NYS Navigation Law
Navigation Law
New York State Consolidated Laws
NYS Navigation Law - Vessels
VESSELS - ARTICLE 4 - SECTION 49
S 49. Operator. 1. No person born on or after May first, nineteen
hundred ninety-six shall operate a mechanically propelled vessel on the
navigable waters of the state or any tidewaters bordering on or lying
within the boundaries of Nassau and Suffolk counties, unless:
a. the operator is at least ten years old and is the holder of a
boating safety certificate issued to him or her by the commissioner, the
United States Power Squadrons or the United States coast guard
auxiliary; or
b. the operator is younger than eighteen years of age, and is
accompanied on the mechanically propelled vessel by at least one person
who is at least eighteen years of age and is
(i) the holder of a boating safety certificate issued to him or her by
the commissioner, the United States Power Squadrons or the United States
coast guard auxiliary, or
(ii) not required by this subdivision to hold a boating safety
certificate in order to operate a mechanically propelled vessel; or
c. the operator is eighteen years of age or older, is a person
required by this subdivision to hold a boating safety certificate in
order to operate a mechanically propelled vessel, and is accompanied on
the mechanically propelled vessel by at least one person who is at least
eighteen years of age and the holder of a boating safety certificate; or
d. the operator is the owner of a recently purchased vessel and may
operate such vessel without the otherwise required boating safety
certificate for a period of time not to exceed one hundred twenty days
from the date of purchase.
e. The provisions of this subdivision shall not apply to persons who
are: born before April thirtieth, nineteen hundred ninety-six; certified
by the commissioner as boating safety instructors; members of the United
States Power Squadrons; members of the United States coast guard
auxiliary; holders of public vessel licenses pursuant to section
sixty-four of this article; police officers, peace officers, fire
personnel, rescue personnel or lifeguards, when any such person is
acting pursuant to assigned duties; or licensed to operate vessels by
the United States coast guard or the Canadian coast guard. The
commissioner, by rule or regulation, may provide for the exemption of
additional persons not listed in this paragraph from the requirements of
this section.
f. The provisions of this subdivision shall supersede all local laws
or ordinances relating to requirements for boating safety certificates
to operate a mechanically propelled vessel.
1-a. a. No person shall operate a personal watercraft or specialty
prop-craft upon the navigable waters of the state or any tidewaters
bordering on or lying within the boundaries of Nassau and Suffolk
counties unless the operator is fourteen years of age or older and the
holder of, or is accompanied by a person over eighteen years of age who
is the holder of a boating safety certificate issued by the
commissioner, the United States power squadrons, the United States coast
guard auxiliary, or other state or government, as a result of completing
a course approved by the commissioner.
b. No person who is the owner of a personal watercraft or specialty
prop-craft shall knowingly authorize or permit the operation thereof on
the navigable waters of the state or any tidewaters bordering on or
lying within the boundaries of Nassau or Suffolk counties unless the
operator is fourteen years of age or older and the holder of, or is
accompanied by a person over eighteen years of age who is the holder of
a boating safety certificate issued by the commissioner, the United
States power squadrons, United States coast guard auxiliary, or other
state or government, as a result of completing a course approved by the
commissioner.
c. For the purposes of this subdivision "accompanied" shall mean upon
the vessel. Provided, however, that until January first, two thousand
nine, in relation to a person less than fourteen years of age who is the
holder of a boating safety certificate issued by the commissioner, the
United States power squadrons, United States coast guard auxiliary or
other state or government, accompanied shall also mean within view and
not more than five hundred feet from a person aboard a vessel or
personal watercraft, who is over eighteen years of age and the holder of
a boating safety certificate issued by the commissioner, the United
States power squadrons, United States coast guard auxiliary or other
state or government, as a result of completing a course approved by the
commissioner.
d. The provisions of this subdivision shall not apply to persons:
certified by the commissioner as boating safety instructors; members of
the United States power squadrons; members of the United States coast
guard auxiliary; holders of public vessel licenses pursuant to section
sixty-four of this article; police officers acting pursuant to assigned
duties; peace officers acting pursuant to assigned duties; lifeguards
acting pursuant to assigned duties; fire and rescue personnel acting
pursuant to assigned duties; and persons licensed to operate vessels by
the United States coast guard or the Canadian coast guard. The
commissioner by rule and regulation may provide for the exemption of
additional persons not listed in this paragraph from the requirements of
this section.
2. The failure of a person specified in subdivision one or one-a of
this section, to exhibit a boating safety certificate upon demand to any
magistrate, peace officer, acting pursuant to his or her special duties,
police officer, inspector of the state office of parks, recreation and
historic preservation, traveling navigation inspector or other officer
having authority to enforce the provisions of this chapter, shall be
presumptive evidence that such person is not the holder of such
certificate.
3. No person who is the owner of a mechanically propelled vessel shall
knowingly authorize or permit the operation thereof on the navigable
waters of the state or any tidewaters bordering on or lying within the
boundaries of Nassau and Suffolk counties, unless:
a. the operator is born on or before April thirtieth, nineteen hundred
ninety-six; or,
b. the operator is born on or after May first, nineteen hundred
ninety-six, is at least ten years of age and is the holder of a boating
safety certificate issued to him or her by the commissioner, the United
States Power Squadrons or the United States coast guard auxiliary, or
c. the operator is younger than eighteen years of age, and is
accompanied on the mechanically propelled vessel by at least one person
eighteen years of age or older and is:
(i) the holder of a boating safety certificate issued to him or her by
the commissioner, the United States Power Squadrons or the United States
coast guard auxiliary, or
(ii) not required by subdivision one of this section to hold a boating
safety certificate in order to operate a mechanically propelled vessel;
or
d. the operator is eighteen years of age or older, is a person
required by subdivision one of this section to hold a boating safety
certificate in order to operate a mechanically propelled vessel, and is
accompanied by a person who is at least eighteen years of age and is the
holder of a boating safety certificate.
e. The provisions of this subdivision shall supersede all local laws
or ordinances relating to requirements for boating safety certificates
to operate a mechanically propelled vessel.
4. Whenever any police officer or peace officer authorized to enforce
the provisions of this chapter having reasonable cause to believe that a
person is operating a vessel in violation of section forty-nine-a of
this article, or any other provision of this article for which a
suspension may be imposed, such officer may demand of such person his or
her name, address and an explanation of his or her conduct.
5. The provisions of subdivisions one, one-a and two of this section
shall not apply while the operator is actually preparing for or
competing in a regatta or boat race authorized under section thirty-four
of this chapter or for which a marine event permit has been issued by
the United States coast guard.
6. No person operating a vessel upon the navigable waters of the state
or on the tidewaters bordering on and lying within the boundaries of
Nassau or Suffolk county shall fail or refuse to comply with any lawful
order or direction of any police officer or peace officer acting
pursuant to his or her special duties. Failure or refusal to comply with
such lawful order or direction shall be a violation punishable as
provided for in subdivision seven of this section.
7. A violation of subdivision one, one-a, two or six of this section
shall constitute a violation punishable as set forth in section
seventy-three-c of this article.
S 49-a. Operation of a vessel while under the influence of alcohol or
drugs. 1. Definitions. As used in this section, unless the context
clearly indicates otherwise:
(a) The term "vessel" shall be every description of watercraft or
other artificial contrivance propelled in whole or in part by mechanical
power and, which is used or capable of being used as a means of
transportation over water, and which is underway and not at anchor or
made fast to the shore or ground. The term "vessel" shall include a
"public vessel" as defined herein unless otherwise specified.
(b) The term "public vessel" shall mean and include every vessel which
is propelled in whole or in part by mechanical power and is used or
operated for commercial purposes on the navigable waters of the state;
that is either carrying passengers, carrying freight, towing, or for any
other use, for which a compensation is received, either directly or
where provided as an accommodation, advantage, facility or privilege at
any place of public accommodation, resort or amusement.
(c) The term "waters of the state" means all of the waterways or
bodies of water located within New York state or that part of any body
of water which is adjacent to New York state over which the state has
territorial jurisdiction, on which a vessel or public vessel may be used
or operated, including Nassau and Suffolk counties.
2. Offenses: criminal penalties. (a) No person shall operate a vessel
upon the waters of the state while his ability to operate such vessel is
impaired by the consumption of alcohol. A violation of this subdivision
shall be an offense and shall be punishable by a fine of not less than
three hundred dollars nor more than five hundred dollars, or by
imprisonment in a penitentiary or county jail for not more than fifteen
days, or by both such fine and imprisonment. A person who operates a
vessel in violation of this subdivision after being convicted of a
violation of any subdivision of this section within the preceding five
years shall be punished by a fine of not less than five hundred dollars
nor more than seven hundred fifty dollars, or by imprisonment of not
more than thirty days in a penitentiary or county jail or by both such
fine and imprisonment. A person who operates a vessel in violation of
this subdivision after being convicted two or more times of a violation
of any subdivision of this section within the preceding ten years shall
be guilty of a misdemeanor, and shall be punished by a fine of not less
than seven hundred fifty dollars nor more than fifteen hundred dollars,
or by imprisonment of not more than one hundred eighty days in a
penitentiary or county jail or by both such fine and imprisonment.
(b) No such person shall operate a vessel other than a public vessel
while he has .08 of one per centum or more by weight of alcohol in his
blood, breath, urine, or saliva, as determined by the chemical test made
pursuant to the provisions of subdivision seven of this section.
(c) No such person shall operate a public vessel while he has .04 of
one per centum or more by weight of alcohol in his blood, breath, urine,
or saliva, as determined by the chemical test made pursuant to the
provisions of subdivision seven of this section.
(d) No person shall operate a vessel while he is in an intoxicated
condition.
(e) No person shall operate a vessel while his ability to operate such
vessel is impaired by the use of a drug as defined by section one
hundred fourteen-a of the vehicle and traffic law.
(f) A violation of paragraph (b), (c), (d) or (e) of this subdivision
shall be a misdemeanor and shall be punishable by imprisonment in a
penitentiary or county jail for not more than one year, or by a fine of
not less than five hundred dollars nor more than one thousand dollars,
or by both such fine and imprisonment. A person who operates a vessel in
violation of paragraph (b), (c), (d) or (e) of this subdivision after
having been convicted of a violation of paragraph (b), (c), (d) or (e)
of this subdivision, or of operating a vessel or public vessel while
intoxicated or while under the influence of drugs, within the preceding
ten years, shall be guilty of a class E felony and shall be punished by
a period of imprisonment as provided in the penal law, or by a fine of
not less than one thousand dollars nor more than five thousand dollars,
or by both such fine and imprisonment. A person who operates a vessel in
violation of paragraph (b), (c), (d) or (e) of this subdivision after
having been twice convicted of a violation of any of such paragraph (b),
(c), (d) or (e) of this subdivision or of operating a vessel or public
vessel while intoxicated or under the influence of drugs, within the
preceding ten years, shall be guilty of a class D felony and shall be
punished by a fine of not less than two thousand dollars nor more than
ten thousand dollars or by a period of imprisonment as provided in the
penal law, or by both such fine and imprisonment.
3. Privilege to operate a vessel; suspensions. (a) The court shall
suspend a person's privilege to operate a vessel and may suspend a
vessel registration for:
(1) a period of at least six but less than twelve months where an
operator is convicted of a violation of paragraph (a) of subdivision two
of this section. In determining the length of such suspension or
suspensions, the court may take into consideration the seriousness of
the offense and may impose a period of suspension whereby such
suspension may be in effect during a portion of the current or
subsequent boating season;
(2) a period of twelve months where an operator is convicted of a
violation of paragraph (b), (c), (d) or (e) of subdivision two of this
section;
(3) a period of twenty-four months where a person is convicted of a
violation of paragraph (b), (c), (d) or (e) of subdivision two of this
section after having been convicted of a violation of paragraph (b),
(c), (d) or (e) of subdivision two of this section or of operating a
vessel or public vessel while intoxicated or under the influence of
drugs within the preceding ten years.
(b) The court shall report each conviction recorded pursuant to this
section to the commissioner of motor vehicles and the commissioner of
parks, recreation and historic preservation on forms provided by the
department of motor vehicles. Such reports shall include the length of
any suspension imposed on the privilege to operate a vessel and any
suspension imposed against a vessel registration. The department of
motor vehicles shall maintain a record of all convictions and
suspensions in order to effectuate the provisions of this section.
4. (a) Operation of vessel while operating privileges have been
suspended. No person shall operate a vessel upon the waters of the state
while operating privileges have been suspended pursuant to this section
or section forty-nine-b of this article. A violation of the provisions
of this paragraph shall be a violation and shall be punishable by a fine
of not less than three hundred fifty dollars nor more than seven hundred
fifty dollars or by imprisonment for a period of not more than ninety
days, or by both such fine and imprisonment.
(b) A person who is in violation of the provisions of paragraph (a) of
this subdivision, and in addition is in violation of the provisions of
any paragraph of subdivision two of this section arising out of the same
incident, shall be guilty of a misdemeanor punishable by a fine of not
less than five hundred dollars nor more than five thousand dollars or by
a period of imprisonment for a period of not more than one year or by
both such fine and imprisonment.
5. Sentencing limitations. Notwithstanding any provision of the penal
law, no judge or magistrate shall impose a sentence of unconditional
discharge for a violation of paragraph (b), (c), (d) or (e) of
subdivision two of this section nor shall he or she impose a sentence of
conditional discharge unless such conditional discharge is accompanied
by a sentence of a fine as provided in this section.
6. Arrest and testing. (a) Notwithstanding the provisions of section
140.10 of the criminal procedure law, a police officer may, without a
warrant, arrest a person, in case of a violation of any paragraph of
subdivision two of this section, if such violation is coupled with an
accident or collision in which such person is involved, which in fact
had been committed, though not in the police officer's presence, when he
has reasonable cause to believe that the violation was committed by such
person. For the purposes of this subdivision police officer shall also
include a peace officer authorized to enforce this chapter when the
alleged violation constitutes a crime.
(b) Breath test for operators of vessel. Every person operating a
vessel on the waters of the state which has been involved in an accident
or which is operated in violation of any of the provisions of this
section which regulate the manner in which a vessel is to be properly
operated while underway shall, at the request of a police officer,
submit to a breath test to be administered by the police officer. If
such test indicates that such operator has consumed alcohol, the police
officer may request such operator to submit to a chemical test in the
manner set forth in subdivision seven of this section. For the purposes
of this section, a vessel is being "operated" only when such vessel is
underway and is being propelled in whole or in part by mechanical power.
7. Chemical tests. (a) Any person who operates a vessel on the waters
of the state shall be requested to consent to a chemical test of one or
more of the following: breath, blood, urine, or saliva for the purpose
of determining the alcoholic or drug content of his blood, provided that
such test is administered at the direction of a police officer: (1)
having reasonable cause to believe such person to have been operating in
violation of this subdivision or paragraph (a), (b), (c), (d) or (e) of
subdivision two of this section and within two hours after such person
has been placed under arrest for any such violation or (2) within two
hours after a breath test as provided in paragraph (b) of subdivision
six of this section indicates that alcohol has been consumed by such
person and in accordance with the rules and regulations established by
the police force of which the officer is a member.
(b) If such person having been placed under arrest or after a breath
test indicates the presence of alcohol in the person's system and having
thereafter been requested to submit to such chemical test and having
been informed that the person's privilege to operate a vessel shall be
immediately suspended for refusal to submit to such chemical test or any
portion thereof, whether or not the person is found guilty of the charge
for which such person is arrested, refuses to submit to such chemical
test or any portion thereof, unless a court order has been granted
pursuant to subdivision eight of this section, the test shall not be
given and a written report of such refusal shall be immediately made by
the police officer before whom such refusal was made. Such report may be
verified by having the report sworn to, or by affixing to such report a
form notice that false statements made therein are punishable as a class
A misdemeanor pursuant to section 210.45 of the penal law and such form
notice together with the subscription of the deponent shall constitute a
verification of the report. The report of the police officer shall set
forth reasonable grounds to believe such arrested person to have been
operating a vessel in violation of any paragraph of subdivision two of
this section, that said person had refused to submit to such chemical
test, and that no chemical test was administered pursuant to the
requirements of subdivision eight of this section. The report shall be
presented to the court upon the arraignment of the arrested person. The
privilege to operate a vessel shall, upon the basis of such written
report, be temporarily suspended by the court without notice pending the
determination of a hearing as provided herein. Copies of such report
must be transmitted by the court to the commissioner of parks,
recreation and historic preservation and the commissioner of motor
vehicles and such transmittal may not be waived even with the consent of
all the parties. Such report shall be forwarded to each commissioner
within forty-eight hours of such arraignment. The court shall provide
such person with a hearing date schedule, a waiver form, and such other
information as may be required by the commissioner of motor vehicles. If
a hearing, as provided for in paragraph (c) of this subdivision, is
waived by such person, the commissioner of motor vehicles shall
immediately suspend the privilege to operate a vessel, as of the date of
receipt of such waiver in accordance with the provisions of paragraph
(d) of this subdivision.
(c) Any person whose privilege to operate a vessel has been suspended
pursuant to paragraph (b) of this subdivision is entitled to a hearing
in accordance with a hearing schedule to be promulgated by the
commissioner of motor vehicles. If the department fails to provide for
such hearing fifteen days after the date of the arraignment of the
arrested person, the privilege to operate a vessel of such person shall
be reinstated pending a hearing pursuant to this section. The hearing
shall be limited to the following issues: (1) did the police officer
have reasonable cause to believe that such person had been operating a
vessel in violation of any paragraph of subdivision two of this section;
(2) did the police officer make a lawful arrest of such person; (3) was
such person given sufficient warning, in clear or unequivocal language,
prior to such refusal that such refusal to submit to such chemical test
or any portion thereof, would result in the immediate suspension of such
person's privilege to operate a vessel whether or not such person is
found guilty of the charge for which the arrest was made; and (4) did
such person refuse to submit to such chemical test or any portion
thereof. If, after such hearing, the hearing officer, acting on behalf
of the commissioner of motor vehicles, finds on any one of said issues
in the negative, the hearing officer shall immediately terminate any
suspension arising from such refusal. If, after such hearing, the
hearing officer, acting on behalf of the commissioner of motor vehicles
finds all of the issues in the affirmative, such officer shall
immediately suspend the privilege to operate a vessel in accordance with
the provisions of paragraph (d) of this subdivision. A person who has
had the privilege to operate a vessel suspended pursuant to this
subdivision may appeal the findings of the hearing officer in accordance
with the provisions of article three-A of the vehicle and traffic law.
Any person may waive the right to a hearing under this section. Failure
by such person to appear for the scheduled hearing shall constitute a
waiver of such hearing, provided, however, that such person may petition
the commissioner of motor vehicles for a new hearing which shall be held
as soon as practicable.
(d) (1) Any privilege to operate a vessel which has been suspended
pursuant to paragraph (c) of this subdivision shall not be restored for
six months after such suspension. However, no such privilege shall be
restored for at least one year after such suspension in any case where
the person was under the age of twenty-one at the time of the offense,
has had a prior suspension resulting from refusal to submit to a
chemical test pursuant to this subdivision or subdivision six of section
forty-nine-b of this article, or has been convicted of a violation of
any paragraph of subdivision two of this section not arising out of the
same incident, within the five years immediately preceding the date of
such suspension; provided, however, a prior finding that a person under
the age of twenty-one has refused to submit to a chemical test pursuant
to such subdivision six of section forty-nine-b of this article shall
have the same effect as a prior finding of a refusal pursuant to this
subdivision solely for the purpose of determining the length of any
suspension required to be imposed under any provision of this article,
provided that the subsequent offense or refusal is committed or occurred
prior to the expiration of the retention period for such prior refusal
as set forth in paragraph (k) of subdivision one of section two hundred
one of the vehicle and traffic law. Notwithstanding any provision of
this paragraph to the contrary, any privilege to operate a vessel which
has been suspended pursuant to paragraph (c) of this subdivision, where
the person was under the age of twenty-one at the time of the refusal,
and such person under the age of twenty-one has a prior finding,
conviction or youthful offender adjudication resulting from a violation
of this section or section forty-nine-b of this article, not arising
from the same incident, shall not be restored for at least one year or
until such person reaches the age of twenty-one years, whichever is the
greater period of time.
(2) Any person whose privilege to operate a vessel is suspended
pursuant to the provisions of this subdivision shall also be liable for
a civil penalty in the amount of two hundred dollars except that if such
suspension is a second or subsequent suspension pursuant to this
subdivision issued within a five year period, or such person has been
convicted of a violation of any paragraph of subdivision two of this
section within the past five years not arising out of the same incident,
the civil penalty shall be in the amount of five hundred dollars. The
privilege to operate a vessel shall not be restored to such person
unless such penalty has been paid. The first one hundred dollars of each
penalty collected by the department of motor vehicles pursuant to the
provisions of this subdivision shall be paid to the commissioner of
motor vehicles for deposit to the general fund and the remainder of all
such penalties shall be paid to the commissioner of parks, recreation
and historic preservation for deposit in the "I Love NY Waterways"
boating safety fund established pursuant to section ninety-seven-nn of
the state finance law.
(e) The commissioner of motor vehicles in consultation with the
commissioner of parks, recreation and historic preservation shall
promulgate such rules and regulations as may be necessary to effectuate
the provisions of this subdivision.
(f) Evidence of a refusal to submit to such chemical test shall be
admissible in any trial, proceeding or hearing based upon a violation of
the provisions of this section, but only upon a showing that the person
was given sufficient warning, in clear and unequivocal language, of the
effect of such refusal and that the person persisted in his or her
refusal.
(g) Upon the request of the person tested, the results of such test
shall be made available to him or her.
8. Compulsory chemical tests. (a) Notwithstanding the provisions of
subdivision seven of this section, no person who operates a vessel in
the waters of this state may refuse to submit to a chemical test of one
or more of the following: breath, blood, urine or saliva, for the
purpose of determining the alcoholic and/or drug content of the blood
when a court order for such chemical test has been issued in accordance
with the provisions of this subdivision.
(b) Upon refusal by any person to submit to a chemical test or any
portion thereof as described in paragraph (a) of this subdivision, the
test shall not be given unless a police officer or a district attorney,
as defined in subdivision thirty-two of section 1.20 of the criminal
procedure law, requests and obtains a court order to compel a person to
submit to a chemical test to determine the alcoholic or drug content of
the person's blood upon a finding of reasonable cause to believe that:
(1) such person was the operator of a vessel and in the course of such
operation a person other than the operator was killed or suffered
serious physical injury as defined in section 10.00 of the penal law;
and
(2) (i) either such person operated the vessel in violation of any
paragraph of subdivision two of this section, or
(ii) a breath test administered by a police officer in accordance with
subdivision six of this section indicates that alcohol has been consumed
by such person; and
(3) such person has been placed under lawful arrest; and
(4) such person has refused to submit to a chemical test or any
portion thereof, requested in accordance with the provisions of
subdivision seven of this section or is unable to give consent to such a
test.
(c) For the purpose of this subdivision "reasonable cause" shall be
determined by viewing the totality of circumstances surrounding the
incident which, when taken together, indicate that the operator was
operating a vessel in violation of any paragraph of subdivision two of
this section. Such circumstances may include, but are not limited to:
evidence that the operator was operating a vessel in violation of any
provision of this chapter which regulates the manner in which a vessel
is to be properly operated while underway at the time of the incident;
any visible indication of alcohol or drug consumption or impairment by
the operator; any other evidence surrounding the circumstances of the
incident which indicates that the operator has been operating a vessel
while impaired by the consumption of alcohol or drugs or was intoxicated
at the time of the incident.
(d) (1) An application for a court order to compel submission to a
chemical test or any portion thereof, may be made to any supreme court
justice, county court judge or district court judge in the judicial
district in which the incident occurred, or if the incident occurred in
the city of New York before any supreme court justice or judge of the
criminal court of the city of New York. Such application may be
communicated by telephone, radio or other means of electronic
communication, or in person.
(2) The applicant must provide identification by name and title and
must state the purpose of the communication. Upon being advised that an
application for a court order to compel submission to a chemical test is
being made, the court shall place under oath the applicant and any other
person providing information in support of the application as provided
in subparagraph three of this paragraph. After being sworn the applicant
must state that the person from whom the chemical test was requested was
the operator of a vessel and in the course of such operation a person,
other than the operator, has been killed or seriously injured and, based
upon the totality of circumstances, there is reasonable cause to believe
that such person was operating a vessel in violation of any paragraph of
subdivision two of this section and, after being placed under lawful
arrest such person refused to submit to a chemical test or any portion
thereof, in accordance with the provisions of this section or is unable
to give consent to such a test or any portion thereof. The applicant
must make specific allegations of fact to support such statement. Any
other person properly identified, may present sworn allegations of fact
in support of the applicant's statement.
(3) Upon being advised that an oral application for a court order to
compel a person to submit to a chemical test is being made, a judge or
justice shall place under oath the applicant and any other person
providing information in support of the application. Such oath or oaths
and all of the remaining communication must be recorded, either by means
of a voice recording device or verbatim stenographic or verbatim
longhand notes. If a voice recording device is used or a stenographic
record made, the judge must have the record transcribed, certify to the
accuracy of the transcription and file the original record and
transcription with the court within seventy-two hours of the issuance of
the court order. If the longhand notes are taken, the judge shall
subscribe a copy and file it with the court within twenty-four hours of
the issuance of the order.
(4) If the court is satisfied that the requirements for the issuance
of a court order pursuant to the provisions of paragraph (b) of this
subdivision have been met, it may grant the application and issue an
order requiring the accused to submit to a chemical test to determine
the alcoholic and/or drug content of his blood and ordering the
withdrawal of a blood sample in accordance with the provisions of
subdivision nine of this section. When a judge or justice determines to
issue an order to compel submission to a chemical test based on an oral
application, the applicant therefor shall prepare the order in
accordance with the instructions of the judge or justice. In all cases
the order shall include the name of the issuing judge or justice, the
name of the applicant, and the date and time it was issued. It must be
signed by the judge or justice if issued in person, or by the applicant
if issued orally.
(5) Any false statement by an applicant or any other person in support
of an application for a court order shall subject such person to the
offenses for perjury set forth in article two hundred ten of the penal
law.
(e) An order issued pursuant to the provisions of this subdivision
shall require that a chemical test to determine the alcoholic and/or
drug content of the operator's blood must be administered. The
provisions of paragraphs (a), (b) and (c) of subdivision nine of this
section shall be applicable to any chemical test administered pursuant
to this section.
(f) A defendant who has been compelled to submit to a chemical test
pursuant to the provisions of this subdivision may move for the
suppression of such evidence in accordance with article seven hundred
ten of the criminal procedure law on the grounds that the order was
obtained and the test administered in violation of the provisions of
this subdivision or any other applicable law.
9. Testing procedures. (a) At the request of a police officer, the
following persons may withdraw blood for the purpose of determining the
alcohol or drug content therein: (1) a physician, a registered
professional nurse or a registered physician's assistant; or (2) under
the supervision and at the direction of a physician: a medical
laboratory technician or medical technologist as classified by civil
service; a phlebotomist; an advanced emergency medical technician as
certified by the department of health, or a medical laboratory
technician or medical technologist employed by a clinical laboratory
approved under title five of article five of the public health law. This
limitation shall not apply to the taking of a urine, saliva or breath
specimen.
(b) No person entitled to withdraw blood pursuant to paragraph (a) of
this subdivision or hospital employing such person and no other employer
of such person shall be sued or held liable for any act done or omitted
in the course of withdrawing blood at the request of a police officer or
peace officer acting pursuant to his special duties pursuant to this
subdivision.
(c) Any person who may have a cause of action arising from the
withdrawal of blood as aforesaid, for which no personal liability exists
under paragraph (b) of this subdivision, may maintain such action
against the state if the person entitled to withdraw blood pursuant to
paragraph (a) of this subdivision acted at the request of a police
officer or peace officer acting pursuant to his special duties, employed
by the state, or against the appropriate political subdivision of the
state if the person acted at the request of a police officer or peace
officer acting pursuant to his special duties, employed by a political
subdivision of the state. No action shall be maintained pursuant to this
paragraph unless notice of claim is duly filed or served in compliance
with law.
(d) Notwithstanding the foregoing provisions of this subdivision, an
action may be maintained by the state or a political subdivision thereof
against a person entitled to withdraw blood pursuant to paragraph (a) of
this subdivision or hospital employing such person for whose act or
omission the state or the political subdivision has been held liable
under this subdivision to recover damages, not exceeding the amount
awarded to the claimant, that may have been sustained by the state or
the political subdivision by reason of gross negligence on the part of
such person entitled to withdraw blood.
(e) The testimony of any person, other than a physician, entitled to
draw blood pursuant to paragraph (a) of this subdivision in respect to
any such withdrawal of blood made by him may be received in evidence
with the same weight, force and effect as if such withdrawal of blood
were made by a physician.
(f) The provisions of paragraphs (b), (c) and (d) of this subdivision
shall also apply with regard to any person employed by a hospital as
security personnel for any act done or omitted in the course of
withdrawing blood at the request of a police officer pursuant to a court
order in accordance with this subdivision.
(g) The person tested shall be permitted to choose a physician to
administer a chemical test in addition to the one administered at the
direction of the police officer.
10. Chemical test evidence. (a) Upon the trial of any such action or
proceeding arising out of actions alleged to have been committed by any
person arrested for a violation of any paragraph of subdivision two of
this section, the court shall admit evidence of the amount of alcohol or
drugs in the defendant's blood as shown by a test administered pursuant
to the provisions of subdivision seven or eight of this section.
(b) The following effect shall be given to evidence of blood alcohol
content, as determined by such tests, of a person arrested for a
violation of any paragraph of subdivision two of this section and who
was operating a vessel other than a public vessel:
(1) evidence that there was .05 of one per centum or less by weight of
alcohol in such person's blood shall be prima facie evidence that the
ability of such person to operate a vessel was not impaired by the
consumption of alcohol, and that such person was not in an intoxicated
condition.
(2) evidence that there was more than .05 of one per centum but less
than .07 of one per centum of weight in such person's blood shall be
prima facie evidence that such person was not in an intoxicated
condition, but such evidence shall be relevant evidence but not be given
prima facie effect, in determining whether the ability of such person to
operate a vessel was impaired by the consumption of alcohol.
(3) evidence that there was .07 of one per centum or more but less
than .08 of one per centum by weight of alcohol in his blood shall be
prima facie evidence that such person was not in an intoxicated
condition, but such evidence shall be given prima facie effect in
determining whether the ability of such person to operate a vessel was
impaired by the consumption of alcohol.
(c) Evidence of a refusal to submit to a chemical test or any portion
thereof shall be admissible in any trial or hearing provided the request
to submit to such a test was made in accordance with the provisions of
subdivision seven of this section.
11. Limitations. (a) A vessel operator may be convicted of a violation
of paragraphs (a), (b), (d) and (e) of subdivision two of this section,
notwithstanding that the charge laid before the court alleged a
violation of paragraph (b), (d) or (e) of subdivision two of this
section, and regardless of whether or not such condition is based on a
plea of guilty.
(b) In any case wherein the charge laid before the court alleges a
violation of paragraph (b), (c), (d) or (e) of subdivision two 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 paragraphs of such subdivision two 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 subdivision two of this section is not
warranted, he may consent, and the court may allow a disposition by plea
of guilty to another charge in satisfaction of such charge.
12. Suspension pending prosecution. (a) Without notice, pending any
prosecution, the court may suspend the right to operate a vessel where
the vessel operator has been charged with vehicular assault in the
second degree or vehicular manslaughter in the second degree as defined,
respectively, in sections 120.03 and 125.12 of the penal law.
(b) A suspension under this subdivision shall occur no later than
twenty days after the vessel operator's first appearance before the
court on the charges or at the conclusion of all proceedings required
for the arraignment, whichever comes first. In order for the court to
impose such suspension it must find that the accusatory instrument
conforms to the requirements of section 100.40 of the criminal procedure
law and there exists reasonable cause to believe that the accused
operated a vessel in violation of section 120.03 or 125.12 of the penal
law. At such time the operator shall be entitled to an opportunity to
make a statement regarding the enumerated issues and to present evidence
tending to rebut the court's findings. Where such suspension is imposed
upon such pending charge and the operator has requested a hearing
pursuant to article one hundred eighty of the criminal procedure law,
the court shall conduct such hearing. If upon completion of the hearing,
the court fails to find that there is reasonable cause to believe that
the operator committed a felony under section 120.03 or 125.12 of the
penal law the court shall promptly direct restoration of such operating
privileges to the operator unless such operating privileges are
suspended or revoked pursuant to any other provision of this chapter.
13. Boating safety course. Upon the conviction of any subdivision of
this section, the court shall, in addition to any other penalties
invoked under this section, require the convicted person, as a condition
of the sentence, to complete a boating safety course of the state, U.S.
Power Squadrons or U.S. Coast Guard Auxiliary and show proof of
successful completion of such course to the court or its designee.
S 49-b. Operating a vessel after having consumed alcohol; under the
age of twenty-one; per se. 1. Prohibition. No person under the age of
twenty-one shall operate a vessel upon the waters of this state after
having consumed alcohol as defined in this section. For purposes of this
section, a person under the age of twenty-one is deemed to have consumed
alcohol only if such person has .02 of one per centum or more but not
more than .07 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 in accordance with the provisions of subdivision
four of section eleven hundred ninety-four of the vehicle and traffic
law. Any person who operates a vessel in violation of this section, and
who is not charged with a violation of subdivision two of section
forty-nine-a of this article arising out of the same incident shall be
referred to the department of motor vehicles for action in accordance
with the provisions of this section. Notwithstanding any provision of
law to the contrary, a finding that a person under the age of twenty-one
operated a vessel after having consumed alcohol in violation of this
section is not a judgment of conviction for a crime or any other
offense.
2. Breath test for operators of vessel. Every person under the age of
twenty-one operating a vessel on the waters of the state which has been
involved in an accident or which is operated in violation of any of the
provisions of this section or section forty-nine-a of this article which
regulate the manner in which a vessel is to be properly operated while
underway shall, at the request of a police officer, submit to a breath
test to be administered by the police officer. If such test indicates
that such operator has consumed alcohol, the police officer may request
such operator to submit to a chemical test in the manner set forth in
this section. For the purposes of this section, a vessel is being
"operated" only when such vessel is underway and is being propelled in
whole or in part by mechanical power.
3. Chemical tests. (a) Any person under the age of twenty-one who
operates a vessel on the waters of the state shall be requested to
consent to a chemical test of one or more of the following: breath,
blood, urine, or saliva for the purpose of determining the alcoholic or
drug content of his blood, provided that such test is administered at
the direction of a police officer: (1) having reasonable grounds to
believe such person to have been operating in violation of this section
or paragraph (a), (b), (c), (d) or (e) of subdivision two of section
forty-nine-a of this article and within two hours after such person has
been placed under arrest, or detained pursuant to paragraph (c) of this
subdivision, for any such violation or (2) within two hours after a
breath test as provided in subdivision two of this section indicates
that alcohol has been consumed by such person and in accordance with the
rules and regulations established by the police force of which the
officer is a member.
(a-1) If such person having been detained pursuant to paragraph (c) of
this subdivision, and having thereafter been requested to submit to such
chemical test and having been informed that the person's privilege to
operate a vessel and any non-resident operating privilege shall be
suspended for refusal to submit to such chemical test or any portion
thereof, whether or not there is a finding of operating a vessel after
having consumed alcohol, refuses to submit to such chemical test or any
portion thereof, unless a court order has been granted pursuant to
subdivision eight of section forty-nine-a of this article, the test
shall not be given and a written report of such refusal shall be
immediately made by the police officer before whom such refusal was
made. Such report may be verified by having the report sworn to, or by
affixing to such report a form notice that false statements made therein
are punishable as a class A misdemeanor pursuant to section 210.45 of
the penal law and such form notice together with the subscription of the
deponent shall constitute a verification of the report. The report of
the police officer shall set forth reasonable grounds to believe such
person to have been operating a vessel in violation of this section, and
that said person had refused to submit to such chemical test. The report
shall be forwarded to the commissioner of motor vehicles within
forty-eight hours in a manner to be prescribed by such commissioner of
motor vehicles, and all subsequent proceedings with regard to refusal to
submit to such chemical test by such person shall be as set forth in
subdivision six of this section. The police officer shall provide such
person with a hearing date schedule, a waiver form, and such other
information as may be required by the commissioner of motor vehicles.
(b) For the purposes of this subdivision, "reasonable grounds" to
believe that a person has been operating a vessel after having consumed
alcohol in violation of this section shall be determined by viewing the
totality of circumstances surrounding the incident which, when taken
together, indicate that the operator was operating a vessel in violation
of this section. Such circumstances may include any visible or
behavioral indication of alcohol consumption by the operator, the
existence of an open container containing or having contained an
alcoholic beverage in or around the vessel being operated, or any other
evidence surrounding the circumstances of the incident which indicates
that the operator has been operating a vessel after having consumed
alcohol at the time of the incident.
(c) Notwithstanding any other provision of law to the contrary, no
person under the age of twenty-one shall be arrested for an alleged
violation of this section. However, a person under the age of twenty-one
for whom a chemical test is authorized pursuant to this subdivision may
be temporarily detained by the police solely for the purpose of
requesting or administering such chemical test whenever arrest without a
warrant for a petty offense would be authorized in accordance with the
provisions of section 140.10 of the criminal procedure law.
4. Chemical test report and hearing. (a) Whenever a chemical test of
the breath, blood, urine or saliva of an operator who is under the age
of twenty-one indicates that such person has operated a vessel in
violation of this section, and such person is not charged with violating
any subdivision of section forty-nine-a of this article arising out of
the same incident, the police officer who administered the test shall
forward a report of the results of such test to the department of motor
vehicles within twenty-four hours of the time when such results are
available in a manner prescribed by the commissioner of motor vehicles,
and the operator shall be given a hearing notice as provided in
subdivision five of this section, to appear before a hearing officer in
the county where the chemical test was administered, or in an adjoining
county under such circumstances as prescribed by the commissioner of
motor vehicles, on a date to be established in accordance with a
schedule promulgated by the commissioner of motor vehicles. Such hearing
shall occur within thirty days of, but not less than forty-eight hours
from, the date that the chemical test was administered, provided,
however, where the commissioner of motor vehicles determines, based upon
the availability of hearing officers and the anticipated volume of
hearings at a particular location, that the scheduling of such hearing
within thirty days would impair the timely scheduling or conducting of
other hearings, such hearing shall be scheduled at the next hearing date
for such particular location. When providing the operator with such
hearing notice, the police officer shall also give to the operator, and
shall, prior to the commencement of the hearing, provide to the
department of motor vehicles, copies of the following reports, documents
and materials: any written report or document, or portion thereof,
concerning a physical examination, a scientific test or experiment,
including the most recent record of inspection, or calibration or repair
of machines or instruments utilized to perform such scientific tests or
experiments and the certification certificate, if any, held by the
operator of the machine or instrument, which tests or examinations were
made by or at the request or direction of a public servant engaged in
law enforcement activity. The report of the police officer shall be
verified by having the report sworn to, or by affixing to such report a
form notice that false statements made therein are punishable as a class
A misdemeanor pursuant to section 210.45 of the penal law and such form
notice together with the subscription of the deponent shall constitute
verification of the report.
(b) Every person under the age of twenty-one who is alleged to have
operated a vessel after having consumed alcohol as set forth in this
section, and who is not charged with violating any subdivision of
section forty-nine-a of this article arising out of the same incident,
is entitled to a hearing before a hearing officer in accordance with the
provisions of this section. Unless otherwise provided by law, the
privilege to operate a vessel or any non-resident operating privilege of
such person shall not be suspended or revoked prior to the scheduled
date for such hearing.
(i) The hearing shall be limited to the following issues: (1) did such
person operate the vessel; (2) was a valid request to submit to a
chemical test made by the police officer in accordance with the
provisions of this section; (3) was such person less than twenty-one
years of age at the time of operation of the vessel; (4) was the
chemical test properly administered in accordance with the provisions of
this section; (5) did the test find that such person had operated a
vessel after having consumed alcohol as defined in this section; and (6)
did the police officer make a lawful stop of such person. The burden of
proof shall be on the police officer to prove each of these issues by
clear and convincing evidence.
(ii) Every person who is entitled to a hearing pursuant to this
subdivision has the right to be present at the hearing; the right to be
represented by attorney, or in the hearing officer's discretion, by any
other person the operator chooses; the right to receive and review
discovery materials as provided in this subdivision; the right not to
testify; the right to present evidence and witnesses in his own behalf,
the right to cross examine adverse witnesses, and the right to appeal
from an adverse determination in accordance with article three-A of the
vehicle and traffic law. Any person representing the operator must
conform to the standards of conduct required of attorneys appearing
before state courts, and failure to conform to these standards will be
grounds for declining to permit his continued appearance in the hearing.
(iii) Hearings conducted pursuant to this subdivision shall be in
accordance with this subdivision and with the provisions applicable to
the adjudication of traffic infractions pursuant to the following
provisions of part 124 of title fifteen of the codes, rules and
regulations of the state of New York: paragraph (b) of section 124.1
regarding the opening statement; paragraph (b) of section 124.2
regarding the right to representation and to remain silent and
paragraphs (a) through (e) of section 124.4 regarding the conduct of the
hearing, procedure and refusal; provided, however, that nothing
contained in this subparagraph shall be deemed to preclude a hearing
officer from changing the order of a hearing conducted pursuant to this
subdivision as justice may require and for good cause shown.
(iv) The rules governing receipt of evidence in a court of law shall
not apply in a hearing conducted pursuant to this subdivision except as
follows:
(1) on the merits of the charge, and whether or not a party objects,
the hearing officer shall exclude from consideration the following: a
privileged communication; evidence which, for constitutional reasons,
would not be admissible in a court of law; evidence of prior misconduct,
incompetency or illness, except where such evidence would be admissible
in a court of law; evidence which is irrelevant or immaterial;
(2) no negative inference shall be drawn from the operator's
exercising the right not to testify.
(v) If, after such hearing, the hearing officer, acting on behalf of
the commissioner of motor vehicles, finds all of the issues set forth in
this subdivision in the affirmative, the hearing officer shall suspend
the operating privilege or non-resident operating privilege of such
person in accordance with the time periods set forth in this section.
If, after such hearing, the hearing officer, acting on behalf of the
commissioner of motor vehicles, finds any of said issues in the
negative, the hearing officer must find that the operator did not
operate a vessel after having consumed alcohol.
(vi) A person who has had a privilege to operate a vessel or
non-resident operating privilege suspended pursuant to the provisions of
this section may appeal the finding of the hearing officer in accordance
with the provisions of article three-A of the vehicle and traffic law.
(c) Unless an adjournment of the hearing date has been granted, upon
the operator's failure to appear for a scheduled hearing, the
commissioner shall suspend the privilege to operate a vessel or
non-resident operating privilege until the operator petitions the
commissioner of motor vehicles and a rescheduled hearing is conducted,
provided, however, the commissioner shall restore such person's
operating privilege or non-resident operating privilege if such
rescheduled hearing is adjourned at the request of a person other than
the operator. Requests for adjournments shall be made and determined in
accordance with regulations promulgated by the commissioner of motor
vehicles. If such a request by the operator for an adjournment is
granted, the commissioner of motor vehicles shall notify the operator of
the rescheduled hearing, which shall be scheduled for the next hearing
date. If a second or subsequent request by the operator for an
adjournment is granted, the operator's privilege to operate a vessel or,
non-resident operating privilege, may be suspended pending the hearing
at the time such adjournment is granted; provided, however, that the
records of the department or the evidence already admitted furnishes
reasonable grounds to believe such suspension is necessary to prevent
continuing violations or a substantial safety hazard; and provided
further, that such hearing shall be scheduled for the next hearing date.
If a police officer does not appear for a hearing, the hearing officer
shall have the authority to dismiss the charge. Any person may waive the
right to a hearing under this subdivision, in a form and manner
prescribed by the commissioner of motor vehicles, and may enter an
admission of guilt, in person or by mail, to the charge of operating a
vessel in violation of this section. Such admission of guilt shall have
the same force and effect as a finding of guilt entered following a
hearing conducted pursuant to this subdivision.
5. Hearing notice. The hearing notice issued to an operator pursuant
to subdivision four of this section shall be in a form as prescribed by
the commissioner. In addition to containing information concerning the
time, date and location of the hearing, and such other information as
the commissioner deems appropriate, such hearing notice shall also
contain the following information: the date, time and place of the
offense charged; the procedures for requesting an adjournment of a
scheduled hearing as provided in this section, the operator's right to a
hearing conducted pursuant to this section and the right to waive such
hearing and plead guilty, either in person or by mail, to the offense
charged.
6. Refusal report and hearing. (a) Any person under the age of
twenty-one who is suspected of operating a vessel after having consumed
alcohol in violation of this section, and who is not charged with
violating any subdivision of section forty-nine-a of this article
arising out of the same incident, and who has been requested to submit
to a chemical test pursuant to subdivision three of this section and
after having been informed that his privilege to operate a vessel and
any non-resident operating privilege shall be suspended for refusal to
submit to such chemical test or any portion thereof, whether or not
there is a finding of operating a vessel after having consumed alcohol,
and such person refuses to submit to such chemical test or any portion
thereof, shall be entitled to a hearing in accordance with a schedule
promulgated by the commissioner of motor vehicles, and such hearing
shall occur within thirty days of, but not less than forty-eight hours
from, the date of such refusal, provided, however, where the
commissioner of motor vehicles determines, based upon the availability
of hearing officers and the anticipated volume of hearings at a
particular location, that the scheduling of such hearing within thirty
days would impair the timely scheduling or conducting of other hearings,
such hearing shall be scheduled at the next hearing date for such
particular location.
(b) Unless an adjournment of the hearing date has been granted, upon
the operator's failure to appear for a scheduled hearing, the
commissioner of motor vehicles shall suspend the operating privilege or
non-resident operating privilege until the operator petitions the
commissioner of motor vehicles and a rescheduled hearing is conducted,
provided, however, the commissioner shall restore such person's
operator's privilege or non-resident operating privilege if such
rescheduled hearing is adjourned at the request of a person other than
the operator. Requests for adjournments shall be made and determined in
accordance with regulations promulgated by the commissioner of motor
vehicles. If such a request by the operator for an adjournment is
granted, the commissioner of motor vehicles shall notify the operator of
the rescheduled hearing, which shall be scheduled for the next hearing
date. If a second or subsequent request by the operator for an
adjournment is granted, the operator's privilege to operate a vessel or
non-resident operating privilege may be suspended pending the hearing at
the time such adjournment is granted; provided, however, that the
records of the department of motor vehicles or the evidence already
admitted furnishes reasonable grounds to believe such suspension is
necessary to prevent continuing violations or a substantial safety
hazard; and provided further, that such hearing shall be scheduled for
the next hearing date.
If a police officer does not appear for a hearing, the hearing officer
shall have the authority to dismiss the charge. Any person may waive the
right to a hearing under this subdivision.
(c) The hearing on the refusal to submit to a chemical test pursuant
to this subdivision shall be limited to the following issues: (1) was a
valid request to submit to a chemical test made by the police officer in
accordance with the provisions of subdivision three of this section; (2)
was such person given sufficient warning, in clear or unequivocal
language, prior to such refusal that such refusal to submit to such
chemical test or any portion thereof, would result in the suspension of
such person's privilege to operate a vessel or nonresident operating
privilege, whether or not such person is found to have operated a vessel
after having consumed alcohol; (3) did such person refuse to submit to
such chemical test or any portion thereof; (4) did such person operate
the vessel; (5) was such person less than twenty-one years of age at the
time of operation of the vessel; (6) did the police officer make a
lawful stop of such person. If, after such hearing, the hearing officer,
acting on behalf of the commissioner of motor vehicles, finds on any one
said issue in the negative, the hearing officer shall not suspend the
operator's privilege to operate a vessel or non-resident operating
privilege and shall immediately terminate any outstanding suspension of
the operator's privilege to operate a vessel or non-resident operating
privilege arising from such refusal. If, after such hearing, the hearing
officer, acting on behalf of the commissioner of motor vehicles, finds
all of the issues in the affirmative, such hearing officer shall
immediately suspend the privilege to operate a vessel or any
non-resident operating privilege in accordance with the provisions of
this section. A person who has had a privilege to operate a vessel or
non-resident operating privilege suspended pursuant to the provisions of
this section may appeal the findings of the hearing officer in
accordance with the provisions of article three-A of the vehicle and
traffic law.
(d) Any privilege which has been suspended pursuant to paragraph (c)
of this subdivision shall not be restored for one year after such
suspension. Where such person under the age of twenty-one years has a
prior finding, conviction or youthful offender adjudication resulting
from a violation of this section or section forty-nine-a of this
article, not arising from the same incident, such privilege shall not be
restored for at least one year or until such person reaches the age of
twenty-one years, whichever is the greater period of time.
7. Effect of prior finding of having consumed alcohol. A prior finding
that a person under the age of twenty-one has operated a vessel after
having consumed alcohol pursuant to this section shall have the same
effect as a prior conviction of a violation of paragraph (a) of
subdivision two of section forty-nine-a of this article solely for the
purpose of determining the length of any suspension 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 the vehicle and traffic
law.
8. Plea bargain limitations. (a) In any case wherein the charge laid
before a court alleges a violation of paragraph (a) of subdivision two
of section forty-nine-a of this article 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
(b) of this subdivision, and, provided further that, if the district
attorney, upon reviewing the available evidence, determines that the
charge of a violation of paragraph (a) of subdivision two of section
forty-nine-a of this article 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 a court alleges a
violation of paragraph (a) of subdivision two of section forty-nine-a of
this article 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 of motor vehicles
pursuant to this section. In any such case, the defendant shall waive
the right to a hearing under this section and such waiver shall have the
same force and effect as a finding of a violation of this section
entered after a hearing conducted pursuant to this section. 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 of motor vehicles, which shall be forwarded by the
court to the commissioner of motor vehicles 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 this section; (ii) shall subject the defendant to the imposition of
sanctions pursuant to this section; and (iii) may subject the defendant
to increased sanctions upon a subsequent violation of this section or
section forty-nine-a of this article. Upon receipt of a duly executed
waiver pursuant to this paragraph, the commissioner of motor vehicles
shall take such administrative action and impose such sanctions as may
be required by this section.
9. Sanctions. (a) Except as otherwise provided in this subdivision, a
person's privilege to operate a vessel upon the waters of the state
shall be suspended for six months, where such person has been found to
have operated a vessel after having consumed alcohol in violation of
this section.
(b) The suspension of operating privileges pursuant to this
subdivision shall be for one year or until such person reaches the age
of twenty-one, whichever is the greater period of time, where such
person has been found to have operated a vessel after having consumed
alcohol in violation of this section, and has previously been found to
have operated a vessel after having consumed alcohol in violation of
this section or has previously been convicted of, or adjudicated a
youthful offender for any violation of section forty-nine-a of this
article not arising out of the same incident.
(c) Where the commissioner of motor vehicles determines that the
period of suspension imposed pursuant to this section would extend
beyond the current boating season, such commissioner may direct that any
portion of such suspension period take effect during the following
boating season.
10. Civil penalty. (a) Unless otherwise provided, any person whose
privilege to operate a vessel has been suspended pursuant to the
provisions of this section shall also be liable for a civil penalty in
the amount of one hundred twenty-five dollars.
(b) The first one hundred dollars of each civil penalty collected
pursuant to the provisions of this section shall be paid to the
commissioner of motor vehicles for deposit into the general fund and the
remainder of all such civil penalties shall be paid to the commissioner
of parks, recreation, and historic preservation for deposit into the "I
Love NY Waterways" boating safety fund established pursuant to section
ninety-seven-nn of state finance law.
11. Nothing contained in this section shall be deemed to exempt
persons under the age of twenty-one from arrest and prosecution under
section forty-nine-a of this article for an alleged violation of such
section.
S 49-c. Termination of unsafe operation. A police officer or peace
officer, acting pursuant to his or her special duties, who has
reasonable cause to believe that a vessel, including a rowboat, canoe or
kayak, is being operated, in his or her presence, upon the navigable
waters of the state, or any tidewaters bordering on or lying within the
boundaries of the county of Nassau or Suffolk, in violation of any
section of this article, and that it would be so imminently hazardous to
continue to operate such vessel as to be likely to cause an accident or
physical injury, may direct the master or operator of such vessel to
cease operating upon such waters, and to proceed immediately to dock the
vessel at the nearest available safe anchorage, dock or mooring until
the violation charged by such officer is finally adjudicated or until
such hazardous condition is remediated or otherwise corrected.
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N.Y.S. Laws:
YPDcrime.com,
CityofYonkers.org,
CityofYonkersPolice.com,
CityofYonkersPolice.org,
JMBwebdesigns.com,
NYScriminalLaws.com,
YonkersPD.com,
YonkersPD.org,
YonkersPolice.com,
YonkersPolice.org,
YPDcrime.info - A comprehensive on-line digest of New York's criminal code.