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 Subdivision 3 of section 265.01 of the penal law is REPEALED. 17 § 4.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.