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1192. Operating a motor vehicle while under the influence of alcohol
or drugs.

1. Driving while ability impaired. No person shall operate a
motor vehicle while the person's ability to operate such motor vehicle
is impaired by the consumption of alcohol.
2. Driving while intoxicated; per se. No person shall operate a motor
vehicle while such person has .08 of one per centum or more by weight of
alcohol in the person's blood as shown by chemical analysis of such
person's blood, breath, urine or saliva, made pursuant to the provisions
of section eleven hundred ninety-four of this article.
2-a. Aggravated driving while intoxicated. (a) Per se. No person shall
operate a motor vehicle while such person has .18 of one per centum or
more by weight of alcohol in such person's blood as shown by chemical
analysis of such person's blood, breath, urine or saliva made pursuant
to the provisions of section eleven hundred ninety-four of this article.
(b) With a child. No person shall operate a motor vehicle in violation
of subdivision two, three, four or four-a of this section while a child
who is fifteen years of age or less is a passenger in such motor
vehicle.
3. Driving while intoxicated. No person shall operate a motor vehicle
while in an intoxicated condition.
4. Driving while ability impaired by drugs. No person shall operate a
motor vehicle while the person's ability to operate such a motor vehicle
is impaired by the use of a drug as defined in this chapter.
4-a. Driving while ability impaired by the combined influence of drugs
or of alcohol and any drug or drugs. No person shall operate a motor
vehicle while the person's ability to operate such motor vehicle is
impaired by the combined influence of drugs or of alcohol and any drug
or drugs.
5. Commercial motor vehicles: per se - level I. Notwithstanding the
provisions of section eleven hundred ninety-five of this article, no
person shall operate a commercial motor vehicle while such person has
.04 of one per centum or more but not more than .06 of one per centum by
weight of alcohol in the person's blood as shown by chemical analysis of
such person's blood, breath, urine or saliva, made pursuant to the
provisions of section eleven hundred ninety-four of this article;
provided, however, nothing contained in this subdivision shall prohibit
the imposition of a charge of a violation of subdivision one of this
section, or of section eleven hundred ninety-two-a of this article where
a person under the age of twenty-one operates a commercial motor vehicle
where a chemical analysis of such person's blood, breath, urine, or
saliva, made pursuant to the provisions of section eleven hundred
ninety-four of this article, indicates that such operator has .02 of one
per centum or more but less than .04 of one per centum by weight of
alcohol in such operator's blood.
6. Commercial motor vehicles; per se - level II. Notwithstanding the
provisions of section eleven hundred ninety-five of this article, no
person shall operate a commercial motor vehicle while such person has
more than .06 of one per centum but less than .08 of one per centum by
weight of alcohol in the person's blood as shown by chemical analysis of
such person's blood, breath, urine or saliva, made pursuant to the
provisions of section eleven hundred ninety-four of this article;
provided, however, nothing contained in this subdivision shall prohibit
the imposition of a charge of a violation of subdivision one of this
section.
7. Where applicable. The provisions of this section shall apply upon
public highways, private roads open to motor vehicle traffic and any
other parking lot. For the purposes of this section "parking lot" shall
mean any area or areas of private property, including a driveway, near
or contiguous to and provided in connection with premises and used as a
means of access to and egress from a public highway to such premises and
having a capacity for the parking of four or more motor vehicles. The
provisions of this section shall not apply to any area or areas of
private property comprising all or part of property on which is situated
a one or two family residence.
8. Effect of prior out-of-state conviction. A prior out-of-state
conviction for operating a motor vehicle while under the influence of
alcohol or drugs shall be deemed to be a prior conviction of a violation
of this section for purposes of determining penalties imposed under this
section or for purposes of any administrative action required to be
taken pursuant to subdivision two of section eleven hundred ninety-three
of this article; provided, however, that such conduct, had it occurred
in this state, would have constituted a misdemeanor or felony violation
of any of the provisions of this section. Provided, however, that if
such conduct, had it occurred in this state, would have constituted a
violation of any provisions of this section which are not misdemeanor or
felony offenses, then such conduct shall be deemed to be a prior
conviction of a violation of subdivision one of this section for
purposes of determining penalties imposed under this section or for
purposes of any administrative action required to be taken pursuant to
subdivision two of section eleven hundred ninety-three of this article.
8-a. Effect of prior finding of having consumed alcohol. A prior
finding that a person under the age of twenty-one has operated a motor
vehicle after having consumed alcohol pursuant to section eleven hundred
ninety-four-a of this article shall have the same effect as a prior
conviction of a violation of subdivision one of this section solely for
the purpose of determining the length of any license suspension or
revocation required to be imposed under any provision of this article,
provided that the subsequent offense is committed prior to the
expiration of the retention period for such prior offense or offenses
set forth in paragraph (k) of subdivision one of section two hundred one
of this chapter.
9. Conviction of a different charge. A driver may be convicted of a
violation of subdivision one, two or three of this section,
notwithstanding that the charge laid before the court alleged a
violation of subdivision two or three of this section, and regardless of
whether or not such conviction is based on a plea of guilty.
10. Plea bargain limitations. (a) (i) In any case wherein the charge
laid before the court alleges a violation of subdivision two, three,
four or four-a of this section, any plea of guilty thereafter entered in
satisfaction of such charge must include at least a plea of guilty to
the violation of the provisions of one of the subdivisions of this
section, other than subdivision five or six, and no other disposition by
plea of guilty to any other charge in satisfaction of such charge shall
be authorized; provided, however, if the district attorney, upon
reviewing the available evidence, determines that the charge of a
violation of this section is not warranted, such district attorney may
consent, and the court may allow a disposition by plea of guilty to
another charge in satisfaction of such charge; provided, however, in all
such cases, the court shall set forth upon the record the basis for such
disposition.
(ii) In any case wherein the charge laid before the court alleges a
violation of subdivision two, three, four or four-a of this section, no
plea of guilty to subdivision one of this section shall be accepted by
the court unless such plea includes as a condition thereof the
requirement that the defendant attend and complete the alcohol and drug
rehabilitation program established pursuant to section eleven hundred
ninety-six of this article, including any assessment and treatment
required thereby; provided, however, that such requirement may be waived
by the court upon application of the district attorney or the defendant
demonstrating that the defendant, as a condition of the plea, has been
required to enter into and complete an alcohol or drug treatment program
prescribed pursuant to an alcohol or substance abuse screening or
assessment conducted pursuant to section eleven hundred ninety-eight-a
of this article or for other good cause shown. The provisions of this
subparagraph shall apply, notwithstanding any bars to participation in
the alcohol and drug rehabilitation program set forth in section eleven
hundred ninety-six of this article; provided, however, that nothing in
this paragraph shall authorize the issuance of a conditional license
unless otherwise authorized by law.
(iii) In any case wherein the charge laid before the court alleges a
violation of subdivision one of this section and the operator was under
the age of twenty-one at the time of such violation, any plea of guilty
thereafter entered in satisfaction of such charge must include at least
a plea of guilty to the violation of such subdivision; provided,
however, such charge may instead be satisfied as provided in paragraph
(c) of this subdivision, and, provided further that, if the district
attorney, upon reviewing the available evidence, determines that the
charge of a violation of subdivision one of this section is not
warranted, such district attorney may consent, and the court may allow a
disposition by plea of guilty to another charge in satisfaction of such
charge; provided, however, in all such cases, the court shall set forth
upon the record the basis for such disposition.
(b) In any case wherein the charge laid before the court alleges a
violation of subdivision one or six of this section while operating a
commercial motor vehicle, any plea of guilty thereafter entered in
satisfaction of such charge must include at least a plea of guilty to
the violation of the provisions of one of the subdivisions of this
section and no other disposition by plea of guilty to any other charge
in satisfaction of such charge shall be authorized; provided, however,
if the district attorney upon reviewing the available evidence
determines that the charge of a violation of this section is not
warranted, he may consent, and the court may allow, a disposition by
plea of guilty to another charge is satisfaction of such charge.
(c) Except as provided in paragraph (b) of this subdivision, in any
case wherein the charge laid before the court alleges a violation of
subdivision one of this section by a person who was under the age of
twenty-one at the time of commission of the offense, the court, with the
consent of both parties, may allow the satisfaction of such charge by
the defendant's agreement to be subject to action by the commissioner
pursuant to section eleven hundred ninety-four-a of this article. In any
such case, the defendant shall waive the right to a hearing under
section eleven hundred ninety-four-a of this article and such waiver
shall have the same force and effect as a finding of a violation of
section eleven hundred ninety-two-a of this article entered after a
hearing conducted pursuant to such section eleven hundred ninety-four-a.
The defendant shall execute such waiver in open court, and, if
represented by counsel, in the presence of his attorney, on a form to be
provided by the commissioner, which shall be forwarded by the court to
the commissioner within ninety-six hours. To be valid, such form shall,
at a minimum, contain clear and conspicuous language advising the
defendant that a duly executed waiver: (i) has the same force and effect
as a guilty finding following a hearing pursuant to section eleven
hundred ninety-four-a of this article; (ii) shall subject the defendant
to the imposition of sanctions pursuant to such section eleven hundred
ninety-four-a; and (iii) may subject the defendant to increased
sanctions upon a subsequent violation of this section or section eleven
hundred ninety-two-a of this article. Upon receipt of a duly executed
waiver pursuant to this paragraph, the commissioner shall take such
administrative action and impose such sanctions as may be required by
section eleven hundred ninety-four-a of this article.
(d) In any case wherein the charge laid before the court alleges a
violation of subdivision two-a of this section, any plea of guilty
thereafter entered in satisfaction of such charge must include at least
a plea of guilty to the violation of the provisions of subdivision two,
two-a or three of this section, and no other disposition by plea of
guilty to any other charge in satisfaction of such charge shall be
authorized; provided, however, if the district attorney, upon reviewing
the available evidence, determines that the charge of a violation of
this section is not warranted, such district attorney may consent and
the court may allow a disposition by plea of guilty to another charge in
satisfaction of such charge, provided, however, in all such cases, the
court shall set forth upon the record the basis for such disposition.
Provided, further, however, that no such plea shall be accepted by the
court unless such plea includes as a condition thereof the requirement
that the defendant attend and complete the alcohol and drug
rehabilitation program established pursuant to section eleven hundred
ninety-six of this article, including any assessment and treatment
required thereby; provided, however, that such requirement may be waived
by the court upon application of the district attorney or the defendant
demonstrating that the defendant, as a condition of the plea, has been
required to enter into and complete an alcohol or drug treatment program
prescribed pursuant to an alcohol or substance abuse screening or
assessment conducted pursuant to section eleven hundred ninety-eight-a
of this article or for other good cause shown. The provisions of this
paragraph shall apply, notwithstanding any bars to participation in the
alcohol and drug rehabilitation program set forth in section eleven
hundred ninety-six of this article; provided, however, that nothing in
this paragraph shall authorize the issuance of a conditional license
unless otherwise authorized by law.
11. No person other than an operator of a commercial motor vehicle may
be charged with or convicted of a violation of subdivision five or six
of this section.
12. Driving while intoxicated or while ability impaired by
drugs--serious physical injury or death or child in the vehicle. (a) In
every case where a person is charged with a violation of subdivision
two, two-a, three, four or four-a of this section, the law enforcement
officer alleging such charge shall make a clear notation in the
"Description of Violation" section of a simplified traffic information
(i) if, arising out of the same incident, someone other than the person
charged was killed or suffered serious physical injury as defined in
section 10.00 of the penal law; such notation shall be in the form of a
"D" if someone other than the person charged was killed and such
notation shall be in the form of a "S.P.I." if someone other than the
person charged suffered serious physical injury; and (ii) if a child
aged fifteen years or less was present in the vehicle of the person
charged with a violation of subdivision two, two-a, three, four or
four-a of this section; such notation shall be in the form of "C.I.V.".
Provided, however, that the failure to make such notations shall in no
way affect a charge for a violation of subdivision two, two-a, three,
four or four-a of this section.
(b) Where a law enforcement officer alleges a violation of paragraph
(b) of subdivision two-a of this section and the operator of the vehicle
is a parent, guardian, or custodian of, or other person legally
responsible for, a child aged fifteen years or less who is a passenger
in such vehicle, then the officer shall report or cause a report to be
made, if applicable, in accordance with title six of article six of the
social services law.