S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         4058
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                   February 26, 2015
                                      ___________
       Introduced  by  Sen. SAMPSON -- read twice and ordered printed, and when
         printed to be committed to the Committee on Codes
       AN ACT to amend the penal law and the executive law, in relation to  the
         possession of a firearm while under the influence of alcohol or drugs
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1.  Legislative  intent.  The  legislature  hereby  finds  and
    2  declares  that  the  serious and dangerous consequences which may result
    3  when persons otherwise lawfully in possession of a firearm are under the
    4  influence of alcohol or a  controlled  substance  demand  immediate  and
    5  forthwith  state  action. There is no compelling reason to permit such a
    6  person to retain the privilege to carry and possess a  firearm,  knowing
    7  full  well  the  dire consequences which may occur when alcohol or drugs
    8  and firearms are combined.   Therefore, in enacting  the  provisions  of
    9  this  act,  the  state  takes  the  extraordinary step of suspending the
   10  license to carry and possess a firearm of any person found to  be  under
   11  the influence of alcohol or a controlled substance while actually carry-
   12  ing  a  loaded firearm on his or her person in a public place, or who if
   13  charged with such activity refuses to  submit  to  a  chemical  test  to
   14  determine the alcohol or drug content of his or her blood.
   15    S  2.  Subdivision 1 of section 400.00 of the penal law, as amended by
   16  chapter 1 of the laws of 2013, is amended to read as follows:
   17    1. Eligibility.  No license shall be issued  or  renewed  pursuant  to
   18  this section except by the licensing officer, and then only after inves-
   19  tigation  and  finding that all statements in a proper application for a
   20  license are true. No license shall be issued or renewed  except  for  an
   21  applicant  (a) twenty-one years of age or older, provided, however, that
   22  where such applicant has  been  honorably  discharged  from  the  United
   23  States  army,  navy,  marine  corps,  air  force  or coast guard, or the
   24  national guard of the state of New York, no such age  restriction  shall
   25  apply;  (b)  of  good  moral  character;  (c) who has not been convicted
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09177-01-5
       S. 4058                             2
    1  anywhere of a felony or a serious offense; (d) who  is  not  a  fugitive
    2  from  justice;  (e)  who  is  not an unlawful user of or addicted to any
    3  controlled substance as defined in section 21 U.S.C. 802; (f) who  being
    4  an alien (i) is not illegally or unlawfully in the United States or (ii)
    5  has  not  been  admitted  to the United States under a nonimmigrant visa
    6  subject to the exception in 18 U.S.C. 922(y)(2); (g) who  has  not  been
    7  discharged from the Armed Forces under dishonorable conditions; (h) who,
    8  having been a citizen of the United States, has not renounced his or her
    9  citizenship;  (i) who has stated whether he or she has ever suffered any
   10  mental illness; (j) who has not been involuntarily committed to a facil-
   11  ity under the jurisdiction of an office  of  the  department  of  mental
   12  hygiene  pursuant  to article nine or fifteen of the mental hygiene law,
   13  article seven hundred thirty or section 330.20 of the criminal procedure
   14  law, section four hundred two or five hundred eight  of  the  correction
   15  law,  section  322.2  or  353.4 of the family court act, or has not been
   16  civilly confined in a secure treatment facility pursuant to article  ten
   17  of  the mental hygiene law; (k) who has not had a license revoked or who
   18  is not under a suspension or ineligibility order issued pursuant to  the
   19  provisions  of  SUBDIVISION  ELEVEN-A OF THIS SECTION, section 530.14 of
   20  the criminal procedure law or section eight hundred forty-two-a  of  the
   21  family court act; (l) in the county of Westchester, who has successfully
   22  completed  a  firearms  safety course and test as evidenced by a certif-
   23  icate of completion issued in his or her name and endorsed and  affirmed
   24  under  the  penalties of perjury by a duly authorized instructor, except
   25  that: (i) persons who are honorably discharged from  the  United  States
   26  army, navy, marine corps or coast guard, or of the national guard of the
   27  state  of  New  York,  and produce evidence of official qualification in
   28  firearms during the term of service are not required to  have  completed
   29  those  hours  of  a  firearms  safety course pertaining to the safe use,
   30  carrying, possession, maintenance and storage of  a  firearm;  and  (ii)
   31  persons  who  were licensed to possess a pistol or revolver prior to the
   32  effective date of this paragraph are not required to  have  completed  a
   33  firearms  safety  course  and  test;  (m)  who  has  not  had a guardian
   34  appointed for him or her pursuant to any provision of state  law,  based
   35  on  a  determination  that as a result of marked subnormal intelligence,
   36  mental illness, incapacity, condition or disease, he or  she  lacks  the
   37  mental  capacity  to  contract or manage his or her own affairs; and (n)
   38  concerning whom no good cause exists for the denial of the  license.  No
   39  person  shall  engage  in the business of gunsmith or dealer in firearms
   40  unless licensed pursuant to this section. An applicant to engage in such
   41  business shall also be a citizen of the United States, more  than  twen-
   42  ty-one  years  of  age  and  maintain a place of business in the city or
   43  county where the license is issued. For such business, if the  applicant
   44  is  a  firm or partnership, each member thereof shall comply with all of
   45  the requirements set forth in this subdivision and if the applicant is a
   46  corporation, each officer thereof shall so comply.
   47    S 3. Subdivision 11 of section 400.00 of the penal law, as amended  by
   48  chapter 1 of the laws of 2013, is amended to read as follows:
   49    11.  License:  revocation  and  suspension.    (a) The conviction of a
   50  licensee anywhere of a felony or serious offense or a  licensee  at  any
   51  time  becoming  ineligible  to obtain a license under this section shall
   52  operate as a revocation of the license. A  license  may  be  revoked  or
   53  suspended  as  provided  for in section 530.14 of the criminal procedure
   54  law or section eight hundred forty-two-a of the family court act. Except
   55  for a license issued pursuant to  section  400.01  of  this  article,  a
   56  license  may  be  revoked  and  cancelled at any time in the city of New
       S. 4058                             3
    1  York, and in the counties of Nassau and Suffolk, by the licensing  offi-
    2  cer,  and elsewhere than in the city of New York by any judge or justice
    3  of a court of record; a license issued pursuant  to  section  400.01  of
    4  this  article  may be revoked and cancelled at any time by the licensing
    5  officer or any judge or justice of  a  court  of  record.  The  official
    6  revoking a license shall give written notice thereof without unnecessary
    7  delay to the executive department, division of state police, Albany, and
    8  shall also notify immediately the duly constituted police authorities of
    9  the  locality.  FOR  PURPOSES  OF  THIS  SUBDIVISION,  THE TERM "SERIOUS
   10  OFFENSE" SHALL INCLUDE, BUT NOT BE LIMITED TO,  A  SECOND  VIOLATION  OF
   11  SUBDIVISION  ELEVEN-A  OF  THIS  SECTION  WITHIN  TEN  YEARS  OF A PRIOR
   12  VIOLATION OF SUCH SUBDIVISION.
   13    (b) Whenever the director of community services or his or her designee
   14  makes a report pursuant to section 9.46 of the mental hygiene  law,  the
   15  division  of  criminal  justice  services shall convey such information,
   16  whenever it determines that the person named in the report  possesses  a
   17  license  issued  pursuant  to this section, to the appropriate licensing
   18  official, who shall issue an order suspending or revoking such license.
   19    (c) In any instance in  which  a  person's  license  is  suspended  or
   20  revoked  under  paragraph  (a)  or  (b) of this subdivision, such person
   21  shall surrender such license to the appropriate licensing  official  and
   22  any  and  all  firearms,  rifles, or shotguns owned or possessed by such
   23  person shall be surrendered to an appropriate law enforcement agency  as
   24  provided  in  subparagraph  (f)  of  paragraph  one  of subdivision a of
   25  section 265.20 of this chapter. In  the  event  such  license,  firearm,
   26  shotgun,  or  rifle  is not surrendered, such items shall be removed and
   27  declared a nuisance and any  police  officer  or  peace  officer  acting
   28  pursuant  to  his  or her special duties is authorized to remove any and
   29  all such weapons.
   30    S 4. Section 400.00 of the penal law is amended by adding a new subdi-
   31  vision 11-a to read as follows:
   32    11-A. LICENSE; SUSPENSION FOR POSSESSION WHILE UNDER THE INFLUENCE  OF
   33  ALCOHOL  OR  A  CONTROLLED  SUBSTANCE. (A) NO LICENSEE SHALL POSSESS ANY
   34  LOADED FIREARM, AS DEFINED IN SUBDIVISION FIFTEEN OF SECTION  265.00  OF
   35  THIS CHAPTER, ON HIS OR HER PERSON IN A PUBLIC PLACE WHILE SUCH LICENSEE
   36  IS  EITHER  UNDER  THE  INFLUENCE OF ALCOHOL OR UNDER THE INFLUENCE OF A
   37  CONTROLLED SUBSTANCE, AS DEFINED IN SECTIONS  THIRTY-THREE  HUNDRED  TWO
   38  AND  THIRTY-THREE HUNDRED SIX OF THE PUBLIC HEALTH LAW.  FOR PURPOSES OF
   39  THIS SUBDIVISION, A PERSON IS CONSIDERED TO BE UNDER  THE  INFLUENCE  OF
   40  ALCOHOL  OR  UNDER  THE  INFLUENCE  OF A CONTROLLED SUBSTANCE WHERE SUCH
   41  PERSON HAS VOLUNTARILY CONSUMED ALCOHOL OR VOLUNTARILY USED ONE OR  MORE
   42  CONTROLLED SUBSTANCES, OR BOTH, TO THE EXTENT THAT HIS OR HER ABILITY TO
   43  SAFELY HANDLE OR USE A LOADED FIREARM HAS BEEN SIGNIFICANTLY DIMINISHED.
   44  FOR  PURPOSES  OF  THIS  SUBDIVISION, "PUBLIC PLACE" SHALL HAVE THE SAME
   45  MEANING AS IN  SUBDIVISION  ONE  OF  SECTION  240.00  OF  THIS  CHAPTER,
   46  PROVIDED  HOWEVER, THAT FOR PURPOSES OF THIS SUBDIVISION, "PUBLIC PLACE"
   47  SHALL ALSO INCLUDE THE INTERIOR OF A MOTOR VEHICLE.   AS  USED  IN  THIS
   48  SUBDIVISION,  "ON  HIS  OR  HER PERSON" SHALL HAVE ITS ORDINARY MEANING,
   49  PROVIDED, HOWEVER, THAT FOR PURPOSES OF THIS SUBDIVISION, A PERSON SHALL
   50  ALSO BE DEEMED TO POSSESS A FIREARM "ON  HIS  OR  HER  PERSON"  WHERE  A
   51  FIREARM  LICENSED TO SUCH PERSON IS FOUND IN A MOTOR VEHICLE AT THE SAME
   52  TIME SUCH PERSON IS AN OCCUPANT OF SUCH VEHICLE.
   53    (B) THE LICENSE TO CARRY OR POSSESS A FIREARM OF  ANY  PERSON  WHO  IS
   54  CHARGED  WITH  A  VIOLATION OF ANY OF THE PROVISIONS OF PARAGRAPH (A) OF
   55  THIS SUBDIVISION OR WHO REFUSES TO SUBMIT TO A CHEMICAL TEST OF  HIS  OR
   56  HER  BREATH,  BLOOD,  URINE OR SALIVA FOR THE PURPOSE OF DETERMINING THE
       S. 4058                             4
    1  ALCOHOLIC AND/OR DRUG CONTENT OF  HIS  OR  HER  BLOOD  SHALL  BE  DEEMED
    2  SUSPENDED,  WITH RESPECT TO THE FIREARM OR FIREARMS FORMING THE BASIS OF
    3  SUCH CHARGE OR REFUSAL, PENDING A HEARING HELD PURSUANT TO THIS SUBDIVI-
    4  SION  AND  SUCH  FIREARM  OR  FIREARMS,  TOGETHER  WITH  ANY  AMMUNITION
    5  POSSESSED THEREWITH, SHALL BE CONFISCATED AND HELD BY THE POLICE PENDING
    6  SUCH HEARING.
    7    (C) (I) ANY PERSON WHO HOLDS A LICENSE TO CARRY OR POSSESS  A  FIREARM
    8  IN  THIS  STATE  SHALL  BE  DEEMED TO HAVE GIVEN HIS OR HER CONSENT TO A
    9  CHEMICAL TEST OF HIS OR HER BREATH,  BLOOD,  URINE  OR  SALIVA  FOR  THE
   10  PURPOSE  OF  DETERMINING THE ALCOHOLIC AND/OR DRUG CONTENT OF HIS OR HER
   11  BLOOD; PROVIDED, THAT SUCH TEST IS ADMINISTERED BY OR AT  THE  DIRECTION
   12  OF  A POLICE OFFICER WITH RESPECT TO A CHEMICAL TEST OF BREATH, URINE OR
   13  SALIVA OR, WITH RESPECT TO A CHEMICAL TEST OF BLOOD, AT THE DIRECTION OF
   14  A POLICE OFFICER  HAVING  REASONABLE  GROUNDS  TO  BELIEVE  SUCH  PERSON
   15  POSSESSES A FIREARM IN VIOLATION OF THIS SUBDIVISION.
   16    (II)  IF SUCH LICENSEE, HAVING BEEN REQUESTED TO SUBMIT TO SUCH CHEMI-
   17  CAL TEST AND HAVING BEEN INFORMED THAT HIS OR HER LICENSE  TO  CARRY  OR
   18  POSSESS  A  FIREARM  SHALL  BE SUSPENDED FOR A REFUSAL TO SUBMIT TO SUCH
   19  CHEMICAL TEST, REFUSES TO SUBMIT TO SUCH TEST OR  IS  ADMINISTERED  SUCH
   20  TEST,  A  WRITTEN  REPORT  OF SUCH REFUSAL OR TEST RESULT SHALL BE IMME-
   21  DIATELY MADE BY THE POLICE OFFICER BEFORE WHOM SUCH REFUSAL OR TEST  WAS
   22  MADE.  SUCH  REPORT  MAY  BE  VERIFIED BY HAVING THE REPORT SWORN TO, OR
   23  AFFIXING TO SUCH REPORT A FORM NOTICE THAT FALSE STATEMENTS MADE THEREIN
   24  ARE PUNISHABLE AS A CLASS A MISDEMEANOR, PURSUANT TO SECTION  210.45  OF
   25  THIS CHAPTER, AND SUCH FORM NOTICE TOGETHER WITH THE SUBSCRIPTION OF THE
   26  DEPONENT  SHALL  CONSTITUTE  A VERIFICATION OF THE REPORT. THE REPORT OF
   27  THE POLICE OFFICER SHALL STATE THAT HE OR SHE HAD REASONABLE GROUNDS  TO
   28  BELIEVE SUCH LICENSEE TO HAVE BEEN IN VIOLATION OF THIS SUBDIVISION AND,
   29  IF  APPROPRIATE, THAT SAID PERSON HAD REFUSED TO SUBMIT TO SUCH CHEMICAL
   30  TEST. COPIES OF SUCH REPORT SHALL BE FORWARDED BY THE POLICE OFFICER  TO
   31  THE LICENSING OFFICER WITHIN FORTY-EIGHT HOURS.
   32    (D)  (I)  ANY LICENSEE WHOSE LICENSE TO CARRY OR POSSESS A FIREARM HAS
   33  BEEN DEEMED SUSPENDED PURSUANT TO THE  TERMS  OF  THIS  SUBDIVISION,  IS
   34  ENTITLED TO A HEARING BY THE LICENSING OFFICER, NO LATER THAN SEVEN DAYS
   35  AFTER  THE  DATE ON WHICH HE OR SHE ALLEGEDLY VIOLATED THIS SUBDIVISION.
   36  SUCH HEARING SHALL BE CONDUCTED BY THE LICENSING  OFFICER,  OR  IF  SUCH
   37  POSSESSION  ALLEGEDLY  OCCURRED  IN  THE CITY OF NEW YORK, BY THE POLICE
   38  COMMISSIONER OF SUCH CITY. IF THE LICENSING OFFICER FAILS TO PROVIDE FOR
   39  SUCH HEARING WITHIN THE TIME PRESCRIBED  HEREIN,  THE  LICENSE  OF  SUCH
   40  PERSON  SHALL  BE REINSTATED PENDING A HEARING PURSUANT TO THIS SUBDIVI-
   41  SION AND ANY  LAWFULLY  POSSESSED  FIREARM  AND  AMMUNITION  CONFISCATED
   42  PURSUANT  TO  PARAGRAPH  (B)  OF  THIS  SUBDIVISION SHALL BE IMMEDIATELY
   43  RETURNED TO THE LICENSEE.  THE BURDEN OF PROOF AT  A  HEARING  CONDUCTED
   44  PURSUANT TO THIS SUBDIVISION SHALL BE ON THE POLICE OFFICER TO PROVE THE
   45  ISSUES BY A PREPONDERANCE OF THE EVIDENCE.  THE HEARING SHALL BE LIMITED
   46  TO  THE FOLLOWING ISSUES: (1) DID THE PERSON POSSESS A LOADED FIREARM ON
   47  HIS OR HER PERSON IN A PUBLIC PLACE WHILE UNDER THE INFLUENCE OF ALCOHOL
   48  OR DRUGS IN VIOLATION OF THIS SUBDIVISION AND  DID  THE  POLICE  OFFICER
   49  HAVE  REASONABLE  GROUNDS FOR BELIEVING SUCH VIOLATION HAD OCCURRED; AND
   50  (2) IF SUSPENSION IS BASED UPON A REFUSAL TO SUBMIT TO A CHEMICAL  TEST,
   51  DID  THE POLICE OFFICER HAVE REASONABLE GROUNDS FOR BELIEVING THE LICEN-
   52  SEE POSSESSED A FIREARM IN  VIOLATION  OF  THIS  SUBDIVISION,  WAS  SUCH
   53  PERSON  GIVEN  SUFFICIENT  WARNING,  IN  CLEAR AND UNEQUIVOCAL LANGUAGE,
   54  PRIOR TO SUCH REFUSAL THAT SUCH REFUSAL TO SUBMIT TO SUCH CHEMICAL  TEST
   55  WOULD  RESULT  IN THE SUSPENSION OF HIS OR HER LICENSE WHETHER OR NOT HE
   56  OR SHE IS FOUND GUILTY OF THE CHARGE  AND  DID  SUCH  PERSON  REFUSE  TO
       S. 4058                             5
    1  SUBMIT  TO  SUCH  CHEMICAL TEST.   IF, AFTER SUCH HEARING, THE LICENSING
    2  OFFICER FINDS ON BOTH OF SAID ISSUES IN THE NEGATIVE, HE  OR  SHE  SHALL
    3  IMMEDIATELY  REINSTATE SUCH LICENSE SUBJECT TO ANY EXISTING RESTRICTION,
    4  REVOCATION,  OR  SUSPENSION  OF  SUCH LICENSE AND ANY LAWFULLY POSSESSED
    5  FIREARM AND AMMUNITION CONFISCATED PURSUANT TO  PARAGRAPH  (B)  OF  THIS
    6  SUBDIVISION  SHALL  BE  IMMEDIATELY RETURNED TO THE LICENSEE.  IF, AFTER
    7  SUCH HEARING, THE LICENSING OFFICER FINDS EITHER OF THE  ISSUES  IN  THE
    8  AFFIRMATIVE,  HE  OR  SHE  SHALL  IMMEDIATELY SUSPEND THE LICENSE.   THE
    9  FIREARM LICENSE SHALL BE SUSPENDED FOR A PERIOD OF ONE YEAR. THE LICENS-
   10  ING OFFICER, UPON SUSPENDING A LICENSE, SHALL INSTRUCT THE  PERSON  THAT
   11  ALL  OUTSTANDING  FIREARMS HELD PURSUANT TO SUCH LICENSE, AND ANY AMEND-
   12  MENTS THERETO, SHALL BE SURRENDERED TO THE DULY ENTITLED POLICE AUTHORI-
   13  TIES WITHIN TWENTY-FOUR HOURS OF THE CONCLUSION  OF  SUCH  HEARING.  THE
   14  LICENSING  OFFICER  SHALL  INSTRUCT SUCH PERSON THAT ALL WEAPONS SURREN-
   15  DERED PURSUANT TO THIS PARAGRAPH AND PARAGRAPH (B) OF  THIS  SUBDIVISION
   16  SHALL BE RETURNED TO SUCH PERSON UPON THE REINSTATEMENT OF SUCH LICENSE.
   17  ANY PERSON MAY WAIVE HIS OR HER RIGHT TO A HEARING UNDER THIS PARAGRAPH.
   18  FAILURE  BY SUCH PERSON TO APPEAR FOR HIS OR HER SCHEDULED HEARING SHALL
   19  CONSTITUTE A WAIVER OF SUCH HEARING, PROVIDED, HOWEVER, THAT SUCH PERSON
   20  MAY PETITION THE LICENSING OFFICER FOR A NEW HEARING WHICH, IF  GRANTED,
   21  SHALL BE HELD AS SOON AS PRACTICABLE.
   22    (II)  EVIDENCE  OF  A REFUSAL TO SUBMIT TO SUCH CHEMICAL TEST SHALL BE
   23  ADMISSIBLE IN ANY HEARING HELD PURSUANT TO THE PROVISIONS OF THIS SUBDI-
   24  VISION BUT ONLY UPON SHOWING THAT THE PERSON WAS GIVEN SUFFICIENT  WARN-
   25  ING, IN CLEAR AND UNEQUIVOCAL LANGUAGE, OF THE EFFECT OF SUCH REFUSAL.
   26    (III)  UPON  THE  REQUEST OF THE PERSON WHO WAS TESTED, THE RESULTS OF
   27  SUCH TEST SHALL BE MADE AVAILABLE TO HIM OR HER.
   28    (IV) THE CHEMICAL TEST PROVIDED FOR IN SUBPARAGRAPH (I)  OF  PARAGRAPH
   29  (C)  OF  THIS  SUBDIVISION  SHALL  BE  CONDUCTED  IN  THE SAME MANNER AS
   30  PROVIDED IN SUBDIVISION FOUR OF SECTION ELEVEN  HUNDRED  NINETY-FOUR  OF
   31  THE VEHICLE AND TRAFFIC LAW.
   32    (V)  ANY  PERSON  WHOSE  LICENSE  IS SUSPENDED FOR A VIOLATION OF THIS
   33  SUBDIVISION SHALL, AS A CONDITION FOR  REINSTATEMENT  OF  SUCH  LICENSE,
   34  SUCCESSFULLY  COMPLETE  THE  ALCOHOL  AND  DRUG  REHABILITATION  PROGRAM
   35  PROVIDED FOR IN SECTION EIGHT HUNDRED THIRTY-SEVEN-S  OF  THE  EXECUTIVE
   36  LAW.  THE  LICENSING  OFFICER SHALL NOT REINSTATE SUCH LICENSE UNTIL THE
   37  COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES CERTIFIES SUCH
   38  PERSON HAS SUCCESSFULLY COMPLETED THE ALCOHOL  AND  DRUG  REHABILITATION
   39  PROGRAM.
   40    (VI)  DURING  THE  PERIOD OF SUSPENSION PROVIDED FOR IN THIS PARAGRAPH
   41  SUCH PERSON SHALL NOT BE PERMITTED TO  APPLY  FOR  ANY  LICENSE,  OR  AN
   42  AMENDMENT TO AN EXISTING LICENSE, PROVIDED FOR IN THIS SECTION.
   43    (E)  THE  LICENSING  OFFICER  SUSPENDING  A LICENSE SHALL GIVE WRITTEN
   44  NOTICE THEREOF, WITHOUT UNNECESSARY DELAY, TO THE EXECUTIVE  DEPARTMENT,
   45  DIVISION  OF STATE POLICE, ALBANY, AND SHALL ALSO NOTIFY IMMEDIATELY THE
   46  DULY CONSTITUTED POLICE AUTHORITIES OF THE LOCALITY.
   47    (F) IN ANY HEARING PURSUANT TO THIS SUBDIVISION, THE LICENSING OFFICER
   48  SHALL ADMIT EVIDENCE OF THE AMOUNT OF ALCOHOL OR DRUGS IN  THE  PERSON'S
   49  BLOOD AS SHOWN BY A TEST ADMINISTERED PURSUANT TO THE PROVISIONS OF THIS
   50  SUBDIVISION.
   51     THE  FOLLOWING  EFFECT  SHALL  BE  GIVEN TO EVIDENCE OF BLOOD-ALCOHOL
   52  CONTENT, AS DETERMINED BY  SUCH  TESTS,  OF  A  PERSON  CHARGED  WITH  A
   53  VIOLATION OF THIS SUBDIVISION:
   54    (I)  EVIDENCE THAT THERE WAS LESS THAN .10 OF ONE PER CENTUM BY WEIGHT
   55  OF ALCOHOL IN SUCH PERSON'S BLOOD SHALL BE  PRIMA  FACIE  EVIDENCE  THAT
   56  SUCH PERSON WAS NOT UNDER THE INFLUENCE OF ALCOHOL;
       S. 4058                             6
    1    (II)  EVIDENCE  THAT THERE WAS .10 OF ONE PER CENTUM OR MORE BY WEIGHT
    2  OF ALCOHOL IN SUCH PERSON'S BLOOD SHALL BE  PRIMA  FACIE  EVIDENCE  THAT
    3  SUCH PERSON WAS UNDER THE INFLUENCE OF ALCOHOL.
    4    (G)  EXCEPT  AS  HEREIN  SPECIFICALLY  PROVIDED, THE HEARING CONDUCTED
    5  PURSUANT TO THIS SUBDIVISION SHALL  BE  DEEMED  TO  BE  AN  ADJUDICATORY
    6  PROCEEDING  SUBJECT  TO  THE  PROVISIONS  OF  ARTICLE THREE OF THE STATE
    7  ADMINISTRATIVE PROCEDURE ACT.
    8    (H) ANY PERSON AGGRIEVED BY A DECISION AFTER THE HEARING PROVIDED  FOR
    9  IN  THIS SUBDIVISION MAY APPEAL SUCH DECISION PURSUANT TO THE PROVISIONS
   10  OF ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
   11    (I) NOTWITHSTANDING ANY OTHER PROVISION OF LAW  TO  THE  CONTRARY,  NO
   12  PERSON  SHALL BE ARRESTED SOLELY FOR AN ALLEGED VIOLATION OF THIS SUBDI-
   13  VISION. HOWEVER, A PERSON FOR WHOM A CHEMICAL TEST IS AUTHORIZED  PURSU-
   14  ANT TO THIS SUBDIVISION MAY BE TEMPORARILY DETAINED BY THE POLICE SOLELY
   15  FOR  THE PURPOSE OF REQUESTING OR ADMINISTERING SUCH CHEMICAL TEST WHEN-
   16  EVER ARREST WITHOUT WARRANT FOR A PETTY OFFENSE WOULD BE  AUTHORIZED  IN
   17  ACCORDANCE  WITH THE PROVISIONS OF SECTION 140.10 OF THE CRIMINAL PROCE-
   18  DURE LAW.
   19    (J) NOTHING CONTAINED IN THIS SUBDIVISION SHALL BE DEEMED  TO  IN  ANY
   20  WAY  REDUCE  OR  LIMIT  THE EXISTING AUTHORITY OF A LICENSING OFFICER TO
   21  REVOKE OR SUSPEND A LICENSE ISSUED PURSUANT  TO  THIS  SECTION.  NOTHING
   22  CONTAINED IN THIS SUBDIVISION SHALL BE DEEMED TO LIMIT, REDUCE OR IN ANY
   23  WAY EFFECT THE CRIMINAL LIABILITY OF A LICENSEE FOR ANY FIREARM OR OTHER
   24  OFFENSE DEFINED IN THIS CHAPTER OR ANY OTHER PROVISION OF LAW.
   25    S  5. Subdivision 15 of section 400.00 of the penal law, as amended by
   26  chapter 1 of the laws of 2013, is amended to read as follows:
   27    15. Any violation by any person of  any  provision  of  this  section,
   28  OTHER  THAN A VIOLATION OF PARAGRAPH (A) OF SUBDIVISION ELEVEN-A OF THIS
   29  SECTION, is a class A misdemeanor.
   30    S 6. The executive law is amended by adding a  new  section  837-s  to
   31  read as follows:
   32    S  837-S.  ALCOHOL  AND DRUG REHABILITATION PROGRAM. 1. PROGRAM ESTAB-
   33  LISHMENT. THERE IS HEREBY ESTABLISHED AN ALCOHOL AND DRUG REHABILITATION
   34  PROGRAM WITHIN THE DIVISION.  THE COMMISSIONER SHALL ESTABLISH, BY REGU-
   35  LATION, THE INSTRUCTIONAL AND REHABILITATIVE  ASPECTS  OF  THE  PROGRAM.
   36  SUCH  PROGRAM SHALL CONSIST OF AT LEAST FIFTEEN AND NOT MORE THAN THIRTY
   37  HOURS AND INCLUDE, BUT NEED NOT BE LIMITED TO, CLASSROOM INSTRUCTION  IN
   38  AREAS DEEMED SUITABLE BY THE COMMISSIONER.
   39    2.  CURRICULUM.  THE  FORM,  CONTENT AND METHOD OF PRESENTATION OF THE
   40  VARIOUS ASPECTS OF SUCH PROGRAM SHALL BE ESTABLISHED BY THE  COMMISSION-
   41  ER.  IN  THE  DEVELOPMENT  OF  THE  FORM, CURRICULUM AND CONTENT OF SUCH
   42  PROGRAM, THE COMMISSIONER MAY CONSULT WITH THE  COMMISSIONER  OF  MENTAL
   43  HEALTH, THE COMMISSIONER OF THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE
   44  SERVICES  AND  ANY  OTHER  STATE  DEPARTMENT  OR  AGENCY AND REQUEST AND
   45  RECEIVE ASSISTANCE FROM THEM. THE COMMISSIONER  IS  ALSO  AUTHORIZED  TO
   46  DEVELOP  MORE THAN ONE CURRICULUM AND COURSE CONTENT FOR SUCH PROGRAM IN
   47  ORDER TO MEET THE VARYING REHABILITATIVE NEEDS OF THE PARTICIPANTS.
   48    3. WHERE AVAILABLE. A COURSE IN SUCH PROGRAM SHALL BE AVAILABLE IN  AT
   49  LEAST  EVERY  COUNTY  IN THE STATE, EXCEPT WHERE THE COMMISSIONER DETER-
   50  MINES THAT THERE IS NOT A SUFFICIENT NUMBER OF ALCOHOL  OR  DRUG-RELATED
   51  OFFENSES  IN  A  COUNTY TO MANDATE THE ESTABLISHMENT OF SAID COURSE, AND
   52  THAT PROVISIONS BE MADE FOR THE RESIDENTS OF SAID  COUNTY  TO  ATTEND  A
   53  COURSE IN ANOTHER COUNTY WHERE A COURSE EXISTS.
   54    4. ELIGIBILITY. PARTICIPATION IN THE PROGRAM SHALL BE LIMITED TO THOSE
   55  PERSONS  HAVING  VIOLATED  THE  PROVISIONS  OF  SUBDIVISION  ELEVEN-A OF
   56  SECTION 400.00 OF THE PENAL LAW.
       S. 4058                             7
    1    5. EFFECT OF COMPLETION.  UPON SUCCESSFUL COMPLETION OF  A  COURSE  IN
    2  SUCH  PROGRAM AS CERTIFIED BY ITS ADMINISTRATOR, THE COMMISSIONER SHALL,
    3  ON A FORM PROVIDED FOR SUCH PURPOSE, NOTIFY  THE  APPROPRIATE  LICENSING
    4  OFFICER  HAVING  ISSUED  THE  ORDER  OF  SUSPENSION  OF  SUCH LICENSEE'S
    5  SUCCESSFUL COMPLETION OF THE COURSE PROVIDED FOR IN THIS SECTION.
    6    6.  FEES.  THE  COMMISSIONER  SHALL ESTABLISH A SCHEDULE OF FEES TO BE
    7  PAID BY OR ON BEHALF OF EACH PARTICIPANT IN THE PROGRAM, AND  MAY,  FROM
    8  TIME  TO TIME, MODIFY SAME.  SUCH FEES SHALL DEFRAY THE ONGOING EXPENSES
    9  OF THE PROGRAM, PROVIDED, HOWEVER, THAT PURSUANT TO  AN  AGREEMENT  WITH
   10  THE  DIVISION  A  MUNICIPALITY,  DEPARTMENT THEREOF, OR OTHER AGENCY MAY
   11  CONDUCT A COURSE IN SUCH PROGRAM WITH ALL OR PART OF THE EXPENSE OF SUCH
   12  COURSE AND PROGRAM BEING BORNE BY SUCH MUNICIPALITY, DEPARTMENT OR AGEN-
   13  CY. IN NO EVENT SHALL SUCH FEE BE REFUNDABLE, EITHER FOR REASONS OF  THE
   14  PARTICIPANT'S WITHDRAWAL OR EXPULSION FROM SUCH PROGRAM OR OTHERWISE.
   15    S 7. This act shall take effect on the first of November next succeed-
   16  ing the date on which it shall have become a law; provided however, that
   17  effective immediately, the addition, amendment and/or repeal of any rule
   18  or regulation necessary for the implementation of the foregoing sections
   19  of  this  act  on  their effective date is authorized and directed to be
   20  made and completed within 180 days after the  date  on  which  this  act
   21  becomes a law.