New York Laws > Vehicle and Traffic > Alcohol And Drug-related Offenses And Procedures Applicable Thereto > 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.
    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.
    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 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;  provided,  however,  that  such
  conduct,  had  it  occurred  in  this  state,  would  have constituted a
  violation of any of the provisions of  this  section.  This  subdivision
  shall   only  apply  to  convictions  occurring  on  or  after  November
  twenty-ninth, nineteen hundred eighty-five.
    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) In any case wherein the charge  laid
  before  the  court alleges a violation of subdivision two, three or four
  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. 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.
    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. In every case where a person is
  charged with a violation of subdivision  two,  three  or  four  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 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; provided,
  however, that the failure to make such notation shall in no way affect a
  charge for a violation  of  subdivision  two,  three  or  four  of  this
  section.