2013 New York Consolidated Laws
VAT - Vehicle & Traffic
Title 7 - RULES OF THE ROAD
Article 31 - (1192 - 1199) ALCOHOL AND DRUG-RELATED OFFENSES AND PROCEDURES APPLICABLE THERETO
1192 - Operating a motor vehicle while under the influence of alcohol or drugs.

 
    § 1192. Operating a motor vehicle while under the influence of alcohol
  or  drugs.  1. Driving while ability impaired. No person shall operate a
  motor vehicle while the person's ability to operate such  motor  vehicle
  is impaired by the consumption of alcohol.
    2.  Driving while intoxicated; per se. No person shall operate a motor
  vehicle while such person has .08 of one per centum or more by weight of
  alcohol in the person's blood as shown  by  chemical  analysis  of  such
  person's blood, breath, urine or saliva, made pursuant to the provisions
  of section eleven hundred ninety-four of this article.
    2-a. Aggravated driving while intoxicated. (a) Per se. No person shall
  operate  a  motor vehicle while such person has .18 of one per centum or
  more by weight of alcohol in such person's blood as  shown  by  chemical
  analysis  of  such person's blood, breath, urine or saliva made pursuant
  to the provisions of section eleven hundred ninety-four of this article.
    (b) With a child. No person shall operate a motor vehicle in violation
  of subdivision two, three, four or four-a of this section while a  child
  who  is  fifteen  years  of  age  or  less  is a passenger in such motor
  vehicle.
    3. Driving while intoxicated. No person shall operate a motor  vehicle
  while in an intoxicated condition.
    4.  Driving while ability impaired by drugs. No person shall operate a
  motor vehicle while the person's ability to operate such a motor vehicle
  is impaired by the use of a drug as defined in this chapter.
    4-a. Driving while ability impaired by the combined influence of drugs
  or of alcohol and any drug or drugs. No person  shall  operate  a  motor
  vehicle  while  the  person's  ability  to operate such motor vehicle is
  impaired by the combined influence of drugs or of alcohol and  any  drug
  or drugs.
    5.  Commercial  motor  vehicles: per se - level I. Notwithstanding the
  provisions of section eleven hundred ninety-five  of  this  article,  no
  person  shall  operate  a commercial motor vehicle while such person has
  .04 of one per centum or more but not more than .06 of one per centum by
  weight of alcohol in the person's blood as shown by chemical analysis of
  such person's blood, breath, urine  or  saliva,  made  pursuant  to  the
  provisions  of  section  eleven  hundred  ninety-four  of  this article;
  provided, however, nothing contained in this subdivision shall  prohibit
  the  imposition  of  a  charge of a violation of subdivision one of this
  section, or of section eleven hundred ninety-two-a of this article where
  a person under the age of twenty-one operates a commercial motor vehicle
  where a chemical analysis of such  person's  blood,  breath,  urine,  or
  saliva,  made  pursuant  to  the  provisions  of  section eleven hundred
  ninety-four of this article, indicates that such operator has .02 of one
  per centum or more but less than .04 of one  per  centum  by  weight  of
  alcohol in such operator's blood.
    6.  Commercial  motor vehicles; per se - level II. Notwithstanding the
  provisions of section eleven hundred ninety-five  of  this  article,  no
  person  shall  operate  a commercial motor vehicle while such person has
  more than .06 of one per centum but less than .08 of one per  centum  by
  weight of alcohol in the person's blood as shown by chemical analysis of
  such  person's  blood,  breath,  urine  or  saliva, made pursuant to the
  provisions of  section  eleven  hundred  ninety-four  of  this  article;
  provided,  however, nothing contained in this subdivision shall prohibit
  the imposition of a charge of a violation of  subdivision  one  of  this
  section.
    7.  Where  applicable. The provisions of this section shall apply upon
  public highways, private roads open to motor  vehicle  traffic  and  any
  other  parking lot. For the purposes of this section "parking lot" shall
  mean any area or areas of private property, including a  driveway,  near

  or  contiguous to and provided in connection with premises and used as a
  means of access to and egress from a public highway to such premises and
  having a capacity for the parking of four or more  motor  vehicles.  The
  provisions  of  this  section  shall  not  apply to any area or areas of
  private property comprising all or part of property on which is situated
  a one or two family residence.
    8. Effect of  prior  out-of-state  conviction.  A  prior  out-of-state
  conviction  for  operating  a motor vehicle while under the influence of
  alcohol or drugs shall be deemed to be a prior conviction of a violation
  of this section for purposes of determining penalties imposed under this
  section or for purposes of any  administrative  action  required  to  be
  taken pursuant to subdivision two of section eleven hundred ninety-three
  of  this  article; provided, however, that such conduct, had it occurred
  in this state, would have constituted a misdemeanor or felony  violation
  of  any  of  the  provisions of this section. Provided, however, that if
  such conduct, had it occurred in this state, would  have  constituted  a
  violation of any provisions of this section which are not misdemeanor or
  felony  offenses,  then  such  conduct  shall  be  deemed  to be a prior
  conviction of a  violation  of  subdivision  one  of  this  section  for
  purposes  of  determining  penalties  imposed  under this section or for
  purposes of any administrative action required to be taken  pursuant  to
  subdivision two of section eleven hundred ninety-three of this article.
    8-a.  Effect  of  prior  finding  of  having consumed alcohol. A prior
  finding that a person under the age of twenty-one has operated  a  motor
  vehicle after having consumed alcohol pursuant to section eleven hundred
  ninety-four-a  of  this  article  shall  have the same effect as a prior
  conviction of a violation of subdivision one of this section solely  for
  the  purpose  of  determining  the  length  of any license suspension or
  revocation required to be imposed under any provision of  this  article,
  provided   that  the  subsequent  offense  is  committed  prior  to  the
  expiration of the retention period for such prior  offense  or  offenses
  set forth in paragraph (k) of subdivision one of section two hundred one
  of this chapter.
    9.  Conviction  of  a different charge. A driver may be convicted of a
  violation  of  subdivision  one,  two  or   three   of   this   section,
  notwithstanding  that  the  charge  laid  before  the  court  alleged  a
  violation of subdivision two or three of this section, and regardless of
  whether or not such conviction is based on a plea of guilty.
    10. Plea bargain limitations.  (a) (i) In any case wherein the  charge
  laid  before  the  court  alleges a violation of subdivision two, three,
  four or four-a of this section, any plea of guilty thereafter entered in
  satisfaction of such charge must include at least a plea  of  guilty  to
  the  violation  of  the  provisions  of  one of the subdivisions of this
  section, other than subdivision five or six, and no other disposition by
  plea of guilty to any other charge in satisfaction of such charge  shall
  be  authorized;  provided,  however,  if  the  district  attorney,  upon
  reviewing the available  evidence,  determines  that  the  charge  of  a
  violation  of  this section is not warranted, such district attorney may
  consent, and the court may allow a disposition  by  plea  of  guilty  to
  another charge in satisfaction of such charge; provided, however, in all
  such cases, the court shall set forth upon the record the basis for such
  disposition.
    (ii)  In  any  case wherein the charge laid before the court alleges a
  violation of subdivision two, three, four or four-a of this section,  no
  plea  of  guilty to subdivision one of this section shall be accepted by
  the  court  unless  such  plea  includes  as  a  condition  thereof  the
  requirement  that the defendant attend and complete the alcohol and drug
  rehabilitation program established pursuant to  section  eleven  hundred

  ninety-six  of  this  article,  including  any  assessment and treatment
  required thereby; provided, however, that such requirement may be waived
  by the court upon application of the district attorney or the  defendant
  demonstrating  that  the defendant, as a condition of the plea, has been
  required to enter into and complete an alcohol or drug treatment program
  prescribed pursuant to  an  alcohol  or  substance  abuse  screening  or
  assessment  conducted  pursuant to section eleven hundred ninety-eight-a
  of this article or for other good cause shown. The  provisions  of  this
  subparagraph  shall  apply, notwithstanding any bars to participation in
  the alcohol and drug rehabilitation program set forth in section  eleven
  hundred  ninety-six  of this article; provided, however, that nothing in
  this paragraph shall authorize the issuance  of  a  conditional  license
  unless otherwise authorized by law.
    (iii)  In  any case wherein the charge laid before the court alleges a
  violation of subdivision one of this section and the operator was  under
  the  age of twenty-one at the time of such violation, any plea of guilty
  thereafter entered in satisfaction of such charge must include at  least
  a  plea  of  guilty  to  the  violation  of  such subdivision; provided,
  however, such charge may instead be satisfied as provided  in  paragraph
  (c)  of  this  subdivision,  and, provided further that, if the district
  attorney, upon reviewing the available  evidence,  determines  that  the
  charge  of  a  violation  of  subdivision  one  of  this  section is not
  warranted, such district attorney may consent, and the court may allow a
  disposition by plea of guilty to another charge in satisfaction of  such
  charge;  provided, however, in all such cases, the court shall set forth
  upon the record the basis for such disposition.
    (b) In any case wherein the charge laid before  the  court  alleges  a
  violation  of  subdivision  one or six of this section while operating a
  commercial motor vehicle, any  plea  of  guilty  thereafter  entered  in
  satisfaction  of  such  charge must include at least a plea of guilty to
  the violation of the provisions of  one  of  the  subdivisions  of  this
  section  and  no other disposition by plea of guilty to any other charge
  in satisfaction of such charge shall be authorized;  provided,  however,
  if   the   district  attorney  upon  reviewing  the  available  evidence
  determines that the charge  of  a  violation  of  this  section  is  not
  warranted,  he  may  consent,  and the court may allow, a disposition by
  plea of guilty to another charge is satisfaction of such charge.
    (c) Except as provided in paragraph (b) of this  subdivision,  in  any
  case  wherein  the  charge  laid before the court alleges a violation of
  subdivision one of this section by a person who was  under  the  age  of
  twenty-one at the time of commission of the offense, the court, with the
  consent  of  both  parties, may allow the satisfaction of such charge by
  the defendant's agreement to be subject to action  by  the  commissioner
  pursuant to section eleven hundred ninety-four-a of this article. In any
  such  case,  the  defendant  shall  waive  the  right to a hearing under
  section eleven hundred ninety-four-a of this  article  and  such  waiver
  shall  have  the  same  force  and effect as a finding of a violation of
  section eleven hundred ninety-two-a of  this  article  entered  after  a
  hearing conducted pursuant to such section eleven hundred ninety-four-a.
  The  defendant  shall  execute  such  waiver  in  open  court,  and,  if
  represented by counsel, in the presence of his attorney, on a form to be
  provided by the commissioner, which shall be forwarded by the  court  to
  the  commissioner within ninety-six hours. To be valid, such form shall,
  at a minimum,  contain  clear  and  conspicuous  language  advising  the
  defendant that a duly executed waiver: (i) has the same force and effect
  as  a  guilty  finding  following  a  hearing pursuant to section eleven
  hundred ninety-four-a of this article; (ii) shall subject the  defendant
  to  the  imposition of sanctions pursuant to such section eleven hundred

  ninety-four-a;  and  (iii)  may  subject  the  defendant  to   increased
  sanctions  upon a subsequent violation of this section or section eleven
  hundred ninety-two-a of this article. Upon receipt of  a  duly  executed
  waiver  pursuant  to  this  paragraph,  the commissioner shall take such
  administrative action and impose such sanctions as may  be  required  by
  section eleven hundred ninety-four-a of this article.
    (d)  In  any  case  wherein the charge laid before the court alleges a
  violation of subdivision two-a of  this  section,  any  plea  of  guilty
  thereafter  entered in satisfaction of such charge must include at least
  a plea of guilty to the violation of the provisions of subdivision  two,
  two-a  or  three  of  this  section, and no other disposition by plea of
  guilty to any other charge in  satisfaction  of  such  charge  shall  be
  authorized;  provided, however, if the district attorney, upon reviewing
  the available evidence, determines that the charge  of  a  violation  of
  this  section  is  not warranted, such district attorney may consent and
  the court may allow a disposition by plea of guilty to another charge in
  satisfaction of such charge, provided, however, in all such  cases,  the
  court  shall  set  forth upon the record the basis for such disposition.
  Provided, further, however, that no such plea shall be accepted  by  the
  court  unless  such plea includes as a condition thereof the requirement
  that  the  defendant  attend  and  complete   the   alcohol   and   drug
  rehabilitation  program  established  pursuant to section eleven hundred
  ninety-six of this  article,  including  any  assessment  and  treatment
  required thereby; provided, however, that such requirement may be waived
  by  the court upon application of the district attorney or the defendant
  demonstrating that the defendant, as a condition of the plea,  has  been
  required to enter into and complete an alcohol or drug treatment program
  prescribed  pursuant  to  an  alcohol  or  substance  abuse screening or
  assessment conducted pursuant to section eleven  hundred  ninety-eight-a
  of  this  article  or for other good cause shown. The provisions of this
  paragraph shall apply, notwithstanding any bars to participation in  the
  alcohol  and  drug  rehabilitation  program  set forth in section eleven
  hundred ninety-six of this article; provided, however, that  nothing  in
  this  paragraph  shall  authorize  the issuance of a conditional license
  unless otherwise authorized by law.
    11. No person other than an operator of a commercial motor vehicle may
  be charged with or convicted of a violation of subdivision five  or  six
  of this section.
    12.   Driving   while   intoxicated   or  while  ability  impaired  by
  drugs--serious physical injury or death or child in the vehicle. (a)  In
  every  case  where  a  person is charged with a violation of subdivision
  two, two-a, three, four or four-a of this section, the  law  enforcement
  officer  alleging  such  charge  shall  make  a  clear  notation  in the
  "Description of Violation" section of a simplified  traffic  information
  (i)  if, arising out of the same incident, someone other than the person
  charged was killed or suffered serious physical  injury  as  defined  in
  section  10.00 of the penal law; such notation shall be in the form of a
  "D" if someone other  than  the  person  charged  was  killed  and  such
  notation  shall  be  in the form of a "S.P.I." if someone other than the
  person charged suffered serious physical injury; and  (ii)  if  a  child
  aged  fifteen  years  or  less  was present in the vehicle of the person
  charged with a violation of  subdivision  two,  two-a,  three,  four  or
  four-a  of this section; such notation shall be in the form of "C.I.V.".
  Provided, however, that the failure to make such notations shall  in  no
  way  affect  a  charge for a violation of subdivision two, two-a, three,
  four or four-a of this section.
    (b) Where a law enforcement officer alleges a violation  of  paragraph
  (b) of subdivision two-a of this section and the operator of the vehicle

  is  a  parent,  guardian,  or  custodian  of,  or  other  person legally
  responsible for, a child aged fifteen years or less who is  a  passenger
  in  such  vehicle, then the officer shall report or cause a report to be
  made,  if applicable, in accordance with title six of article six of the
  social services law.