STATE OF NEW YORK
        ________________________________________________________________________
                                          7028
                               2017-2018 Regular Sessions
                   IN ASSEMBLY
                                     March 29, 2017
                                       ___________
        Introduced  by  M.  of  A.  TITONE,  ENGLEBRIGHT, M. G. MILLER, GUNTHER,
          ZEBROWSKI, LAVINE, BRINDISI, SIMOTAS -- Multi-Sponsored by -- M. of A.
          ABBATE, ARROYO, CROUCH, GIGLIO, HAWLEY, HIKIND,  JOHNS,  MAGEE,  McDO-
          NOUGH,  McKEVITT,  McLAUGHLIN, MONTESANO, RA, RAIA, SIMANOWITZ -- read
          once and referred to the Committee on Codes
        AN ACT to amend the penal law, in relation to possession of  a  firearm,
          rifle or shotgun while under the influence of alcohol or drugs; and to
          repeal  subdivision 3 of section 265.01 of such law relating to crimi-
          nal possession of a weapon in the fourth degree
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section 1. Subdivision 1 of section 80.05 of the penal law, as amended
     2  by chapter 669 of the laws of 1984, is amended to read as follows:
     3    1.  Class A misdemeanor. A sentence to pay a fine for a class A misde-
     4  meanor shall be a sentence to pay an amount, fixed  by  the  court,  not
     5  exceeding  one  thousand  dollars,  provided,  however,  that a sentence
     6  imposed for a violation of:
     7    (a) section 215.80 of this chapter may include a  fine  in  an  amount
     8  equivalent to double the value of the property unlawfully disposed of in
     9  the commission of the crime; and
    10    (b)  subdivision  nine of section 265.01 of this chapter may include a
    11  fine, fixed by the court, not exceeding ten thousand dollars.
    12    § 2. Section 265.00 of the penal law is amended by adding a new subdi-
    13  vision 26 to read as follows:
    14    26. "Drug" means any controlled substance listed  in  section  thirty-
    15  three hundred six of the public health law.
    16    § 3. Subdivision 3 of section 265.01 of the penal law is REPEALED.
    17    § 4. Subdivisions 4, 5, 6, 7 and 8 of section 265.01 of the penal law,
    18  as  amended  by  chapter  1  of  the laws of 2013, are amended and a new
    19  subdivision 9 is added to read as follows:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09154-01-7

        A. 7028                             2
     1    (4) He or she possesses  a  rifle,  shotgun,  antique  firearm,  black
     2  powder  rifle,  black powder shotgun, or any muzzle-loading firearm, and
     3  has been convicted of a felony or serious offense; or
     4    (5)  He  or  she possesses any dangerous or deadly weapon and is not a
     5  citizen of the United States; or
     6    (6) He or she is a person who  has  been  certified  not  suitable  to
     7  possess a rifle or shotgun, as defined in subdivision sixteen of section
     8  265.00 of this article, and refuses to yield possession of such rifle or
     9  shotgun upon the demand of a police officer. Whenever a person is certi-
    10  fied  not suitable to possess a rifle or shotgun, a member of the police
    11  department to which such certification is made, or of the state  police,
    12  shall  forthwith  seize any rifle or shotgun possessed by such person. A
    13  rifle or shotgun seized as herein provided shall not be  destroyed,  but
    14  shall  be  delivered  to  the headquarters of such police department, or
    15  state police, and there retained until  the  aforesaid  certificate  has
    16  been rescinded by the director or physician in charge, or other disposi-
    17  tion  of such rifle or shotgun has been ordered or authorized by a court
    18  of competent jurisdiction[.]; or
    19    (7) He or she knowingly possesses a  bullet  containing  an  explosive
    20  substance designed to detonate upon impact[.]; or
    21    (8)  He  or she possesses any armor piercing ammunition with intent to
    22  use the same unlawfully against another[.]; or
    23    (9) (a) He or she possesses a firearm, rifle or shotgun outside of his
    24  or her home while:
    25    (i) he or she is in an intoxicated condition; or
    26    (ii) he or she has .08 of one per centum or more by weight of  alcohol
    27  in  the  person's  blood  as shown by chemical analysis of such person's
    28  blood, breath, urine or saliva, made pursuant to section 265.50 of  this
    29  article; or
    30    (iii)  his  or  her  ability  to safely possess such firearm, rifle or
    31  shotgun is impaired by consumption of alcohol; or
    32    (iv) his or her ability to safely possess such firearm, rifle or shot-
    33  gun is impaired by use of any drug; or
    34    (v) his or her ability to safely possess such firearm, rifle or  shot-
    35  gun is impaired by the combined influence of drugs or of alcohol and any
    36  drug or drugs.
    37    (b) A person may be convicted of a violation of subparagraph (i), (ii)
    38  or  (iii) of paragraph (a) of this subdivision, notwithstanding that the
    39  charge laid before the court alleged a violation of subparagraph (i)  or
    40  (ii)  of paragraph (a) of this subdivision, and regardless of whether or
    41  not such conviction is based on a plea of guilty.
    42    § 5. Paragraphs 3, 4, 5, 7, 7-a, 7-b, 7-e, 7-f, 8, 9, 9-a, 10, 12,  13
    43  and 13-a of subdivision a of section 265.20 of the  penal law, paragraph
    44  3  as  amended  and  paragraph  7-f as added by chapter 1 of the laws of
    45  2013, paragraph 4 as amended by section 10 of part EE of chapter  55  of
    46  the  laws  of 2014, paragraph 5 as amended by chapter 235 of the laws of
    47  2007, paragraph 7 as amended by chapter 180 of the laws of  1998,  para-
    48  graph  7-a  as amended by chapter 210 of the laws of 1999, paragraph 7-b
    49  as amended by chapter 511 of the laws of 2014, paragraph 7-e as  amended
    50  by chapter 281 of the laws of 2006, paragraph 8 as amended by chapter 61
    51  of  the  laws of 2010, paragraphs 9 and 10 as amended by chapter 1041 of
    52  the laws of 1974, paragraph 9-a as amended by chapter 608 of the laws of
    53  1984, paragraph 12 as added by chapter 90 of the laws of 1979, paragraph
    54  13 as amended by chapter 150 of the laws of 1988 and paragraph  13-a  as
    55  added  by  chapter  370  of  the  laws  of  1986, are amended to read as
    56  follows:

        A. 7028                             3
     1    3. Possession of a pistol or revolver by a person to  whom  a  license
     2  therefor  has  been issued as provided under section 400.00 or 400.01 of
     3  this chapter or possession of a weapon as defined in  paragraph  (e)  or
     4  (f) of subdivision twenty-two of section 265.00 of this article which is
     5  registered pursuant to paragraph (a) of subdivision sixteen-a of section
     6  400.00  of  this  chapter  or  is  included on an amended license issued
     7  pursuant to section 400.00 of this chapter. In the event such license is
     8  revoked, other than because such licensee  is  no  longer  permitted  to
     9  possess a firearm, rifle or shotgun under federal or state law, informa-
    10  tion  sufficient to satisfy the requirements of subdivision sixteen-a of
    11  section 400.00 of this chapter, shall be transmitted  by  the  licensing
    12  officer  to the state police, in a form as determined by the superinten-
    13  dent of state police. Such transmission shall constitute a valid  regis-
    14  tration  under such section. Further provided, notwithstanding any other
    15  section of this title, a failure to register such weapon by an  individ-
    16  ual who possesses such weapon before the enactment of the chapter of the
    17  laws  of  two  thousand thirteen which amended this paragraph and may so
    18  lawfully possess it thereafter upon registration, shall only be  subject
    19  to  punishment  pursuant  to  paragraph  (c) of subdivision sixteen-a of
    20  section 400.00 of this chapter; provided, that such a license or  regis-
    21  tration  shall not preclude a conviction for [the] an offense defined in
    22  subdivision [three] nine of section 265.01 of this  article  or  section
    23  265.01-a of this article.
    24    4.  Possession  of a rifle, shotgun, crossbow or longbow for use while
    25  hunting, trapping or fishing, by a person, not a citizen of  the  United
    26  States,  carrying  a valid license issued pursuant to section 11-0713 of
    27  the environmental conservation law; provided  that  such  possession  in
    28  accordance with this paragraph shall not preclude the application of the
    29  provision  of or a conviction of the offense defined in subdivision nine
    30  of section 265.01 of this article.
    31    5. Possession of a rifle or shotgun by a person other  than  a  person
    32  who  has  been  convicted  of  a  class  A-I  felony or a violent felony
    33  offense, as defined in subdivision one of section 70.02 of this chapter,
    34  who has been convicted as  specified  in  subdivision  four  of  section
    35  265.01  of  this  article to whom a certificate of good conduct has been
    36  issued pursuant to section seven hundred three-b of the correction  law;
    37  provided  that  such  possession in accordance with this paragraph shall
    38  not preclude the application of the provision of or a conviction of  the
    39  offense defined in subdivision nine of section 265.01 of this article.
    40    7.  Possession, at an indoor or outdoor shooting range for the purpose
    41  of loading and firing, of a rifle or shotgun, the  propelling  force  of
    42  which  is gunpowder by a person under sixteen years of age but not under
    43  twelve, under the immediate supervision, guidance and instruction of (a)
    44  a duly commissioned officer of the United States army, navy, air  force,
    45  marine  corps  or  coast guard, or of the national guard of the state of
    46  New York; or (b) a duly qualified adult citizen of the United States who
    47  has been granted a certificate as an instructor in small  arms  practice
    48  issued by the United States army, navy, air force or marine corps, or by
    49  the adjutant general of this state, or by the national rifle association
    50  of  America,  a not-for-profit corporation duly organized under the laws
    51  of this state; or (c) a parent, guardian, or a person over  the  age  of
    52  eighteen designated in writing by such parent or guardian who shall have
    53  a certificate of qualification in responsible hunting, including safety,
    54  ethics,  and  landowner relations-hunter relations, issued or honored by
    55  the department of environmental conservation; or (d)  an  agent  of  the
    56  department of environmental conservation appointed to conduct courses in

        A. 7028                             4
     1  responsible hunting practices pursuant to article eleven of the environ-
     2  mental  conservation  law;  provided  that such possession in accordance
     3  with this paragraph shall not preclude the application of the provisions
     4  of or a conviction of the offense defined in subdivision nine of section
     5  265.01 of this article.
     6    7-a.  Possession and use, at an indoor or outdoor pistol range located
     7  in or on premises owned or occupied by a duly incorporated  organization
     8  organized  for  conservation  purposes or to foster proficiency in small
     9  arms or at a target pistol shooting competition under the auspices of or
    10  approved by the national rifle association for the  purpose  of  loading
    11  and  firing  the  same, by a person duly licensed to possess a pistol or
    12  revolver pursuant to section 400.00 or  400.01  of  this  chapter  of  a
    13  pistol  or revolver duly so licensed to another person who is present at
    14  the time; provided that such possession and use in accordance with  this
    15  paragraph  shall  not preclude the application of the provisions of or a
    16  conviction of the offense defined in subdivision nine of section  265.01
    17  of this article.
    18    7-b.  Possession and use, at an indoor or outdoor pistol range located
    19  in or on premises owned or occupied by a duly incorporated  organization
    20  organized  for  conservation  purposes or to foster proficiency in small
    21  arms or at a target pistol shooting competition under the auspices of or
    22  approved by the national rifle association for the  purpose  of  loading
    23  and  firing  the  same,  by  a  person  who has applied for a license to
    24  possess a pistol or revolver and pre-license possession of same pursuant
    25  to section 400.00 or 400.01 of this chapter, who has not been previously
    26  denied a license, been previously  convicted  of  a  felony  or  serious
    27  offense, and who does not appear to be, or pose a threat to be, a danger
    28  to  himself  or  to others, and who has been approved for possession and
    29  use herein in accordance with section 400.00 or 400.01 of this  chapter;
    30  provided  however, (a) that such possession and use shall be of a pistol
    31  or revolver duly licensed to and shall be used  under  the  supervision,
    32  guidance  and  instruction  of, a person specified in paragraph seven of
    33  this subdivision [and provided further that], (b)  such  possession  and
    34  use  be  within  the jurisdiction of the licensing officer with whom the
    35  person has made application therefor or within the jurisdiction  of  the
    36  superintendent  of state police in the case of a retired sworn member of
    37  the division of state police who has opted to make an application pursu-
    38  ant to section 400.01 of this chapter, and (c) such possession  and  use
    39  in  accordance with this paragraph shall not preclude the application of
    40  the provisions of or a conviction of the offense defined in  subdivision
    41  nine of section 265.01 of this article.
    42    7-e.  Possession  and  use  of  a  pistol or revolver, at an indoor or
    43  outdoor pistol range located in or on premises owned or  occupied  by  a
    44  duly incorporated organization organized for conservation purposes or to
    45  foster proficiency in small arms or at a target pistol shooting competi-
    46  tion under the auspices of or approved by an association or organization
    47  described in paragraph [7-a] seven-a of this subdivision for the purpose
    48  of  loading  and  firing the same by a person at least fourteen years of
    49  age but under  the  age  of  twenty-one  who  has  not  been  previously
    50  convicted of a felony or serious offense, and who does not appear to be,
    51  or  pose  a  threat  to be, a danger to himself or herself or to others;
    52  provided however, that such possession shall be of a pistol or  revolver
    53  duly  licensed  to  and  shall  be used under the immediate supervision,
    54  guidance and instruction of, a person specified in  paragraph  seven  of
    55  this subdivision; and provided, further, that such possession and use in
    56  accordance with this paragraph shall not preclude the application of the

        A. 7028                             5
     1  provisions of or a conviction of the offense defined in subdivision nine
     2  of section 265.01 of this article.
     3    7-f.  Possession  and  use  of a magazine, belt, feed strip or similar
     4  device, that contains more than seven rounds  of  ammunition,  but  that
     5  does  not  have a capacity of or can readily be restored or converted to
     6  accept more than ten rounds of  ammunition,  at  an  indoor  or  outdoor
     7  firing  range  located  in  or  on  premises owned or occupied by a duly
     8  incorporated organization organized  for  conservation  purposes  or  to
     9  foster proficiency in arms; at an indoor or outdoor firing range for the
    10  purpose of firing a rifle or shotgun; at a collegiate, olympic or target
    11  shooting  competition  under the auspices of or approved by the national
    12  rifle association; or at an organized match sanctioned by  the  Interna-
    13  tional  Handgun  Metallic  Silhouette  Association;  provided  that such
    14  possession and use in accordance with this paragraph shall not  preclude
    15  the  application  of  the  provisions  of or a conviction of the offense
    16  defined in subdivision nine of section 265.01 of this article.
    17    8. The manufacturer of machine-guns, firearm silencers, assault  weap-
    18  ons,  large  capacity  ammunition feeding devices, disguised guns, pilum
    19  ballistic knives, switchblade or gravity knives, billies  or  blackjacks
    20  as  merchandise,  or  as  a transferee recipient of the same for repair,
    21  lawful distribution or research and development, and  the  disposal  and
    22  shipment thereof direct to a regularly constituted or appointed state or
    23  municipal  police  department,  sheriff,  [policeman]  police officer or
    24  other peace officer, or to  a  state  prison,  penitentiary,  workhouse,
    25  county  jail or other institution for the detention of persons convicted
    26  or accused of crime or held as witnesses in criminal cases,  or  to  the
    27  military  service  of  this  state  or  of the United States; or for the
    28  repair and return of the same to the lawful possessor  or  for  research
    29  and development; provided that status as a manufacturer, or disposal and
    30  shipment in accordance with this paragraph shall not preclude the appli-
    31  cation  of  the  provisions of or a conviction of the offense defined in
    32  subdivision nine of section 265.01 of this article.
    33    9. The regular and ordinary  transport  of  firearms  as  merchandise,
    34  provided  that  the  person  transporting such firearms, where he or she
    35  knows or has reasonable means of ascertaining what he or she  is  trans-
    36  porting,  notifies  in  writing the police commissioner, police chief or
    37  other law enforcement officer performing such functions at the place  of
    38  delivery,  of  the  name  and  address of the consignee and the place of
    39  delivery, and withholds delivery to the consignee  for  such  reasonable
    40  period of time designated in writing by such police commissioner, police
    41  chief  or other law enforcement officer as such official may deem neces-
    42  sary for investigation as to whether the consignee may lawfully  receive
    43  and  possess  such  firearms,  provided, further, that such transport in
    44  accordance with this paragraph shall not preclude the application of the
    45  provisions of or a conviction of the offense defined in subdivision nine
    46  of section 265.01 of this article.
    47    9-a. a. Except as provided in [subdivision] subparagraph b [hereof] of
    48  this paragraph, the regular and ordinary transport of pistols or  revol-
    49  vers  by  a  manufacturer  of  firearms to whom a license as a dealer in
    50  firearms has been issued pursuant to section 400.00 of this chapter,  or
    51  by  an  agent or employee of such manufacturer of firearms who is other-
    52  wise duly licensed to carry a pistol or revolver and who is duly author-
    53  ized in writing by such manufacturer of firearms to transport pistols or
    54  revolvers on the date or dates specified, directly between places  where
    55  the  manufacturer  of firearms regularly conducts business provided such
    56  pistols or revolvers  are  transported  unloaded,  in  a  locked  opaque

        A. 7028                             6
     1  container, provided that status as a manufacturer, or disposal and ship-
     2  ment  in  accordance with this paragraph shall not preclude the applica-
     3  tion of the provisions of or a conviction  of  the  offense  defined  in
     4  subdivision  nine  of  section  265.01 of this article.  For purposes of
     5  this [subdivision] paragraph, places where the manufacturer of  firearms
     6  regularly conducts business [includes] include, but [is] are not limited
     7  to  places  where  the manufacturer of firearms regularly or customarily
     8  conducts development or design of pistols or revolvers, or regularly  or
     9  customarily  conducts  tests  on  pistols  or revolvers, or regularly or
    10  customarily participates in the exposition of firearms to the public.
    11    b. The transportation of such pistols or revolvers  into,  out  of  or
    12  within  the  city  of  New York may be done only with the consent of the
    13  police commissioner of the city of New York. To obtain such consent, the
    14  manufacturer must notify the police commissioner in writing of the  name
    15  and  address  of  the transporting manufacturer, or agent or employee of
    16  the manufacturer who is authorized in writing by  such  manufacturer  to
    17  transport pistols or revolvers, the number, make and model number of the
    18  firearms to be transported and the place where the manufacturer regular-
    19  ly conducts business within the city of New York and such other informa-
    20  tion  as  the commissioner may deem necessary. The manufacturer must not
    21  transport such pistols and revolvers between the  designated  places  of
    22  business for such reasonable period of time designated in writing by the
    23  police  commissioner  as  such  official may deem necessary for investi-
    24  gation and to give consent. The police commissioner may not unreasonably
    25  withhold his consent.
    26    10. Engaging in the business of gunsmith or dealer in  firearms  by  a
    27  person  to  whom  a  valid  license therefor has been issued pursuant to
    28  section 400.00 of this chapter, provided that engaging in such  business
    29  in  accordance with this paragraph shall not preclude the application of
    30  the provisions of or a conviction of the offense defined in  subdivision
    31  nine of section 265.01 of this article.
    32    12.  Possession of a pistol or revolver by a person who is a member or
    33  coach of an accredited college or university target  pistol  team  while
    34  transporting  the  pistol  or revolver into or through New York state to
    35  participate in a collegiate, olympic or target pistol shooting  competi-
    36  tion  under  the  auspices  of or approved by the national rifle associ-
    37  ation, provided such pistol or revolver is unloaded  and  carried  in  a
    38  locked  carrying  case and the ammunition therefor is carried in a sepa-
    39  rate locked container, provided, further that such possession in accord-
    40  ance with this paragraph shall  not  preclude  the  application  of  the
    41  provisions of or a conviction of the offense defined in subdivision nine
    42  of section 265.01 of this article.
    43    13.  Possession of pistols and revolvers by a person who is a nonresi-
    44  dent of this state while attending or traveling to or from, an organized
    45  competitive pistol match or league competition  under  auspices  of,  or
    46  approved  by, the National Rifle Association and in which he or she is a
    47  competitor, within forty-eight hours of such event or by a person who is
    48  a non-resident of the state while attending or traveling to or  from  an
    49  organized match sanctioned by the International Handgun Metallic Silhou-
    50  ette  Association  and in which he or she is a competitor, within forty-
    51  eight hours of such event, provided that (a) he  or  she  has  not  been
    52  previously  convicted  of a felony or a crime which, if committed in New
    53  York, would constitute a felony, (b) such possession in accordance  with
    54  this  paragraph  shall not preclude the application of the provisions of
    55  or a conviction of the offense defined in subdivision  nine  of  section
    56  260.01  of  this article, and [further provided] (c) that the pistols or

        A. 7028                             7
     1  revolvers are transported unloaded in a locked opaque container together
     2  with a copy of the match program, match schedule or  match  registration
     3  card.  Such  documentation  shall  constitute  prima  facie  evidence of
     4  exemption,  [providing] provided that such person also has in his or her
     5  possession a pistol license or  firearms  registration  card  issued  in
     6  accordance  with the laws of his or her place of residence. For purposes
     7  of this [subdivision] paragraph, a person  licensed  in  a  jurisdiction
     8  which does not authorize such license by a person who has been previous-
     9  ly  convicted of a felony shall be presumed to have no prior conviction.
    10  The superintendent of state police shall annually  review  the  laws  of
    11  jurisdictions  within  the  United States and Canada with respect to the
    12  applicable requirements for licensing or registration  of  firearms  and
    13  shall publish a list of those jurisdictions which prohibit possession of
    14  a  firearm  by a person previously convicted of a felony or crimes which
    15  if committed in New York state would constitute a felony.
    16    13-a. Except in cities not wholly contained within a single county  of
    17  the  state,  possession  of  pistols  and revolvers by a person who is a
    18  nonresident of this state while attending or traveling to  or  from,  an
    19  organized convention or exhibition for the display of or education about
    20  firearms,  which  is  conducted  under  auspices of, or approved by, the
    21  National Rifle Association and in  which  he  or  she  is  a  registered
    22  participant,  within  forty-eight hours of such event, provided that (a)
    23  he or she has not been previously convicted  of  a  felony  or  a  crime
    24  which,  if  committed  in  New York, would constitute a felony, (b) such
    25  possession in accordance with this  paragraph  shall  not  preclude  the
    26  application  of the provisions of or a conviction of the offense defined
    27  in subdivision nine of section 265.01  of  this  article,  and  [further
    28  provided  that] (c) the pistols or revolvers are transported unloaded in
    29  a locked opaque container together with a  copy  of  the  convention  or
    30  exhibition  program,  convention or exhibition schedule or convention or
    31  exhibition registration card.  Such documentation shall constitute prima
    32  facie evidence of exemption, [providing] provided that such person  also
    33  has  in  his or her possession a pistol license or firearms registration
    34  card issued in accordance with the laws of his or  her  place  of  resi-
    35  dence.  For purposes of this paragraph, a person licensed in a jurisdic-
    36  tion which does not authorize such license by  a  person  who  has  been
    37  previously  convicted  of  a  felony  shall be presumed to have no prior
    38  conviction. The superintendent of state police shall annually review the
    39  laws of jurisdictions within the United States and Canada  with  respect
    40  to the applicable requirements for licensing or registration of firearms
    41  and   shall  publish  a  list  of  those  jurisdictions  which  prohibit
    42  possession of a firearm by a person previously convicted of a felony  or
    43  crimes which if committed in New York state would constitute a felony.
    44    §  6.  The  penal law is amended by adding two new sections 265.50 and
    45  265.55 to read as follows:
    46  § 265.50 Testing.
    47    1. Field testing. Every person who possesses a firearm, rifle or shot-
    48  gun which has been brandished, displayed outside a  holster,  discharged
    49  or  otherwise  used  (other  than  in the person's home, at an indoor or
    50  outdoor shooting range, or in an area where hunting  is  permitted  with
    51  the weapon), or which is possessed, displayed or discharged in violation
    52  of any provision of this chapter shall, at the request of a police offi-
    53  cer,  submit  to a breath test to be administered by the police officer,
    54  unless such person demonstrates to such  police  officer's  satisfaction
    55  that  he  or she is not subject to the provisions of subdivision nine of
    56  section 265.01 of this article. If such test indicates that such posses-

        A. 7028                             8
     1  sor has consumed alcohol, the police officer may request such  possessor
     2  to  submit to a chemical test in the manner set forth in subdivision two
     3  of this section.
     4    2.  Chemical  tests.  (a)  When authorized. Any person who possesses a
     5  firearm, rifle or shotgun in this state, other  than  in  such  person's
     6  home, shall be deemed to have given consent to a chemical test of one or
     7  more  of the following: breath, blood, urine, or saliva, for the purpose
     8  of determining the alcoholic and/or drug content of the  blood  provided
     9  that  such test is administered by or at the direction of a police offi-
    10  cer with respect to a chemical test of breath, urine or saliva or,  with
    11  respect  to a chemical test of blood, at the direction of a police offi-
    12  cer:
    13    (1) having reasonable grounds  to  believe  such  person  possessed  a
    14  firearm,  rife  or  shotgun  in violation of subdivision nine of section
    15  265.01 of this article and within two hours after such person  has  been
    16  placed under arrest for any such violation; or
    17    (2)  within  two hours after a breath test, as provided in subdivision
    18  one of this section, indicates that alcohol has been  consumed  by  such
    19  person  and  in accordance with the rules and regulations established by
    20  the law enforcement agency of which the officer is a member.
    21    For the purposes of this paragraph, "reasonable  grounds"  to  believe
    22  that  a  person  possessed  a  firearm, rifle or shotgun in violation of
    23  subdivision nine of section 265.01 of this article shall  be  determined
    24  by viewing the totality of circumstances surrounding the incident which,
    25  when taken together, indicate that the possession violated such subdivi-
    26  sion.    Such  circumstances may include any visible or behavioral indi-
    27  cation of alcohol or drug consumption by such person, the  existence  of
    28  an  open  container containing or having contained an alcoholic beverage
    29  in or around  the  vicinity  of  such  person,  or  any  other  evidence
    30  surrounding  the  circumstances of the incident which indicates that the
    31  person was in possession of a firearm, rifle  or  shotgun  after  having
    32  consumed alcohol or drugs at the time of the incident.
    33    (b)  Report  of  refusal.  (1)  If: (A) such person having been placed
    34  under arrest; or (B) after a breath test indicates the presence of alco-
    35  hol in the person's  system;  and  the  person  having  thereafter  been
    36  requested  to submit to such chemical test and having been informed that
    37  any license held by such person to possess a firearm, rifle  or  shotgun
    38  shall  be  subject  to suspension or revocation for refusal to submit to
    39  such test whether or not the person is found guilty of  the  charge  for
    40  which  such  person is arrested or detained, then if such person refuses
    41  to submit to such chemical test or any portion thereof, unless  a  court
    42  order  has  been  granted pursuant to subdivision three of this section,
    43  the test shall not be given and a written report of such  refusal  shall
    44  be  immediately  made by the police officer before whom such refusal was
    45  made. Such report may be verified by having the report sworn to,  or  by
    46  affixing to such report a form notice that false statements made therein
    47  are  punishable  as  a class A misdemeanor pursuant to section 210.45 of
    48  this chapter and such form notice together with the subscription of  the
    49  deponent shall constitute a verification of the report.
    50    (2)  The  report  of  the  police  officer  shall set forth reasonable
    51  grounds to believe such arrested person had possessed a  firearm,  rifle
    52  or  shotgun  in  violation of subdivision nine of section 265.01 of this
    53  article, that said person had refused to submit to such  chemical  test,
    54  and  that no chemical test was administered pursuant to the requirements
    55  of subdivision three of this section. The report shall be  presented  to
    56  the court upon arraignment of an arrested person, and shall be transmit-

        A. 7028                             9
     1  ted  by  such court to the appropriate licensing authority within forty-
     2  eight hours of the arraignment. Such transmittal  shall  not  be  waived
     3  even with the consent of all parties.
     4    (3) The license may be temporarily suspended by such licensing author-
     5  ity pending the determination of a hearing, in accordance with the rules
     6  and  procedures  of  such  authority, for refusal to submit to a test in
     7  either the circumstances described in subdivision one of this section or
     8  the circumstances described in subparagraph one of this paragraph.   Any
     9  such  refusal  may,  after  such  hearing  or if uncontested, constitute
    10  grounds for continued  suspension  or  revocation  of  such  license  in
    11  accordance with such rules and procedures.
    12    (4) Nothing in this section shall be deemed to restrict the discretion
    13  of  any licensing authority or the discretion of any judge or justice of
    14  a court of record under subdivision eleven of  section  400.00  of  this
    15  chapter  to  suspend or revoke a license because of an alleged violation
    16  of subdivision nine of section 265.01 of this article, or for any  other
    17  reason other than refusal to submit to a test as required by this subdi-
    18  vision or subdivision one of this section.
    19    (c)  Regulations.  A licensing authority or law enforcement agency may
    20  promulgate such rules and regulations as may be necessary to  effectuate
    21  the provisions of this subdivision and subdivision one of this section.
    22    (d) Evidence. Evidence of a refusal to submit to such chemical test or
    23  any  portion  thereof  shall  be  admissible in any trial, proceeding or
    24  hearing based upon an alleged violation of the provisions of subdivision
    25  nine of section 265.01 of this article but only upon a showing that  the
    26  person  was given sufficient warning, in clear and unequivocal language,
    27  of the effect of such refusal and  that  the  person  persisted  in  the
    28  refusal.  Such  showing  shall  be satisfied by submission of a verified
    29  report of refusal as provided in subparagraph one of  paragraph  (b)  of
    30  this  subdivision  containing  a statement that such person was informed
    31  that his or her license shall be subject  to  suspension  or  revocation
    32  whether  or  not the person is found guilty of the charge for which such
    33  person is arrested or detained if such person refuses to submit to  such
    34  test.
    35    (e)  Results.  Upon  the  request  of  the  person who was tested, the
    36  results of such test shall be made available to such person.
    37    3. Compulsory  chemical  tests.  (a)  Court  ordered  chemical  tests.
    38  Notwithstanding  the  provisions  of subdivision two of this section, no
    39  person subject to the provisions of subdivision nine of  section  265.01
    40  of this article who possesses a firearm, rifle or shotgun (other than in
    41  the  person's  home,  at an indoor or outdoor shooting range, or an area
    42  where hunting is permitted with the weapon) may refuse to  submit  to  a
    43  chemical  test  of one or more of the following: breath, blood, urine or
    44  saliva, for the purpose of determining the alcoholic and/or drug content
    45  of the blood when a court order for such chemical test has  been  issued
    46  in accordance with the provisions of this subdivision.
    47    (b)  When authorized. Upon refusal by any person to submit to a chemi-
    48  cal test or any portion thereof as described in paragraph  (a)  of  this
    49  subdivision,  the  test  shall not be given unless a police officer or a
    50  district attorney, as defined in subdivision thirty-two of section  1.20
    51  of  the  criminal  procedure  law, requests and obtains a court order to
    52  compel a person to submit to a chemical test to determine the  alcoholic
    53  or drug content of the person's blood upon a finding of reasonable cause
    54  to believe that:
    55    (1)  such  person  possessed  a  firearm,  rifle or shotgun with which
    56  another person was killed or suffered physical injury; and

        A. 7028                            10
     1    (2) (A) either such person possessed the firearm, rifle or shotgun  in
     2  violation of subdivision nine of section 265.01 of this article, or
     3    (B)  a breath test administered by a police officer in accordance with
     4  subdivision one of this section indicates that alcohol has been consumed
     5  by such person; and
     6    (3) such person has been placed under lawful arrest; and
     7    (4) such person has refused to  submit  to  a  chemical  test  or  any
     8  portion  thereof,  requested  in accordance with the provisions of para-
     9  graph (a) of subdivision two of  this  section  or  is  unable  to  give
    10  consent to such a test.
    11    (c)  Reasonable cause; definition. For the purpose of this subdivision
    12  "reasonable cause" shall  be  determined  by  viewing  the  totality  of
    13  circumstances surrounding the incident which, when taken together, indi-
    14  cate  that the person possessed a firearm, rifle or shotgun in violation
    15  of subdivision nine of section 265.01  of  this  article.  Such  circum-
    16  stances  may  include, but are not limited to: evidence that such person
    17  was brandishing or using the firearm, rifle or shotgun in  violation  of
    18  any  provision of this chapter or committing any other crime at the time
    19  of the incident; any visible indication of alcohol or  drug  consumption
    20  or  impairment  by  such  person;  the  existence  of  an open container
    21  containing an alcoholic beverage in  or  around  the  vicinity  of  such
    22  person; or any other evidence surrounding the circumstances of the inci-
    23  dent which indicates that the person possessed a firearm, rifle or shot-
    24  gun while impaired by the consumption of alcohol or drugs or was intoxi-
    25  cated at the time of the incident.
    26    (d)  Court  order;  procedure. (1) An application for a court order to
    27  compel submission to a chemical test or any portion thereof, may be made
    28  to any supreme court justice, county court judge or district court judge
    29  in the judicial district in which the incident occurred, or if the inci-
    30  dent occurred in the city of New York before any supreme  court  justice
    31  or  judge  of the criminal court of the city of New York.  Such applica-
    32  tion may be communicated by telephone, radio or other means of electron-
    33  ic communication, or in person.
    34    (2) The applicant must provide identification by name  and  title  and
    35  must  state the purpose of the communication. Upon being advised that an
    36  application for a court order to compel submission to a chemical test is
    37  being made, the court shall place under oath the applicant and any other
    38  person providing information in support of the application  as  provided
    39  in subparagraph three of this paragraph. After being sworn the applicant
    40  must  state  that  the  person from whom the chemical test was requested
    41  possessed a firearm, rifle or shotgun  with  which  another  person  was
    42  killed  or  physically  injured  and, based upon the totality of circum-
    43  stances, there is reasonable cause to believe that such person possessed
    44  a firearm, rifle or shotgun in violation of subdivision nine of  section
    45  265.01  of this article or a breath test indicated that alcohol had been
    46  consumed by such person and, after being placed under lawful arrest such
    47  person refused to submit to a chemical test or any portion  thereof,  in
    48  accordance  with  the  provisions  of  this section or is unable to give
    49  consent to such a test or any portion thereof. The applicant  must  make
    50  specific allegations of fact to support such statement. Any other person
    51  properly identified, may present sworn allegations of fact in support of
    52  the applicant's statement.
    53    (3)  Upon  being advised that an oral application for a court order to
    54  compel a person to submit to a chemical test is being made, a  judge  or
    55  justice  shall  place  under  oath  the  applicant  and any other person
    56  providing information in support of the application. Such oath or  oaths

        A. 7028                            11
     1  and all of the remaining communication must be recorded, either by means
     2  of  a  voice recording device or verbatim stenographic or verbatim long-
     3  hand notes. If a voice recording device is used or a stenographic record
     4  made, the judge must have the record transcribed, certify to the accura-
     5  cy  of  the transcription and file the original record and transcription
     6  with the court within seventy-two hours of the  issuance  of  the  court
     7  order. If longhand notes are taken, the judge shall subscribe a copy and
     8  file  it  with the court within twenty-four hours of the issuance of the
     9  order.
    10    (4) If the court is satisfied that the requirements for  the  issuance
    11  of  a  court  order  pursuant to the provisions of paragraph (b) of this
    12  subdivision have been met, it may grant the  application  and  issue  an
    13  order  requiring  the  accused to submit to a chemical test to determine
    14  the alcoholic and/or drug content of his or her blood and  ordering  the
    15  withdrawal  of a blood sample in accordance with the provisions of para-
    16  graph (a) of subdivision four of this section. When a judge  or  justice
    17  determines  to  issue  an  order to compel submission to a chemical test
    18  based on an oral application, the applicant therefor shall  prepare  the
    19  order  in  accordance with the instructions of the judge or justice.  In
    20  all cases the order shall include the  name  of  the  issuing  judge  or
    21  justice, the name of the applicant, and the date and time it was issued.
    22  It must be signed by the judge or justice if issued in person, or by the
    23  applicant if issued orally.
    24    (5) Any false statement by an applicant or any other person in support
    25  of  an  application  for  a court order shall subject such person to the
    26  offenses for perjury set forth in article two hundred ten of this  chap-
    27  ter.
    28    (6)  The  chief administrator of the courts shall establish a schedule
    29  to provide that a sufficient number of judges or justices will be avail-
    30  able in each judicial district  to  hear  oral  applications  for  court
    31  orders as permitted by this section.
    32    (e) Administration of compulsory chemical test. An order issued pursu-
    33  ant  to the provisions of this subdivision shall require that a chemical
    34  test to determine the alcoholic and/or drug content of  the  possessor's
    35  blood  must  be  administered. The provisions of paragraphs (a), (b) and
    36  (c) of subdivision four of this section shall be applicable to any chem-
    37  ical test administered pursuant to this section.
    38    4. Testing procedures. (a) Persons authorized to withdraw blood; immu-
    39  nity; testimony.  (1) At the request of a police officer, the  following
    40  persons  may withdraw blood for the purpose of determining the alcoholic
    41  and/or drug content therein: (A) a physician, a registered  professional
    42  nurse  or a registered physician assistant; or (B) under the supervision
    43  and at the direction of a physician: a medical laboratory technician  or
    44  medical  technologist as classified by civil service; a phlebotomist; an
    45  advanced emergency medical technician as certified by the department  of
    46  health;  or  a  medical  laboratory  technician  or medical technologist
    47  employed by a clinical laboratory approved under title five  of  article
    48  five  of  the  public health law. This limitation shall not apply to the
    49  taking of a urine, saliva or breath specimen.
    50    (2) No person entitled to withdraw blood pursuant to subparagraph  one
    51  of  this  paragraph  or  hospital  employing  such  person, and no other
    52  employer of such person shall be sued or held liable for any act done or
    53  omitted in the course of withdrawing blood at the request  of  a  police
    54  officer pursuant to this section.
    55    (3)  Any  person who may have a cause of action arising from the with-
    56  drawal of blood as aforesaid, for which  no  personal  liability  exists

        A. 7028                            12
     1  under  subparagraph  two  of  this  paragraph,  may maintain such action
     2  against the state if any person entitled to withdraw blood  pursuant  to
     3  this  paragraph acted at the request of a police officer employed by the
     4  state,  or against the appropriate political subdivision of the state if
     5  such person acted at the request of a police officer employed by a poli-
     6  tical subdivision of the state. No action shall be  maintained  pursuant
     7  to  this  subparagraph unless notice of claim is duly filed or served in
     8  compliance with law.
     9    (4) Notwithstanding the foregoing  provisions  of  this  paragraph  an
    10  action may be maintained by the state or a political subdivision thereof
    11  against a person entitled to withdraw blood pursuant to subparagraph one
    12  of  this  paragraph  or  hospital employing such person for whose act or
    13  omission the state or the political subdivision  has  been  held  liable
    14  under  this  paragraph  to  recover  damages,  not  exceeding the amount
    15  awarded to the claimant, that may have been sustained by  the  state  or
    16  the  political subdivision by reason of gross negligence or bad faith on
    17  the part of such person.
    18    (5) The testimony of any person other than a  physician,  entitled  to
    19  withdraw  blood  pursuant  to  subparagraph  one  of  this paragraph, in
    20  respect to any such withdrawal of blood  made  by  such  person  may  be
    21  received  in  evidence with the same weight, force and effect as if such
    22  withdrawal of blood were made by a physician.
    23    (6) The provisions of subparagraphs two, three and four of this  para-
    24  graph  shall also apply with regard to any person employed by a hospital
    25  as security personnel for any act done or omitted in the course of with-
    26  drawing blood at the request of a police officer  pursuant  to  a  court
    27  order in accordance with subdivision three of this section.
    28    (b)  Right to additional test. The person tested shall be permitted to
    29  choose a physician to administer a chemical test in addition to the  one
    30  administered at the direction of the police officer.
    31    (c)  Rules  and  regulations.  The rules and regulations issued by the
    32  department of health pursuant to paragraph (c) of  subdivision  four  of
    33  section  eleven hundred ninety-four of the vehicle and traffic law shall
    34  also apply to analyses under this section. If the analyses were made  by
    35  an  individual  possessing  a permit issued by the department of health,
    36  this shall be presumptive evidence that  the  examination  was  properly
    37  given. The provisions of this paragraph do not prohibit the introduction
    38  as  evidence  of  an  analysis made by an individual other than a person
    39  possessing a permit issued by the department of health.
    40    5. Definitions. For the purposes of this section:
    41    (a) "License" means and includes licenses issued pursuant  to  section
    42  400.00 of this chapter, and any permit issued by a county, city, town or
    43  village  pursuant  to a local law, code or ordinance which restricts the
    44  possession and purchase of rifles and shotguns.
    45    (b) "Licensing authority" means the licensing officer or agency  which
    46  issues a license.
    47  § 265.55 Chemical test evidence.
    48    1.  Admissibility.  Upon the trial of any action or proceeding arising
    49  out of actions alleged to have been committed by any person arrested for
    50  a violation of subdivision nine of section 265.01 of this  article,  the
    51  court  shall  admit  evidence  of  the amount of alcohol or drugs in the
    52  defendant's blood as shown  by  a  test  administered  pursuant  to  the
    53  provisions of section 265.50 of this article.
    54    2. Probative value. The following effect shall be given to evidence of
    55  blood-alcohol content, as determined by such tests, of a person arrested
    56  for violation of subdivision nine of section 265.01 of this article:

        A. 7028                            13
     1    (a) Evidence that there was .05 of one per centum or less by weight of
     2  alcohol  in  such  person's blood shall be prima facie evidence that the
     3  ability of such person to safely possess a firearm, rifle or shotgun was
     4  not impaired by the consumption of alcohol, and that such person was not
     5  in an intoxicated condition;
     6    (b)  Evidence  that there was more than .05 of one per centum but less
     7  than .07 of one per centum by weight of alcohol in such  person's  blood
     8  shall be prima facie evidence that such person was not in an intoxicated
     9  condition,  but  such evidence shall be relevant evidence, but shall not
    10  be given prima facie effect, in determining whether the ability of  such
    11  person to safely possess a firearm, rifle or shotgun was impaired by the
    12  consumption of alcohol; and
    13    (c)  Evidence  that  there  was .07 of one per centum or more but less
    14  than .08 of one per centum by weight of alcohol in such  person's  blood
    15  shall be prima facie evidence that such person was not in an intoxicated
    16  condition, but such evidence shall be given prima facie effect in deter-
    17  mining  whether  the ability of such person to safely possess a firearm,
    18  rifle or shotgun was impaired by the consumption of alcohol.
    19    3. Suppression. A defendant who has been  compelled  to  submit  to  a
    20  chemical test pursuant to the provisions of subdivision three of section
    21  265.50  of this article may move for the suppression of such evidence in
    22  accordance with article seven hundred ten of the criminal procedure  law
    23  on  the grounds that the order was obtained and the test administered in
    24  violation of the provisions of such subdivision or any other  applicable
    25  law.
    26    §  7.  Paragraph  (a) of subdivision 11 of section 400.00 of the penal
    27  law, as amended by chapter 1 of the laws of 2013, is amended to read  as
    28  follows:
    29    (a)  The  conviction  of  a  licensee  anywhere of a felony or serious
    30  offense or a licensee at  any  time  becoming  ineligible  to  obtain  a
    31  license under this section shall operate as a revocation of the license.
    32  A license may be revoked or suspended as provided for in subdivision two
    33  of section 265.50 of this chapter, section 530.14 of the criminal proce-
    34  dure  law  or section eight hundred forty-two-a of the family court act.
    35  Except for a license issued pursuant to section 400.01 of this  article,
    36  a  license  may  be revoked and cancelled at any time in the city of New
    37  York, and in the counties of Nassau and Suffolk, by the licensing  offi-
    38  cer,  and elsewhere than in the city of New York by any judge or justice
    39  of a court of record; a license issued pursuant  to  section  400.01  of
    40  this  article  may be revoked and cancelled at any time by the licensing
    41  officer or any judge or justice of  a  court  of  record.  The  official
    42  revoking a license shall give written notice thereof without unnecessary
    43  delay to the executive department, division of state police, Albany, and
    44  shall also notify immediately the duly constituted police authorities of
    45  the locality.
    46    § 8. This act shall take effect on the one hundred eightieth day after
    47  it  shall  have  become  a  law.    Provided, however, that any actions,
    48  including but not limited to the promulgation of rules and  regulations,
    49  necessary  to implement the provisions of this act on its effective date
    50  are authorized and directed to be made and completed on or  before  such
    51  date.