Special procedures and disposition involving alcohol and substance abuse assessment and treatment

§ 1198-a. Special procedures and disposition involving alcohol and
substance abuse assessment and treatment. 1. Definitions. For purposes
of this section, the following terms shall have the following meanings:

(a) "Alcohol and substance abuse professional" shall mean persons
credentialed by the office of alcoholism and substance abuse services to
provide alcohol and substance abuse services pursuant to the mental
hygiene law and persons licensed by the state education department in an
appropriate health field, including licensed clinical social worker,
licensed master social worker, licensed mental health counselor, nurse
practitioner, physician, physician's assistant, psychiatrist,
psychologist, and registered nurse.

(b) "Licensed agency" shall mean an agency licensed by the office of
alcoholism and substance abuse services to provide alcohol and substance
abuse services pursuant to the mental hygiene law.

2. Procedure. (a) Mandatory screening; when authorized. Upon the
arraignment of, or at the discretion of the court, prior to the
sentencing of any person who (i) at arraignment is charged with or prior
to sentencing convicted of a first violation of operating a motor
vehicle in violation of subdivision one, two or three or paragraph (b)
of subdivision two-a of section eleven hundred ninety-two of this
article while such person has less than .15 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, or in violation
of subdivision four of such section eleven hundred ninety-two, or (ii)
has refused to submit to a chemical test pursuant to section eleven
hundred ninety-four of this article, the court shall order such person
to submit to screening for alcohol or substance abuse and dependency
using a standardized written screening instrument developed by the
office of alcoholism and substance abuse services, to be administered by
an alcohol or substance abuse professional.

(b) Mandatory assessment; when authorized. The court shall order a
defendant to undergo a formal alcohol or substance abuse and dependency
assessment by an alcohol or substance abuse professional or a licensed
agency: (i) when the screening required by paragraph (a) of this
subdivision indicates that a defendant is abusing or dependent upon
alcohol or drugs; (ii) following the arraignment of any person charged
with or, at the discretion of the court, prior to the sentencing of any
person convicted of a violation of subdivision one, two, three, four or
four-a of section eleven hundred ninety-two of this article after having
been convicted of a violation of any subdivision of section eleven
hundred ninety-two of this article or of vehicular assault in the second
or first degree, as defined, respectively, in sections 120.03 and 120.04
of the penal law or of aggravated vehicular assault, as defined in
section 120.04-a of the penal law or of vehicular manslaughter in the
second or first degree, as defined, respectively, in sections 125.12 and
125.13 of the penal law or of aggravated vehicular homicide, as defined
in section 125.14 of such law within the preceding five years or after
having been convicted of a violation of any subdivision of such section
or of vehicular assault in the second or first degree, as defined,
respectively, in sections 120.03 and 120.04 of the penal law or of
aggravated vehicular assault, as defined in section 120.04-a of the
penal law or of vehicular manslaughter in the second or first degree, as
defined, respectively, in sections 125.12 and 125.13 of the penal law or
of aggravated vehicular homicide, as defined in section 125.14 of such
law, two or more times within the preceding ten years; or (iii)
following the arraignment of any person charged with or, at the
discretion of the court, prior to the sentencing of any person convicted
of operating a motor vehicle in violation of subdivision two or three or
paragraph (b) of subdivision two-a of section eleven hundred ninety-two
of this article while such person has .15 of one per centum or more by
weight of alcohol in the person's blood as shown by 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 or in
violation of paragraph (a) of subdivision two-a of section eleven
hundred ninety-two of this article.

(c) Mandatory assessment; procedure. The assessment ordered by a court
pursuant to this section shall be performed by an alcohol or substance
abuse professional or a licensed agency which shall forward the results,
in writing, to the court and to the defendant or his or her counsel
within thirty days of the date of such order.

3. Authorized disposition. When a sentence of probation or a
conditional discharge is imposed upon a person who has been required to
undergo an alcohol or substance abuse and dependency assessment pursuant
to subdivision two of this section and where such assessment indicates
that such person is in need of treatment for alcohol or substance abuse
or dependency, the court shall require, as a condition of such sentence,
that such person participate in and successfully complete such
treatment. Such treatment shall be provided by an alcohol or substance
abuse professional or a licensed agency.

4. Any case wherein a court has accepted a plea pursuant to the
provisions of subparagraph (ii) of paragraph (a) of subdivision ten of
section eleven hundred ninety-two of this article and such plea includes
as a condition thereof 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, shall be deemed to be in compliance with the
provisions of this section.

5. The chief administrator of the office of court administration shall
make available to all courts in this state with jurisdiction in criminal
cases a list of alcohol and substance abuse professionals and licensed
agencies as provided by the office of alcoholism and substance abuse
services pursuant to subdivision (g) of section 19.07 of the mental
hygiene law.

6. Confidentiality of records. (a) The records and content of all
screenings, assessments and treatment conducted pursuant to this
section, including the identity, diagnosis and prognosis of each
individual who is the subject of such records, and including any
statements or admissions of such individual made during the course of
such screenings, assessments and treatment, shall be confidential, shall
not be disclosed except as authorized by this subdivision, and shall not
be entered or received as evidence at any civil, criminal or
administrative trial, hearing or proceeding. No person, other than a
defendant to whom such records are disclosed, may redisclose such
records.

(b) Consistent with Section 290 dd-2 of Title 42 of the United States
Code, as such law may, from time to time, be amended, such records and
content may only be disclosed as follows:

(i) to a court for the sole purpose of requiring a defendant charged
with or convicted of a violation of subdivision one, two, two-a, three,
four or four-a of section eleven hundred ninety-two of this article to
undergo alcohol or substance abuse or dependency assessment or
treatment;

(ii) to the defendant or his or her authorized representative; and

(iii) to medical personnel to the extent necessary to meet a bona fide
medical emergency.

7. Effect of completion of treatment. Except as provided in
subparagraph nine of paragraph (b) of subdivision two of section eleven
hundred ninety-three or in subparagraph three of paragraph (d) of
subdivision two of section eleven hundred ninety-four of this article,
upon successful completion of treatment ordered pursuant to this section
as certified by the alcohol or substance abuse professional or licensed
agency which provided such treatment, the defendant may apply to the
commissioner on a form provided for that purpose, for the termination of
the suspension or revocation order issued as a result of the defendant's
conviction. In the exercise of discretion, upon receipt of such
application, and upon payment of any civil penalties for which the
defendant may be liable, the commissioner is authorized to terminate
such order or orders and return the defendant's license or reinstate the
privilege of operating a motor vehicle in this state. However, the
commissioner shall not issue any new license nor restore any license
where said issuance or restoration is prohibited by subdivision two of
section eleven hundred ninety-three of this article.