STATE OF NEW YORK
________________________________________________________________________
105
2025-2026 Regular Sessions
IN ASSEMBLY
(Prefiled)
January 8, 2025
___________
Introduced by M. of A. ZACCARO -- read once and referred to the Commit-
tee 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 twelve 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 37 to read as follows:
14 37. "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 Subdivision 3 of section 265.01 of the penal law is REPEALED.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 subdivisions 4, 5, 6 and 7 as amended by chapter 1 of the laws of 2013,
19 subdivision 8 as amended by chapter 520 of the laws of 2021, are amended
20 and a new subdivision 12 is added to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00482-01-5
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1 (4) [He] Such person possesses a rifle, shotgun, antique firearm,
2 black powder rifle, black powder shotgun, or any muzzle-loading firearm,
3 and has been convicted of a felony or serious offense; or
4 (5) [He] Such person possesses any dangerous or deadly weapon and is
5 not a citizen of the United States; or
6 (6) [He is a] Such 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] Such person knowingly possesses a bullet containing an
20 explosive substance designed to detonate upon impact[.]; or
21 (8) Such person possesses any armor piercing ammunition with intent to
22 use the same unlawfully against another[.]; or
23 (12) (a) Such person possesses a firearm, rifle or shotgun outside of
24 their home while:
25 (i) in an intoxicated condition; or
26 (ii) with .08 of one per centum or more by weight of alcohol in such
27 person's blood as shown by chemical analysis of such person's blood,
28 breath, urine or saliva, made pursuant to section 265.70 of this arti-
29 cle; or
30 (iii) such person's ability to safely possess such firearm, rifle or
31 shotgun is impaired by consumption of alcohol; or
32 (iv) such person's ability to safely possess such firearm, rifle or
33 shotgun is impaired by use of any drug; or
34 (v) such person's ability to safely possess such firearm, rifle or
35 shotgun is impaired by the combined influence of drugs or of alcohol and
36 any 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. Subdivisions 9 and 10 of section 265.01 of the penal law, subdi-
43 vision 9 as amended by chapter 149 of the laws of 2022, subdivision 10
44 as amended by chapter 94 of the laws of 2022, are renumbered subdivi-
45 sions 10 and 11 and are amended to read as follows:
46 (10) Such person is not licensed as a gunsmith or a dealer in firearms
47 pursuant to section 400.00 of this chapter and, knowing it is a ghost
48 gun, such person possesses a ghost gun, provided that a person shall not
49 be guilty under this subdivision when [he or she] such person (a) volun-
50 tarily surrenders such ghost gun to any law enforcement official desig-
51 nated pursuant to subparagraph (f) of paragraph one of subdivision (a)
52 of section 265.20 of this article; or (b) for a period of six months
53 after the effective date of this section possesses a ghost gun prior to
54 serialization and registration of such ghost gun pursuant to section
55 265.07 of this article[.]; or
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1 (11) Such person is not licensed as a gunsmith or dealer in firearms
2 pursuant to section 400.00 of this chapter and, knowing it is an unseri-
3 alized frame or receiver or unfinished frame or receiver, such person
4 possesses an unserialized frame or receiver or unfinished frame or
5 receiver, provided that for a period of six months after the effective
6 date of this subdivision, a person shall not be guilty under this subdi-
7 vision when such person: (a) voluntarily surrenders such unserialized
8 frame or receiver or unfinished frame or receiver to any law enforcement
9 official designated pursuant to subparagraph (f) of paragraph one of
10 subdivision (a) of section 265.20 of this article; or (b) possesses such
11 unserialized frame or receiver or unfinished frame or receiver prior to
12 serialization of such unserialized frame or receiver or unfinished frame
13 or receiver in accordance with the requirements imposed on licensed
14 importers and licensed manufacturers pursuant to subsection (i) of
15 Section 923 of Title 18 of the United States Code and regulations issued
16 pursuant thereto, except for antique firearms as defined in subdivision
17 fourteen of section 265.00 of this article, as added by chapter nine
18 hundred eighty-six of the laws of nineteen hundred seventy-four, or any
19 firearm, rifle or shotgun manufactured prior to nineteen hundred sixty-
20 eight[.]; or
21 § 6. Paragraphs 3, 3-a, 4, 5, 7, 7-a, 7-b, 7-e, 7-f, 8, 9, 9-a, 10,
22 12, 13 and 13-a of subdivision a of section 265.20 of the penal law,
23 paragraph 3 as amended and paragraph 7-f as added by chapter 1 of the
24 laws of 2013, paragraph 3-a as added by chapter 371 of the laws of 2022,
25 paragraph 4 as amended by section 10 of part EE of chapter 55 of the
26 laws of 2014, paragraph 5 as amended by chapter 235 of the laws of 2007,
27 paragraph 7 as amended by chapter 150 of the laws of 2020, paragraph 7-a
28 as amended by chapter 210 of the laws of 1999, paragraph 7-b as amended
29 by chapter 511 of the laws of 2014, paragraph 7-e as amended by chapter
30 281 of the laws of 2006, paragraph 8 as amended by chapter 130 of the
31 laws of 2019, paragraphs 9 and 10 as amended by chapter 1041 of the laws
32 of 1974, paragraph 9-a as amended by chapter 608 of the laws of 1984,
33 paragraph 12 as added by chapter 90 of the laws of 1979, paragraph 13 as
34 amended by chapter 150 of the laws of 1988 and paragraph 13-a as added
35 by chapter 370 of the laws of 1986, are amended to read as follows:
36 3. Possession of a pistol or revolver by a person to whom a license
37 therefor has been issued as provided under section 400.00 or 400.01 of
38 this chapter or possession of a weapon as defined in paragraph (e) or
39 (f) of subdivision twenty-two of section 265.00 of this article which is
40 registered pursuant to paragraph (a) of subdivision sixteen-a of section
41 400.00 of this chapter or is included on an amended license issued
42 pursuant to section 400.00 of this chapter. In the event such license is
43 revoked, other than because such licensee is no longer permitted to
44 possess a firearm, rifle or shotgun under federal or state law, informa-
45 tion sufficient to satisfy the requirements of subdivision sixteen-a of
46 section 400.00 of this chapter, shall be transmitted by the licensing
47 officer to the state police, in a form as determined by the superinten-
48 dent of state police. Such transmission shall constitute a valid regis-
49 tration under such section. Further provided, notwithstanding any other
50 section of this title, a failure to register such weapon by an individ-
51 ual who possesses such weapon before the enactment of the chapter of the
52 laws of two thousand thirteen which amended this paragraph and may so
53 lawfully possess it thereafter upon registration, shall only be subject
54 to punishment pursuant to paragraph (c) of subdivision sixteen-a of
55 section 400.00 of this chapter; provided, that such a license or regis-
56 tration shall not preclude a conviction for [the] an offense defined in
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1 subdivision [three] twelve of section 265.01 of this article or section
2 265.01-a of this article.
3 3-a. Possession of a pistol or revolver by a person undergoing live-
4 fire range training pursuant to section 400.00 of this chapter while
5 such person is undergoing such training and is supervised by a duly
6 authorized instructor; provided that such possession in accordance with
7 this paragraph shall not preclude the application of the provision of or
8 a conviction of the offense defined in subdivision twelve of section
9 265.01 of this article.
10 4. Possession of a rifle, shotgun, crossbow or longbow for use while
11 hunting, trapping or fishing, by a person, not a citizen of the United
12 States, carrying a valid license issued pursuant to section 11-0713 of
13 the environmental conservation law; provided that such possession in
14 accordance with this paragraph shall not preclude the application of the
15 provision of or a conviction of the offense defined in subdivision
16 twelve of section 265.01 of this article.
17 5. Possession of a rifle or shotgun by a person other than a person
18 who has been convicted of a class A-I felony or a violent felony
19 offense, as defined in subdivision one of section 70.02 of this chapter,
20 who has been convicted as specified in subdivision four of section
21 265.01 of this article to whom a certificate of good conduct has been
22 issued pursuant to section seven hundred three-b of the correction law;
23 provided that such possession in accordance with this paragraph shall
24 not preclude the application of the provision of or a conviction of the
25 offense defined in subdivision twelve of section 265.01 of this article.
26 7. Possession, at an indoor or outdoor shooting range for the purpose
27 of loading and firing, of a rifle or shotgun, the propelling force of
28 which is gunpowder by a person under sixteen years of age but not under
29 twelve, under the immediate supervision, guidance and instruction of (a)
30 a duly commissioned officer of the United States army, navy, air force,
31 marine corps or coast guard, or of the national guard of the state of
32 New York; or (b) a duly qualified adult citizen of the United States who
33 has been granted a certificate as an instructor in small arms practice
34 issued by the United States army, navy, air force or marine corps, or by
35 the adjutant general of this state, by the national rifle association of
36 America, a not-for-profit corporation duly organized under the laws of
37 this state, or by a New York state 4-H certified shooting sports
38 instructor; or (c) a parent, guardian, or a person over the age of eigh-
39 teen designated in writing by such parent or guardian who shall have a
40 certificate of qualification in responsible hunting, including safety,
41 ethics, and landowner relations-hunter relations, issued or honored by
42 the department of environmental conservation; or (d) an agent of the
43 department of environmental conservation appointed to conduct courses in
44 responsible hunting practices pursuant to article eleven of the environ-
45 mental conservation law; provided that such possession in accordance
46 with this paragraph shall not preclude the application of the provisions
47 of or a conviction of the offense defined in subdivision twelve of
48 section 265.01 of this article.
49 7-a. Possession and use, at an indoor or outdoor pistol range located
50 in or on premises owned or occupied by a duly incorporated organization
51 organized for conservation purposes or to foster proficiency in small
52 arms or at a target pistol shooting competition under the auspices of or
53 approved by the national rifle association for the purpose of loading
54 and firing the same, by a person duly licensed to possess a pistol or
55 revolver pursuant to section 400.00 or 400.01 of this chapter of a
56 pistol or revolver duly so licensed to another person who is present at
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1 the time; provided that such possession and use in accordance with this
2 paragraph shall not preclude the application of the provisions of or a
3 conviction of the offense defined in subdivision twelve of section
4 265.01 of this article.
5 7-b. Possession and use, at an indoor or outdoor pistol range located
6 in or on premises owned or occupied by a duly incorporated organization
7 organized for conservation purposes or to foster proficiency in small
8 arms or at a target pistol shooting competition under the auspices of or
9 approved by the national rifle association for the purpose of loading
10 and firing the same, by a person who has applied for a license to
11 possess a pistol or revolver and pre-license possession of same pursuant
12 to section 400.00 or 400.01 of this chapter, who has not been previously
13 denied a license, been previously convicted of a felony or serious
14 offense, and who does not appear to be, or pose a threat to be, a danger
15 to [himself] themself or to others, and who has been approved for
16 possession and use herein in accordance with section 400.00 or 400.01 of
17 this chapter; provided however, (a) that such possession and use shall
18 be of a pistol or revolver duly licensed to and shall be used under the
19 supervision, guidance and instruction of, a person specified in para-
20 graph seven of this subdivision [and provided further that], (b) such
21 possession and use be within the jurisdiction of the licensing officer
22 with whom the person has made application therefor or within the juris-
23 diction of the superintendent of state police in the case of a retired
24 sworn member of the division of state police who has opted to make an
25 application pursuant to section 400.01 of this chapter, and (c) such
26 possession and use in accordance with this paragraph shall not preclude
27 the application of the provisions of or a conviction of the offense
28 defined in subdivision twelve of section 265.01 of this article.
29 7-e. Possession and use of a pistol or revolver, at an indoor or
30 outdoor pistol range located in or on premises owned or occupied by a
31 duly incorporated organization organized for conservation purposes or to
32 foster proficiency in small arms or at a target pistol shooting competi-
33 tion under the auspices of or approved by an association or organization
34 described in paragraph [7-a] seven-a of this subdivision for the purpose
35 of loading and firing the same by a person at least fourteen years of
36 age but under the age of twenty-one who has not been previously
37 convicted of a felony or serious offense, and who does not appear to be,
38 or pose a threat to be, a danger to [himself] themself or to others;
39 provided however, that such possession shall be of a pistol or revolver
40 duly licensed to and shall be used under the immediate supervision,
41 guidance and instruction of, a person specified in paragraph seven of
42 this subdivision; and provided, further, that such possession and use in
43 accordance with this paragraph shall not preclude the application of the
44 provisions of or a conviction of the offense defined in subdivision
45 twelve of section 265.01 of this article.
46 7-f. Possession and use of a magazine, belt, feed strip or similar
47 device, that contains more than seven rounds of ammunition, but that
48 does not have a capacity of or can readily be restored or converted to
49 accept more than ten rounds of ammunition, at an indoor or outdoor
50 firing range located in or on premises owned or occupied by a duly
51 incorporated organization organized for conservation purposes or to
52 foster proficiency in arms; at an indoor or outdoor firing range for the
53 purpose of firing a rifle or shotgun; at a collegiate, olympic or target
54 shooting competition under the auspices of or approved by the national
55 rifle association; or at an organized match sanctioned by the Interna-
56 tional Handgun Metallic Silhouette Association; provided that such
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1 possession and use in accordance with this paragraph shall not preclude
2 the application of the provisions of or a conviction of the offense
3 defined in subdivision twelve of section 265.01 of this article.
4 8. The manufacturer of machine-guns, firearm silencers, assault weap-
5 ons, large capacity ammunition feeding devices, rapid-fire modification
6 devices, disguised guns, pilum ballistic knives, switchblade or gravity
7 knives, billies or blackjacks as merchandise, or as a transferee recipi-
8 ent of the same for repair, lawful distribution or research and develop-
9 ment, and the disposal and shipment thereof direct to a regularly
10 constituted or appointed state or municipal police department, sheriff,
11 police officer or other peace officer, or to a state prison, penitenti-
12 ary, workhouse, county jail or other institution for the detention of
13 persons convicted or accused of crime or held as witnesses in criminal
14 cases, or to the military service of this state or of the United States;
15 or for the repair and return of the same to the lawful possessor or for
16 research and development; provided that status as a manufacturer, or
17 disposal and shipment in accordance with this paragraph shall not
18 preclude the application of the provisions of or a conviction of the
19 offense defined in subdivision twelve of section 265.01 of this article.
20 9. The regular and ordinary transport of firearms as merchandise,
21 provided that the person transporting such firearms, where [he] such
22 person knows or has reasonable means of ascertaining what [he] such
23 person is transporting, notifies in writing the police commissioner,
24 police chief or other law enforcement officer performing such functions
25 at the place of delivery, of the name and address of the consignee and
26 the place of delivery, and withholds delivery to the consignee for such
27 reasonable period of time designated in writing by such police commis-
28 sioner, police chief or other law enforcement officer as such official
29 may deem necessary for investigation as to whether the consignee may
30 lawfully receive and possess such firearms, provided, further, that such
31 transport in accordance with this paragraph shall not preclude the
32 application of the provisions of or a conviction of the offense defined
33 in subdivision twelve of section 265.01 of this article.
34 9-a. a. Except as provided in [subdivision] subparagraph b [hereof] of
35 this paragraph, the regular and ordinary transport of pistols or revol-
36 vers by a manufacturer of firearms to whom a license as a dealer in
37 firearms has been issued pursuant to section 400.00 of this chapter, or
38 by an agent or employee of such manufacturer of firearms who is other-
39 wise duly licensed to carry a pistol or revolver and who is duly author-
40 ized in writing by such manufacturer of firearms to transport pistols or
41 revolvers on the date or dates specified, directly between places where
42 the manufacturer of firearms regularly conducts business provided such
43 pistols or revolvers are transported unloaded, in a locked opaque
44 container, provided that status as a manufacturer, or disposal and ship-
45 ment in accordance with this paragraph shall not preclude the applica-
46 tion of the provisions of or a conviction of the offense defined in
47 subdivision twelve of section 265.01 of this article. For purposes of
48 this [subdivision] paragraph, places where the manufacturer of firearms
49 regularly conducts business [includes] include, but [is] are not limited
50 to places where the manufacturer of firearms regularly or customarily
51 conducts development or design of pistols or revolvers, or regularly or
52 customarily conducts tests on pistols or revolvers, or regularly or
53 customarily participates in the exposition of firearms to the public.
54 b. The transportation of such pistols or revolvers into, out of or
55 within the city of New York may be done only with the consent of the
56 police commissioner of the city of New York. To obtain such consent, the
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1 manufacturer must notify the police commissioner in writing of the name
2 and address of the transporting manufacturer, or agent or employee of
3 the manufacturer who is authorized in writing by such manufacturer to
4 transport pistols or revolvers, the number, make and model number of the
5 firearms to be transported and the place where the manufacturer regular-
6 ly conducts business within the city of New York and such other informa-
7 tion as the commissioner may deem necessary. The manufacturer must not
8 transport such pistols and revolvers between the designated places of
9 business for such reasonable period of time designated in writing by the
10 police commissioner as such official may deem necessary for investi-
11 gation and to give consent. The police commissioner may not unreasonably
12 withhold [his] their consent.
13 10. Engaging in the business of gunsmith or dealer in firearms by a
14 person to whom a valid license therefor has been issued pursuant to
15 section 400.00 of this chapter, provided that engaging in such business
16 in accordance with this paragraph shall not preclude the application of
17 the provisions of or a conviction of the offense defined in subdivision
18 twelve of section 265.01 of this article.
19 12. Possession of a pistol or revolver by a person who is a member or
20 coach of an accredited college or university target pistol team while
21 transporting the pistol or revolver into or through New York state to
22 participate in a collegiate, olympic or target pistol shooting competi-
23 tion under the auspices of or approved by the national rifle associ-
24 ation, provided such pistol or revolver is unloaded and carried in a
25 locked carrying case and the ammunition therefor is carried in a sepa-
26 rate locked container, provided, further that such possession in accord-
27 ance with this paragraph shall not preclude the application of the
28 provisions of or a conviction of the offense defined in subdivision
29 twelve of section 265.01 of this article.
30 13. Possession of pistols and revolvers by a person who is a nonresi-
31 dent of this state while attending or traveling to or from, an organized
32 competitive pistol match or league competition under auspices of, or
33 approved by, the National Rifle Association and in which [he] such
34 person is a competitor, within forty-eight hours of such event or by a
35 person who is a non-resident of the state while attending or traveling
36 to or from an organized match sanctioned by the International Handgun
37 Metallic Silhouette Association and in which [he] such person is a
38 competitor, within forty-eight hours of such event, provided that [he]
39 (a) such person has not been previously convicted of a felony or a crime
40 which, if committed in New York, would constitute a felony, (b) such
41 possession in accordance with this paragraph shall not preclude the
42 application of the provisions of or a conviction of the offense defined
43 in subdivision twelve of section 265.01 of this article, and [further
44 provided] (c) that the pistols or revolvers are transported unloaded in
45 a locked opaque container together with a copy of the match program,
46 match schedule or match registration card. Such documentation shall
47 constitute prima facie evidence of exemption, [providing] provided that
48 such person also has in [his] their possession a pistol license or
49 firearms registration card issued in accordance with the laws of [his]
50 such person's place of residence. For purposes of this [subdivision]
51 paragraph, a person licensed in a jurisdiction which does not authorize
52 such license by a person who has been previously convicted of a felony
53 shall be presumed to have no prior conviction. The superintendent of
54 state police shall annually review the laws of jurisdictions within the
55 United States and Canada with respect to the applicable requirements for
56 licensing or registration of firearms and shall publish a list of those
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1 jurisdictions which prohibit possession of a firearm by a person previ-
2 ously convicted of a felony or crimes which if committed in New York
3 state would constitute a felony.
4 13-a. Except in cities not wholly contained within a single county of
5 the state, possession of pistols and revolvers by a person who is a
6 nonresident of this state while attending or traveling to or from, an
7 organized convention or exhibition for the display of or education about
8 firearms, which is conducted under auspices of, or approved by, the
9 National Rifle Association and in which [he] such person is a registered
10 participant, within forty-eight hours of such event, provided that [he]
11 (a) such person has not been previously convicted of a felony or a crime
12 which, if committed in New York, would constitute a felony, (b) such
13 possession in accordance with this paragraph shall not preclude the
14 application of the provisions of or a conviction of the offense defined
15 in subdivision twelve of section 265.01 of this article, and [further
16 provided that] (c) the pistols or revolvers are transported unloaded in
17 a locked opaque container together with a copy of the convention or
18 exhibition program, convention or exhibition schedule or convention or
19 exhibition registration card. Such documentation shall constitute prima
20 facie evidence of exemption, [providing] provided that such person also
21 has in [his] their possession a pistol license or firearms registration
22 card issued in accordance with the laws of [his] such person's place of
23 residence. For purposes of this paragraph, a person licensed in a juris-
24 diction which does not authorize such license by a person who has been
25 previously convicted of a felony shall be presumed to have no prior
26 conviction. The superintendent of state police shall annually review the
27 laws of jurisdictions within the United States and Canada with respect
28 to the applicable requirements for licensing or registration of firearms
29 and shall publish a list of those jurisdictions which prohibit
30 possession of a firearm by a person previously convicted of a felony or
31 crimes which if committed in New York state would constitute a felony.
32 § 7. The penal law is amended by adding two new sections 265.70 and
33 265.75 to read as follows:
34 § 265.70 Testing.
35 1. Field testing. Every person who possesses a firearm, rifle or shot-
36 gun which has been brandished, displayed outside a holster, discharged
37 or otherwise used (other than in the person's home, at an indoor or
38 outdoor shooting range, or in an area where hunting is permitted with
39 the weapon), or which is possessed, displayed or discharged in violation
40 of any provision of this chapter shall, at the request of a police offi-
41 cer, submit to a breath test to be administered by the police officer,
42 unless such person demonstrates to such police officer's satisfaction
43 that such person is not subject to the provisions of subdivision twelve
44 of section 265.01 of this article. If such test indicates that such
45 possessor has consumed alcohol, the police officer may request such
46 possessor to submit to a chemical test in the manner set forth in subdi-
47 vision two of this section.
48 2. Chemical tests. (a) When authorized. Any person who possesses a
49 firearm, rifle or shotgun in this state, other than in such person's
50 home, shall be deemed to have given consent to a chemical test of one or
51 more of the following: breath, blood, urine, or saliva, for the purpose
52 of determining the alcoholic and/or drug content of the blood provided
53 that such test is administered by or at the direction of a police offi-
54 cer with respect to a chemical test of breath, urine or saliva or, with
55 respect to a chemical test of blood, at the direction of a police offi-
56 cer:
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1 (1) having reasonable grounds to believe such person possessed a
2 firearm, rife or shotgun in violation of subdivision twelve of section
3 265.01 of this article and within two hours after such person has been
4 placed under arrest for any such violation; or
5 (2) within two hours after a breath test, as provided in subdivision
6 one of this section, indicates that alcohol has been consumed by such
7 person and in accordance with the rules and regulations established by
8 the law enforcement agency of which the officer is a member.
9 For the purposes of this paragraph, "reasonable grounds" to believe
10 that a person possessed a firearm, rifle or shotgun in violation of
11 subdivision twelve of section 265.01 of this article shall be determined
12 by viewing the totality of circumstances surrounding the incident which,
13 when taken together, indicate that the possession violated such subdivi-
14 sion. Such circumstances may include any visible or behavioral indi-
15 cation of alcohol or drug consumption by such person, the existence of
16 an open container containing or having contained an alcoholic beverage
17 in or around the vicinity of such person, or any other evidence
18 surrounding the circumstances of the incident which indicates that the
19 person was in possession of a firearm, rifle or shotgun after having
20 consumed alcohol or drugs at the time of the incident.
21 (b) Report of refusal. (1) If: (A) such person having been placed
22 under arrest; or (B) after a breath test indicates the presence of alco-
23 hol in the person's system; and the person having thereafter been
24 requested to submit to such chemical test and having been informed that
25 any license held by such person to possess a firearm, rifle or shotgun
26 shall be subject to suspension or revocation for refusal to submit to
27 such test whether or not the person is found guilty of the charge for
28 which such person is arrested or detained, then if such person refuses
29 to submit to such chemical test or any portion thereof, unless a court
30 order has been granted pursuant to subdivision three of this section,
31 the test shall not be given and a written report of such refusal shall
32 be immediately made by the police officer before whom such refusal was
33 made. Such report may be verified by having the report sworn to, or by
34 affixing to such report a form notice that false statements made therein
35 are punishable as a class A misdemeanor pursuant to section 210.45 of
36 this chapter and such form notice together with the subscription of the
37 deponent shall constitute a verification of the report.
38 (2) The report of the police officer shall set forth reasonable
39 grounds to believe such arrested person had possessed a firearm, rifle
40 or shotgun in violation of subdivision twelve of section 265.01 of this
41 article, that said person had refused to submit to such chemical test,
42 and that no chemical test was administered pursuant to the requirements
43 of subdivision three of this section. The report shall be presented to
44 the court upon arraignment of an arrested person, and shall be transmit-
45 ted by such court to the appropriate licensing authority within forty-
46 eight hours of the arraignment. Such transmittal shall not be waived
47 even with the consent of all parties.
48 (3) The license may be temporarily suspended by such licensing author-
49 ity pending the determination of a hearing, in accordance with the rules
50 and procedures of such authority, for refusal to submit to a test in
51 either the circumstances described in subdivision one of this section or
52 the circumstances described in subparagraph one of this paragraph. Any
53 such refusal may, after such hearing or if uncontested, constitute
54 grounds for continued suspension or revocation of such license in
55 accordance with such rules and procedures.
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1 (4) Nothing in this section shall be deemed to restrict the discretion
2 of any licensing authority or the discretion of any judge or justice of
3 a court of record under subdivision eleven of section 400.00 of this
4 chapter to suspend or revoke a license because of an alleged violation
5 of subdivision twelve of section 265.01 of this article, or for any
6 other reason other than refusal to submit to a test as required by this
7 subdivision or subdivision one of this section.
8 (c) Regulations. A licensing authority or law enforcement agency may
9 promulgate such rules and regulations as may be necessary to effectuate
10 the provisions of this subdivision and subdivision one of this section.
11 (d) Evidence. Evidence of a refusal to submit to such chemical test or
12 any portion thereof shall be admissible in any trial, proceeding or
13 hearing based upon an alleged violation of the provisions of subdivision
14 twelve of section 265.01 of this article but only upon a showing that
15 the person was given sufficient warning, in clear and unequivocal
16 language, of the effect of such refusal and that the person persisted in
17 the refusal. Such showing shall be satisfied by submission of a verified
18 report of refusal as provided in subparagraph one of paragraph (b) of
19 this subdivision containing a statement that such person was informed
20 that their license shall be subject to suspension or revocation whether
21 or not the person is found guilty of the charge for which such person is
22 arrested or detained if such person refuses to submit to such test.
23 (e) Results. Upon the request of the person who was tested, the
24 results of such test shall be made available to such person.
25 3. Compulsory chemical tests. (a) Court ordered chemical tests.
26 Notwithstanding the provisions of subdivision two of this section, no
27 person subject to the provisions of subdivision twelve of section 265.01
28 of this article who possesses a firearm, rifle or shotgun (other than in
29 the person's home, at an indoor or outdoor shooting range, or an area
30 where hunting is permitted with the weapon) may refuse to submit to a
31 chemical test of one or more of the following: breath, blood, urine or
32 saliva, for the purpose of determining the alcoholic and/or drug content
33 of the blood when a court order for such chemical test has been issued
34 in accordance with the provisions of this subdivision.
35 (b) When authorized. Upon refusal by any person to submit to a chemi-
36 cal test or any portion thereof as described in paragraph (a) of this
37 subdivision, the test shall not be given unless a police officer or a
38 district attorney, as defined in subdivision thirty-two of section 1.20
39 of the criminal procedure law, requests and obtains a court order to
40 compel a person to submit to a chemical test to determine the alcoholic
41 or drug content of the person's blood upon a finding of reasonable cause
42 to believe that:
43 (1) such person possessed a firearm, rifle or shotgun with which
44 another person was killed or suffered physical injury; and
45 (2) (A) either such person possessed the firearm, rifle or shotgun in
46 violation of subdivision twelve of section 265.01 of this article, or
47 (B) a breath test administered by a police officer in accordance with
48 subdivision one of this section indicates that alcohol has been consumed
49 by such person; and
50 (3) such person has been placed under lawful arrest; and
51 (4) such person has refused to submit to a chemical test or any
52 portion thereof, requested in accordance with the provisions of para-
53 graph (a) of subdivision two of this section or is unable to give
54 consent to such a test.
55 (c) Reasonable cause; definition. For the purpose of this subdivision
56 "reasonable cause" shall be determined by viewing the totality of
A. 105 11
1 circumstances surrounding the incident which, when taken together, indi-
2 cate that the person possessed a firearm, rifle or shotgun in violation
3 of subdivision twelve of section 265.01 of this article. Such circum-
4 stances may include, but are not limited to: evidence that such person
5 was brandishing or using the firearm, rifle or shotgun in violation of
6 any provision of this chapter or committing any other crime at the time
7 of the incident; any visible indication of alcohol or drug consumption
8 or impairment by such person; the existence of an open container
9 containing an alcoholic beverage in or around the vicinity of such
10 person; or any other evidence surrounding the circumstances of the inci-
11 dent which indicates that the person possessed a firearm, rifle or shot-
12 gun while impaired by the consumption of alcohol or drugs or was intoxi-
13 cated at the time of the incident.
14 (d) Court order; procedure. (1) An application for a court order to
15 compel submission to a chemical test or any portion thereof, may be made
16 to any supreme court justice, county court judge or district court judge
17 in the judicial district in which the incident occurred, or if the inci-
18 dent occurred in the city of New York before any supreme court justice
19 or judge of the criminal court of the city of New York. Such applica-
20 tion may be communicated by telephone, radio or other means of electron-
21 ic communication, or in person.
22 (2) The applicant must provide identification by name and title and
23 must state the purpose of the communication. Upon being advised that an
24 application for a court order to compel submission to a chemical test is
25 being made, the court shall place under oath the applicant and any other
26 person providing information in support of the application as provided
27 in subparagraph three of this paragraph. After being sworn the applicant
28 must state that the person from whom the chemical test was requested
29 possessed a firearm, rifle or shotgun with which another person was
30 killed or physically injured and, based upon the totality of circum-
31 stances, there is reasonable cause to believe that such person possessed
32 a firearm, rifle or shotgun in violation of subdivision twelve of
33 section 265.01 of this article or a breath test indicated that alcohol
34 had been consumed by such person and, after being placed under lawful
35 arrest such person refused to submit to a chemical test or any portion
36 thereof, in accordance with the provisions of this section or is unable
37 to give consent to such a test or any portion thereof. The applicant
38 must make specific allegations of fact to support such statement. Any
39 other person properly identified, may present sworn allegations of fact
40 in support of the applicant's statement.
41 (3) Upon being advised that an oral application for a court order to
42 compel a person to submit to a chemical test is being made, a judge or
43 justice shall place under oath the applicant and any other person
44 providing information in support of the application. Such oath or oaths
45 and all of the remaining communication must be recorded, either by means
46 of a voice recording device or verbatim stenographic or verbatim long-
47 hand notes. If a voice recording device is used or a stenographic record
48 made, the judge must have the record transcribed, certify to the accura-
49 cy of the transcription and file the original record and transcription
50 with the court within seventy-two hours of the issuance of the court
51 order. If longhand notes are taken, the judge shall subscribe a copy and
52 file it with the court within twenty-four hours of the issuance of the
53 order.
54 (4) If the court is satisfied that the requirements for the issuance
55 of a court order pursuant to the provisions of paragraph (b) of this
56 subdivision have been met, it may grant the application and issue an
A. 105 12
1 order requiring the accused to submit to a chemical test to determine
2 the alcoholic and/or drug content of such person's blood and ordering
3 the withdrawal of a blood sample in accordance with the provisions of
4 paragraph (a) of subdivision four of this section. When a judge or
5 justice determines to issue an order to compel submission to a chemical
6 test based on an oral application, the applicant therefor shall prepare
7 the order in accordance with the instructions of the judge or justice.
8 In all cases the order shall include the name of the issuing judge or
9 justice, the name of the applicant, and the date and time it was issued.
10 It must be signed by the judge or justice if issued in person, or by the
11 applicant if issued orally.
12 (5) Any false statement by an applicant or any other person in support
13 of an application for a court order shall subject such person to the
14 offenses for perjury set forth in article two hundred ten of this chap-
15 ter.
16 (6) The chief administrator of the courts shall establish a schedule
17 to provide that a sufficient number of judges or justices will be avail-
18 able in each judicial district to hear oral applications for court
19 orders as permitted by this section.
20 (e) Administration of compulsory chemical test. An order issued pursu-
21 ant to the provisions of this subdivision shall require that a chemical
22 test to determine the alcoholic and/or drug content of the possessor's
23 blood must be administered. The provisions of paragraphs (a), (b) and
24 (c) of subdivision four of this section shall be applicable to any chem-
25 ical test administered pursuant to this section.
26 4. Testing procedures. (a) Persons authorized to withdraw blood; immu-
27 nity; testimony. (1) At the request of a police officer, the following
28 persons may withdraw blood for the purpose of determining the alcoholic
29 and/or drug content therein: (A) a physician, a registered professional
30 nurse or a registered physician assistant; or (B) under the supervision
31 and at the direction of a physician: a medical laboratory technician or
32 medical technologist as classified by civil service; a phlebotomist; an
33 advanced emergency medical technician as certified by the department of
34 health; or a medical laboratory technician or medical technologist
35 employed by a clinical laboratory approved under title five of article
36 five of the public health law. This limitation shall not apply to the
37 taking of a urine, saliva or breath specimen.
38 (2) No person entitled to withdraw blood pursuant to subparagraph one
39 of this paragraph or hospital employing such person, and no other
40 employer of such person shall be sued or held liable for any act done or
41 omitted in the course of withdrawing blood at the request of a police
42 officer pursuant to this section.
43 (3) Any person who may have a cause of action arising from the with-
44 drawal of blood as aforesaid, for which no personal liability exists
45 under subparagraph two of this paragraph, may maintain such action
46 against the state if any person entitled to withdraw blood pursuant to
47 this paragraph acted at the request of a police officer employed by the
48 state, or against the appropriate political subdivision of the state if
49 such person acted at the request of a police officer employed by a poli-
50 tical subdivision of the state. No action shall be maintained pursuant
51 to this subparagraph unless notice of claim is duly filed or served in
52 compliance with law.
53 (4) Notwithstanding the foregoing provisions of this paragraph an
54 action may be maintained by the state or a political subdivision thereof
55 against a person entitled to withdraw blood pursuant to subparagraph one
56 of this paragraph or hospital employing such person for whose act or
A. 105 13
1 omission the state or the political subdivision has been held liable
2 under this paragraph to recover damages, not exceeding the amount
3 awarded to the claimant, that may have been sustained by the state or
4 the political subdivision by reason of gross negligence or bad faith on
5 the part of such person.
6 (5) The testimony of any person other than a physician, entitled to
7 withdraw blood pursuant to subparagraph one of this paragraph, in
8 respect to any such withdrawal of blood made by such person may be
9 received in evidence with the same weight, force and effect as if such
10 withdrawal of blood were made by a physician.
11 (6) The provisions of subparagraphs two, three and four of this para-
12 graph shall also apply with regard to any person employed by a hospital
13 as security personnel for any act done or omitted in the course of with-
14 drawing blood at the request of a police officer pursuant to a court
15 order in accordance with subdivision three of this section.
16 (b) Right to additional test. The person tested shall be permitted to
17 choose a physician to administer a chemical test in addition to the one
18 administered at the direction of the police officer.
19 (c) Rules and regulations. The rules and regulations issued by the
20 department of health pursuant to paragraph (c) of subdivision four of
21 section eleven hundred ninety-four of the vehicle and traffic law shall
22 also apply to analyses under this section. If the analyses were made by
23 an individual possessing a permit issued by the department of health,
24 this shall be presumptive evidence that the examination was properly
25 given. The provisions of this paragraph do not prohibit the introduction
26 as evidence of an analysis made by an individual other than a person
27 possessing a permit issued by the department of health.
28 5. Definitions. For the purposes of this section:
29 (a) "License" means and includes licenses issued pursuant to section
30 400.00 of this chapter, and any permit issued by a county, city, town or
31 village pursuant to a local law, code or ordinance which restricts the
32 possession and purchase of rifles and shotguns.
33 (b) "Licensing authority" means the licensing officer or agency which
34 issues a license.
35 § 265.75 Chemical test evidence.
36 1. Admissibility. Upon the trial of any action or proceeding arising
37 out of actions alleged to have been committed by any person arrested for
38 a violation of subdivision twelve of section 265.01 of this article, the
39 court shall admit evidence of the amount of alcohol or drugs in the
40 defendant's blood as shown by a test administered pursuant to the
41 provisions of section 265.70 of this article.
42 2. Probative value. The following effect shall be given to evidence of
43 blood-alcohol content, as determined by such tests, of a person arrested
44 for violation of subdivision twelve of section 265.01 of this article:
45 (a) Evidence that there was .05 of one per centum or less by weight of
46 alcohol in such person's blood shall be prima facie evidence that the
47 ability of such person to safely possess a firearm, rifle or shotgun was
48 not impaired by the consumption of alcohol, and that such person was not
49 in an intoxicated condition;
50 (b) Evidence that there was more than .05 of one per centum but less
51 than .07 of one per centum by weight of alcohol in such person's blood
52 shall be prima facie evidence that such person was not in an intoxicated
53 condition, but such evidence shall be relevant evidence, but shall not
54 be given prima facie effect, in determining whether the ability of such
55 person to safely possess a firearm, rifle or shotgun was impaired by the
56 consumption of alcohol; and
A. 105 14
1 (c) Evidence that there was .07 of one per centum or more but less
2 than .08 of one per centum by weight of alcohol in such person's blood
3 shall be prima facie evidence that such person was not in an intoxicated
4 condition, but such evidence shall be given prima facie effect in deter-
5 mining whether the ability of such person to safely possess a firearm,
6 rifle or shotgun was impaired by the consumption of alcohol.
7 3. Suppression. A defendant who has been compelled to submit to a
8 chemical test pursuant to the provisions of subdivision three of section
9 265.70 of this article may move for the suppression of such evidence in
10 accordance with article seven hundred ten of the criminal procedure law
11 on the grounds that the order was obtained and the test administered in
12 violation of the provisions of such subdivision or any other applicable
13 law.
14 § 8. Paragraph (a) of subdivision 11 of section 400.00 of the penal
15 law, as amended by chapter 371 of the laws of 2022, is amended to read
16 as follows:
17 (a) The conviction of a licensee anywhere of a felony or serious
18 offense or a licensee at any time becoming ineligible to obtain a
19 license, including engaging in conduct that would have resulted in the
20 denial of a license, under this section shall operate as or be grounds
21 for, a revocation of the license. A license may be revoked or suspended
22 as provided for in subdivision two of section 265.70 of this chapter,
23 section 530.14 of the criminal procedure law or section eight hundred
24 forty-two-a of the family court act. Except for a license issued pursu-
25 ant to section 400.01 of this article, a license may be revoked and
26 cancelled at any time in the city of New York, and in the counties of
27 Nassau and Suffolk, by the licensing officer, and elsewhere than in the
28 city of New York by any judge or justice of a court of record; a license
29 issued pursuant to section 400.01 of this article may be revoked and
30 cancelled at any time by the licensing officer or any judge or justice
31 of a court of record. A license to engage in the business of dealer may
32 be revoked or suspended for any violation of the provisions of article
33 thirty-nine-BB of the general business law. The official revoking a
34 license shall give written notice thereof without unnecessary delay to
35 the executive department, division of state police, Albany, and shall
36 also notify immediately the duly constituted police authorities of the
37 locality. The licensing officer shall revoke any license issued in which
38 an applicant knowingly made a material false statement on the applica-
39 tion. Notice of a revocation under this subdivision shall be issued in
40 writing and shall include the basis for the determination, which shall
41 be supported by a preponderance of the evidence. Such notice shall also
42 include information regarding the ability to appeal such decision in
43 accordance with subdivision four-a of this section.
44 § 9. This act shall take effect on the one hundred eightieth day after
45 it shall have become a law. Provided, however, that any actions,
46 including but not limited to the promulgation of rules and regulations,
47 necessary to implement the provisions of this act on its effective date
48 are authorized and directed to be made and completed on or before such
49 effective date.