2006 New York Code - Operating A Vessel After Having Consumed Alcohol; Under The Age Of Twenty-one; Per Se.

 
    §  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.