New York Laws > Vehicle and Traffic > Alcohol And Drug-related Offenses And Procedures Applicable Thereto > Driving After Having Consumed Alcohol; Under Twenty-one; Procedure.


 
    § 1194-a. Driving  after  having  consumed  alcohol; under twenty-one;
  procedure. 1. Chemical test report and hearing.  (a) Whenever a chemical
  test of the breath, blood, urine or saliva of an operator who  is  under
  the  age  of  twenty-one indicates that such person has operated a motor
  vehicle in violation of section  eleven  hundred  ninety-two-a  of  this
  article,  and  such person is not charged with violating any subdivision
  of section eleven hundred ninety-two arising out of the  same  incident,
  the  police  officer who administered the test shall forward a report of
  the results of such test to the department within twenty-four  hours  of
  the  time  when such results are available in a manner prescribed by the
  commissioner, and the operator  shall  be  given  a  hearing  notice  as
  provided  in  subdivision  one-a  of  this  section,  to appear before a
  hearing officer in the county where the chemical test was  administered,
  or  in an adjoining county under such circumstances as prescribed by the
  commissioner, on a date to be established in accordance with a  schedule
  promulgated  by the commissioner. Such hearing shall occur within thirty
  days of, but not less than forty-eight hours from,  the  date  that  the
  chemical   test   was   administered,   provided,   however,  where  the
  commissioner determines, based upon the availability of hearing officers
  and the anticipated volume of hearings at a  particular  location,  that
  the  scheduling  of  such  hearing  within  thirty days would impair the
  timely scheduling or conducting  of  other  hearings  pursuant  to  this
  chapter,  such  hearing  shall be scheduled at the next hearing date for
  such particular location. When providing the operator with such  hearing
  notice,  the  police officer shall also give to the operator, and shall,
  prior to the commencement of the hearing,  provide  to  the  department,
  copies  of  the  following reports, documents and materials: any written
  report  or  document,  or  portion  thereof,   concerning   a   physical
  examination,  a scientific test or experiment, including the most recent
  record  of  inspection,  or  calibration  or  repair  of   machines   or
  instruments utilized to perform such scientific tests or experiments and
  the  certification  certificate,  if  any,  held  by the operator of the
  machine or instrument, which tests or examinations were made  by  or  at
  the  request or direction of a public servant engaged in law enforcement
  activity. The report of the police officer shall be verified  by  having
  the  report  sworn  to, or by affixing to such report a form notice that
  false statements made therein are punishable as a  class  A  misdemeanor
  pursuant  to  section  210.45  of  the  penal  law  and such form notice
  together  with  the  subscription  of  the  deponent  shall   constitute
  verification of the report.
    (b)  Every  person  under the age of twenty-one who is alleged to have
  operated a motor vehicle after having consumed alcohol as set  forth  in
  section  eleven  hundred  ninety-two-a  of  this article, and who is not
  charged  with  violating  any  subdivision  of  section  eleven  hundred
  ninety-two of this article arising out of the same incident, is entitled
  to  a hearing before a hearing officer in accordance with the provisions
  of this section. Unless otherwise provided by law, the license or permit
  to drive or any non-resident operating privilege of  such  person  shall
  not  be  suspended  or  revoked  prior  to  the  scheduled date for such
  hearing.
    (i) The hearing shall be limited to the following  issues:    (1)  did
  such person operate the motor vehicle; (2) was a valid request to submit
  to  a  chemical  test  made by the police officer in accordance with the
  provisions of section eleven hundred ninety-four of  this  article;  (3)
  was  such  person  less  than  twenty-one  years  of  age at the time of
  operation of the motor vehicle;  (4)  was  the  chemical  test  properly
  administered in accordance with the provisions of section eleven hundred
  ninety-four  of this article; (5) did the test find that such person had
  driven after having  consumed  alcohol  as  defined  in  section  eleven
  hundred  ninety-two-a  of  this  article; and (6) did the police officer
  make a lawful stop of such person. The burden of proof shall be  on  the
  police  officer  to  prove  each of these issues by clear and convincing
  evidence.
    (ii) Every person who is  entitled  to  a  hearing  pursuant  to  this
  subdivision  has the right to be present at the hearing; the right to be
  represented by attorney, or in the hearing officer's discretion, by  any
  other  person  the  operator  chooses;  the  right to receive and review
  discovery materials as provided in this subdivision; the  right  not  to
  testify;  the right to present evidence and witnesses in his own behalf,
  the right to cross examine adverse witnesses, and the  right  to  appeal
  from an adverse determination in accordance with article three-A of this
  chapter.  Any  person  representing  the  operator  must  conform to the
  standards of  conduct  required  of  attorneys  appearing  before  state
  courts,  and  failure  to conform to these standards will be grounds for
  declining to permit his continued appearance in the hearing.
    (iii) Hearings conducted pursuant to  this  subdivision  shall  be  in
  accordance  with  this subdivision and with the provisions applicable to
  the adjudication  of  traffic  infractions  pursuant  to  the  following
  provisions  of  part  124  of  title  fifteen  of  the  codes, rules and
  regulations of the state of New York: paragraph  (b)  of  section  124.1
  regarding   the  opening  statement;  paragraph  (b)  of  section  124.2
  regarding  the  right  to  representation  and  to  remain  silent   and
  paragraphs (a) through (e) of section 124.4 regarding the conduct of the
  hearing,   procedure   and  recusal;  provided,  however,  that  nothing
  contained in this subparagraph shall be deemed  to  preclude  a  hearing
  officer  from changing the order of a hearing conducted pursuant to this
  subdivision as justice may require and for good cause shown.
    (iv) The rules governing receipt of evidence in a court of  law  shall
  not  apply in a hearing conducted pursuant to this subdivision except as
  follows:
    (1) on the merits of the charge, and whether or not a  party  objects,
  the  hearing  officer  shall exclude from consideration the following: a
  privileged communication; evidence which,  for  constitutional  reasons,
  would not be admissible in a court of law; evidence of prior misconduct,
  incompetency  or illness, except where such evidence would be admissible
  in a court of law; evidence which is irrelevant or immaterial;
    (2)  no  negative  inference  shall  be  drawn  from  the   operator's
  exercising the right not to testify.
    (v)  If,  after such hearing, the hearing officer, acting on behalf of
  the commissioner, finds all of the issues set forth in this  subdivision
  in  the  affirmative,  the  hearing  officer shall suspend or revoke the
  license or permit to drive or non-resident operating privilege  of  such
  person  in accordance with the time periods set forth in subdivision two
  of section eleven hundred ninety-three of this article. If,  after  such
  hearing,  the  hearing  officer,  acting  on behalf of the commissioner,
  finds any of said issues in the negative, the hearing officer must  find
  that the operator did not drive after having consumed alcohol.
    (vi) A person who has had a license or permit to drive or non-resident
  operating  privilege  suspended or revoked pursuant to the provisions of
  this section may appeal the finding of the hearing officer in accordance
  with the provisions of article three-A of this chapter.
    (c) Unless an adjournment of the hearing date has been  granted,  upon
  the   operator's   failure  to  appear  for  a  scheduled  hearing,  the
  commissioner  shall  suspend  the  license  or  permit   to   drive   or
  non-resident  operating  privilege  until  the  operator  petitions  the
  commissioner and a rescheduled hearing is conducted, provided,  however,
  the  commissioner shall restore such person's license or permit to drive
  or non-resident operating  privilege  if  such  rescheduled  hearing  is
  adjourned  at  the request of a person other than the operator. Requests
  for  adjournments  shall  be  made  and  determined  in  accordance with
  regulations promulgated by the commissioner. If such a  request  by  the
  operator  for  an  adjournment is granted, the commissioner shall notify
  the operator of the rescheduled hearing, which shall  be  scheduled  for
  the next hearing date. If a second or subsequent request by the operator
  for an adjournment is granted, the operator's license or permit to drive
  or non-resident operating privilege may be suspended pending the hearing
  at  the  time  such  adjournment is granted; provided, however, that the
  records of the department or the  evidence  already  admitted  furnishes
  reasonable  grounds  to  believe such suspension is necessary to prevent
  continuing violations  or  a  substantial  traffic  safety  hazard;  and
  provided  further,  that  such  hearing  shall be scheduled for the next
  hearing date.
    If a police officer does not appear for a hearing, the hearing officer
  shall have the authority to dismiss the charge. Any person may waive the
  right to a  hearing  under  this  subdivision,  in  a  form  and  manner
  prescribed  by the commissioner, and may enter an admission of guilt, in
  person or by mail, to  the  charge  of  operating  a  motor  vehicle  in
  violation  of  section eleven hundred ninety-two-a of this article. Such
  admission of guilt shall have the same force and effect as a finding  of
  guilt   entered   following   a   hearing  conducted  pursuant  to  this
  subdivision.
    1-a. Hearing notice. The hearing notice issued to an operator pursuant
  to subdivision one of this section shall be in a form as  prescribed  by
  the  commissioner.  In addition to containing information concerning the
  time, date and location of the hearing, and such  other  information  as
  the  commissioner  deems  appropriate,  such  hearing  notice shall also
  contain the following information: the  date,  time  and  place  of  the
  offense  charged;  the  procedures  for  requesting  an adjournment of a
  scheduled hearing as provided in this section, the operator's right to a
  hearing conducted pursuant to this section and the right to  waive  such
  hearing  and  plead  guilty, either in person or by mail, to the offense
  charged.
    2. Civil penalty. Unless otherwise provided, any person whose license,
  permit to drive, or any non-resident operating privilege is suspended or
  revoked pursuant to the provisions of this section shall also be  liable
  for  a  civil  penalty in the amount of one hundred twenty-five dollars,
  which  shall  be  distributed  in  accordance  with  the  provisions  of
  subdivision nine of section eighteen hundred three of this chapter.
    3.  Refusal  report  and  hearing.  (a)  Any  person  under the age of
  twenty-one who is suspected of operating a motor  vehicle  after  having
  consumed  alcohol in violation of section eleven hundred ninety-two-a of
  this chapter, and who is not charged with violating any  subdivision  of
  section  eleven  hundred  ninety-two  of this article arising out of the
  same incident, and who has been requested to submit to a  chemical  test
  pursuant  to  paragraph (a) of subdivision two of section eleven hundred
  ninety-four of this article and after  having  been  informed  that  his
  license  or  permit  to  drive  and any non-resident operating privilege
  shall be revoked for refusal to submit to  such  chemical  test  or  any
  portion  thereof,  whether  or  not  there is a finding of driving after
  having consumed alcohol, and such  person  refuses  to  submit  to  such
  chemical  test or any portion thereof, shall be entitled to a hearing in
  accordance with a schedule promulgated by  the  commissioner,  and  such
  hearing shall occur within thirty days of, but not less than forty-eight
  hours  from,  the  date  of  such  refusal, provided, however, where the
  commissioner determines, based upon the availability of hearing officers
  and the anticipated volume of hearings at a  particular  location,  that
  the  scheduling  of  such  hearing  within  thirty days would impair the
  timely  scheduling  or  conducting  of  other  hearings pursuant to this
  chapter, such hearing shall be scheduled at the next  hearing  date  for
  such particular location.
    (b)  Unless  an adjournment of the hearing date has been granted, upon
  the  operator's  failure  to  appear  for  a  scheduled   hearing,   the
  commissioner   shall   suspend   the  license  or  permit  to  drive  or
  non-resident  operating  privilege  until  the  operator  petitions  the
  commissioner  and a rescheduled hearing is conducted, provided, however,
  the commissioner shall restore such person's license or permit to  drive
  or  non-resident  operating  privilege  if  such  rescheduled hearing is
  adjourned at the request of a person other than the  operator.  Requests
  for  adjournments  shall  be  made  and  determined  in  accordance with
  regulations promulgated by the commissioner. If such a  request  by  the
  operator  for  an  adjournment is granted, the commissioner shall notify
  the operator of the rescheduled hearing, which shall  be  scheduled  for
  the next hearing date. If a second or subsequent request by the operator
  for an adjournment is granted, the operator's license or permit to drive
  or non-resident operating privilege may be suspended pending the hearing
  at  the  time  such  adjournment is granted; provided, however, that the
  records of the department or the  evidence  already  admitted  furnishes
  reasonable  grounds  to  believe such suspension is necessary to prevent
  continuing violations  or  a  substantial  traffic  safety  hazard;  and
  provided  further,  that  such  hearing  shall be scheduled for the next
  hearing date.
    If a police officer does not appear for a hearing, the hearing officer
  shall have the authority to dismiss the charge. Any person may waive the
  right to a hearing under this subdivision.
    (c) The hearing on the refusal to submit to a chemical  test  pursuant
  to  this subdivision shall be limited to the following issues: (1) was a
  valid request to submit to a chemical test made by the police officer in
  accordance with the provisions of section eleven hundred ninety-four  of
  this  article; (2) was such person given sufficient warning, in clear or
  unequivocal language, prior to such refusal that such refusal to  submit
  to  such  chemical  test  or  any  portion  thereof, would result in the
  revocation of such person's license or permit to  drive  or  nonresident
  operating  privilege,  whether  or  not  such  person  is  found to have
  operated a motor vehicle after having consumed  alcohol;  (3)  did  such
  person  refuse  to  submit to such chemical test or any portion thereof;
  (4) did such person operate the motor vehicle; (5) was such person  less
  than  twenty-one  years  of  age  at  the time of operation of the motor
  vehicle; (6) did the police officer make a lawful stop of  such  person.
  If,  after  such  hearing,  the hearing officer, acting on behalf of the
  commissioner, finds on any one said issue in the negative,  the  hearing
  officer  shall  not  revoke the operator's license or permit to drive or
  non-resident operating privilege and  shall  immediately  terminate  any
  outstanding  suspension  of  the  operator's license, permit to drive or
  non-resident operating privilege arising from such refusal.   If,  after
  such hearing, the hearing officer, acting on behalf of the commissioner,
  finds  all  of the issues in the affirmative, such hearing officer shall
  immediately revoke the license or permit to drive  or  any  non-resident
  operating  privilege  in accordance with the provisions of paragraph (d)
  of subdivision  two  of  section  eleven  hundred  ninety-four  of  this
  article.  A  person  who  has  had  a  license  or  permit  to  drive or
  non-resident operating privilege suspended or revoked  pursuant  to  the
  provisions  of  this  section  may  appeal  the  findings of the hearing
  officer in accordance with the provisions of  article  three-A  of  this
  chapter.