From:
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State of New York
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To:
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NTSB
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Date:
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7/29/2013
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Response:
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-From Charles R. DeWeese, Assistant Commissioner, State of New York, Governor’s Traffic Safety Committee, Department of Motor Vehicles: In reply to your June 3, 2013 correspondence in reference to National Transportation Safety Board (NTSB) recommendations H-13-05 through H-13-09, H-00-26 and H-12-34 through 36, the State of New York agrees with NTSB' s approach of a comprehensive strategy to address impaired driving. New York has some of the toughest impaired driving laws in the nation, and we are proud of our National Highway Traffic Safety Administration low fatality rate designation. However, we recognize that any impaired driving fatality or injury is too many, and we are always striving to improve our safety record.
In regard to recommendations H-13-05 through H-13-09, we applaud the Board for raising the visibility of the impaired driving problem, and we will review the research and the recommendation to lower the BAC for driving while impaired to .05. New York, unlike many other states, already prohibits driving with a BAC as low as .06. This is the lesser "impaired" offense of driving while ability impaired (DWAI). Accordingly, if New York elected to have a per se level BAC of .05 for DWI, this would eliminate the DWAI offense and render statutes relevant to such offense obsolete. It would also conflict with V &T 1195, entitled "Chemical test evidence", which states in part that upon the trial of any action for DWAI or DWI, evidence that there was a chemical test reading of .05 shall be prima facie evidence that the ability of the person to operate a motor vehicle was NOT impaired by the consumption of alcohol. Put simply, New York statutorily recognizes that a chemical test of .05 is not evidence of being impaired by alcohol.
On an operational level, reducing the per se level BAC to .05 would also carry with it a large burden upon localities. Eliminating the DW AI offense would also eliminate the ability of district attorneys and local prosecutors to plea bargain contestable DWI cases down to DWAI. This could force local courts and prosecutors to conduct an additional40,000+ DWI trials a year. Regarding recommendation number H-13-06, New York law enforcement officers have used passive alcohol-sensing technologies during sobriety checkpoints in the past. However, false positives and battery life problems resulted in their discontinuance. New York will further explore the possibility of pilot testing some of these newer devices to determine their effectiveness and usability, and the highway safety office will consider funding purchases of the units if the pilot is successful.
In reference to recommendation H-13-07 and 08, we have enclosed New York's most recent impaired driving section from the annual Highway Safety Plan (HSP). This plan clearly identifies the scope of the impaired driving problem in the State, lists proven countermeasures to address the problem and sets realistic goals to reduce alcohol and drug related crashes. Regarding recommendation number H-13-09, New York law provides for license suspension pending prosecution but does not require the installation of an interlock prior to a conviction. New York State law does require all persons convicted of driving while intoxicated to install an ignition interlock device for a minimum of 6 months on every automobile that they own or operate.
In regard to post accident drug and alcohol data, Section 1194 of the New York State Vehicle and Traffic Law outlines arrest and testing procedures as follows:
§ 1194. Arrest and testing. 1. Arrest and field testing. (a) Arrest. Notwithstanding the provisions of section 140.10 of the criminal procedure law, a police officer may, without a warrant, arrest a person, in case of a violation of subdivision one of section eleven hundred ninety-two of this article, if such violation is coupled with an accident or collision in which such person is involved, which in fact has been committed, though not in the police officer's presence, when the officer has reasonable cause to believe that the violation was committed by such person.
(b) Field testing. Every person operating a motor vehicle which has been involved in an accident or which is operated in violation of any of the provisions of this chapter shall, at the request of a police officer, submit to a breath test to be administered by the police officer. If such test indicates that such operator has consumed alcohol, the police officer may request such operator to submit to a chemical test in the manner set forth in subdivision two of this section.
2. Chemical tests. (a) When authorized. Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer with respect to a chemical test of breath, urine or saliva or, with respect to a chemical test of blood, at the direction of a police officer:
(1) having reasonable grounds to believe such person to have been operating in violation of any subdivision of section eleven hundred ninety-two of this article and within two hours after such person has been placed under arrest for any such violation; or having reasonable grounds to believe such person to have been operating in violation of section eleven hundred ninety-two-a of this article and within two hours after the stop of such person for any such violation,
(2) within two hours after a breath test, as provided in paragraph (b) of subdivision one of this section, indicates that alcohol has been consumed by such person and in accordance with the rules and regulations established by the police force of which the officer is a member;
(3) for the purposes of this paragraph, "reasonable grounds" to believe that a person has been operating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article shall be determined by viewing the totality of circumstances surrounding the incident which, when taken together, indicate that the operator was driving in violation of such subdivision.
Such circumstances may include any visible or behavioral indication of alcohol consumption by the operator, the existence of an open container containing or having contained an alcoholic beverage in or around the vehicle driven by the operator, or any other evidence surrounding the circumstances of the incident which indicates that the operator has been operating a motor vehicle after having consumed alcohol at the time of the incident; or .....
Law enforcement officers may always ask if a driver is willing to give a blood or breath sample whether the officer believes intoxication/impaired or not. However, if the officer asks and the motorist declines, the officer must have "reasonable grounds to believe such person to have been operating in violation of any subdivision of section 1192 of this article" (i.e. impairment) to conduct a chemical test.
Once the National Highway Traffic Safety Administration (NHTSA) develops and disseminates blood alcohol concentration testing and reporting guidelines as recommended in NTSB H-12-32 and a common standard of practice for drug toxicology testing as recommended in NTSB H-12-33, New York State will pursue adoption of those guidelines.
In the meantime, we will continue to work closely with coroners to obtain all drug and alcohol testing data arid encourage officers to record BAC results of all drivers, even if the resulting reading is .000.
In regard to place of last drink data, New York State currently records last drink location data when a breath alcohol test is administered and the data retained in the system is queried regularly by New York State STOP-DWI Coordinators. In instances in which a blood sample is taken in lieu of a breath sample, when possible, police record last drink location information in a supporting deposition.
New York is committed to work with all parties with an interest in preventing fatalities and serious injuries as a result of impaired driving. Any impaired driving fatality or injury is one too many, and we will continue to strive to improve our safety record.
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