2010 New York Code
NAV - Navigation
Article 4 - VESSELS
Part 1 - (40 - 49-C) VESSELS, GENERAL
49-A - Operation of a vessel while under the influence of alcohol or drugs.

§ 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.

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