New York Article 31 Sec 1192

New York Article 31, Section 1192

S 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

sub-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.

(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

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.

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