operates a vehicle in violation of subdivision
one, two, three or four of section eleven hundred ninety-two of this
article and which is punishable as provided in subparagraph one, one-a,
two or three of this paragraph after having been convicted of a
violation of any such subdivision of section eleven hundred ninety-two
of this article and penalized under subparagraph one, one-a, two or
three of this paragraph within the preceding ten years, shall be guilty
of a class E felony, which shall be punishable by a fine of not less
than one thousand dollars nor more than five thousand dollars, or by a
period of imprisonment as provided in the penal law, or by both such
fine and imprisonment. A person who operates a vehicle in violation of
subdivision six of section eleven hundred ninety-two of this article
after having been convicted of two or more violations of subdivisions
one, two, three, four or six of section eleven hundred ninety-two of
this article within the preceding five years, any one of which was a
misdemeanor, shall be guilty of a class E felony, which shall be punish-
able by a fine of not less than one thousand dollars nor more than five
thousand dollars, or by a period of imprisonment as provided in the
penal law, or by both such fine and imprisonment. In addition, any
person sentenced pursuant to this subparagraph shall be subject to the
disqualification provided in subparagraph three of paragraph (e) of
subdivision two of this section.
(ii) A person who operates a vehicle in violation of subdivision one,
two, three or four of section eleven hundred ninety-two of this article
and which is punishable as provided in subparagraph one, one-a, two or
three of this paragraph after having been convicted of a violation of
any such subdivision of section eleven hundred ninety-two of this arti-
cle and penalized under subparagraph one, one-a, two or three of this
paragraph twice within the preceding ten years, shall be guilty of a
class D felony, which shall be punishable by a fine of not less than two
thousand dollars nor more than ten thousand dollars, or by a period of
imprisonment as provided in the penal law, or by both such fine and
imprisonment. A person who operates a vehicle in violation of subdivi-
sion six of section eleven hundred ninety-two of this article after
having been convicted of three or more violations of subdivisions one,
two, three, four or six of section eleven hundred ninety-two of this
article within the preceding five years, any one of which was a misde-
meanor, shall be guilty of a class D felony, which shall be punishable
by a fine of not less than two thousand dollars nor more than ten thou-
sand dollars, or by a period of imprisonment as provided in the penal
law, or by both such fine and imprisonment. In addition, any person
sentenced pursuant to this subparagraph shall be subject to the disqual-
ification provided in subparagraph three of paragraph (e) of subdivision
two of this section.
(4-a) A violation of subdivision two, three or four of section eleven
hundred ninety-two of this article wherein the violator is operating a
school bus as defined in section one hundred forty-two of this chapter
and such school bus is carrying at least one student passenger shall be
a class E felony punishable by a fine of not less than one thousand
dollars nor more than five thousand dollars, or by a period of imprison-
ment as provided in the penal law, or by both such fine and imprison-
ment.
(5) A violation of subdivision two, three or four of section eleven
hundred ninety-two of this article wherein the violator is operating a
motor vehicle with a gross vehicle weight rating of more than eighteen
thousand pounds which contains flammable gas, radioactive materials or
explosives, shall be a class E felony punishable by a fine of not less
than one thousand dollars and such other penalties as provided for in
the penal law; provided, however, that a conviction for such violation
shall not be considered a predicate felony pursuant to section 70.06 of
such law, or a previous felony conviction pursuant to section 70.10 of
such law.
(6) The sentences required to be imposed by subparagraph one, one-a,
two, three, four, four-a or five of paragraph shall be imposed notwith-
standing any contrary provision of this chapter or the penal law.
(7) Nothing contained in this paragraph shall prohibit the imposition
of a charge of any other felony set forth in this or any other provision
of law for any acts arising out of the same incident.
(e) Certain sentences prohibited. Notwithstanding any provisions of
the penal law, no judge or magistrate shall impose a sentence of uncon-
ditional discharge for a violation of any subdivision of section eleven
hundred ninety-two of this article nor shall a judge or magistrate
impose a sentence of conditional discharge or probation unless such
conditional discharge or probation is accompanied by a sentence of a
fine as provided in this subdivision.
(f) Where the court imposes a sentence for a violation of section
eleven hundred ninety-two of this article, the court may require the
defendant, as a part of or as a condition of such sentence, to attend a
single session conducted by a victims impact program. For purposes of
this section, "victims impact program" means a program operated by a
county, a city with a population of one million or more, by a not-for-
profit organization authorized by any such county or city, or a combina-
tion thereof, in which presentations are made concerning the impact of
operating a motor vehicle while under the influence of alcohol or drugs
to one or more persons who have been convicted of such offenses. A
description of any such program shall be filed with the commissioner and
with the coordinator of the special traffic options program for driving
while intoxicated established pursuant to section eleven hundred nine-
ty-seven of this article, and shall be made available to the court upon
request. Nothing contained herein shall be construed to require any
governmental entity to create such a victim impact program.
2. License sanctions. (a) Suspensions. Except as otherwise provided
in this subdivision, a license shall be suspended and a registration may
be suspended for the following periods:
(1) Driving while ability impaired. Ninety days, where the holder is
convicted of a violation of subdivision one of section eleven hundred
ninety-two of this article;
(2) Persons under the age of twenty-one; driving after having consumed
alcohol. Six months, where the holder has been found to have operated a
motor vehicle after having consumed alcohol in violation of section
eleven hundred ninety-two-a of this article where such person was under
the age of twenty-one at the time of commission of such violation.
(b) Revocations. A license shall be revoked and a registration may be
revoked for the following minimum periods:
(1) Driving while ability impaired; prior offense. Six months, where
the holder is convicted of a violation of subdivision one of section
eleven hundred ninety-two of this article committed within five years of
a conviction for a violation of any subdivision of section eleven
hundred ninety-two of this article.
(1-a) Driving while ability impaired; misdemeanor offense. Six
months, where the holder is convicted of a violation of subdivision one
of section eleven hundred ninety-two of this article committed within
ten years of two previous convictions for a violation of any subdivision
of section eleven hundred ninety-two of this article.
(2) Driving while intoxicated or while ability impaired by drugs. Six
months, where the holder is convicted of a violation of subdivision two,
three or four of section eleven hundred ninety-two of this article.
(3) Driving while intoxicated or while ability impaired by drugs;
prior offense. One year, where the holder is convicted of a violation of
subdivision two, three or four of section eleven hundred ninety-two of
this article committed within ten years of a conviction for a violation
of subdivision two, three or four of section eleven hundred ninety-two
of this article.
(4) Special vehicles other than school buses. One year, where the
holder is convicted of a violation of any subdivision of section eleven
hundred ninety-two of this article and is sentenced pursuant to subpara-
graph one of paragraph (d) of subdivision one of this section.
(4-a) School buses. (A) One year, where the holder is convicted of a
violation of any subdivision of section eleven hundred ninety-two of
this article, such violation was committed while the holder was driving
a school bus, and the holder is sentenced pursuant to subparagraph one,
one-a or four-a of paragraph (d) of subdivision one of this section.
(B) Three years where the holder is convicted of a violation of any
subdivision of section eleven hundred ninety-two of this article, such
violation was committed while the holder was driving a school bus, and
the holder is sentenced pursuant to subparagraph four of paragraph (d)
of subdivision one of this section.
(C) Notwithstanding the provisions of the opening paragraph of this
paragraph (b), the commissioner shall not revoke the registration of a
school bus driven in violation of section eleven hundred ninety-two of
this article.
(5) Commercial motor vehicles. (i) Except as otherwise provided in
this subparagraph, one year where the holder is convicted of a violation
of any subdivision of section eleven hundred ninety-two of this article,
such violation was committed while the holder was operating a commercial
motor vehicle and the holder is sentenced pursuant to subparagraph two
of paragraph (d) of subdivision one of this section.
(ii) Three years, where the holder is convicted of a violation of any
subdivision of section eleven hundred ninety-two of this article, such
violation was committed while the holder was operating a commercial
motor vehicle transporting hazardous materials and the holder is
sentenced pursuant to subparagraph two of paragraph (d) of subdivision
one of this section.
(6) Persons under the age of twenty-one. One year, where the holder is
convicted of or adjudicated a youthful offender for a violation of any
subdivision of section eleven hundred ninety-two of this article where
such person was under the age of twenty-one at the time of commission of
such violation.
(7) Persons under the age of twenty-one; prior offense or finding.
One year or until the holder reaches the age of twenty-one, whichever is
the greater period of time, where the holder has been found to have
operated a motor vehicle after having consumed alcohol in violation of
section eleven hundred ninety-two-a of this article, or is convicted of,
or adjudicated a youthful offender for, a violation of any subdivision
of section eleven hundred ninety-two of this article and has previously
been found to have operated a motor vehicle after having consumed alco-
hol in violation of section eleven hundred ninety-two-a of this article,
or has previously been convicted of, or adjudicated a youthful offender
for, any violation of section eleven hundred ninety-two of this article
not arising out of the same incident.
* (8) Out-of-state offenses. (i) Ninety days, where the holder is
convicted of an offense consisting of operating a motor vehicle under
the influence of intoxicating liquor where the conviction was had
outside this state and (ii) six months, where the holder is convicted
of, or receives a youthful offender or other juvenile adjudication,
which would have been a misdemeanor or felony if committed by an adult,
in connection with, an offense consisting of operating a motor vehicle
under the influence of or while impaired by the use of drugs where the
conviction or youthful offender or other juvenile adjudication was had
outside this state.
* NB Repealed 98/10/01
* (8) Out-of-state offenses. Ninety days, where the holder is
convicted of an offense consisting of operating a motor vehicle under
the influence of intoxicating liquor or drugs where the conviction was
had outside this state.
* NB Effective 98/10/01
(9) Effect of rehabilitation program. No period of revocation arising
out of subparagraph four, five, six or seven of this paragraph may be
set aside by the commissioner for the reason that such person was a
participant in the alcohol and drug rehabilitation program set forth in
section eleven hundred ninety-six of this chapter.
(10) Action required by commissioner. Where a court fails to impose,
or incorrectly imposes, a suspension or revocation required by this
subdivision, the commissioner shall, upon receipt of a certificate of
conviction filed pursuant to section five hundred fourteen of this chap-
ter, impose such mandated suspension or revocation, which shall super-
sede any such order which the court may have imposed.
(11) Limitation of certain mandatory revocations. Where revocation is
mandatory pursuant to subparagraph five of this paragraph for a
conviction of a violation of subdivision five of section eleven hundred
ninety-two of this article, such revocation shall be issued only by the
commissioner and shall be applicable only to that portion of the hold-
er`s driver`s license or privilege which permits the operation of
commercial motor vehicles, and the commissioner shall immediately issue
a license, other than a commercial driver`s license, to such person
provided that such person is otherwise eligible to receive such license
and further provided that issuing a license to such person does not
create a substantial traffic safety hazard.
* (c) Reissuance of licenses; restrictions.
(1) Except as otherwise provided in this paragraph, where a license is
revoked pursuant to paragraph (b) of this subdivision, no new license
shall be issued after the expiration of the minimum period specified in
such paragraph, except in the discretion of the commissioner.
(2) Where a license is revoked pursuant to subparagraph two, three or
eight of paragraph (b) of this subdivision for a violation of subdivi-
sion four of section eleven hundred ninety-two of this article, and
where the individual does not have a driver`s license or the individ-
ual`s license was suspended at the time of conviction or youthful offen-
der or other juvenile adjudication, the commissioner shall not issue a
new license nor restore the former license for a period of six months
after such individual would otherwise have become eligible to obtain a
new license or to have the former license restored; provided, however,
that during such delay period the commissioner may issue a restricted
use license pursuant to section five hundred thirty of this chapter.
(3) In no event shall a new license be issued where a person has been
twice convicted of a violation of subdivision three or four of section
eleven hundred ninety-two of this article or of driving while intoxicat-
ed or of driving while ability is impaired by the use of a drug where
physical injury, as defined in section 10.00 of the penal law, has
resulted from such offense in each instance.
* NB Repealed 98/10/01
* (c) Reissuance of licenses; restrictions. Where a license is revoked
pursuant to paragraph (b) of this subdivision, no new license shall be
issued after the expiration of the minimum period specified in such
paragraph, except in the discretion of the commissioner; provided,
however, that in no event shall a new license be issued where a person
has been twice convicted of a violation of subdivision three or four of
section eleven hundred ninety-two of this article or of driving while
intoxicated or of driving while ability is impaired by the use of a drug
where physical injury, as defined in section 10.00 of the penal law, has
resulted from such offense in each instance.
* NB Effective 98/10/01
(d) Suspension or revocation; sentencing. (1) Notwithstanding anything
to the contrary contained in a certificate of relief from disabilities
issued pursuant to article twenty-three of the correction law, where a
suspension or revocation, other than a revocation required to be issued
by the commissioner, is mandatory pursuant to paragraph (a) or (b) of
this subdivision, the magistrate, justice or judge shall issue an order
suspending or revoking such license upon sentencing, and the license
holder shall surrender such license to the court. Except as hereinafter
provided, such suspension or revocation shall take effect immediately.
(2) Except where the license holder has been charged with a violation
of article one hundred twenty or one hundred twenty-five of the penal
law arising out of the same incident or convicted of such violation or a
violation of any subdivision of section eleven hundred ninety-two of
this article within the preceding five years, the judge, justice or
magistrate may issue an order making said license suspension or revoca-
tion take effect twenty days after the date of sentencing. The license
holder shall be given a copy of said order permitting the continuation
of driving privileges for twenty days after sentencing, if granted by
the court. The court shall forward to the commissioner the certificates
required in sections five hundred thirteen and five hundred fourteen of
this chapter, along with a copy of any order issued pursuant to this
paragraph and the license, within ninety-six hours of sentencing.
(e) Special provisions. (1) Suspension pending prosecution; procedure.
a. Without notice, pending any prosecution, the court shall suspend such
license, where the holder has been charged with a violation of subdivi-
sion two, three or four of section eleven hundred ninety-two of this
article and either (i) a violation of a felony under article one hundred
twenty or one hundred twenty-five of the penal law arising out of the
same incident, or (ii) has been convicted of any violation under section
eleven hundred ninety-two of this article within the preceding five
years.
b. The suspension under the preceding clause shall occur no later than
twenty days after the holder`s first appearance before the court on the
charges or at the conclusion of all proceedings required for the
arraignment. In order for the court to impose such suspension it must
find that the accusatory instrument conforms to the requirements of
section 100.40 of the criminal procedure law and there exists reasonable
cause to believe that the holder operated a motor vehicle in violation
of subdivision two, three or four of section eleven hundred ninety-two
of this article and either (i) the person had been convicted of any
violation under such section eleven hundred ninety-two of this article
within the preceding five years; or (ii) that the holder committed a
violation of a felony under article one hundred twenty or one hundred
twenty-five of the penal law. At such time the holder shall be entitled
to an opportunity to make a statement regarding the enumerated issues
and to present evidence tending to rebut the court`s findings. Where
such suspension is imposed upon a pending charge of a violation of a
felony under article one hundred twenty or one hundred twenty-five of
the penal law and the holder has requested a hearing pursuant to article
one hundred eighty of the criminal procedure law, the court shall
conduct such hearing. If upon completion of the hearing, the court fails
to find that there is reasonable cause to believe that the holder
committed a felony under article one hundred twenty or one hundred twen-
ty-five of the penal law and the holder has not been previously
convicted of any violation of section eleven hundred ninety-two of this
article within the preceding five years the court shall promptly notify
the commissioner and direct restoration of such license to the license
holder unless such license is suspended or revoked pursuant to any other
provision of this chapter.
(2) Bail forfeiture. A license shall be suspended where the holder
forfeits bail upon a charge of a violation of any subdivision of section
eleven hundred ninety-two of this article. Such suspension shall not be
terminated until the holder submits to the jurisdiction of the court in
which the bail was forfeited.
(3) Permanent disqualification from operating certain motor vehicles.
a. Except as otherwise provided herein, in addition to any revocation
set forth in subparagraph four or five of paragraph (b) of this subdivi-
sion, any person sentenced pursuant to subparagraph three of paragraph
(d) of subdivision one of this section shall be permanently disqualified
from operating any vehicle set forth in such paragraph. In addition, the
commissioner shall not issue such person a license valid for the opera-
tion of any vehicle set forth therein by such person. The commissioner
may waive such disqualification and prohibition hereinbefore provided
after a period of five years has expired from such sentencing provided:
(i) that during such five year period such person has not violated any
of the provisions of section eleven hundred ninety-two of this article
or any alcohol or drug related traffic offense in this state or in any
jurisdiction outside this state;
(ii) that such person provides acceptable documentation to the commis-
sioner that such person is not in need of alcohol or drug treatment or
has satisfactorily completed a prescribed course of such treatment; and
(iii) after such documentation is accepted, that such person is grant-
ed a certificate of relief from disabilities as provided for in section
seven hundred one of the correction law by the court in which such
person was last penalized pursuant to paragraph (d) of subdivision one
of this section.
b. Any person convicted of a violation of any subdivision of section
eleven hundred ninety-two of this article while operating a commercial
motor vehicle who has had a prior finding of refusal to submit to a
chemical test pursuant to section eleven hundred ninety-four of this
article while operating a commercial motor vehicle or has had a prior
conviction of any of the following offenses while operating a commercial
motor vehicle: any violation of section eleven hundred ninety-two of
this article; any violation of subdivision two of section six hundred of
this chapter; or has a prior conviction of any felony involving the use
of a commercial motor vehicle pursuant to paragraph (a) of subdivision
one of section five hundred ten-a of this chapter, shall be permanently
disqualified from operating a commercial motor vehicle. The commissioner
may waive such disqualification and prohibition hereinbefore provided
after a period of ten years has expired from such sentence provided:
(i) that during such ten year period such person has not been found to
have refused a chemical test pursuant to section eleven hundred ninety-
four of this article while operating a commercial motor vehicle and has
not been convicted of any one of the following offenses while operating
a commercial motor vehicle: any violation of section eleven hundred
ninety-two of this article; any violation of subdivision two of section
six hundred of this chapter; or has a prior conviction of any felony
involving the use of a commercial motor vehicle pursuant to paragraph
(a) of subdivision one of section five hundred ten-a of this chapter;
(ii) that such person provides acceptable documentation to the commis-
sioner that such person is not in need of alcohol or drug treatment or
has satisfactorily completed a prescribed course of such treatment; and
(iii) after such documentation is accepted, that such person is grant-
ed a certificate of relief from disabilities as provided for in section
seven hundred one of the correction law by the court in which such
person was last penalized pursuant to paragraph (d) of subdivision one
of this section.
c. Upon a third finding of refusal and/or conviction of any of the
offenses which require a permanent commercial driver`s license revoca-
tion, such permanent revocation may not be waived by the commissioner
under any circumstances.
(4) Youthful offenders. Where a youth is determined to be a youthful
offender, following a conviction of a violation of section eleven
hundred ninety-two of this article for which a license suspension or
revocation is mandatory, the court shall impose such suspension or revo-
cation as is otherwise required upon conviction and, further, shall
notify the commissioner of said suspension or revocation and its finding
that said violator is granted youthful offender status as is required
pursuant to section five hundred thirteen of this chapter.
(5) Probation. When a license to operate a motor vehicle has been
revoked pursuant to this chapter, and the holder has been sentenced to a
period of probation pursuant to section 65.00 of the penal law for a
violation of any provision of this chapter, or any other provision of
the laws of this state, and a condition of such probation is that the
holder thereof not operate a motor vehicle or not apply for a license to
operate a motor vehicle during the period of such condition of
probation, the commissioner may not restore such license until the peri-
od of the condition of probation has expired.
(6) Application for new license. Where a license has been revoked
pursuant to paragraph (b) of this subdivision, or where the holder is
subject to a condition of probation as provided in subparagraph five of
this paragraph, application for a new license may be made within forty-
five days prior to the expiration of such minimum period of revocation
or condition of probation, whichever expires last.
* (7) Suspension pending prosecution; excessive blood alcohol content.
a. A court shall suspend a driver`s license, pending prosecution, of any
person charged with a violation of subdivision two or three of section
eleven hundred ninety-two of this article who, at the time of arrest, is
alleged to have had .10 of one percent or more by weight of alcohol in
such driver`s blood as shown by chemical analysis of blood, breath,
urine or saliva, made pursuant to subdivision two or three of section
eleven hundred ninety-four of this article.
b. The suspension occurring under this subparagraph shall occur no
later than at the conclusion of all proceedings required for the
arraignment; provided, however, that if the results of any test adminis-
tered pursuant to section eleven hundred ninety-four of this article are
not available within such time period, the complainant police officer or
other public servant shall transmit such results to the court at the
time they become available, and the court shall, as soon as practicable
following the receipt of such results and in compliance with the
requirements of this subparagraph, suspend such license. In order for
the court to impose such suspension it must find that the accusatory
instrument conforms to the requirements of section 100.40 of the crimi-
nal procedure law and there exists reasonable cause to believe that the
holder operated a motor vehicle while such holder had .10 of one percent
or more by weight of alcohol in his or her blood as was shown by chemi-
cal analysis of such person`s blood, breath, urine or saliva, made
pursuant to the provisions of section eleven hundred ninety-four of this
article. At the time of such license suspension the holder shall be
entitled to an opportunity to make a statement regarding these two
issues and to present evidence tending to rebut the court`s findings.
c. Nothing contained in this subparagraph shall be construed to
prohibit or limit a court from imposing any other suspension pending
prosecution required or permitted by law.
d. Notwithstanding any contrary provision of this chapter, if any
suspension occurring under this subparagraph has been in effect for a
period of thirty days, the holder may be issued a conditional license,
in accordance with section eleven hundred ninety-six of this article,
provided the holder of such license is otherwise eligible to receive
such conditional license. The commissioner shall prescribe by regulation
the procedures for the issuance of such conditional license.
e. If the court finds that the suspension imposed pursuant to this
subparagraph will result in extreme hardship, the court must issue such
suspension, but may grant a hardship privilege, which shall be issued on
a form prescribed by the commissioner. For the purposes of this clause,
"extreme hardship" shall mean the inability to obtain alternative means
of travel to or from the licensee`s employment, or to or from necessary
medical treatment for the licensee or a member of the licensee`s house-
hold, or if the licensee is a matriculating student enrolled in an
accredited school, college or university travel to or from such
licensee`s school, college or university if such travel is necessary for
the completion of the educational degree or certificate. The burden of
proving extreme hardship shall be on the licensee who may present mate-
rial and relevant evidence. A finding of extreme hardship may not be
based solely upon the testimony of the licensee. In no event shall
arraignment be adjourned or otherwise delayed more than three business
days solely for the purpose of allowing the licensee to present evidence
of extreme hardship. The court shall set forth upon the record, or
otherwise set forth in writing, the factual basis for such finding. The
hardship privilege shall permit the operation of a vehicle only for
travel to or from the licensee`s employment, or to or from necessary
medical treatment for the licensee or a member of the licensee`s house-
hold, or if the licensee is a matriculating student enrolled in an
accredited school, college or university travel to or from such
licensee`s school, college or university if such travel is necessary for
the completion of the educational degree or certificate.
* NB Repealed 00/11/01