S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         7049
                                   I N  S E N A T E
                                    April 21, 2014
                                      ___________
       Introduced  by Sen. NOZZOLIO -- read twice and ordered printed, and when
         printed to be committed to the Committee on Codes
       AN ACT to amend the penal law, in relation to establishing the crimes of
         persistent aggravated unlicensed operation  of  a  motor  vehicle  and
         persistent  driving while intoxicated, to increase the felony class of
         certain crimes related to the operation of a motor vehicle;  to  amend
         the  vehicle  and  traffic law, in relation to certain civil penalties
         and aggravated unlicensed operation of a motor vehicle; and to  repeal
         certain provisions of the vehicle and traffic law relating thereto
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1.  The penal law is amended by adding a new section 270.40 to
    2  read as follows:
    3  S 270.40 PERSISTENT AGGRAVATED UNLICENSED OPERATION OF A MOTOR VEHICLE.
    4    A PERSON IS GUILTY OF THE OFFENSE OF PERSISTENT AGGRAVATED  UNLICENSED
    5  OPERATION  OF  A MOTOR VEHICLE WHEN SUCH PERSON: (1) COMMITS THE OFFENSE
    6  OF AGGRAVATED UNLICENSED OPERATION OF  A  MOTOR  VEHICLE  IN  THE  THIRD
    7  DEGREE  AS  DEFINED IN SUBDIVISION ONE OF SECTION FIVE HUNDRED ELEVEN OF
    8  THE VEHICLE AND TRAFFIC LAW; AND IS  OPERATING  A  MOTOR  VEHICLE  WHILE
    9  UNDER  PERMANENT REVOCATION AS SET FORTH IN SUBPARAGRAPH TWELVE OF PARA-
   10  GRAPH (B) OF SUBDIVISION TWO OF SECTION ELEVEN HUNDRED  NINETY-THREE  OF
   11  THE  VEHICLE  AND  TRAFFIC  LAW;  OR (2) OPERATES A MOTOR VEHICLE UPON A
   12  PUBLIC HIGHWAY WHILE HOLDING A CONDITIONAL LICENSE  ISSUED  PURSUANT  TO
   13  PARAGRAPH  (A) OF SUBDIVISION SEVEN OF SECTION ELEVEN HUNDRED NINETY-SIX
   14  OF THE VEHICLE AND TRAFFIC LAW WHILE UNDER THE INFLUENCE OF ALCOHOL OR A
   15  DRUG IN VIOLATION OF SUBDIVISION ONE, TWO, TWO-A, THREE, FOUR, FOUR-A OR
   16  FIVE OF SECTION ELEVEN HUNDRED NINETY-TWO OF  THE  VEHICLE  AND  TRAFFIC
   17  LAW.
   18    PERSISTENT  AGGRAVATED  UNLICENSED  OPERATION  OF A MOTOR VEHICLE IS A
   19  CLASS D FELONY.
   20    S 2. Subparagraphs (iii) and (iv) of paragraph (a) of subdivision 3 of
   21  section 511 of the vehicle and traffic law are REPEALED.
   22    S 3. The penal law is amended by adding a new section 270.45  to  read
   23  as follows:
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD14496-03-4
       S. 7049                             2
    1  S 270.45 PERSISTENT DRIVING WHILE INTOXICATED.
    2    A  PERSON IS GUILTY OF THE OFFENSE OF PERSISTENT DRIVING WHILE INTOXI-
    3  CATED WHEN SUCH PERSON OPERATES A VEHICLE IN  VIOLATION  OF  SUBDIVISION
    4  TWO,  TWO-A,  THREE, FOUR OR FOUR-A OF SECTION ELEVEN HUNDRED NINETY-TWO
    5  OF THE VEHICLE AND TRAFFIC  LAW  AFTER  HAVING  BEEN  CONVICTED  OF  ANY
    6  VIOLATION  OF  SUBDIVISION  TWO,  TWO-A,  THREE,  FOUR OR FOUR-A OF SUCH
    7  SECTION OR OF VEHICULAR ASSAULT  IN  THE  SECOND  OR  FIRST  DEGREE,  AS
    8  DEFINED,  RESPECTIVELY,  IN  SECTIONS 120.03 AND 120.04 OF THIS PART AND
    9  AGGRAVATED VEHICULAR ASSAULT AS DEFINED IN SECTION 120.04-A OF THIS PART
   10  OR OF VEHICULAR MANSLAUGHTER IN THE SECOND OR FIRST DEGREE, AS  DEFINED,
   11  RESPECTIVELY,  IN  SECTIONS  125.12  AND 125.13 AND AGGRAVATED VEHICULAR
   12  HOMICIDE AS DEFINED IN SECTION 125.14 OF THIS PART,  ON  THREE  OR  MORE
   13  OCCASIONS,  WITHIN  THE  PRECEDING  FIFTEEN  YEARS OR ANY COMBINATION OF
   14  THREE OR MORE OF THE OFFENSES SET  FORTH  IN  THIS  SECTION  WITHIN  THE
   15  PRECEDING FIFTEEN YEARS.
   16    PERSISTENT DRIVING WHILE INTOXICATED IS A CLASS C FELONY.
   17    S  4. Subparagraph 2 of paragraph (d) of subdivision 2 of section 1194
   18  of the vehicle and traffic law, as amended by chapter 732 of the laws of
   19  2006, is amended to read as follows:
   20    (2) Civil penalties. Except as otherwise provided,  any  person  whose
   21  license,  permit  to  drive,  or any non-resident operating privilege is
   22  revoked pursuant to the provisions of this section shall also be  liable
   23  for a civil penalty in the amount of five hundred dollars except that if
   24  such  revocation  is  a second or subsequent revocation pursuant to this
   25  section issued within a five  year  period,  or  such  person  has  been
   26  convicted  of  a  violation of any subdivision of section eleven hundred
   27  ninety-two of this article within the past five years not arising out of
   28  the same incident, the civil penalty shall be in the  amount  of  [seven
   29  hundred fifty] ONE THOUSAND dollars. Any person whose license is revoked
   30  pursuant  to  the  provisions  of  this  section based upon a finding of
   31  refusal to submit to a chemical test while operating a commercial  motor
   32  vehicle  shall  also be liable for a civil penalty of five hundred fifty
   33  dollars except that if such person has previously  been  found  to  have
   34  refused  a  chemical  test  pursuant  to  this section while operating a
   35  commercial motor vehicle or has a prior conviction of any of the follow-
   36  ing offenses while operating a commercial motor vehicle:  any  violation
   37  of  section  eleven hundred ninety-two of this article; any violation of
   38  subdivision two of section six hundred of this chapter; or has  a  prior
   39  conviction of any felony involving the use of a commercial motor vehicle
   40  pursuant  to  paragraph  (a)  of subdivision one of section five hundred
   41  ten-a of this chapter, then the civil penalty shall  be  [seven  hundred
   42  fifty]  ONE THOUSAND dollars. No new driver's license or permit shall be
   43  issued, or non-resident operating  privilege  restored  to  such  person
   44  unless  such  penalty  has  been  paid.  All  penalties collected by the
   45  department pursuant to the provisions of this section shall be the prop-
   46  erty of the state and shall be paid into the general fund of  the  state
   47  treasury.
   48    S  5. Paragraph (b) of subdivision 3 of section 511 of the vehicle and
   49  traffic law, as separately amended by chapters 786 and 892 of  the  laws
   50  of 1990, is amended to read as follows:
   51    (b)  Aggravated  unlicensed  operation of a motor vehicle in the first
   52  degree is a class E felony. When a person is convicted  of  this  crime,
   53  the sentence of the court must be: (i) a fine in an amount not less than
   54  [five hundred] ONE THOUSAND dollars nor more than five thousand dollars;
   55  and  (ii)  a term of imprisonment as provided in the penal law, or (iii)
   56  where appropriate and a term of imprisonment  is  not  required  by  the
       S. 7049                             3
    1  penal  law,  a  sentence  of probation as provided in subdivision six of
    2  this section, or (iv) a  term  of  imprisonment  as  a  condition  of  a
    3  sentence of probation as provided in the penal law.
    4    S 6. Clauses (b), (c), (d) and (e) of subparagraph 12 of paragraph (b)
    5  of  subdivision  2  of  section  1193 of the vehicle and traffic law are
    6  REPEALED and clause (f) is relettered clause (b).
    7    S 7. The closing paragraph of section 125.13  of  the  penal  law,  as
    8  amended  by  chapter  496  of  the  laws  of 2009, is amended to read as
    9  follows:
   10    Vehicular manslaughter in the first degree is a class [C] B felony.
   11    S 8. Paragraph (a) of subdivision 1 of section 70.02 of the penal law,
   12  as amended by chapter 320 of the laws of 2006, is  amended  to  read  as
   13  follows:
   14    (a)  Class  B  violent felony offenses: an attempt to commit the class
   15  A-I felonies of murder in  the  second  degree  as  defined  in  section
   16  125.25, kidnapping in the first degree as defined in section 135.25, and
   17  arson  in the first degree as defined in section 150.20; manslaughter in
   18  the first degree as defined in section 125.20,  aggravated  manslaughter
   19  in  the  first  degree  as  defined in section 125.22, rape in the first
   20  degree as defined in section 130.35, criminal sexual act  in  the  first
   21  degree  as  defined  in  section  130.50, aggravated sexual abuse in the
   22  first degree as defined in section  130.70,  course  of  sexual  conduct
   23  against  a  child  in  the  first  degree  as defined in section 130.75;
   24  assault in the first degree as defined in section 120.10, kidnapping  in
   25  the  second  degree  as defined in section 135.20, burglary in the first
   26  degree as defined in section 140.30,  arson  in  the  second  degree  as
   27  defined  in  section  150.15,  robbery in the first degree as defined in
   28  section 160.15, incest in the first degree as defined in section 255.27,
   29  criminal possession of a weapon  in  the  first  degree  as  defined  in
   30  section 265.04, criminal use of a firearm in the first degree as defined
   31  in  section  265.09,  criminal  sale of a firearm in the first degree as
   32  defined in section 265.13, aggravated assault upon a police officer or a
   33  peace officer as defined in section 120.11, gang assault  in  the  first
   34  degree  as  defined  in section 120.07, AGGRAVATED VEHICULAR HOMICIDE AS
   35  DEFINED IN SECTION 125.14, intimidating a victim or witness in the first
   36  degree as defined in section 215.17, hindering prosecution of  terrorism
   37  in the first degree as defined in section 490.35, criminal possession of
   38  a  chemical  weapon or biological weapon in the second degree as defined
   39  in section 490.40, and criminal use of a chemical weapon  or  biological
   40  weapon in the third degree as defined in section 490.47.
   41    S  9.  The  closing  paragraph  of section 120.03 of the penal law, as
   42  amended by chapter 732 of the laws  of  2006,  is  amended  to  read  as
   43  follows:
   44    Vehicular assault in the second degree is a class [E] D felony.
   45    S  10.  The  closing  paragraph of section 120.04 of the penal law, as
   46  amended by chapter 496 of the laws  of  2009,  is  amended  to  read  as
   47  follows:
   48    Vehicular assault in the first degree is a class [D] C felony.
   49    S  11.  The closing paragraph of section 120.04-a of the penal law, as
   50  amended by chapter 496 of the laws  of  2009,  is  amended  to  read  as
   51  follows:
   52    Aggravated vehicular assault is a class [C] B felony.
   53    S  12.  This  act  shall  take  effect  on  the first of November next
   54  succeeding the date on which it shall have become a law.