STATE OF NEW YORK ________________________________________________________________________ 6608 2023-2024 Regular Sessions IN SENATE April 28, 2023 ___________ Introduced by Sen. PALUMBO -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, the vehicle and traffic law and the crim- inal procedure law, in relation to arrest, prosecution, sentencing and penalties for offenses involving vehicular assault, manslaughter and homicide and operating a vehicle under the influence of drugs or alco- hol The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as "Andrew's law". 2 § 2. Subdivision 1 of section 70.02 of the penal law, as separately 3 amended by chapters 764 and 765 of the laws of 2005, paragraph (a) as 4 amended by chapter 189 of the laws of 2018, paragraph (b) as amended by 5 chapter 94 of the laws of 2020, paragraph (c) as amended by chapter 134 6 of the laws of 2019, and paragraph (d) as amended by chapter 7 of the 7 laws of 2007, is amended to read as follows: 8 1. Definition of a violent felony offense. A violent felony offense is 9 a class B violent felony offense, a class C violent felony offense, a 10 class D violent felony offense, or a class E violent felony offense, 11 defined as follows: 12 (a) Class B violent felony offenses: an attempt to commit the class 13 A-I felonies of murder in the second degree as defined in section 14 125.25, kidnapping in the first degree as defined in section 135.25, and 15 arson in the first degree as defined in section 150.20; aggravated 16 vehicular homicide as defined in section 125.14, manslaughter in the 17 first degree as defined in section 125.20, aggravated manslaughter in 18 the first degree as defined in section 125.22, rape in the first degree 19 as defined in section 130.35, criminal sexual act in the first degree as 20 defined in section 130.50, aggravated sexual abuse in the first degree 21 as defined in section 130.70, course of sexual conduct against a child 22 in the first degree as defined in section 130.75; assault in the first EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11071-01-3
S. 6608 2 1 degree as defined in section 120.10, kidnapping in the second degree as 2 defined in section 135.20, burglary in the first degree as defined in 3 section 140.30, arson in the second degree as defined in section 150.15, 4 robbery in the first degree as defined in section 160.15, sex traffick- 5 ing as defined in paragraphs (a) and (b) of subdivision five of section 6 230.34, sex trafficking of a child as defined in section 230.34-a, 7 incest in the first degree as defined in section 255.27, criminal 8 possession of a weapon in the first degree as defined in section 265.04, 9 criminal use of a firearm in the first degree as defined in section 10 265.09, criminal sale of a firearm in the first degree as defined in 11 section 265.13, aggravated assault upon a police officer or a peace 12 officer as defined in section 120.11, gang assault in the first degree 13 as defined in section 120.07, intimidating a victim or witness in the 14 first degree as defined in section 215.17, hindering prosecution of 15 terrorism in the first degree as defined in section 490.35, criminal 16 possession of a chemical weapon or biological weapon in the second 17 degree as defined in section 490.40, and criminal use of a chemical 18 weapon or biological weapon in the third degree as defined in section 19 490.47. 20 (b) Class C violent felony offenses: an attempt to commit any of the 21 class B felonies set forth in paragraph (a) of this subdivision; aggra- 22 vated criminally negligent homicide as defined in section 125.11, vehic- 23 ular manslaughter in the first degree as defined in section 125.13, 24 aggravated manslaughter in the second degree as defined in section 25 125.21, aggravated sexual abuse in the second degree as defined in 26 section 130.67, aggravated vehicular assault as defined in section 27 120.04-a, assault on a peace officer, police officer, firefighter or 28 emergency medical services professional as defined in section 120.08, 29 assault on a judge as defined in section 120.09, gang assault in the 30 second degree as defined in section 120.06, strangulation in the first 31 degree as defined in section 121.13, aggravated strangulation as defined 32 in section 121.13-a, burglary in the second degree as defined in section 33 140.25, robbery in the second degree as defined in section 160.10, crim- 34 inal possession of a weapon in the second degree as defined in section 35 265.03, criminal use of a firearm in the second degree as defined in 36 section 265.08, criminal sale of a firearm in the second degree as 37 defined in section 265.12, criminal sale of a firearm with the aid of a 38 minor as defined in section 265.14, aggravated criminal possession of a 39 weapon as defined in section 265.19, soliciting or providing support for 40 an act of terrorism in the first degree as defined in section 490.15, 41 hindering prosecution of terrorism in the second degree as defined in 42 section 490.30, and criminal possession of a chemical weapon or biolog- 43 ical weapon in the third degree as defined in section 490.37. 44 (c) Class D violent felony offenses: an attempt to commit any of the 45 class C felonies set forth in paragraph (b) of this subdivision; reck- 46 less assault of a child as defined in section 120.02, vehicular assault 47 in the first degree as defined in section 120.04, assault in the second 48 degree as defined in section 120.05, menacing a police officer or peace 49 officer as defined in section 120.18, stalking in the first degree[,] as 50 defined in subdivision one of section 120.60, strangulation in the 51 second degree as defined in section 121.12, vehicular manslaughter in 52 the second degree as defined in section 125.12, rape in the second 53 degree as defined in section 130.30, criminal sexual act in the second 54 degree as defined in section 130.45, sexual abuse in the first degree as 55 defined in section 130.65, course of sexual conduct against a child in 56 the second degree as defined in section 130.80, aggravated sexual abuse
S. 6608 3 1 in the third degree as defined in section 130.66, facilitating a sex 2 offense with a controlled substance as defined in section 130.90, labor 3 trafficking as defined in paragraphs (a) and (b) of subdivision three of 4 section 135.35, criminal possession of a weapon in the third degree as 5 defined in subdivision five, six, seven, eight, nine or ten of section 6 265.02, criminal sale of a firearm in the third degree as defined in 7 section 265.11, intimidating a victim or witness in the second degree as 8 defined in section 215.16, soliciting or providing support for an act of 9 terrorism in the second degree as defined in section 490.10, and making 10 a terroristic threat as defined in section 490.20, falsely reporting an 11 incident in the first degree as defined in section 240.60, placing a 12 false bomb or hazardous substance in the first degree as defined in 13 section 240.62, placing a false bomb or hazardous substance in a sports 14 stadium or arena, mass transportation facility or enclosed shopping mall 15 as defined in section 240.63, aggravated unpermitted use of indoor pyro- 16 technics in the first degree as defined in section 405.18, and criminal 17 manufacture, sale, or transport of an undetectable firearm, rifle or 18 shotgun as defined in section 265.50. 19 (d) Class E violent felony offenses: an attempt to commit any of the 20 felonies of criminal possession of a weapon in the third degree as 21 defined in subdivision five, six, seven or eight of section 265.02 as a 22 lesser included offense of that section as defined in section 220.20 of 23 the criminal procedure law, vehicular assault in the second degree as 24 defined in section 120.03, persistent sexual abuse as defined in section 25 130.53, aggravated sexual abuse in the fourth degree as defined in 26 section 130.65-a, falsely reporting an incident in the second degree as 27 defined in section 240.55 and placing a false bomb or hazardous 28 substance in the second degree as defined in section 240.61. 29 § 3. Subdivision 2 of section 70.25 of the penal law, as amended by 30 chapter 56 of the laws of 1984, is amended to read as follows: 31 2. (a) When more than one sentence of imprisonment is imposed on a 32 person for two or more offenses committed through a single act or omis- 33 sion, or through an act or omission which in itself constituted one of 34 the offenses and also was a material element of the other, the 35 sentences, except if one or more of such sentences is for a violation of 36 section 270.20 of this chapter, must run concurrently. 37 (b) Notwithstanding paragraph (a) of this subdivision, the court may 38 impose consecutive sentences where: (i) more than one sentence of impri- 39 sonment is imposed on a person for two or more counts of section 120.03, 40 120.04, 120.04-a, subdivisions three and four of section 120.05, 120.10, 41 120.11, 125.10, 125.11, 125.12, 125.13, 125.14, 125.15, 125.20, 125.21, 42 125.22, 125.25; and (ii) such multiple counts were charged based upon 43 multiple victims suffering physical injury, serious physical injury or 44 death as a result of a single act or omission of the defendant. 45 § 4. Paragraph (a) of subdivision 2 of section 1194 of the vehicle and 46 traffic law, as amended by chapter 196 of the laws of 1996, is amended 47 to read as follows: 48 (a) When authorized. Any person who operates a motor vehicle in this 49 state shall be deemed to have given consent to a chemical test of one or 50 more of the following: breath, blood, urine, or saliva, for the purpose 51 of determining the alcoholic and/or drug content of the blood provided 52 that such test is administered by or at the direction of a police offi- 53 cer with respect to a chemical test of breath, urine or saliva or, with 54 respect to a chemical test of blood, at the direction of a police offi- 55 cer:
S. 6608 4 1 (1) having reasonable grounds to believe such person to have been 2 operating in violation of any subdivision of section eleven hundred 3 ninety-two of this article and within two hours after such person has 4 been placed under arrest for any such violation; or having reasonable 5 grounds to believe such person to have been operating in violation of 6 section eleven hundred ninety-two-a of this article and within two hours 7 after the stop of such person for any such violation[,]; 8 (2) [within two hours after a breath test, as provided in paragraph 9 (b) of subdivision one of this section, indicates that alcohol has been 10 consumed by such person and in accordance with the rules and regulations 11 established by the police force of which the officer is a member; 12 (3)] for the purposes of this paragraph, "reasonable grounds" to 13 believe that a person has been operating a motor vehicle after having 14 consumed alcohol in violation of section eleven hundred ninety-two-a of 15 this article shall be determined by viewing the totality of circum- 16 stances surrounding the incident which, when taken together, indicate 17 that the operator was driving in violation of such subdivision. Such 18 circumstances may include any visible or behavioral indication of alco- 19 hol consumption by the operator, the existence of an open container 20 containing or having contained an alcoholic beverage in or around the 21 vehicle driven by the operator, or any other evidence surrounding the 22 circumstances of the incident which indicates that the operator has been 23 operating a motor vehicle after having consumed alcohol at the time of 24 the incident; or 25 [(4)] (3) notwithstanding any other provision of law to the contrary, 26 no person under the age of twenty-one shall be arrested for an alleged 27 violation of section eleven hundred ninety-two-a of this article. 28 However, a person under the age of twenty-one for whom a chemical test 29 is authorized pursuant to this paragraph may be temporarily detained by 30 the police solely for the purpose of requesting or administering such 31 chemical test whenever arrest without a warrant for a petty offense 32 would be authorized in accordance with the provisions of section 140.10 33 of the criminal procedure law or paragraph (a) of subdivision one of 34 this section. 35 § 5. Paragraph (b) of subdivision 3 of section 1194 of the vehicle and 36 traffic law, as added by chapter 47 of the laws of 1988, is amended to 37 read as follows: 38 (b) When authorized. Upon refusal by any person to submit to a chemi- 39 cal test or any portion thereof as described above, the test shall not 40 be given unless a police officer or a district attorney, as defined in 41 subdivision thirty-two of section 1.20 of the criminal procedure law, 42 requests and obtains a court order to compel a person to submit to a 43 chemical test to determine the alcoholic or drug content of the person's 44 blood upon a finding of reasonable cause to believe that: 45 (1) such person was the operator of a motor vehicle and in the course 46 of such operation a person other than the operator was killed or 47 suffered serious physical injury as defined in section 10.00 of the 48 penal law; and 49 (2) a. either such person operated the vehicle in violation of any 50 subdivision of section eleven hundred ninety-two of this article, or 51 b. a breath test administered by a police officer in accordance with 52 paragraph (b) of subdivision one of this section indicates that alcohol 53 has been consumed by such person; and 54 (3) [such person has been placed under lawful arrest; and 55 (4)] such person has refused to submit to a chemical test or field 56 test or any portion thereof, requested in accordance with the provisions
S. 6608 5 1 of paragraph (a) of subdivision two of this section or is unable to give 2 consent to such a test. 3 § 6. Paragraph (a) of subdivision 1 of section 70.06 of the penal law, 4 as amended by chapter 410 of the laws of 1979, is amended to read as 5 follows: 6 (a) A second felony offender is a person, other than a second violent 7 felony offender as defined in section 70.04 of this article, who stands 8 convicted of a felony defined in this chapter or in the vehicle and 9 traffic law, other than a class A-I felony, after having previously been 10 subjected to one or more predicate felony convictions as defined in 11 paragraph (b) of this subdivision. 12 § 7. Paragraph (b) of subdivision 1 of section 160.10 of the criminal 13 procedure law, as amended by chapter 762 of the laws of 1971, is amended 14 to read as follows: 15 (b) A misdemeanor defined in the penal law or the vehicle and traffic 16 law; or 17 § 8. Section 114-a of the vehicle and traffic law, as amended by chap- 18 ter 92 of the laws of 2021, is amended to read as follows: 19 § 114-a. Drug. The term "drug" when used in this chapter, means [and 20 includes] any substance that impairs the physical or mental abilities 21 necessary to operate a motor vehicle as a reasonable and prudent driver, 22 including but not limited to, any substance listed in section thirty- 23 three hundred six of the public health law and cannabis and concentrated 24 cannabis as defined in section 222.00 of the penal law. 25 § 9. Paragraph (e) of subdivision 2 of section 1193 of the vehicle and 26 traffic law is amended by adding a new subparagraph 8 to read as 27 follows: 28 (8) Suspension pending prosecution; drug impairment. Except as 29 provided in clause a-1 of subparagraph seven of this paragraph, a court 30 shall suspend a driver's license, pending prosecution, of any person 31 charged with a violation of subdivision four or four-a of section eleven 32 hundred ninety-two of this article who, at the time of arrest, is 33 alleged to have been driving while ability impaired by drugs. 34 § 10. Paragraph (a) of subdivision 3 of section 30.30 of the criminal 35 procedure law, as amended by section 1 of part KKK of chapter 59 of the 36 laws of 2019, is amended to read as follows: 37 (a) Subdivisions one and two of this section do not apply to a crimi- 38 nal action wherein the defendant is accused of an offense defined in 39 sections 125.10, 125.12, 125.13, 125.14, 125.15, 125.20, 125.25, 125.26 40 and 125.27 of the penal law. 41 § 11. Paragraph c of subdivision 2 of section 600 of the vehicle and 42 traffic law, as amended by chapter 497 of the laws of 2022, is amended 43 to read as follows: 44 c. A violation of the provisions of paragraph a of this subdivision 45 resulting solely from the failure of an operator to exhibit his or her 46 license and insurance identification card for the vehicle or exchange 47 the information required in such paragraph shall constitute a class B 48 misdemeanor punishable by a fine of not less than two hundred fifty nor 49 more than five hundred dollars in addition to any other penalties 50 provided by law. Any subsequent such violation shall constitute a class 51 A misdemeanor punishable by a fine of not less than five hundred nor 52 more than one thousand dollars in addition to any other penalties 53 provided by law. Any violation of the provisions of paragraph a of this 54 subdivision, other than for the mere failure of an operator to exhibit 55 his or her license and insurance identification card for such vehicle or 56 exchange the information required in such paragraph, shall constitute a
S. 6608 6 1 class A misdemeanor, punishable by a fine of not less than seven hundred 2 fifty dollars nor more than one thousand dollars in addition to any 3 other penalties provided by law. Any such violation committed by a 4 person after such person has previously been convicted of such a 5 violation shall constitute a class E felony, punishable by a fine of not 6 less than one thousand nor more than three thousand dollars in addition 7 to any other penalties provided by law. Any violation of the provisions 8 of paragraph a of this subdivision, other than for the mere failure of 9 an operator to exhibit his or her license and insurance identification 10 card for such vehicle or exchange the information required in such para- 11 graph, where the personal injury involved (i) results in serious phys- 12 ical injury, as defined in section 10.00 of the penal law, shall consti- 13 tute a class [E] D felony, punishable by a fine of not less than one 14 thousand nor more than five thousand dollars in addition to any other 15 penalties provided by law, or (ii) results in death shall constitute a 16 class [D] C felony punishable by a fine of not less than two thousand 17 nor more than five thousand dollars in addition to any other penalties 18 provided by law. 19 § 12. This act shall take effect on the one hundred twentieth day 20 after it shall have become a law.