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.