Bill Text: NY A00883 | 2021-2022 | General Assembly | Introduced
Bill Title: Provides for the repeal of existing boating while intoxicated laws and replaces them with laws related to operation of a boat while under the influence of alcohol or drugs which closer resemble the existing DWI laws.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2022-01-05 - referred to transportation [A00883 Detail]
Download: New_York-2021-A00883-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 883 2021-2022 Regular Sessions IN ASSEMBLY (Prefiled) January 6, 2021 ___________ Introduced by M. of A. WOERNER, STERN, SAYEGH, J. M. GIGLIO, RA, B. MILLER, GRIFFIN -- Multi-Sponsored by -- M. of A. GALEF, MONTESANO, THIELE -- read once and referred to the Committee on Transportation AN ACT to amend the navigation law, the vehicle and traffic law, the criminal procedure law and the penal law, in relation to operation of a vessel while under the influence of alcohol or drugs; and to repeal certain provisions of the navigation law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Sections 49-a and 49-b of the navigation law are REPEALED 2 and a new article 4-B is added to read as follows: 3 ARTICLE 4-B 4 ALCOHOL AND DRUG-RELATED OFFENSES AND PROCEDURES APPLICABLE 5 TO OPERATION OF A VESSEL 6 Section 79-d. Operation of a vessel while under the influence of alcohol 7 or drugs. 8 79-e. Operation of a vessel after having consumed alcohol; under 9 the age of twenty-one; per se. 10 79-f. Sanctions. 11 79-g. Arrest and testing. 12 79-h. Operation of a vessel after having consumed alcohol; under 13 twenty-one; procedure. 14 79-i. Chemical test evidence. 15 79-j. Alcohol and drug rehabilitation program within the depart- 16 ment of motor vehicles. 17 79-k. Special options program for operation of a vessel while 18 intoxicated. 19 79-l. Installation and operation of ignition interlock devices. 20 79-m. Special procedures and disposition involving alcohol and 21 substance abuse assessment and treatment. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01164-01-1A. 883 2 1 79-n. Driver and boater responsibility assessment. 2 § 79-d. Operation of a vessel while under the influence of alcohol or 3 drugs. 1. Definitions. As used in this article, unless the context 4 clearly indicates otherwise: 5 (a) The term "vessel" shall be every description of watercraft or 6 other artificial contrivance propelled in whole or in part by mechanical 7 power and, which is used or capable of being used as a means of trans- 8 portation over water, and which is underway and not at anchor or made 9 fast to the shore or ground. The term "vessel" shall include a "public 10 vessel" as defined in this section unless otherwise specified. 11 (b) The term "public vessel" shall mean and include every vessel which 12 is propelled in whole or in part by mechanical power and is used or 13 operated for commercial purposes on the navigable waters of the state; 14 that is either carrying passengers, carrying freight, towing, or for any 15 other use, for which a compensation is received, either directly or 16 where provided as an accommodation, advantage, facility or privilege at 17 any place of public accommodation, resort or amusement. 18 (c) The term "waters of the state" means all of the waterways or 19 bodies of water located within the state or that part of any body of 20 water which is adjacent to the state over which the state has territo- 21 rial jurisdiction, on which a vessel or public vessel may be used or 22 operated, including Nassau and Suffolk counties. 23 (d) The term "drug" means any substance listed in section thirty-three 24 hundred six of the public health law. 25 (e) The term "commissioner" means the commissioner of parks, recre- 26 ation and historic preservation. 27 2. Operation of a vessel while ability impaired. No person shall oper- 28 ate a vessel upon the waters of this state while the person's ability to 29 operate such vessel is impaired by the consumption of alcohol. 30 3. Operation of a vessel while intoxicated; per se. No person shall 31 operate a vessel upon the waters of this state while such person has .08 32 of one per centum or more by weight of alcohol in the person's blood as 33 shown by chemical analysis of such person's blood, breath, urine or 34 saliva, made pursuant to the provisions of section seventy-nine-g of 35 this article. 36 4. Aggravated operation of a vessel while intoxicated. (a) Per se. No 37 person shall operate a vessel upon the waters of this state while such 38 person has .18 of one per centum or more by weight of alcohol in such 39 person's blood as shown by chemical analysis of such person's blood, 40 breath, urine or saliva made pursuant to the provisions of section 41 seventy-nine-g of this article. 42 (b) With a child. No person shall operate a vessel in violation of 43 subdivision three, five, six or seven of this section while a child who 44 is fifteen years of age or less is a passenger in such vessel. 45 5. Operation of a vessel while intoxicated. No person shall operate a 46 vessel while in an intoxicated condition. 47 6. Operation of a vessel while ability impaired by drugs. No person 48 shall operate a vessel while the person's ability to operate such a 49 vessel is impaired by the use of a drug as defined in this section. 50 7. Operation of a vessel while ability impaired by the combined influ- 51 ence of drugs or of alcohol and any drug or drugs. No person shall oper- 52 ate a vessel while the person's ability to operate such vessel is 53 impaired by the combined influence of drugs or of alcohol and any drug 54 or drugs. 55 8. Public vessels: per se - level I. Notwithstanding the provisions of 56 section seventy-nine-i of this article, no person shall operate a publicA. 883 3 1 vessel while such person has .04 of one per centum or more but not more 2 than .06 of one per centum by weight of alcohol in the person's blood as 3 shown by chemical analysis of such person's blood, breath, urine or 4 saliva, made pursuant to the provisions of section seventy-nine-g of 5 this article; provided, however, nothing contained in this subdivision 6 shall prohibit the imposition of a charge of a violation of subdivision 7 two of this section, or of section seventy-nine-e of this article where 8 a person under the age of twenty-one operates a public vessel where a 9 chemical analysis of such person's blood, breath, urine, or saliva, made 10 pursuant to the provisions of section seventy-nine-g of this article, 11 indicates that such operator has .02 of one per centum or more but less 12 than .04 of one per centum by weight of alcohol in such operator's 13 blood. 14 9. Public vessels; per se - level II. Notwithstanding the provisions 15 of section seventy-nine-i of this article, no person shall operate a 16 public vessel while such person has more than .06 of one per centum but 17 less than .08 of one per centum by weight of alcohol in the person's 18 blood as shown by chemical analysis of such person's blood, breath, 19 urine or saliva, made pursuant to the provisions of section seventy- 20 nine-g of this article; provided, however, nothing contained in this 21 subdivision shall prohibit the imposition of a charge of a violation of 22 subdivision two of this section. 23 10. Effect of prior out-of-state conviction. A prior out-of-state 24 conviction for operating a vessel while under the influence of alcohol 25 or drugs shall be deemed to be a prior conviction of a violation of this 26 section for purposes of determining penalties imposed under this section 27 or for purposes of any administrative action required to be taken pursu- 28 ant to subdivision three of section seventy-nine-f of this article; 29 provided, however, that such conduct, had it occurred in this state, 30 would have constituted a misdemeanor or felony violation of any of the 31 provisions of this section. Provided, however, that if such conduct, had 32 it occurred in this state, would have constituted a violation of any 33 provisions of this section which are not misdemeanor or felony offenses, 34 then such conduct shall be deemed to be a prior conviction of a 35 violation of subdivision two of this section for purposes of determining 36 penalties imposed under this section or for purposes of any administra- 37 tive action required to be taken pursuant to subdivision three of 38 section seventy-nine-f of this article. 39 11. Effect of prior finding of having consumed alcohol. A prior find- 40 ing that a person under the age of twenty-one has operated a vessel 41 after having consumed alcohol pursuant to section seventy-nine-g of this 42 article shall have the same effect as a prior conviction of a violation 43 of subdivision two of this section solely for the purpose of determining 44 the length of any suspension or revocation of the operator's privilege 45 to operate a vessel required to be imposed under any provision of this 46 article, provided that the subsequent offense is committed prior to the 47 expiration of the retention period for such prior offense or offenses 48 set forth in paragraph (k) of subdivision one of section two hundred one 49 of the vehicle and traffic law. 50 12. Conviction of a different charge. An operator may be convicted of 51 a violation of subdivision two, three or five of this section, notwith- 52 standing that the charge laid before the court alleged a violation of 53 subdivision three or five of this section, and regardless of whether or 54 not such conviction is based on a plea of guilty. 55 13. Plea bargain limitations. (a) (i) In any case wherein the charge 56 laid before the court alleges a violation of subdivision three, five,A. 883 4 1 six or seven of this section, any plea of guilty thereafter entered in 2 satisfaction of such charge must include at least a plea of guilty to 3 the violation of the provisions of any of the subdivisions of this 4 section, other than subdivision eight or nine, and no other disposition 5 by plea of guilty to any other charge in satisfaction of such charge 6 shall be authorized; provided, however, if the district attorney, upon 7 reviewing the available evidence, determines that the charge of a 8 violation of this section is not warranted, such district attorney may 9 consent, and the court may allow a disposition by plea of guilty to 10 another charge in satisfaction of such charge; provided, however, in all 11 such cases, the court shall set forth upon the record the basis for such 12 disposition. 13 (ii) In any case wherein the charge laid before the court alleges a 14 violation of subdivision three, five, six or seven of this section, no 15 plea of guilty to subdivision two of this section shall be accepted by 16 the court unless such plea includes as a condition thereof the require- 17 ment that the defendant attend and complete the alcohol and drug reha- 18 bilitation program established pursuant to section seventy-nine-j of 19 this article, including any assessment and treatment required thereby; 20 provided, however, that such requirement may be waived by the court upon 21 application of the district attorney or the defendant demonstrating that 22 the defendant, as a condition of the plea, has been required to enter 23 into and complete an alcohol or drug treatment program prescribed pursu- 24 ant to an alcohol or substance abuse screening or assessment conducted 25 pursuant to section seventy-nine-m of this article or for other good 26 cause shown. The provisions of this subparagraph shall apply, notwith- 27 standing any bars to participation in the alcohol and drug rehabili- 28 tation program set forth in section seventy-nine-j of this article; 29 provided, however, that nothing in this paragraph shall authorize the 30 issuance of a conditional privilege to operate a vessel unless otherwise 31 authorized by law. 32 (iii) In any case wherein the charge laid before the court alleges a 33 violation of subdivision two of this section and the operator was under 34 the age of twenty-one at the time of such violation, any plea of guilty 35 thereafter entered in satisfaction of such charge must include at least 36 a plea of guilty to the violation of such subdivision; provided, howev- 37 er, such charge may instead be satisfied as provided in paragraph (c) of 38 this subdivision, and, provided further that, if the district attorney, 39 upon reviewing the available evidence, determines that the charge of a 40 violation of subdivision two of this section is not warranted, such 41 district attorney may consent, and the court may allow a disposition by 42 plea of guilty to another charge in satisfaction of such charge; 43 provided, however, in all such cases, the court shall set forth upon the 44 record the basis for such disposition. 45 (b) In any case wherein the charge laid before the court alleges a 46 violation of subdivision two or eight of this section while operating a 47 public vessel, any plea of guilty thereafter entered in satisfaction of 48 such charge must include at least a plea of guilty to the violation of 49 the provisions of any of the subdivisions of this section and no other 50 disposition by plea of guilty to any other charge in satisfaction of 51 such charge shall be authorized; provided, however, if the district 52 attorney upon reviewing the available evidence determines that the 53 charge of a violation of this section is not warranted, he or she may 54 consent, and the court may allow, a disposition by plea of guilty to 55 another charge is satisfaction of such charge.A. 883 5 1 (c) Except as provided in paragraph (b) of this subdivision, in any 2 case wherein the charge laid before the court alleges a violation of 3 subdivision two of this section by a person who was under the age of 4 twenty-one at the time of commission of the offense, the court, with the 5 consent of both parties, may allow the satisfaction of such charge by 6 the defendant's agreement to be subject to action by the commissioner 7 pursuant to section seventy-nine-h of this article. In any such case, 8 the defendant shall waive the right to a hearing under section seventy- 9 nine-h of this article and such waiver shall have the same force and 10 effect as a finding of a violation of section seventy-nine-e of this 11 article entered after a hearing conducted pursuant to such section 12 seventy-nine-h. The defendant shall execute such waiver in open court, 13 and, if represented by counsel, in the presence of his or her attorney, 14 on a form to be provided by the commissioner, which shall be forwarded 15 by the court to the commissioner within ninety-six hours. To be valid, 16 such form shall, at a minimum, contain clear and conspicuous language 17 advising the defendant that a duly executed waiver: (i) has the same 18 force and effect as a guilty finding following a hearing pursuant to 19 section seventy-nine-h of this article; (ii) shall subject the defendant 20 to the imposition of sanctions pursuant to such section seventy-nine-h; 21 and (iii) may subject the defendant to increased sanctions upon a subse- 22 quent violation of this section or section seventy-nine-e of this arti- 23 cle. Upon receipt of a duly executed waiver pursuant to this paragraph, 24 the commissioner shall take such administrative action and impose such 25 sanctions as may be required by section seventy-nine-h of this article. 26 (d) In any case wherein the charge laid before the court alleges a 27 violation of subdivision four of this section, any plea of guilty there- 28 after entered in satisfaction of such charge must include at least a 29 plea of guilty to the violation of the provisions of subdivision three, 30 four or five of this section, and no other disposition by plea of guilty 31 to any other charge in satisfaction of such charge shall be authorized; 32 provided, however, if the district attorney, upon reviewing the avail- 33 able evidence, determines that the charge of a violation of this section 34 is not warranted, such district attorney may consent and the court may 35 allow a disposition by plea of guilty to another charge in satisfaction 36 of such charge, provided, however, in all such cases, the court shall 37 set forth upon the record the basis for such disposition. Provided, 38 further, however, that no such plea shall be accepted by the court 39 unless such plea includes as a condition thereof the requirement that 40 the defendant attend and complete the alcohol and drug rehabilitation 41 program established pursuant to section seventy-nine-j of this article, 42 including any assessment and treatment required thereby; provided, 43 however, that such requirement may be waived by the court upon applica- 44 tion of the district attorney or the defendant demonstrating that the 45 defendant, as a condition of the plea, has been required to enter into 46 and complete an alcohol or drug treatment program prescribed pursuant to 47 an alcohol or substance abuse screening or assessment conducted pursuant 48 to section seventy-nine-m of this article or for other good cause shown. 49 The provisions of this paragraph shall apply, notwithstanding any bars 50 to participation in the alcohol and drug rehabilitation program set 51 forth in section seventy-nine-j of this article; provided, however, that 52 nothing in this paragraph shall authorize the issuance of a conditional 53 privilege to operate a vessel unless otherwise authorized by law. 54 14. Charges against operator of a public vessel. No person other than 55 an operator of a public vessel may be charged with or convicted of a 56 violation of subdivision eight or nine of this section.A. 883 6 1 15. Operation of a vessel while intoxicated or while ability impaired 2 by drugs--serious physical injury or death or child in the vessel. (a) 3 In every case where a person is charged with a violation of subdivision 4 three, four, five, six or seven of this section, the law enforcement 5 officer alleging such charge shall make a clear notation in the 6 "Description of Violation" section of a simplified traffic information 7 (i) if, arising out of the same incident, someone other than the person 8 charged was killed or suffered serious physical injury as defined in 9 section 10.00 of the penal law; such notation shall be in the form of a 10 "D" if someone other than the person charged was killed and such nota- 11 tion shall be in the form of a "S.P.I." if someone other than the person 12 charged suffered serious physical injury; and (ii) if a child aged 13 fifteen years or less was present in the vessel of the person charged 14 with a violation of subdivision three, four, five, six or seven of this 15 section; such notation shall be in the form of "C.I.V.". Provided, 16 however, that the failure to make such notations shall in no way affect 17 a charge for a violation of subdivision three, four, five, six or seven 18 of this section. 19 (b) Where a law enforcement officer alleges a violation of paragraph 20 (b) of subdivision four of this section and the operator of the vessel 21 is a parent, guardian, or custodian of, or other person legally respon- 22 sible for, a child aged fifteen years or less who is a passenger in such 23 vessel, then the officer shall report or cause a report to be made, if 24 applicable, in accordance with title six of article six of the social 25 services law. 26 § 79-e. Operation of a vessel after having consumed alcohol; under the 27 age of twenty-one; per se. No person under the age of twenty-one shall 28 operate a vessel after having consumed alcohol as described in this 29 section. For purposes of this section, a person under the age of twen- 30 ty-one is deemed to have consumed alcohol only if such person has .02 of 31 one per centum or more but not more than .07 of one per centum by weight 32 of alcohol in the person's blood, as shown by chemical analysis of such 33 person's blood, breath, urine or saliva, made pursuant to the provisions 34 of section seventy-nine-g of this article. Any person who operates a 35 vessel in violation of this section, and who is not charged with a 36 violation of any subdivision of section seventy-nine-d of this article 37 arising out of the same incident shall be referred to the office of 38 parks, recreation and historic preservation for action in accordance 39 with the provisions of section seventy-nine-h of this article. Except as 40 otherwise provided in subdivision eight of section seventy-nine-d of 41 this article, this section shall not apply to a person who operates a 42 public vessel. Notwithstanding any provision of law to the contrary, a 43 finding that a person under the age of twenty-one operated a vessel 44 after having consumed alcohol in violation of this section is not a 45 judgment of conviction for a crime or any other offense. 46 § 79-f. Sanctions. 1. Criminal penalties. (a) Operation of a vessel 47 while ability impaired. A violation of subdivision two of section seven- 48 ty-nine-d of this article shall be a violation and shall be punishable 49 by a fine of not less than three hundred dollars nor more than five 50 hundred dollars or by imprisonment in a penitentiary or county jail for 51 not more than fifteen days, or by both such fine and imprisonment. A 52 person who operates a vessel in violation of such subdivision after 53 having been convicted of a violation of any subdivision of section 54 seventy-nine-d of this article within the preceding five years shall be 55 punished by a fine of not less than five hundred dollars nor more than 56 seven hundred fifty dollars, or by imprisonment of not more than thirtyA. 883 7 1 days in a penitentiary or county jail or by both such fine and imprison- 2 ment. A person who operates a vessel in violation of such subdivision 3 after having been convicted two or more times of a violation of any 4 subdivision of section seventy-nine-d of this article within the preced- 5 ing ten years shall be guilty of a misdemeanor, and shall be punished by 6 a fine of not less than seven hundred fifty dollars nor more than one 7 thousand five hundred dollars, or by imprisonment of not more than one 8 hundred eighty days in a penitentiary or county jail or by both such 9 fine and imprisonment. 10 (b) Operation of a vessel while intoxicated or while ability impaired 11 by drugs or while ability impaired by the combined influence of drugs or 12 of alcohol and any drug or drugs; aggravated operation while intoxicat- 13 ed; misdemeanor offenses. (i) A violation of subdivision three, five, 14 six or seven of section seventy-nine-d of this article shall be a misde- 15 meanor and shall be punishable by a fine of not less than five hundred 16 dollars nor more than one thousand dollars, or by imprisonment in a 17 penitentiary or county jail for not more than one year, or by both such 18 fine and imprisonment. A violation of paragraph (a) of subdivision four 19 of section seventy-nine-d of this article shall be a misdemeanor and 20 shall be punishable by a fine of not less than one thousand dollars nor 21 more than two thousand five hundred dollars or by imprisonment in a 22 penitentiary or county jail for not more than one year, or by both such 23 fine and imprisonment. 24 (ii) In addition to the imposition of any fine or period of imprison- 25 ment set forth in this paragraph, the court shall also sentence such 26 person convicted of, or adjudicated a youthful offender for, a violation 27 of subdivision three, four or five of section seventy-nine-d of this 28 article to a term of probation or conditional discharge, as a condition 29 of which it shall order such person to install and maintain, in accord- 30 ance with the provisions of section eleven hundred ninety-eight of the 31 vehicle and traffic law, an ignition interlock device in any vessel 32 owned or operated by such person during the term of such probation or 33 conditional discharge imposed for such violation of section seventy- 34 nine-d of this article and in no event for a period of less than twelve 35 months; provided, however, that such period of interlock restriction 36 shall terminate upon submission of proof that such person installed and 37 maintained an ignition interlock device for at least six months, unless 38 the court ordered such person to install and maintain an ignition inter- 39 lock device for a longer period as authorized by this subparagraph and 40 specified in such order. The period of interlock restriction shall 41 commence from the earlier of the date of sentencing, or the date that an 42 ignition interlock device was installed in advance of sentencing. 43 Provided, however, the court may not authorize the operation of a vessel 44 by any person whose privilege to operate a vessel has been revoked 45 pursuant to the provisions of this section. 46 (c) Felony offenses. (i) A person who operates a vessel (A) in 47 violation of subdivision three, four, five, six or seven of section 48 seventy-nine-d of this article after having been convicted of a 49 violation of such subdivisions or of vehicular assault in the second or 50 first degree, as defined, in sections 120.03 and 120.04 and aggravated 51 vehicular assault as defined in section 120.04-a of the penal law or of 52 vehicular manslaughter in the second or first degree, as defined, in 53 sections 125.12 and 125.13 and aggravated vehicular homicide as defined 54 in section 125.14 of such law, within the preceding ten years, or (B) in 55 violation of paragraph (b) of subdivision four of section seventy-nine-d 56 of this article shall be guilty of a class E felony, and shall beA. 883 8 1 punished by a fine of not less than one thousand dollars nor more than 2 five thousand dollars or by a period of imprisonment as provided in the 3 penal law, or by both such fine and imprisonment. 4 (ii) A person who operates a vessel in violation of subdivision three, 5 four, five, six or seven of section seventy-nine-d of this article after 6 having been convicted of a violation of such subdivisions or of vehicu- 7 lar assault in the second or first degree, as defined in sections 120.03 8 and 120.04 and aggravated vehicular assault as defined in section 9 120.04-a of the penal law or of vehicular manslaughter in the second or 10 first degree, as defined in sections 125.12 and 125.13 and aggravated 11 vehicular homicide as defined in section 125.14 of such law, twice with- 12 in the preceding ten years, shall be guilty of a class D felony, and 13 shall be punished by a fine of not less than two thousand dollars nor 14 more than ten thousand dollars or by a period of imprisonment as 15 provided in the penal law, or by both such fine and imprisonment. 16 (iii) A person who operates a vessel in violation of subdivision 17 three, four, five, six or seven of section seventy-nine-d of this arti- 18 cle after having been convicted of a violation of such subdivisions or 19 of vehicular assault in the second or first degree, as defined in 20 sections 120.03 and 120.04 and aggravated vehicular assault as defined 21 in section 120.04-a of the penal law or of vehicular manslaughter in the 22 second or first degree, as defined in sections 125.12 and 125.13 and 23 aggravated vehicular homicide as defined in section 125.14 of such law, 24 three or more times within the preceding fifteen years, shall be guilty 25 of a class D felony, and shall be punished by a fine of not less than 26 two thousand dollars nor more than ten thousand dollars or by a period 27 of imprisonment as provided in the penal law, or by both such fine and 28 imprisonment. 29 (iv) In addition to the imposition of any fine or period of imprison- 30 ment set forth in this paragraph, the court shall also sentence such 31 person convicted of, or adjudicated a youthful offender for, a violation 32 of subdivision three, four or five of section seventy-nine-d of this 33 article to a period of probation or conditional discharge, as a condi- 34 tion of which it shall order such person to install and maintain, in 35 accordance with the provisions of section eleven hundred ninety-eight of 36 the vehicle and traffic law, an ignition interlock device in any vessel 37 owned or operated by such person during the term of such probation or 38 conditional discharge imposed for such violation of section seventy- 39 nine-d of this article and in no event for a period of less than twelve 40 months; provided, however, that such period of interlock restriction 41 shall terminate upon submission of proof that such person installed and 42 maintained an ignition interlock device for at least six months, unless 43 the court ordered such person to install and maintain an ignition inter- 44 lock device for a longer period as authorized by this subparagraph and 45 specified in such order. The period of interlock restriction shall 46 commence from the earlier of the date of sentencing, or the date that an 47 ignition interlock device was installed in advance of sentencing. 48 Provided, however, the court may not authorize the operation of a vessel 49 by any person whose privilege to operate a vessel has been revoked 50 pursuant to the provisions of this section. 51 (d) Alcohol or drug-related offenses; special vessels. (i) A violation 52 of subdivision eight of section seventy-nine-d of this article shall be 53 a violation punishable as provided in paragraph (a) of this subdivision. 54 Except as provided in subparagraph (ii) or (vi) of this paragraph, a 55 violation of subdivision two, three, five, six, seven or nine of section 56 seventy-nine-d of this article wherein the violator is operating aA. 883 9 1 public vessel shall be a misdemeanor. A violation of subdivision two, 2 three, five, six or seven of section seventy-nine-d of this article 3 shall be punishable by a fine of not less than five hundred dollars nor 4 more than one thousand five hundred dollars or by a period of imprison- 5 ment as provided in the penal law, or by both such fine and imprison- 6 ment. A violation of subdivision nine of section seventy-nine-d of this 7 article shall be punishable by a fine of not less than five hundred 8 dollars nor more than one thousand five hundred dollars or by a period 9 of imprisonment not to exceed one hundred eighty days, or by both such 10 fine and imprisonment. A person who operates any such vessel in 11 violation of such subdivision nine after having been convicted of a 12 violation of subdivision two, three, four, five, six, seven or nine of 13 section seventy-nine-d of this article within the preceding five years 14 shall be punishable by a fine of not less than five hundred dollars nor 15 more than one thousand five hundred dollars or by a period of imprison- 16 ment as provided in the penal law, or by both such fine and imprison- 17 ment. A violation of subdivision four of section seventy-nine-d of this 18 article wherein the violator is operating a public vessel shall be a 19 class E felony punishable by a fine of not less than one thousand 20 dollars nor more than five thousand dollars or by a period of imprison- 21 ment as provided in the penal law, or by both such fine and imprison- 22 ment. 23 (ii) A violation of subdivision two of section seventy-nine-d of this 24 article wherein the violator is operating a vessel which contains flamm- 25 able gas, radioactive materials or explosives shall be a misdemeanor 26 punishable by a fine of not less than five hundred dollars nor more than 27 one thousand five hundred dollars or by a period of imprisonment as 28 provided in the penal law, or by both such fine and imprisonment. 29 (iii) (A) A person who operates a vessel in violation of subdivision 30 two, three, four, five, six or seven of section seventy-nine-d of this 31 article and which is punishable as provided in subparagraph (i) or (ii) 32 of this paragraph after having been convicted of a violation of any such 33 subdivision of section seventy-nine-d of this article and penalized 34 under subparagraph (i) or (ii) of this paragraph within the preceding 35 ten years, shall be guilty of a class E felony, which shall be punisha- 36 ble by a fine of not less than one thousand dollars nor more than five 37 thousand dollars, or by a period of imprisonment as provided in the 38 penal law, or by both such fine and imprisonment. A person who operates 39 a vessel in violation of subdivision nine of section seventy-nine-d of 40 this article after having been convicted of two or more violations of 41 subdivisions two, three, four, five, six, seven or nine of section 42 seventy-nine-d of this article within the preceding five years, any one 43 of which was a misdemeanor, shall be guilty of a class E felony, which 44 shall be punishable by a fine of not less than one thousand dollars nor 45 more than five thousand dollars, or by a period of imprisonment as 46 provided in the penal law, or by both such fine and imprisonment. In 47 addition, any person sentenced pursuant to this subparagraph shall be 48 subject to the disqualification provided in subparagraph (iii) of para- 49 graph (e) of subdivision three of this section. 50 (B) A person who operates a vessel in violation of subdivision two, 51 three, four, five, six or seven of section seventy-nine-d of this arti- 52 cle and which is punishable as provided in subparagraph (i) or (ii) of 53 this paragraph after having been convicted of a violation of any such 54 subdivision of section seventy-nine-d of this article and penalized 55 under subparagraph (i) or (ii) of this paragraph twice within the 56 preceding ten years, shall be guilty of a class D felony, which shall beA. 883 10 1 punishable by a fine of not less than two thousand dollars nor more than 2 ten thousand dollars, or by a period of imprisonment as provided in the 3 penal law, or by both such fine and imprisonment. A person who operates 4 a vessel in violation of subdivision nine of section seventy-nine-d of 5 this article after having been convicted of three or more violations of 6 subdivisions two, three, four, five, six, seven or nine of section 7 seventy-nine-d of this article within the preceding five years, any one 8 of which was a misdemeanor, shall be guilty of a class D felony, which 9 shall be punishable by a fine of not less than two thousand dollars nor 10 more than ten thousand dollars, or by a period of imprisonment as 11 provided in the penal law, or by both such fine and imprisonment. In 12 addition, any person sentenced pursuant to this subparagraph shall be 13 subject to the disqualification provided in subparagraph (iii) of para- 14 graph (e) of subdivision three of this section. 15 (iv) A violation of subdivision three, five, six or seven of section 16 seventy-nine-d of this article wherein the violator is operating a 17 vessel which contains flammable gas, radioactive materials or 18 explosives, shall be a class E felony punishable by a fine of not less 19 than one thousand dollars and such other penalties as provided for in 20 the penal law; provided, however, that a conviction for such violation 21 shall not be considered a predicate felony pursuant to section 70.06 of 22 such law, or a previous felony conviction pursuant to section 70.10 of 23 such law. A violation of subdivision four of section seventy-nine-d of 24 this article wherein the violator is operating a vessel which contains 25 flammable gas, radioactive materials or explosives, shall be a class D 26 felony punishable by a fine of not less than two thousand dollars nor 27 more than ten thousand dollars and such other penalties as provided for 28 in the penal law; provided, however, that a conviction for such 29 violation shall not be considered a predicate felony pursuant to section 30 70.06 of such law, or a previous felony conviction pursuant to section 31 70.10 of such law. 32 (v) The sentences required to be imposed by subparagraph (i), (ii), 33 (iii) or (iv) of this paragraph shall be imposed notwithstanding any 34 contrary provision of this chapter or the penal law. 35 (vi) Nothing contained in this paragraph shall prohibit the imposition 36 of a charge of any other felony set forth in this or any other provision 37 of law for any acts arising out of the same incident. 38 (e) Certain sentences prohibited. Notwithstanding any provisions of 39 the penal law, no judge or magistrate shall impose a sentence of uncon- 40 ditional discharge for a violation of any subdivision of section seven- 41 ty-nine-d of this article nor shall a judge or magistrate impose a 42 sentence of conditional discharge or probation unless such conditional 43 discharge or probation is accompanied by a sentence of a fine as 44 provided in this subdivision. 45 (f) Where the court imposes a sentence for a violation of any subdivi- 46 sion of section seventy-nine-d of this article, the court may require 47 the defendant, as a part of or as a condition of such sentence, to 48 attend a single session conducted by a victims impact program. For 49 purposes of this section, "victims impact program" means a program oper- 50 ated by a county, a city with a population of one million or more, by a 51 not-for-profit organization authorized by any such county or city, or a 52 combination thereof, in which presentations are made concerning the 53 impact of operating a vessel while under the influence of alcohol or 54 drugs to one or more persons who have been convicted of such offenses. A 55 description of any such program shall be filed with the commissioner and 56 with the coordinator of the special traffic options program for drivingA. 883 11 1 while intoxicated established pursuant to section eleven hundred nine- 2 ty-seven of the vehicle and traffic law, and shall be made available to 3 the court upon request. Nothing contained herein shall be construed to 4 require any governmental entity to create such a victim impact program. 5 (g) The office of probation and correctional alternatives shall recom- 6 mend to the commissioner of the division of criminal justice services 7 regulations governing the monitoring of compliance by persons ordered to 8 install and maintain ignition interlock devices to provide standards for 9 monitoring by departments of probation, and options for monitoring of 10 compliance by such persons, that counties may adopt as an alternative to 11 monitoring by a department of probation. 12 2. Additional penalties. (a) Except as provided for in paragraph (b) 13 of this subdivision, a person who operates a vessel in violation of 14 subdivision three or five of section seventy-nine-d of this article 15 after having been convicted of a violation of such subdivisions within 16 the preceding five years shall, in addition to any other penalties which 17 may be imposed pursuant to subdivision one of this section, be sentenced 18 to a term of imprisonment of five days or, as an alternative to such 19 imprisonment, be required to perform thirty days of service for a public 20 or not-for-profit corporation, association, institution or agency as set 21 forth in paragraph (h) of subdivision two of section 65.10 of the penal 22 law as a condition of sentencing for such violation. Notwithstanding 23 the provisions of this paragraph, a sentence of a term of imprisonment 24 of five days or more pursuant to the provisions of subdivision one of 25 this section shall be deemed to be in compliance with this subdivision. 26 (b) A person who operates a vessel in violation of subdivision three 27 or five of section seventy-nine-d of this article after having been 28 convicted on two or more occasions of a violation of any of such subdi- 29 visions within the preceding five years shall, in addition to any other 30 penalties which may be imposed pursuant to subdivision one of this 31 section, be sentenced to a term of imprisonment of ten days or, as an 32 alternative to such imprisonment, be required to perform sixty days of 33 service for a public or not-for-profit corporation, association, insti- 34 tution or agency as set forth in paragraph (h) of subdivision two of 35 section 65.10 of the penal law as a condition of sentencing for such 36 violation. Notwithstanding the provisions of this paragraph, a sentence 37 of a term of imprisonment of ten days or more pursuant to the provisions 38 of subdivision one of this section shall be deemed to be in compliance 39 with this subdivision. 40 (c) A court sentencing a person pursuant to paragraph (a) or (b) of 41 this subdivision shall: (i) order the installation of an ignition inter- 42 lock device approved pursuant to section seventy-nine-l of this article 43 in any vessel owned or operated by the person so sentenced. Such 44 devices shall remain installed during any period of revocation of the 45 privilege to operate a vessel required to be imposed pursuant to para- 46 graph (b) of subdivision three of this section, and, upon the termi- 47 nation of such revocation period, for an additional period as determined 48 by the court; and (ii) order that such person receive an assessment of 49 the degree of their alcohol or substance abuse and dependency pursuant 50 to the provisions of section seventy-nine-m of this article. Where such 51 assessment indicates the need for treatment, such court is authorized to 52 impose treatment as a condition of such sentence except that such court 53 shall impose treatment as a condition of a sentence of probation or 54 conditional discharge pursuant to the provisions of subdivision three of 55 section seventy-nine-m of this article. Any person ordered to install an 56 ignition interlock device pursuant to this paragraph shall be subject toA. 883 12 1 the provisions of subdivisions four, five, seven, eight and nine of 2 section seventy-nine-l of this article. 3 (d) Confidentiality of records. The provisions of subdivision six of 4 section seventy-nine-m of this article shall apply to the records and 5 content of all assessments and treatment conducted pursuant to this 6 subdivision. 7 3. Privilege to operate a vessel sanctions. (a) Suspensions. Except as 8 otherwise provided in this subdivision, a privilege to operate a vessel 9 shall be suspended and a registration may be suspended for the following 10 periods: 11 (i) Operation of a vessel while ability impaired. Ninety days, where 12 the holder is convicted of a violation of subdivision two of section 13 seventy-nine-d of this article; 14 (ii) Persons under the age of twenty-one; operating after having 15 consumed alcohol. Six months, where the holder has been found to have 16 operated a vessel after having consumed alcohol in violation of section 17 seventy-nine-e of this article where such person was under the age of 18 twenty-one at the time of commission of such violation. 19 (b) Revocations of the privilege to operate a vessel. A privilege to 20 operate a vessel shall be revoked and a registration may be revoked for 21 the following minimum periods: 22 (i) Operation of a vessel while ability impaired; prior offense. Six 23 months, where the holder is convicted of a violation of subdivision two 24 of section seventy-nine-d of this article committed within five years of 25 a conviction for a violation of any subdivision of such section seven- 26 ty-nine-d. 27 (ii) Operation of a vessel while ability impaired; misdemeanor 28 offense. Six months, where the holder is convicted of a violation of 29 subdivision two of section seventy-nine-d of this article committed 30 within ten years of two previous convictions for a violation of any 31 subdivision of such section seventy-nine-d. 32 (iii) Operation of a vessel while intoxicated or while ability 33 impaired by drugs or while ability impaired by the combined influence of 34 drugs or of alcohol and any drug or drugs; aggravated operation of a 35 vessel while intoxicated. Six months, where the holder is convicted of a 36 violation of subdivision three, five, six or seven of section seventy- 37 nine-d of this article. One year where the holder is convicted of a 38 violation of subdivision four of section seventy-nine-d of this article. 39 (iv) Operation of a vessel while intoxicated or while ability impaired 40 by drugs or while ability impaired by the combined influence of drugs or 41 of alcohol and any drug or drugs; aggravated operation of a vessel while 42 intoxicated; prior offense. One year, where the holder is convicted of a 43 violation of subdivision three, five, six or seven of section seventy- 44 nine-d of this article committed within ten years of a conviction for a 45 violation of subdivision three, five, six or seven of section seventy- 46 nine-d of this article. Eighteen months, where the holder is convicted 47 of a violation of subdivision four of section seventy-nine-d of this 48 article committed within ten years of a conviction for a violation of 49 subdivision three, four, five, six or seven of section seventy-nine-d of 50 this article; or where the holder is convicted of a violation of subdi- 51 vision three, five, six or seven of section seventy-nine-d of this arti- 52 cle committed within ten years of a conviction for a violation of subdi- 53 vision four of section seventy-nine-d of this article. 54 (v) Holder of a license issued to a master, pilot, engineer or joint 55 pilot and engineer. (A) Except as otherwise provided in this subpara- 56 graph, one year where the holder of a license issued to a master, pilot,A. 883 13 1 engineer or joint pilot and engineer, subject to section sixty-four of 2 this chapter, is convicted of a violation of any subdivision of section 3 seventy-nine-d of this article or if such holder is convicted of an 4 offense consisting of operating a vessel under the influence of alcohol 5 or drugs where such conviction was had outside of this state. 6 (B) Three years, where the holder is convicted of a violation of any 7 subdivision of section seventy-nine-d of this article, such violation 8 was committed while the holder was operating a public vessel transport- 9 ing hazardous materials or if such holder is convicted of an offense 10 consisting of operating a public vessel under the influence of alcohol 11 or drugs where such conviction was had outside of this state. 12 (vi) Persons under the age of twenty-one. One year, where the holder 13 is convicted of or adjudicated a youthful offender for a violation of 14 any subdivision of section seventy-nine-d of this article, or is 15 convicted of or receives a youthful offender or other juvenile adjudi- 16 cation for an offense consisting of operating a vessel under the influ- 17 ence of intoxicating liquor where the conviction, or youthful offender 18 or other juvenile adjudication was had outside this state, where such 19 person was under the age of twenty-one at the time of commission of such 20 violation. 21 (vii) Persons under the age of twenty-one; prior offense or finding. 22 One year or until the holder reaches the age of twenty-one, whichever is 23 the greater period of time, where the holder has been found to have 24 operated a vessel after having consumed alcohol in violation of section 25 seventy-nine-e of this article, or is convicted of, or adjudicated a 26 youthful offender for, a violation of any subdivision of section seven- 27 ty-nine-d of this article, or is convicted of or receives a youthful 28 offender or juvenile adjudication for an offense consisting of operating 29 a vessel under the influence of intoxicating liquor where the 30 conviction, or youthful offender or other juvenile adjudication was had 31 outside this state, where such person was under the age of twenty-one at 32 the time of commission of such violation and has previously been found 33 to have operated a vessel after having consumed alcohol in violation of 34 section seventy-nine-e of this article, or has previously been convicted 35 of, or adjudicated a youthful offender for, any violation of section 36 seventy-nine-d of this article not arising out of the same incident, or 37 has previously been convicted of or received a youthful offender or 38 juvenile adjudication for an offense consisting of operating a vessel 39 under the influence of intoxicating liquor when the conviction, or 40 youthful offender or other juvenile adjudication was had outside this 41 state and not arising out of the same. 42 (viii) Out-of-state offenses. Except as provided in subparagraph (vi) 43 or (vii) of this paragraph: (A) ninety days, where the holder is 44 convicted of an offense consisting of operating a vessel under the 45 influence of intoxicating liquor where the conviction was had outside 46 this state and (B) six months, where the holder is convicted of, or 47 receives a youthful offender or other juvenile adjudication, which would 48 have been a misdemeanor or felony if committed by an adult, in 49 connection with, an offense consisting of operating a vessel under the 50 influence of or while impaired by the use of drugs where the conviction 51 or youthful offender or other juvenile adjudication was had outside this 52 state. 53 (ix) Effect of rehabilitation program. No period of revocation arising 54 out of subparagraph (v), (vi) or (vii) of this paragraph may be set 55 aside by the commissioner for the reason that such person was a partic-A. 883 14 1 ipant in the alcohol and drug rehabilitation program set forth in 2 section eleven hundred ninety-six of the vehicle and traffic law. 3 (x) Action required by commissioner. Where a court fails to impose, or 4 incorrectly imposes, a suspension or revocation required by this subdi- 5 vision, the commissioner shall, upon receipt of a certificate of 6 conviction filed, impose such mandated suspension or revocation, which 7 shall supersede any such order which the court may have imposed. 8 (xi) Limitation of certain mandatory revocations. Where revocation is 9 mandatory pursuant to subparagraph (v) of this paragraph for a 10 conviction of a violation of subdivision eight of section seventy-nine-d 11 of this article, such revocation shall be issued only by the commission- 12 er and shall be applicable only to that portion of the holder's license 13 which permits the operation of public vessels, and the commissioner 14 shall immediately issue a privilege to operate a vessel, other than a 15 license issued to a master, pilot, engineer or joint pilot and engineer, 16 to such person provided that such person is otherwise eligible to 17 receive such privilege to operate a vessel and further provided that 18 issuing a license to such person does not create a substantial safety 19 hazard to the waters of the state. 20 (xii) Permanent revocation. (A) Notwithstanding any other provision of 21 this chapter to the contrary, whenever a revocation is imposed upon a 22 person for the refusal to submit to a chemical test pursuant to the 23 provisions of section seventy-nine-g of this article or conviction for 24 any violation of section seventy-nine-d of this article for which a 25 sentence of imprisonment may be imposed, and such person has: (1) within 26 the previous four years been twice convicted of any provisions of 27 section seventy-nine-d of this article or a violation of the penal law 28 for which a violation of such section seventy-nine-d is an essential 29 element and at least one such conviction was for a crime, or has twice 30 been found to have refused to submit to a chemical test pursuant to 31 section seventy-nine-g of this article, or has any combination of two 32 such convictions and findings of refusal not arising out of the same 33 incident; or (2) within the previous eight years been convicted three 34 times of any provision of section seventy-nine-d of this article for 35 which a sentence of imprisonment may be imposed or a violation of the 36 penal law for which a violation of such section seventy-nine-d is an 37 essential element and at least two such convictions were for crimes, or 38 has been found, on three separate occasions, to have refused to submit 39 to a chemical test pursuant to section seventy-nine-g of this article, 40 or has any combination of such convictions and findings of refusal not 41 arising out of the same incident, such revocation shall be permanent. 42 (B) The permanent revocation of the privilege to operate a vessel 43 required by clause (A) of this subparagraph shall be waived by the 44 commissioner after a period of five years has expired since the imposi- 45 tion of such permanent revocation, provided that during such five-year 46 period such person has not been found to have refused a chemical test 47 pursuant to section seventy-nine-g of this article while operating a 48 vessel and has not been convicted of a violation of any subdivision of 49 section seventy-nine-d of this article or a violation of the penal law 50 for which a violation of any subdivision of such section seventy-nine-d 51 is an essential element and either: 52 (1) that such person provides acceptable documentation to the commis- 53 sioner that such person has voluntarily enrolled in and successfully 54 completed an appropriate rehabilitation program; orA. 883 15 1 (2) that such person is granted a certificate of relief from disabili- 2 ties or a certificate of good conduct pursuant to article twenty-three 3 of the correction law. 4 Provided, however, that the commissioner may, on a case by case basis, 5 refuse to restore a privilege to operate a vessel which otherwise would 6 be restored pursuant to this item, in the interest of the public safety 7 and welfare. 8 (C) For revocations imposed pursuant to clause (A) of this subpara- 9 graph, the commissioner may adopt rules to permit conditional or 10 restricted operation of a vessel by any such person after a mandatory 11 revocation period of not less than three years subject to such criteria, 12 terms and conditions as established by the commissioner. 13 (D) Upon (1) a finding of refusal after having been convicted three 14 times within four years of a violation of any subdivision of section 15 seventy-nine-d of this article or of the penal law for which a violation 16 of any subdivision of such section seventy-nine-d is an essential 17 element or any combination of three such convictions not arising out of 18 the same incident within four years or (2) a fourth conviction of any 19 subdivision of section seventy-nine-d of this article after having been 20 convicted of any such subdivision of such section seventy-nine-d or of 21 the penal law for which a violation of any of such subdivisions of such 22 section seventy-nine-d is an essential element or any combination of 23 three such convictions not arising out of the same incident within four 24 years or (3) a finding of refusal after having been convicted four times 25 within eight years of a violation of any subdivision of section seven- 26 ty-nine-d of this article or of the penal law for which a violation of 27 any of such subdivisions of such section seventy-nine-d is an essential 28 element or any combination of four such convictions not arising out of 29 the same incident within eight years or (4) a fifth conviction of any 30 subdivision of section seventy-nine-d of this article after having been 31 convicted of such subdivision or of the penal law for which a violation 32 of any of such subdivisions of such section seventy-nine-d is an essen- 33 tial element or any combination of four such convictions not arising out 34 of the same incident within eight years, such revocation shall be perma- 35 nent. 36 (E) The permanent revocation of the privilege to operate a vessel 37 required by clause (D) of this subparagraph may be waived by the commis- 38 sioner after a period of eight years has expired since the imposition of 39 such permanent revocation provided: 40 (1) that during such eight-year period such person has not been found 41 to have refused a chemical test pursuant to section seventy-nine-g of 42 this article while operating a vessel and has not been convicted of a 43 violation of any subdivision of section seventy-nine-d of this article 44 or a violation of the penal law for which a violation of any such subdi- 45 visions of such section seventy-nine-d is an essential element; and 46 (2) that such person provides acceptable documentation to the commis- 47 sioner that such person has voluntarily enrolled in and successfully 48 completed an appropriate rehabilitation program; and 49 (3) after such documentation is accepted, that such person is granted 50 a certificate of relief from disabilities or a certificate of good 51 conduct pursuant to article twenty-three of the correction law. 52 Notwithstanding the provisions of this clause, nothing contained in 53 this clause shall be deemed to require the commissioner to restore a 54 privilege to operate a vessel to an applicant who otherwise has complied 55 with the requirements of this item, in the interest of the public safety 56 and welfare.A. 883 16 1 (F) Nothing contained in this subparagraph shall be deemed to reduce a 2 revocation of a privilege to operate a vessel period imposed pursuant to 3 any other provision of law. 4 (c) Reissuance of the privilege to operate a vessel; restrictions. 5 (i) Except as otherwise provided in this paragraph, where a privilege to 6 operate a vessel is revoked pursuant to paragraph (b) of this subdivi- 7 sion, no new privilege to operate a vessel shall be issued after the 8 expiration of the minimum period specified in such paragraph, except in 9 the discretion of the commissioner. 10 (ii) Where a privilege to operate a vessel is revoked pursuant to 11 subparagraph (iii), (iv) or (viii) of paragraph (b) of this subdivision 12 for a violation of subdivision six of section seventy-nine-d of this 13 article, and where the individual does not have a privilege to operate a 14 vessel or the individual's privilege to operate a vessel was suspended 15 at the time of conviction or youthful offender or other juvenile adjudi- 16 cation, the commissioner shall not issue a new privilege to operate a 17 vessel nor restore the former privilege to operate a vessel for a period 18 of six months after such individual would otherwise have become eligible 19 to obtain a new privilege to operate a vessel or to have the former 20 privilege to operate a vessel restored; provided, however, that during 21 such delay period the commissioner may issue a restricted use privilege 22 to operate a vessel. 23 (iii) In no event shall a new privilege to operate a vessel be issued 24 where a person has been twice convicted of a violation of subdivision 25 five, six or seven of section seventy-nine-d of this article or of driv- 26 ing while intoxicated or of driving while ability is impaired by the use 27 of a drug or of driving while ability is impaired by the combined influ- 28 ence of drugs or of alcohol and any drug or drugs where physical injury, 29 as defined in section 10.00 of the penal law, has resulted from such 30 offense in each instance. 31 (d) Suspension or revocation; sentencing. (i) Where a suspension or 32 revocation, other than a revocation required to be issued by the commis- 33 sioner, is mandatory pursuant to paragraph (a) or (b) of this subdivi- 34 sion, the magistrate, justice or judge shall issue an order suspending 35 or revoking such privilege to operate a vessel upon sentencing, and the 36 privilege holder shall surrender such privilege to operate a vessel to 37 the court. Except as hereinafter provided, such suspension or revocation 38 shall take effect immediately. 39 (ii) Except where the privilege holder has been charged with a 40 violation of article one hundred twenty or one hundred twenty-five of 41 the penal law arising out of the same incident or convicted of such 42 violation or a violation of any subdivision of section seventy-nine-d of 43 this article within the preceding five years, the judge, justice or 44 magistrate may issue an order making said privilege to operate a vessel 45 suspension or revocation take effect twenty days after the date of 46 sentencing. The privilege holder shall be given a copy of said order 47 permitting the continuation of operating privileges for twenty days 48 after sentencing, if granted by the court. The court shall forward to 49 the commissioner a copy of any order issued pursuant to this paragraph 50 and the license, within ninety-six hours of sentencing. 51 (e) Special provisions. (i) Suspension pending prosecution; procedure. 52 (A) Without notice, pending any prosecution, the court shall suspend 53 such privilege to operate a vessel, where the holder has been charged 54 with a violation of subdivision three, four, five, six or seven of 55 section seventy-nine-d of this article and either (1) a violation of a 56 felony under article one hundred twenty or one hundred twenty-five ofA. 883 17 1 the penal law arising out of the same incident, or (2) has been 2 convicted of any violation under section seventy-nine-d of this article 3 within the preceding five years. 4 (B) The suspension under the preceding clause shall occur no later 5 than twenty days after the holder's first appearance before the court on 6 the charges or at the conclusion of all proceedings required for the 7 arraignment. In order for the court to impose such suspension it must 8 find that the accusatory instrument conforms to the requirements of 9 section 100.40 of the criminal procedure law and there exists reasonable 10 cause to believe that the holder operated a vessel in violation of 11 subdivision three, four, five, six or seven of section seventy-nine-d of 12 this article and either (1) the person had been convicted of any 13 violation under such section seventy-nine-d of this article within the 14 preceding five years; or (2) that the holder committed a violation of a 15 felony under article one hundred twenty or one hundred twenty-five of 16 the penal law. At such time the holder shall be entitled to an opportu- 17 nity to make a statement regarding the enumerated issues and to present 18 evidence tending to rebut the court's findings. Where such suspension is 19 imposed upon a pending charge of a violation of a felony under article 20 one hundred twenty or one hundred twenty-five of the penal law and the 21 holder has requested a hearing pursuant to article one hundred eighty of 22 the criminal procedure law, the court shall conduct such hearing. If 23 upon completion of the hearing, the court fails to find that there is 24 reasonable cause to believe that the holder committed a felony under 25 article one hundred twenty or one hundred twenty-five of the penal law 26 and the holder has not been previously convicted of any violation of 27 section seventy-nine-d of this article within the preceding five years 28 the court shall promptly notify the commissioner and direct restoration 29 of such privilege to operate a vessel to the privilege holder unless 30 such privilege to operate a vessel is suspended or revoked pursuant to 31 any other provision of this chapter. 32 (ii) Bail forfeiture. A privilege to operate a vessel shall be 33 suspended where the holder forfeits bail upon a charge of a violation of 34 any subdivision of section seventy-nine-d of this article. Such suspen- 35 sion shall not be terminated until the holder submits to the jurisdic- 36 tion of the court in which the bail was forfeited. 37 (iii) Permanent disqualification from operating certain vessels. (A) 38 Except as otherwise provided herein, in addition to any revocation set 39 forth in subparagraph (v) of paragraph (b) of this subdivision, any 40 person sentenced pursuant to subparagraph (ii) of paragraph (d) of 41 subdivision one of this section shall be permanently disqualified from 42 operating any vessel set forth in such paragraph. In addition, the 43 commissioner shall not issue such person a privilege to operate a vessel 44 valid for the operation of any vessel set forth therein by such person. 45 The commissioner may waive such disqualification and prohibition 46 hereinbefore provided after a period of five years has expired from such 47 sentencing provided: 48 (1) that during such five year period such person has not violated any 49 of the provisions of section seventy-nine-d of this article or any alco- 50 hol or drug related traffic offense in this state or in any jurisdiction 51 outside this state; 52 (2) that such person provides acceptable documentation to the commis- 53 sioner that such person is not in need of alcohol or drug treatment or 54 has satisfactorily completed a prescribed course of such treatment; andA. 883 18 1 (3) after such documentation is accepted, that such person is granted 2 a certificate of relief from disabilities or a certificate of good 3 conduct pursuant to article twenty-three of the correction law. 4 (B) Any person who is a holder of a license issued to a master, pilot, 5 engineer or joint pilot and engineer, on board of a public vessel and is 6 convicted of a violation of any subdivision of section seventy-nine-d of 7 this article who has had a prior finding of refusal to submit to a chem- 8 ical test pursuant to section seventy-nine-g of this article or has had 9 a prior conviction of any of the following offenses: any violation of 10 section seventy-nine-d of this article; any violation of section forty- 11 seven of this chapter; or has a prior conviction of any felony involving 12 the use of a vessel pursuant to section sixty-four-a of this chapter, 13 shall be permanently disqualified from operating a public vessel. The 14 commissioner may waive such disqualification and prohibition hereinbe- 15 fore provided after a period of ten years has expired from such sentence 16 provided: 17 (1) that during such ten year period such person has not been found to 18 have refused a chemical test pursuant to section seventy-nine-g of this 19 article while operating a vessel and has not been convicted of any one 20 of the following offenses while operating a vessel: any violation of 21 section seventy-nine-d of this article; any violation of section forty- 22 seven of this chapter; or has a prior conviction of any felony involving 23 the use of a vessel pursuant to section sixty-four-a of this chapter; 24 (2) that such person provides acceptable documentation to the commis- 25 sioner that such person is not in need of alcohol or drug treatment or 26 has satisfactorily completed a prescribed course of such treatment; and 27 (3) after such documentation is accepted, that such person is granted 28 a certificate of relief from disabilities or a certificate of good 29 conduct pursuant to article twenty-three of the correction law. 30 (C) Upon a third finding of refusal and/or conviction of any of the 31 offenses which require a permanent master, pilot, engineer or joint 32 pilot and engineer license revocation, such permanent revocation may not 33 be waived by the commissioner under any circumstances. 34 (iv) Youthful offenders. Where a youth is determined to be a youthful 35 offender, following a conviction of a violation of section 36 seventy-nine-d of this article for which a privilege to operate a vessel 37 suspension or revocation is mandatory, the court shall impose such 38 suspension or revocation as is otherwise required upon conviction and, 39 further, shall notify the commissioner of said suspension or revocation 40 and its finding that said violator is granted youthful offender status. 41 (v) Probation. When a privilege to operate a vessel has been revoked 42 pursuant to this chapter, and the holder has been sentenced to a period 43 of probation pursuant to section 65.00 of the penal law for a violation 44 of any provision of this chapter, or any other provision of the laws of 45 this state, and a condition of such probation is that the holder thereof 46 not operate a vessel or not apply for a privilege to operate a vessel 47 during the period of such condition of probation, the commissioner may 48 not restore such privilege until the period of the condition of 49 probation has expired. 50 (vi) Application for new privilege to operate a vessel. Where a privi- 51 lege to operate a vessel has been revoked pursuant to paragraph (b) of 52 this subdivision, or where the holder is subject to a condition of 53 probation as provided in subparagraph (v) of this paragraph, application 54 for a new privilege to operate a vessel may be made within forty-five 55 days prior to the expiration of such minimum period of revocation or 56 condition of probation, whichever expires last.A. 883 19 1 (vii) Suspension pending prosecution; excessive blood alcohol content. 2 (A) A court shall suspend a person's privilege to operate a vessel, 3 pending prosecution, of any person charged with a violation of subdivi- 4 sion three, four, five or seven of section seventy-nine-d of this arti- 5 cle who, at the time of arrest, is alleged to have had .08 of one 6 percent or more by weight of alcohol in such boater's blood as shown by 7 chemical analysis of blood, breath, urine or saliva, made pursuant to 8 subdivision two or three of section seventy-nine-g of this article. 9 (B) The suspension occurring under clause (A) of this subparagraph 10 shall occur no later than at the conclusion of all proceedings required 11 for the arraignment; provided, however, that if the results of any test 12 administered pursuant to section seventy-nine-g of this article are not 13 available within such time period, the complainant police officer or 14 other public servant shall transmit such results to the court at the 15 time they become available, and the court shall, as soon as practicable 16 following the receipt of such results and in compliance with the 17 requirements of this subparagraph, suspend such privilege to operate a 18 vessel. In order for the court to impose such suspension it must find 19 that the accusatory instrument conforms to the requirements of section 20 100.40 of the criminal procedure law and there exists reasonable cause 21 to believe either that the holder operated a vessel while such holder 22 had .08 of one percent or more by weight of alcohol in his or her blood 23 as was shown by chemical analysis of such person's blood, breath, urine 24 or saliva, made pursuant to the provisions of section seventy-nine-g of 25 this article. At the time of such suspension the holder shall be enti- 26 tled to an opportunity to make a statement regarding this issue and to 27 present evidence tending to rebut the court's findings. 28 (C) Nothing contained in this subparagraph shall be construed to 29 prohibit or limit a court from imposing any other suspension pending 30 prosecution required or permitted by law. 31 (D) Notwithstanding any contrary provision of this chapter, if any 32 suspension occurring under this subparagraph has been in effect for a 33 period of thirty days, the holder may be issued a conditional privilege 34 to operate a vessel, in accordance with section seventy-nine-j of this 35 article, provided the holder of such privilege is otherwise eligible to 36 receive such conditional privilege. A conditional privilege issued 37 pursuant to this subparagraph shall not be valid for the operation of a 38 public vessel. The commissioner shall prescribe by regulation the proce- 39 dures for the issuance of such conditional privilege. 40 (E) If the court finds that the suspension imposed pursuant to this 41 subparagraph will result in extreme hardship, the court must issue such 42 suspension, but may grant a hardship privilege, which shall be issued on 43 a form prescribed by the commissioner. For the purposes of this clause, 44 "extreme hardship" shall mean the inability to obtain alternative means 45 of travel to or from the holder's employment, or to or from necessary 46 medical treatment for the holder or a member of the holder's household. 47 The burden of proving extreme hardship shall be on the holder who may 48 present material and relevant evidence. A finding of extreme hardship 49 may not be based solely upon the testimony of the holder. In no event 50 shall arraignment be adjourned or otherwise delayed more than three 51 business days solely for the purpose of allowing the holder to present 52 evidence of extreme hardship. The court shall set forth upon the 53 record, or otherwise set forth in writing, the factual basis for such 54 finding. The hardship privilege shall permit the operation of a vessel 55 only for travel to or from the holder's employment, or to or from neces- 56 sary medical treatment for the holder or a member of the holder's house-A. 883 20 1 hold. A hardship privilege shall not be valid for the operation of a 2 public vessel. 3 (f) Notice of charges to parent or guardian. Upon the first scheduled 4 appearance of any person under eighteen years of age who resides within 5 the household of his or her parent or guardian upon a charge of a 6 violation of subdivision two, three and/or five of section 7 seventy-nine-d of this article, the local criminal court before which 8 such first appearance is scheduled shall forthwith transmit written 9 notice of such appearance or failure to make such appearance to the 10 parent or guardian of such minor person; provided, however, that if an 11 arraignment and conviction of such person follows such appearance upon 12 the same day, or in case such person waives arraignment and enters a 13 plea of guilty to the offense as charged in accordance with the 14 provisions of section eighteen hundred five of the vehicle and traffic 15 law, transmittal of notice of his or her conviction as provided in 16 section five hundred fourteen of the vehicle and traffic law shall be 17 sufficient and the notice required by this paragraph need not be given; 18 provided further that the failure of a local criminal court to transmit 19 the notice required by this paragraph shall in no manner affect the 20 validity of a conviction subsequently obtained. 21 § 79-g. Arrest and testing. 1. Arrest and field testing. (a) Arrest. 22 Notwithstanding the provisions of section 140.10 of the criminal proce- 23 dure law, a police officer may, without a warrant, arrest a person, in 24 case of a violation of subdivision two of section seventy-nine-d of this 25 article, if such violation is coupled with an accident or collision in 26 which such person is involved, which in fact has been committed, though 27 not in the police officer's presence, when the officer has reasonable 28 cause to believe that the violation was committed by such person. 29 (b) Field testing. Every person operating a vessel which has been 30 involved in an accident or which is operated in violation of any of the 31 provisions of this chapter shall, at the request of a police officer, 32 submit to a breath test to be administered by the police officer. If 33 such test indicates that such operator has consumed alcohol, the police 34 officer may request such operator to submit to a chemical test in the 35 manner set forth in subdivision two of this section. 36 2. Chemical tests. (a) When authorized. Any person who operates a 37 vessel in this state shall be deemed to have given consent to a chemical 38 test of one or more of the following: breath, blood, urine, or saliva, 39 for the purpose of determining the alcoholic and/or drug content of the 40 blood provided that such test is administered by or at the direction of 41 a police officer with respect to a chemical test of breath, urine or 42 saliva or, with respect to a chemical test of blood, at the direction of 43 a police officer: 44 (1) having reasonable grounds to believe such person to have been 45 operating in violation of any subdivision of section seventy-nine-d of 46 this article and within two hours after such person has been placed 47 under arrest for any such violation; or having reasonable grounds to 48 believe such person to have been operating in violation of section 49 seventy-nine-e of this article and within two hours after the stop of 50 such person for any such violation; 51 (2) within two hours after a breath test, as provided in paragraph (b) 52 of subdivision one of this section, indicates that alcohol has been 53 consumed by such person and in accordance with the rules and regulations 54 established by the police force of which the officer is a member; 55 (3) for the purposes of this paragraph, "reasonable grounds" to 56 believe that a person has been operating a vessel after having consumedA. 883 21 1 alcohol in violation of section seventy-nine-e of this article shall be 2 determined by viewing the totality of circumstances surrounding the 3 incident which, when taken together, indicate that the operator was 4 operating a vessel in violation of such subdivision. Such circumstances 5 may include any visible or behavioral indication of alcohol consumption 6 by the operator, the existence of an open container containing or having 7 contained an alcoholic beverage in or around the vessel operated by the 8 operator, or any other evidence surrounding the circumstances of the 9 incident which indicates that the operator has been operating a vessel 10 after having consumed alcohol at the time of the incident; or 11 (4) notwithstanding any other provision of law to the contrary, no 12 person under the age of twenty-one shall be arrested for an alleged 13 violation of section seventy-nine-e of this article. However, a person 14 under the age of twenty-one for whom a chemical test is authorized 15 pursuant to this paragraph may be temporarily detained by the police 16 solely for the purpose of requesting or administering such chemical test 17 whenever arrest without a warrant for a petty offense would be author- 18 ized in accordance with the provisions of section 140.10 of the criminal 19 procedure law or paragraph (a) of subdivision one of this section. 20 (b) Report of refusal. (1) If: (A) such person having been placed 21 under arrest; or (B) after a breath test indicates the presence of alco- 22 hol in the person's system; or (C) with regard to a person under the age 23 of twenty-one, there are reasonable grounds to believe that such person 24 has been operating a vessel after having consumed alcohol in violation 25 of section seventy-nine-e of this article; and having thereafter been 26 requested to submit to such chemical test and having been informed that 27 the person's privilege to operate a vessel and any non-resident operat- 28 ing privilege shall be immediately suspended and subsequently revoked, 29 or, for operators under the age of twenty-one for whom there are reason- 30 able grounds to believe that such operator has been operating a vessel 31 after having consumed alcohol in violation of section seventy-nine-e of 32 this article, shall be revoked for refusal to submit to such chemical 33 test or any portion thereof, whether or not the person is found guilty 34 of the charge for which such person is arrested or detained, refuses to 35 submit to such chemical test or any portion thereof, unless a court 36 order has been granted pursuant to subdivision three of this section, 37 the test shall not be given and a written report of such refusal shall 38 be immediately made by the police officer before whom such refusal was 39 made. Such report may be verified by having the report sworn to, or by 40 affixing to such report a form notice that false statements made therein 41 are punishable as a class A misdemeanor pursuant to section 210.45 of 42 the penal law and such form notice together with the subscription of the 43 deponent shall constitute a verification of the report. 44 (2) The report of the police officer shall set forth reasonable 45 grounds to believe such arrested person or such detained person under 46 the age of twenty-one had been operating a vessel in violation of any 47 subdivision of section seventy-nine-d or seventy-nine-e of this article, 48 that said person had refused to submit to such chemical test, and that 49 no chemical test was administered pursuant to the requirements of subdi- 50 vision three of this section. The report shall be presented to the court 51 upon arraignment of an arrested person, provided, however, in the case 52 of a person under the age of twenty-one, for whom a test was authorized 53 pursuant to the provisions of subparagraph two or three of paragraph (a) 54 of this subdivision, and who has not been placed under arrest for a 55 violation of any of the provisions of section seventy-nine-d of this 56 article, such report shall be forwarded to the commissioner withinA. 883 22 1 forty-eight hours in a manner to be prescribed by the commissioner, and 2 all subsequent proceedings with regard to refusal to submit to such 3 chemical test by such person shall be as set forth in subdivision four 4 of section seventy-nine-h of this article. 5 (3) For persons placed under arrest for a violation of any subdivision 6 of section seventy-nine-d of this article, the privilege to operate a 7 vessel and any non-resident operating privilege shall, upon the basis of 8 such written report, be temporarily suspended by the court without 9 notice pending the determination of a hearing as provided in paragraph 10 (c) of this subdivision. Copies of such report must be transmitted by 11 the court to the commissioner and such transmittal may not be waived 12 even with the consent of all the parties. Such report shall be forwarded 13 to the commissioner within forty-eight hours of such arraignment. 14 (4) The court or the police officer, in the case of a person under the 15 age of twenty-one alleged to be operating a vessel after having consumed 16 alcohol, shall provide such person with a scheduled hearing date, a 17 waiver form, and such other information as may be required by the 18 commissioner. If a hearing, as provided for in paragraph (c) of this 19 subdivision, or subdivision four of section seventy-nine-h of this arti- 20 cle, is waived by such person, the commissioner shall immediately revoke 21 the privilege to operate a vessel or non-resident operating privilege, 22 as of the date of receipt of such waiver in accordance with the 23 provisions of paragraph (d) of this subdivision. 24 (c) Hearings. Any person whose privilege to operate a vessel or any 25 non-resident privilege has been suspended pursuant to paragraph (b) of 26 this subdivision is entitled to a hearing in accordance with a hearing 27 schedule to be promulgated by the commissioner of motor vehicles pursu- 28 ant to paragraph (c) of subdivision two of section eleven hundred nine- 29 ty-four of the vehicle and traffic law. If the department of motor vehi- 30 cles fails to provide for such hearing fifteen days after the date of 31 the arraignment of the arrested person, the privilege to operate a 32 vessel or non-resident operating privilege of such person shall be rein- 33 stated pending a hearing pursuant to this section. The hearing shall be 34 limited to the following issues: (1) did the police officer have reason- 35 able grounds to believe that such person had been operating a vessel in 36 violation of any subdivision of section seventy-nine-d of this article; 37 (2) did the police officer make a lawful arrest of such person; (3) was 38 such person given sufficient warning, in clear or unequivocal language, 39 prior to such refusal that such refusal to submit to such chemical test 40 or any portion thereof, would result in the immediate suspension and 41 subsequent revocation of such person's privilege to operate a vessel 42 whether or not such person is found guilty of the charge for which the 43 arrest was made; and (4) did such person refuse to submit to such chemi- 44 cal test or any portion thereof. If, after such hearing, the hearing 45 officer, acting on behalf of the commissioner of motor vehicles, finds 46 on any one of said issues in the negative, the hearing officer shall 47 immediately terminate any suspension arising from such refusal. If, 48 after such hearing, the hearing officer, acting on behalf of the commis- 49 sioner of motor vehicles finds all of the issues in the affirmative, 50 such officer shall immediately revoke the privilege to operate a vessel 51 or any non-resident operating privilege in accordance with the 52 provisions of paragraph (d) of this subdivision. A person who has had a 53 privilege to operate a vessel or non-resident operating privilege 54 suspended or revoked pursuant to this subdivision may appeal the find- 55 ings of the hearing officer in accordance with the provisions of article 56 three-A of the vehicle and traffic law. Any person may waive the rightA. 883 23 1 to a hearing under this section. Failure by such person to appear for 2 the scheduled hearing shall constitute a waiver of such hearing, 3 provided, however, that such person may petition the commissioner of 4 motor vehicles for a new hearing which shall be held as soon as practi- 5 cable. The results of all hearings shall be referred to the commission- 6 er for purposes of taking proper action against a defendant's privilege 7 to operate a vessel. 8 (d) Sanctions. (1) Revocations. (A) Any privilege to operate a vessel 9 which has been revoked pursuant to paragraph (c) of this subdivision 10 shall not be restored for at least one year after such revocation, nor 11 thereafter, except in the discretion of the commissioner. However, no 12 such privilege to operate a vessel shall be restored for at least eigh- 13 teen months after such revocation, nor thereafter except in the 14 discretion of the commissioner, in any case where the person has had a 15 prior revocation resulting from refusal to submit to a chemical test, or 16 has been convicted of or found to be in violation of any subdivision of 17 section seventy-nine-d or section seventy-nine-e of this article not 18 arising out of the same incident, within the five years immediately 19 preceding the date of such revocation; provided, however, a prior find- 20 ing that a person under the age of twenty-one has refused to submit to a 21 chemical test pursuant to subdivision four of section seventy-nine-h of 22 this article shall have the same effect as a prior finding of a refusal 23 pursuant to this subdivision solely for the purpose of determining the 24 length of any license suspension or revocation required to be imposed 25 under any provision of this article, provided that the subsequent 26 offense or refusal is committed or occurred prior to the expiration of 27 the retention period for such prior refusal as set forth in paragraph 28 (k) of subdivision one of section two hundred one of the vehicle and 29 traffic law. 30 (B) Any privilege to operate a vessel which has been revoked pursuant 31 to paragraph (c) of this subdivision or pursuant to subdivision four of 32 section seventy-nine-h of this article, where the holder was under the 33 age of twenty-one years at the time of such refusal, shall not be 34 restored for at least one year, nor thereafter, except in the discretion 35 of the commissioner. Where such person under the age of twenty-one years 36 has a prior finding, conviction or youthful offender adjudication 37 resulting from a violation of section seventy-nine-d or section seven- 38 ty-nine-e of this article, not arising from the same incident, such 39 privilege to operate a vessel shall not be restored for at least one 40 year or until such person reaches the age of twenty-one years, whichever 41 is the greater period of time, nor thereafter, except in the discretion 42 of the commissioner. 43 (C) Any license issued to a master, pilot, engineer or joint pilot and 44 engineer which has been revoked pursuant to paragraph (c) of this subdi- 45 vision based upon a finding of refusal to submit to a chemical test, 46 where such finding occurs within or outside of this state, shall not be 47 restored for at least eighteen months after such revocation, nor there- 48 after, except in the discretion of the commissioner, but shall not be 49 restored for at least three years after such revocation, nor thereafter, 50 except in the discretion of the commissioner, if the holder of such 51 license was operating a vessel transporting hazardous materials at the 52 time of such refusal. However, such person shall be permanently disqual- 53 ified from operating a public vessel in any case where the holder has a 54 prior finding of refusal to submit to a chemical test pursuant to this 55 section or has a prior conviction of any of the following offenses: any 56 violation of section seventy-nine-d of this article; or any violation ofA. 883 24 1 section forty-seven of this chapter. Provided that the commissioner may 2 waive such permanent revocation after a period of ten years has expired 3 from such revocation provided: 4 (i) that during such ten year period such person has not been found to 5 have refused a chemical test pursuant to this section and has not been 6 convicted of any one of the following offenses: any violation of section 7 seventy-nine-d of this article; refusal to submit to a chemical test 8 pursuant to this section; any violation of section forty-seven of this 9 chapter; or has a prior conviction of any felony involving the use of a 10 vessel pursuant to section sixty-four-a of this chapter; 11 (ii) that such person provides acceptable documentation to the commis- 12 sioner that such person is not in need of alcohol or drug treatment or 13 has satisfactorily completed a prescribed course of such treatment; and 14 (iii) after such documentation is accepted, that such person is grant- 15 ed a certificate of relief from disabilities or a certificate of good 16 conduct pursuant to article twenty-three of the correction law by the 17 court in which such person was last penalized. 18 (D) Upon a third finding of refusal and/or conviction of any of the 19 offenses which require a permanent master, pilot, engineer or joint 20 pilot and engineer license revocation, such permanent revocation may not 21 be waived by the commissioner under any circumstances. 22 (2) Civil penalties. Except as otherwise provided, any person whose 23 privilege to operate a vessel or any non-resident operating privilege is 24 revoked pursuant to the provisions of this section shall also be liable 25 for a civil penalty in the amount of five hundred dollars except that if 26 such revocation is a second or subsequent revocation pursuant to this 27 section issued within a five year period, or such person has been 28 convicted of a violation of any subdivision of section seventy-nine-d of 29 this article within the past five years not arising out of the same 30 incident, the civil penalty shall be in the amount of seven hundred 31 fifty dollars. Any person whose privilege to operate a vessel is 32 revoked pursuant to the provisions of this section based upon a finding 33 of refusal to submit to a chemical test while operating a public vessel 34 shall also be liable for a civil penalty of five hundred fifty dollars 35 except that if such person has previously been found to have refused a 36 chemical test pursuant to this section while operating a public vessel 37 or has a prior conviction of any of the following offenses while operat- 38 ing a public vessel: any violation of section seventy-nine-d of this 39 article; any violation of section forty-seven of this chapter; or has a 40 prior conviction of any felony involving the use of a public vessel 41 pursuant to section sixty-four-a of this chapter, then the civil penalty 42 shall be seven hundred fifty dollars. No new privilege to operate a 43 vessel shall be issued, or non-resident operating privilege restored to 44 such person unless such penalty has been paid. All penalties collected 45 by the office pursuant to the provisions of this section shall be the 46 property of the state and shall be paid into the general fund of the 47 state treasury. 48 (3) Effect of rehabilitation program. No period of revocation arising 49 out of this section may be set aside by the commissioner for the reason 50 that such person was a participant in the alcohol and drug rehabili- 51 tation program set forth in section eleven hundred ninety-six of the 52 vehicle and traffic law. 53 (e) Regulations. The commissioner shall promulgate such rules and 54 regulations as may be necessary to effectuate the provisions of this 55 subdivision and subdivision one of this section.A. 883 25 1 (f) Evidence. Evidence of a refusal to submit to such chemical test or 2 any portion thereof shall be admissible in any trial, proceeding or 3 hearing based upon a violation of the provisions of section seventy- 4 nine-d of this article but only upon a showing that the person was given 5 sufficient warning, in clear and unequivocal language, of the effect of 6 such refusal and that the person persisted in the refusal. 7 (g) Results. Upon the request of the person who was tested, the 8 results of such test shall be made available to such person. 9 3. Compulsory chemical tests. (a) Court ordered chemical tests. 10 Notwithstanding the provisions of subdivision two of this section, no 11 person who operates a vessel upon the waters of the state may refuse to 12 submit to a chemical test of one or more of the following: breath, 13 blood, urine or saliva, for the purpose of determining the alcoholic 14 and/or drug content of the blood when a court order for such chemical 15 test has been issued in accordance with the provisions of this subdivi- 16 sion. 17 (b) When authorized. Upon refusal by any person to submit to a chemi- 18 cal test or any portion thereof as described above, the test shall not 19 be given unless a police officer or a district attorney, as defined in 20 subdivision thirty-two of section 1.20 of the criminal procedure law, 21 requests and obtains a court order to compel a person to submit to a 22 chemical test to determine the alcoholic or drug content of the person's 23 blood upon a finding of reasonable cause to believe that: 24 (1) such person was the operator of a vessel and in the course of such 25 operation a person other than the operator was killed or suffered seri- 26 ous physical injury as defined in section 10.00 of the penal law; and 27 (2) (A) either such person operated the vessel in violation of any 28 subdivision of section seventy-nine-d of this article, or 29 (B) a breath test administered by a police officer in accordance with 30 paragraph (b) of subdivision one of this section indicates that alcohol 31 has been consumed by such person; and 32 (3) such person has been placed under lawful arrest; and 33 (4) such person has refused to submit to a chemical test or any 34 portion thereof, requested in accordance with the provisions of para- 35 graph (a) of subdivision two of this section or is unable to give 36 consent to such a test. 37 (c) Reasonable cause; definition. For the purpose of this subdivision 38 "reasonable cause" shall be determined by viewing the totality of 39 circumstances surrounding the incident which, when taken together, indi- 40 cate that the operator was operating a vessel in violation of section 41 seventy-nine-d of this article. Such circumstances may include, but are 42 not limited to: evidence that the operator was operating a vessel in 43 violation of any provision of this article or any other moving violation 44 at the time of the incident; any visible indication of alcohol or drug 45 consumption or impairment by the operator; the existence of an open 46 container containing an alcoholic beverage in or around the vessel oper- 47 ated by the operator; any other evidence surrounding the circumstances 48 of the incident which indicates that the operator has been operating a 49 vessel while impaired by the consumption of alcohol or drugs or intoxi- 50 cated at the time of the incident. 51 (d) Court order; procedure. (1) An application for a court order to 52 compel submission to a chemical test or any portion thereof, may be made 53 to any supreme court justice, county court judge or district court judge 54 in the judicial district in which the incident occurred, or if the inci- 55 dent occurred in the city of New York before any supreme court justice 56 or judge of the criminal court of the city of New York. Such applicationA. 883 26 1 may be communicated by telephone, radio or other means of electronic 2 communication, or in person. 3 (2) The applicant must provide identification by name and title and 4 must state the purpose of the communication. Upon being advised that an 5 application for a court order to compel submission to a chemical test is 6 being made, the court shall place under oath the applicant and any other 7 person providing information in support of the application as provided 8 in subparagraph three of this paragraph. After being sworn the applicant 9 must state that the person from whom the chemical test was requested was 10 the operator of a vessel and in the course of such operation a person, 11 other than the operator, has been killed or seriously injured and, based 12 upon the totality of circumstances, there is reasonable cause to believe 13 that such person was operating a vessel in violation of any subdivision 14 of section seventy-nine-d of this article and, after being placed under 15 lawful arrest such person refused to submit to a chemical test or any 16 portion thereof, in accordance with the provisions of this section or is 17 unable to give consent to such a test or any portion thereof. The 18 applicant must make specific allegations of fact to support such state- 19 ment. Any other person properly identified, may present sworn allega- 20 tions of fact in support of the applicant's statement. 21 (3) Upon being advised that an oral application for a court order to 22 compel a person to submit to a chemical test is being made, a judge or 23 justice shall place under oath the applicant and any other person 24 providing information in support of the application. Such oath or oaths 25 and all of the remaining communication must be recorded, either by means 26 of a voice recording device or verbatim stenographic or verbatim long- 27 hand notes. If a voice recording device is used or a stenographic record 28 made, the judge must have the record transcribed, certify to the accura- 29 cy of the transcription and file the original record and transcription 30 with the court within seventy-two hours of the issuance of the court 31 order. If the longhand notes are taken, the judge shall subscribe a copy 32 and file it with the court within twenty-four hours of the issuance of 33 the order. 34 (4) If the court is satisfied that the requirements for the issuance 35 of a court order pursuant to the provisions of paragraph (b) of this 36 subdivision have been met, it may grant the application and issue an 37 order requiring the accused to submit to a chemical test to determine 38 the alcoholic and/or drug content of his or her blood and ordering the 39 withdrawal of a blood sample in accordance with the provisions of para- 40 graph (a) of subdivision four of this section. When a judge or justice 41 determines to issue an order to compel submission to a chemical test 42 based on an oral application, the applicant therefor shall prepare the 43 order in accordance with the instructions of the judge or justice. In 44 all cases the order shall include the name of the issuing judge or 45 justice, the name of the applicant, and the date and time it was issued. 46 It must be signed by the judge or justice if issued in person, or by the 47 applicant if issued orally. 48 (5) Any false statement by an applicant or any other person in support 49 of an application for a court order shall subject such person to the 50 offenses for perjury set forth in article two hundred ten of the penal 51 law. 52 (6) The chief administrator of the courts shall establish a schedule 53 to provide that a sufficient number of judges or justices will be avail- 54 able in each judicial district to hear oral applications for court 55 orders as permitted by this section.A. 883 27 1 (e) Administration of compulsory chemical test. An order issued pursu- 2 ant to the provisions of this subdivision shall require that a chemical 3 test to determine the alcoholic and/or drug content of the operator's 4 blood must be administered. The provisions of subdivision four of this 5 section shall be applicable to any chemical test administered pursuant 6 to this section. 7 4. Testing procedures. (a) Persons authorized to withdraw blood; immu- 8 nity; testimony. (1) At the request of a police officer, the following 9 persons may withdraw blood for the purpose of determining the alcoholic 10 or drug content therein: (i) a physician, a registered professional 11 nurse, a registered physician assistant, a certified nurse practitioner, 12 or an advanced emergency medical technician as certified by the depart- 13 ment of health; or (ii) under the supervision and at the direction of a 14 physician, registered physician assistant or certified nurse practition- 15 er acting within his or her lawful scope of practice, or upon the 16 express consent of the person eighteen years of age or older from whom 17 such blood is to be withdrawn: a clinical laboratory technician or clin- 18 ical laboratory technologist licensed pursuant to article one hundred 19 sixty-five of the education law; a phlebotomist; or a medical laboratory 20 technician or medical technologist employed by a clinical laboratory 21 approved under title five of article five of the public health law. 22 This limitation shall not apply to the taking of a urine, saliva or 23 breath specimen. 24 (2) No person entitled to withdraw blood pursuant to subparagraph one 25 of this paragraph or hospital employing such person, and no other 26 employer of such person shall be sued or held liable for any act done or 27 omitted in the course of withdrawing blood at the request of a police 28 officer pursuant to this section. 29 (3) Any person who may have a cause of action arising from the with- 30 drawal of blood as aforesaid, for which no personal liability exists 31 under subparagraph two of this paragraph, may maintain such action 32 against the state if any person entitled to withdraw blood pursuant to 33 this paragraph acted at the request of a police officer employed by the 34 state, or against the appropriate political subdivision of the state if 35 such person acted at the request of a police officer employed by a poli- 36 tical subdivision of the state. No action shall be maintained pursuant 37 to this subparagraph unless notice of claim is duly filed or served in 38 compliance with law. 39 (4) Notwithstanding the foregoing provisions of this paragraph an 40 action may be maintained by the state or a political subdivision thereof 41 against a person entitled to withdraw blood pursuant to subparagraph one 42 of this paragraph or hospital employing such person for whose act or 43 omission the state or the political subdivision has been held liable 44 under this paragraph to recover damages, not exceeding the amount 45 awarded to the claimant, that may have been sustained by the state or 46 the political subdivision by reason of gross negligence or bad faith on 47 the part of such person. 48 (5) The testimony of any person other than a physician, entitled to 49 withdraw blood pursuant to subparagraph one of this paragraph, in 50 respect to any such withdrawal of blood made by such person may be 51 received in evidence with the same weight, force and effect as if such 52 withdrawal of blood were made by a physician. 53 (6) The provisions of subparagraphs two, three and four of this para- 54 graph shall also apply with regard to any person employed by a hospital 55 as security personnel for any act done or omitted in the course of with-A. 883 28 1 drawing blood at the request of a police officer pursuant to a court 2 order in accordance with subdivision three of this section. 3 (b) Right to additional test. The person tested shall be permitted to 4 choose a physician to administer a chemical test in addition to the one 5 administered at the direction of the police officer. 6 (c) Rules and regulations. The department of health shall issue and 7 file rules and regulations approving satisfactory techniques or methods 8 of conducting chemical analyses of a person's blood, urine, breath or 9 saliva and to ascertain the qualifications and competence of individuals 10 to conduct and supervise chemical analyses of a person's blood, urine, 11 breath or saliva. If the analyses were made by an individual possessing 12 a permit issued by the department of health, this shall be presumptive 13 evidence that the examination was properly given. The provisions of this 14 paragraph do not prohibit the introduction as evidence of an analysis 15 made by an individual other than a person possessing a permit issued by 16 the department of health. 17 § 79-h. Operation of a vessel after having consumed alcohol; under 18 twenty-one; procedure. 1. Chemical test report and hearing. (a) Whenever 19 a chemical test of the breath, blood, urine or saliva of an operator who 20 is under the age of twenty-one indicates that such person has operated a 21 vessel in violation of section seventy-nine-e of this article, and such 22 person is not charged with violating any subdivision of section seven- 23 ty-nine-d of this article arising out of the same incident, the police 24 officer who administered the test shall forward a report of the results 25 of such test to the office of parks, recreation and historic preserva- 26 tion and the department of motor vehicles within twenty-four hours of 27 the time when such results are available in a manner prescribed by the 28 commissioner of motor vehicles, and the operator shall be given a hear- 29 ing notice as provided in subdivision two of this section, to appear 30 before a hearing officer in the county where the chemical test was 31 administered, or in an adjoining county under such circumstances as 32 prescribed by the commissioner of motor vehicles, on a date to be estab- 33 lished in accordance with a schedule promulgated by the commissioner of 34 motor vehicles. Such hearing shall occur within thirty days of, but not 35 less than forty-eight hours from, the date that the chemical test was 36 administered, provided, however, where the commissioner of motor vehi- 37 cles determines, based upon the availability of hearing officers and the 38 anticipated volume of hearings at a particular location, that the sched- 39 uling of such hearing within thirty days would impair the timely sched- 40 uling or conducting of other hearings pursuant to the vehicle and traf- 41 fic law, such hearing shall be scheduled at the next hearing date for 42 such particular location. When providing the operator with such hearing 43 notice, the police officer shall also give to the operator, and shall, 44 prior to the commencement of the hearing, provide to the department of 45 motor vehicles, copies of the following reports, documents and materi- 46 als: any written report or document, or portion thereof, concerning a 47 physical examination, a scientific test or experiment, including the 48 most recent record of inspection, or calibration or repair of machines 49 or instruments utilized to perform such scientific tests or experiments 50 and the certification certificate, if any, held by the operator of the 51 machine or instrument, which tests or examinations were made by or at 52 the request or direction of a public servant engaged in law enforcement 53 activity. The report of the police officer shall be verified by having 54 the report sworn to, or by affixing to such report a form notice that 55 false statements made therein are punishable as a class A misdemeanor 56 pursuant to section 210.45 of the penal law and such form notice togeth-A. 883 29 1 er with the subscription of the deponent shall constitute verification 2 of the report. 3 (b) Every person under the age of twenty-one who is alleged to have 4 operated a vessel after having consumed alcohol as set forth in section 5 seventy-nine-e of this article, and who is not charged with violating 6 any subdivision of section seventy-nine-d of this article arising out of 7 the same incident, is entitled to a hearing before a hearing officer in 8 accordance with the provisions of this section. Unless otherwise 9 provided by law, the privilege to operate a vessel or any non-resident 10 operating privilege of such person shall not be suspended or revoked 11 prior to the scheduled date for such hearing. 12 (i) The hearing shall be limited to the following issues: (1) did such 13 person operate the vessel; (2) was a valid request to submit to a chemi- 14 cal test made by the police officer in accordance with the provisions of 15 section seventy-nine-g of this article; (3) was such person less than 16 twenty-one years of age at the time of operation of the vessel; (4) was 17 the chemical test properly administered in accordance with the 18 provisions of section seventy-nine-g of this article; (5) did the test 19 find that such person had operated a vessel after having consumed alco- 20 hol as defined in section seventy-nine-e of this article; and (6) did 21 the police officer make a lawful stop of such person. The burden of 22 proof shall be on the police officer to prove each of these issues by 23 clear and convincing evidence. 24 (ii) Every person who is entitled to a hearing pursuant to this subdi- 25 vision has the right to be present at the hearing; the right to be 26 represented by attorney, or in the hearing officer's discretion, by any 27 other person the operator chooses; the right to receive and review 28 discovery materials as provided in this subdivision; the right not to 29 testify; the right to present evidence and witnesses in his or her own 30 behalf; the right to cross examine adverse witnesses; and the right to 31 appeal from an adverse determination in accordance with article three-A 32 of the vehicle and traffic law. Any person representing the operator 33 must conform to the standards of conduct required of attorneys appearing 34 before state courts, and failure to conform to these standards will be 35 grounds for declining to permit his or her continued appearance in the 36 hearing. 37 (iii) Hearings conducted pursuant to this subdivision shall be in 38 accordance with this subdivision and with the provisions applicable to 39 the adjudication of traffic infractions pursuant to the following 40 provisions of part 124 of title fifteen of the codes, rules and regu- 41 lations of the state of New York: paragraph (b) of section 124.1 regard- 42 ing the opening statement; paragraph (b) of section 124.2 regarding the 43 right to representation and to remain silent and paragraphs (a) through 44 (e) of section 124.4 regarding the conduct of the hearing, procedure and 45 recusal; provided, however, that nothing contained in this subparagraph 46 shall be deemed to preclude a hearing officer from changing the order of 47 a hearing conducted pursuant to this subdivision as justice may require 48 and for good cause shown. 49 (iv) The rules governing receipt of evidence in a court of law shall 50 not apply in a hearing conducted pursuant to this subdivision except as 51 follows: 52 (1) on the merits of the charge, and whether or not a party objects, 53 the hearing officer shall exclude from consideration the following: a 54 privileged communication; evidence which, for constitutional reasons, 55 would not be admissible in a court of law; evidence of prior misconduct,A. 883 30 1 incompetency or illness, except where such evidence would be admissible 2 in a court of law; evidence which is irrelevant or immaterial; 3 (2) no negative inference shall be drawn from the operator's exercis- 4 ing the right not to testify. 5 (v) If, after such hearing, the hearing officer, acting on behalf of 6 the commissioner of motor vehicles, finds all of the issues set forth in 7 this subdivision in the affirmative, the hearing officer shall suspend 8 or revoke the privilege to operate a vessel or non-resident operating 9 privilege of such person in accordance with the time periods set forth 10 in subdivision two of section seventy-nine-f of this article. If, after 11 such hearing, the hearing officer, acting on behalf of the commissioner 12 of motor vehicles, finds any of said issues in the negative, the hearing 13 officer must find that the operator did not operate a vessel after 14 having consumed alcohol. 15 (vi) A person who has had a privilege to operate a vessel or non-resi- 16 dent operating privilege suspended or revoked pursuant to the provisions 17 of this section may appeal the finding of the hearing officer in accord- 18 ance with the provisions of article three-A of the vehicle and traffic 19 law. 20 (c) Unless an adjournment of the hearing date has been granted, upon 21 the operator's failure to appear for a scheduled hearing, the commis- 22 sioner of motor vehicles shall report the failure to appear to the 23 commissioner and such commissioner shall suspend the privilege to oper- 24 ate a vessel or non-resident operating privilege until the operator 25 petitions the commissioner and a rescheduled hearing is conducted, 26 provided, however, the commissioner shall restore such person's privi- 27 lege to operate a vessel or non-resident operating privilege if such 28 rescheduled hearing is adjourned at the request of a person other than 29 the operator. Requests for adjournments shall be made and determined in 30 accordance with regulations promulgated by the commissioner of motor 31 vehicles. If such a request by the operator for an adjournment is grant- 32 ed, the commissioner of motor vehicles shall notify the operator of the 33 rescheduled hearing, which shall be scheduled for the next hearing date. 34 If a second or subsequent request by the operator for an adjournment is 35 granted, the operator's privilege to operate a vessel or non-resident 36 operating privilege may be suspended pending the hearing at the time 37 such adjournment is granted; provided, however, that the records of the 38 department of motor vehicles or the evidence already admitted furnishes 39 reasonable grounds to believe such suspension is necessary to prevent 40 continuing violations or a substantial safety hazard; and provided 41 further, that such hearing shall be scheduled for the next hearing date. 42 If a police officer does not appear for a hearing, the hearing officer 43 shall have the authority to dismiss the charge. Any person may waive the 44 right to a hearing under this subdivision, in a form and manner 45 prescribed by the commissioner of motor vehicles, and may enter an 46 admission of guilt, in person or by mail, to the charge of operating a 47 vessel in violation of section seventy-nine-e of this article. Such 48 admission of guilt shall have the same force and effect as a finding of 49 guilt entered following a hearing conducted pursuant to this subdivi- 50 sion. 51 2. Hearing notice. The hearing notice issued to an operator pursuant 52 to subdivision one of this section shall be in a form as prescribed by 53 the commissioner of motor vehicles. In addition to containing informa- 54 tion concerning the time, date and location of the hearing, and such 55 other information as the commissioner of motor vehicles deems appropri- 56 ate, such hearing notice shall also contain the following information:A. 883 31 1 the date, time and place of the offense charged; the procedures for 2 requesting an adjournment of a scheduled hearing as provided in this 3 section, the operator's right to a hearing conducted pursuant to this 4 section and the right to waive such hearing and plead guilty, either in 5 person or by mail, to the offense charged. 6 3. Civil penalty. Unless otherwise provided, any person whose privi- 7 lege to operate a vessel or any non-resident operating privilege is 8 suspended or revoked pursuant to the provisions of this section shall 9 also be liable for a civil penalty in the amount of one hundred twenty- 10 five dollars. The first fifty dollars of each penalty collected by the 11 department of motor vehicles pursuant to the provisions of this subdivi- 12 sion shall be paid to the commissioner of motor vehicles for deposit to 13 the general fund and the remainder of all such penalties shall be paid 14 to the commissioner for deposit in the "I Love NY Waterways" boating 15 safety fund established pursuant to section ninety-seven-nn of the state 16 finance law, as added by chapter eight hundred five of the laws of nine- 17 teen hundred ninety-two. 18 4. Refusal report and hearing. (a) Any person under the age of twen- 19 ty-one who is suspected of operating a vessel after having consumed 20 alcohol in violation of section seventy-nine-e of this article, and who 21 is not charged with violating any subdivision of section seventy-nine-d 22 of this article arising out of the same incident, and who has been 23 requested to submit to a chemical test pursuant to paragraph (a) of 24 subdivision two of section seventy-nine-g of this article and after 25 having been informed that his or her privilege to operate a vessel and 26 any non-resident operating privilege shall be revoked for refusal to 27 submit to such chemical test or any portion thereof, whether or not 28 there is a finding of operation of a vessel after having consumed alco- 29 hol, and such person refuses to submit to such chemical test or any 30 portion thereof, shall be entitled to a hearing in accordance with a 31 schedule promulgated by the commissioner of motor vehicles, and such 32 hearing shall occur within thirty days of, but not less than forty-eight 33 hours from, the date of such refusal, provided, however, where the 34 commissioner of motor vehicles determines, based upon the availability 35 of hearing officers and the anticipated volume of hearings at a partic- 36 ular location, that the scheduling of such hearing within thirty days 37 would impair the timely scheduling or conducting of other hearings 38 pursuant to this chapter, such hearing shall be scheduled at the next 39 hearing date for such particular location. 40 (b) Unless an adjournment of the hearing date has been granted, upon 41 the operator's failure to appear for a scheduled hearing, the commis- 42 sioner of motor vehicles shall report the failure to appear to the 43 commissioner and shall suspend the privilege to operate a vessel or 44 non-resident operating privilege until the operator petitions the 45 commissioner and a rescheduled hearing is conducted, provided, however, 46 the commissioner shall restore such person's privilege to operate a 47 vessel or non-resident operating privilege if such rescheduled hearing 48 is adjourned at the request of a person other than the operator. 49 Requests for adjournments shall be made and determined in accordance 50 with regulations promulgated by the commissioner of motor vehicles. If 51 such a request by the operator for an adjournment is granted, the 52 commissioner of motor vehicles shall notify the operator of the resched- 53 uled hearing, which shall be scheduled for the next hearing date. If a 54 second or subsequent request by the operator for an adjournment is 55 granted, the operator's privilege to operate a vessel or non-resident 56 operating privilege may be suspended pending the hearing at the timeA. 883 32 1 such adjournment is granted; provided, however, that the records of the 2 department of motor vehicles or the evidence already admitted furnishes 3 reasonable grounds to believe such suspension is necessary to prevent 4 continuing violations or a substantial traffic safety hazard; and 5 provided further, that such hearing shall be scheduled for the next 6 hearing. 7 If a police officer does not appear for a hearing, the hearing officer 8 shall have the authority to dismiss the charge. Any person may waive the 9 right to a hearing under this subdivision. 10 (c) The hearing on the refusal to submit to a chemical test pursuant 11 to this subdivision shall be limited to the following issues: (1) was a 12 valid request to submit to a chemical test made by the police officer in 13 accordance with the provisions of section seventy-nine-g of this arti- 14 cle; (2) was such person given sufficient warning, in clear or unequiv- 15 ocal language, prior to such refusal that such refusal to submit to such 16 chemical test or any portion thereof, would result in the revocation of 17 such person's privilege to operate a vessel or non-resident operating 18 privilege, whether or not such person is found to have operated a vessel 19 after having consumed alcohol; (3) did such person refuse to submit to 20 such chemical test or any portion thereof; (4) did such person operate 21 the vessel; (5) was such person less than twenty-one years of age at the 22 time of operation of the vessel; and (6) did the police officer make a 23 lawful stop of such person. If, after such hearing, the hearing officer, 24 acting on behalf of the commissioner of motor vehicles, finds on any 25 said issue in the negative, the hearing officer shall not revoke the 26 operator's privilege to operate a vessel or non-resident operating priv- 27 ilege and shall immediately terminate any outstanding suspension of the 28 operator's privilege to operate a vessel or non-resident operating priv- 29 ilege arising from such refusal. If, after such hearing, the hearing 30 officer, acting on behalf of the commissioner of motor vehicles, finds 31 all of the issues in the affirmative, such hearing officer shall imme- 32 diately revoke privilege to operate a vessel or any non-resident operat- 33 ing privilege in accordance with the provisions of paragraph (d) of 34 subdivision two of section seventy-nine-g of this article. A person who 35 has had a privilege to operate a vessel or non-resident operating privi- 36 lege suspended or revoked pursuant to the provisions of this section may 37 appeal the findings of the hearing officer in accordance with the 38 provisions of article three-A of the vehicle and traffic law. 39 § 79-i. Chemical test evidence. 1. Admissibility. Upon the trial of 40 any action or proceeding arising out of actions alleged to have been 41 committed by any person arrested for a violation of any subdivision of 42 section seventy-nine-d of this article, the court shall admit evidence 43 of the amount of alcohol or drugs in the defendant's blood as shown by a 44 test administered pursuant to the provisions of section seventy-nine-g 45 of this article. 46 2. Probative value. The following effect shall be given to evidence of 47 blood-alcohol content, as determined by such tests, of a person arrested 48 for violation of section seventy-nine-d of this article: 49 (a) Evidence that there was .05 of one per centum or less by weight of 50 alcohol in such person's blood shall be prima facie evidence that the 51 ability of such person to operate a vessel was not impaired by the 52 consumption of alcohol, and that such person was not in an intoxicated 53 condition; 54 (b) Evidence that there was more than .05 of one per centum but less 55 than .07 of one per centum by weight of alcohol in such person's blood 56 shall be prima facie evidence that such person was not in an intoxicatedA. 883 33 1 condition, but such evidence shall be relevant evidence, but shall not 2 be given prima facie effect, in determining whether the ability of such 3 person to operate a vessel was impaired by the consumption of alcohol; 4 and 5 (c) Evidence that there was .07 of one per centum or more but less 6 than .08 of one per centum by weight of alcohol in such person's blood 7 shall be prima facie evidence that such person was not in an intoxicated 8 condition, but such evidence shall be given prima facie effect in deter- 9 mining whether the ability of such person to operate a vessel was 10 impaired by the consumption of alcohol. 11 3. Suppression. A defendant who has been compelled to submit to a 12 chemical test pursuant to the provisions of subdivision three of section 13 seventy-nine-g of this article may move for the suppression of such 14 evidence in accordance with article seven hundred ten of the criminal 15 procedure law on the grounds that the order was obtained and the test 16 administered in violation of the provisions of such subdivision or any 17 other applicable law. 18 § 79-j. Alcohol and drug rehabilitation program within the department 19 of motor vehicles. The commissioner shall work with the commissioner of 20 motor vehicles to provide access to the alcohol and drug rehabilitation 21 program established pursuant to section eleven hundred ninety-six of the 22 vehicle and traffic law to those persons convicted of alcohol or drug- 23 related operation of a vessel offenses or persons who have been adjudi- 24 cated youthful offenders for alcohol or drug-related operation of a 25 vessel offenses, or persons found to have been operating a vessel after 26 having consumed alcohol in violation of section seventy-nine-e of this 27 article, who choose to participate and who satisfy the criteria and meet 28 the requirements for participation as established by section eleven 29 hundred ninety-six of the vehicle and traffic law and the regulations 30 promulgated thereunder; provided, however, in the exercise of 31 discretion, the judge imposing sentence may prohibit the defendant from 32 enrolling in such program. 33 § 79-k. Special options program for operation of a vessel while intox- 34 icated. The commissioner shall work with the commissioner of motor vehi- 35 cles to include a plan for coordination of county, town, city and 36 village efforts to reduce alcohol-related boating injuries and fatali- 37 ties pursuant to section eleven hundred ninety-seven of the vehicle and 38 traffic law. 39 § 79-l. Installation and operation of ignition interlock devices. 1. 40 Applicability. The provisions of this section shall apply throughout the 41 state to each person required or otherwise ordered by a court as a 42 condition of probation or conditional discharge to install and operate 43 an ignition interlock device in any vessel which he or she owns or oper- 44 ates. 45 2. Requirements. (a) In addition to any other penalties prescribed by 46 law, the court shall require that any person who has been convicted of a 47 violation of subdivision three, four or five of section seventy-nine-d 48 of this article, or any crime defined by this chapter or the penal law 49 of which an alcohol-related violation of any provision of section seven- 50 ty-nine-d of this article is an essential element, to install and main- 51 tain, as a condition of probation or conditional discharge, a function- 52 ing ignition interlock device in accordance with the provisions of this 53 section and, as applicable, in accordance with the provisions of subdi- 54 vision one of section seventy-nine-f of this article. For any such indi- 55 vidual subject to a sentence of probation, installation and maintenance 56 of such ignition interlock device shall be a condition of probation.A. 883 34 1 (b) Nothing contained in this section shall prohibit a court, upon 2 application by a probation department, from modifying the conditions of 3 probation of any person convicted of any violation set forth in para- 4 graph (a) of this subdivision prior to the effective date of this 5 section, to require the installation and maintenance of a functioning 6 ignition interlock device, and such person shall thereafter be subject 7 to the provisions of this section. 8 (c) Nothing contained in this section shall authorize a court to 9 sentence any person to a period of probation or conditional discharge 10 for the purpose of subjecting such person to the provisions of this 11 section, unless such person would have otherwise been so eligible for a 12 sentence of probation or conditional discharge. 13 3. Conditions. (a) Notwithstanding any other provision of law, the 14 commissioner may grant a post-revocation conditional privilege to oper- 15 ate a vessel, as set forth in paragraph (b) of this subdivision, to a 16 person who has been convicted of a violation of subdivision three, four 17 or five of section seventy-nine-d of this article and who has been 18 sentenced to a period of probation or conditional discharge, provided 19 the person has satisfied the minimum period of the revocation of the 20 privilege to operate a vessel established by law and the commissioner 21 has been notified that such person may operate only a vessel equipped 22 with a functioning ignition interlock device. In exercising discretion 23 relating to the issuance of a post-revocation conditional privilege to 24 operate a vessel pursuant to this subdivision, the commissioner shall 25 not deny such issuance based solely upon the number of convictions for 26 violations of any subdivision of section seventy-nine-d of this article 27 committed by such person within the ten years prior to application for 28 such privilege to operate a vessel. Upon the termination of the period 29 of probation or conditional discharge set by the court, the person may 30 apply to the commissioner for restoration of a privilege to operate a 31 vessel in accordance with this chapter. 32 (b) Notwithstanding any inconsistent provision of this chapter, a 33 post-revocation conditional privilege to operate a vessel granted pursu- 34 ant to paragraph (a) of this subdivision shall be valid only for use by 35 the holder thereof: (1) enroute to and from the holder's place of 36 employment; (2) if the holder's employment requires the operation of a 37 vessel then during the hours thereof; (3) enroute to and from a class or 38 course at an accredited school, college or university or at a state 39 approved institution of vocational or technical training; (4) to and 40 from court ordered probation activities; (5) to and from an office for 41 the transaction of business relating to such privilege to operate a 42 vessel; (6) for a three hour consecutive daytime period, chosen by the 43 office, on a day during which the participant is not engaged in usual 44 employment or vocation; (7) enroute to and from a medical examination or 45 treatment as part of a necessary medical treatment for such participant 46 or member of the participant's household, as evidenced by a written 47 statement to that effect from a licensed medical practitioner; (8) 48 enroute to and from a class or an activity which is an authorized part 49 of the alcohol and drug rehabilitation program and at which partic- 50 ipant's attendance is required; and (9) enroute to and from a place, 51 including a school, at which a child or children of the participant are 52 cared for on a regular basis and which is necessary for the participant 53 to maintain such participant's employment or enrollment at an accredited 54 school, college or university or at a state approved institution of 55 vocational or technical training.A. 883 35 1 (c) The post-revocation conditional privilege to operate a vessel 2 described in this subdivision may be revoked by the commissioner for 3 sufficient cause including but not limited to, failure to comply with 4 the terms of the condition of probation or conditional discharge set 5 forth by the court, conviction of any operation of a vessel offense 6 other than one involving a conviction of any alcohol or drug-related 7 offense, misdemeanor or felony or failure to install or maintain a court 8 ordered ignition interlock device. 9 (d) Nothing contained herein shall prohibit the court from requiring, 10 as a condition of probation or conditional discharge, the installation 11 of a functioning ignition interlock device in any vessel owned or oper- 12 ated by a person sentenced for a violation of subdivision three, four, 13 or five of section seventy-nine-d of this article, or any crime defined 14 by this chapter or the penal law of which an alcohol-related violation 15 of any provision of section seventy-nine-d of this article is an essen- 16 tial element, if the court in its discretion, determines that such a 17 condition is necessary to ensure the public safety. Imposition of an 18 ignition interlock condition shall in no way limit the effect of any 19 period of suspension or revocation of a privilege to operate a vessel 20 set forth by the commissioner or the court. 21 (e) Nothing contained herein shall prevent the court from applying any 22 other conditions of probation or conditional discharge allowed by law, 23 including treatment for alcohol or drug abuse, restitution and community 24 service. 25 (f) The commissioner shall note on the operator's record of any person 26 restricted pursuant to this section that, in addition to any other 27 restrictions, conditions or limitations, such person may operate only a 28 vessel equipped with an ignition interlock device. 29 4. Proof of compliance and recording of condition. (a) Following impo- 30 sition by the court of the use of an ignition interlock device as a 31 condition of probation or conditional discharge it shall require the 32 person to provide proof of compliance with this section to the court and 33 the probation department or other monitor where such person is under 34 probation or conditional discharge supervision. If the person fails to 35 provide for such proof of installation, absent a finding by the court of 36 good cause for that failure which is entered in the record, the court 37 may revoke, modify, or terminate the person's sentence of probation or 38 conditional discharge as provided under law. Good cause may include a 39 finding that the person is not the owner of a vessel if such person 40 asserts under oath that such person is not the owner of any vessel and 41 that he or she will not operate any vessel during the period of inter- 42 lock restriction except as may be otherwise authorized pursuant to law. 43 "Owner" shall have the same meaning as provided in section one hundred 44 twenty-eight of the vehicle and traffic law. 45 (b) When a court imposes the condition specified in subdivision one of 46 this section, the court shall notify the commissioner in such manner as 47 the commissioner may prescribe, and the commissioner shall note such 48 condition on the operating record of the person subject to such condi- 49 tions. 50 5. Cost, installation and maintenance. (a) The cost of installing and 51 maintaining the ignition interlock device shall be borne by the person 52 subject to such condition unless the court determines such person is 53 financially unable to afford such cost whereupon such cost may be 54 imposed pursuant to a payment plan or waived. In the event of such waiv- 55 er, the cost of the device shall be borne in accordance with regulations 56 issued under paragraph (g) of subdivision one of section seventy-nine-fA. 883 36 1 of this article or pursuant to such other agreement as may be entered 2 into for provision of the device. Such cost shall be considered a fine 3 for the purposes of subdivision five of section 420.10 of the criminal 4 procedure law. Such cost shall not replace, but shall instead be in 5 addition to, any fines, surcharges, or other costs imposed pursuant to 6 this chapter or other applicable laws. 7 (b) The installation and service provider of the device shall be 8 responsible for the installation, calibration, and maintenance of such 9 device. 10 6. Certification. (a) The commissioner of the department of health 11 shall approve ignition interlock devices for installation pursuant to 12 subdivision one of this section and shall publish a list of approved 13 devices. 14 (b) After consultation with manufacturers of ignition interlock 15 devices and the commissioner, the commissioner of the department of 16 health, in consultation with the office of probation and correctional 17 alternatives, shall promulgate regulations regarding standards for, and 18 use of, ignition interlock devices. Such standards shall include 19 provisions for setting a minimum and maximum calibration range and shall 20 include, but not be limited to, requirements that the devices: 21 (1) have features that make circumventing difficult and that do not 22 interfere with the normal or safe operation of the vessel; 23 (2) work accurately and reliably in an unsupervised environment; 24 (3) resist tampering and give evidence if tampering is attempted; 25 (4) minimize inconvenience to a sober user; 26 (5) require a proper, deep, lung breath sample or other accurate meas- 27 ure of blood alcohol content equivalence; 28 (6) operate reliably over the range of vessel environments; 29 (7) correlate well with permissible levels of alcohol consumption as 30 may be established by the sentencing court or by any provision of law; 31 and 32 (8) are manufactured by a party covered by product liability insur- 33 ance. 34 (c) The commissioner of the department of health may, in his or her 35 discretion, adopt in whole or relevant part, the guidelines, rules, 36 regulations, studies, or independent laboratory tests performed on and 37 relied upon for the certification or approval of ignition interlock 38 devices by other states, their agencies or commissions. 39 7. Use of other vessels. (a) Any requirement of this article or the 40 penal law that a person operate a vessel only if it is equipped with an 41 ignition interlock device shall apply to every vessel operated by that 42 person including, but not limited to, vessels that are leased, rented or 43 loaned. 44 (b) No person shall knowingly rent, lease, or lend a vessel to a 45 person known to have had his or her privilege to operate a vessel 46 restricted to vessels equipped with an ignition interlock device unless 47 the vessel is so equipped. Any person whose privilege to operate a 48 vessel is so restricted shall notify any other person who rents, leases, 49 or loans a vessel to him or her of such operating restriction. 50 (c) Any violation of paragraph (a) or (b) of this subdivision shall be 51 a misdemeanor. 52 8. Employer vessel. Notwithstanding the provisions of subdivision one 53 and paragraph (d) of subdivision nine of this section, if a person is 54 required to operate a vessel owned by said person's employer in the 55 course and scope of his or her employment, the person may operate that 56 vessel without installation of an approved ignition interlock deviceA. 883 37 1 only in the course and scope of such employment and only if the employer 2 has been notified that the person's privilege to operate a vessel has 3 been restricted under the provisions of this article or the penal law 4 and the person whose privilege to operate a vessel has been so 5 restricted has provided the court and probation department with written 6 documentation indicating the employer has knowledge of the restriction 7 imposed and has granted permission for the person to operate the employ- 8 er's vessel without the device only for business purposes. The person 9 shall notify the court and the probation department of his or her inten- 10 tion to so operate the employer's vessel. A vessel owned by a business 11 entity when such business entity is all or partly owned or controlled by 12 a person otherwise subject to the provisions of this article or the 13 penal law is not a vessel owned by the employer for purposes of the 14 exemption provided in this subdivision. The provisions of this subdivi- 15 sion shall apply only to the operation of such vessel in the scope of 16 such employment. 17 9. Circumvention of interlock device. (a) No person whose privilege to 18 operate a vessel is restricted pursuant to this article shall request, 19 solicit or allow any other person to blow into an ignition interlock 20 device, or to start a vessel equipped with the device, for the purpose 21 of providing the person so restricted with an operable vessel. 22 (b) No person shall blow into an ignition interlock device or start a 23 vessel equipped with the device for the purpose of providing an operable 24 vessel to a person whose privilege to operate a vessel is so restricted. 25 (c) No person shall tamper with or circumvent an otherwise operable 26 ignition interlock device. 27 (d) No person subject to a court ordered ignition interlock device 28 shall operate a vessel without such device. 29 (e) In addition to any other provisions of law, any person convicted 30 of a violation of paragraph (a), (b), (c), or (d) of this subdivision 31 shall be guilty of a class A misdemeanor. 32 10. Warning label. The department of health shall design a warning 33 label which the manufacturer shall affix to each ignition interlock 34 device upon installation in the state. The label shall contain a warning 35 that any person tampering, circumventing, or otherwise misusing the 36 device is guilty of a misdemeanor and may be subject to civil liability. 37 § 79-m. Special procedures and disposition involving alcohol and 38 substance abuse assessment and treatment. 1. Definitions. For purposes 39 of this section, the following terms shall have the following meanings: 40 (a) "Alcohol and substance abuse professional" shall mean persons 41 credentialed by the office of alcoholism and substance abuse services to 42 provide alcohol and substance abuse services pursuant to the mental 43 hygiene law and persons licensed by the state education department in an 44 appropriate health field, including licensed clinical social worker, 45 licensed master social worker, licensed mental health counselor, nurse 46 practitioner, physician, physician's assistant, psychiatrist, psychol- 47 ogist, and registered nurse. 48 (b) "Licensed agency" shall mean an agency licensed by the office of 49 alcoholism and substance abuse services to provide alcohol and substance 50 abuse services pursuant to the mental hygiene law. 51 2. Procedure. (a) Mandatory screening; when authorized. Upon the 52 arraignment of, or at the discretion of the court, prior to the sentenc- 53 ing of any person who (i) at arraignment is charged with or prior to 54 sentencing convicted of a first violation of operating a vessel in 55 violation of subdivision two, three or five or paragraph (b) of subdivi- 56 sion four of section seventy-nine-d of this article while such personA. 883 38 1 has less than .15 of one per centum by weight of alcohol in the person's 2 blood as shown by chemical analysis of such person's blood, breath, 3 urine or saliva made pursuant to the provisions of section 4 seventy-nine-g of this article, or in violation of subdivision six of 5 section seventy-nine-d of this article, or (ii) has refused to submit to 6 a chemical test pursuant to section seventy-nine-g of this article, the 7 court shall order such person to submit to screening for alcohol or 8 substance abuse and dependency using a standardized written screening 9 instrument developed by the office of alcoholism and substance abuse 10 services, to be administered by an alcohol or substance abuse profes- 11 sional. 12 (b) Mandatory assessment; when authorized. The court shall order a 13 defendant to undergo a formal alcohol or substance abuse and dependency 14 assessment by an alcohol or substance abuse professional or a licensed 15 agency: (i) when the screening required by paragraph (a) of this subdi- 16 vision indicates that a defendant is abusing or dependent upon alcohol 17 or drugs; (ii) following the arraignment of any person charged with or, 18 at the discretion of the court, prior to the sentencing of any person 19 convicted of a violation of subdivision two, three, five, six or seven 20 of section seventy-nine-d of this article after having been convicted of 21 a violation of any subdivision of section seventy-nine-d of this article 22 or of vehicular assault in the second or first degree, as defined, 23 respectively, in sections 120.03 and 120.04 of the penal law or of 24 aggravated vehicular assault, as defined in section 120.04-a of such law 25 or of vehicular manslaughter in the second or first degree, as defined, 26 respectively, in sections 125.12 and 125.13 of such law or of aggravated 27 vehicular homicide, as defined in section 125.14 of such law within the 28 preceding five years or after having been convicted of a violation of 29 any subdivision of section seventy-nine-d of this article or of vehicu- 30 lar assault in the second or first degree, as defined, respectively, in 31 sections 120.03 and 120.04 of the penal law or of aggravated vehicular 32 assault, as defined in section 120.04-a of the penal law or of vehicular 33 manslaughter in the second or first degree, as defined, respectively, in 34 sections 125.12 and 125.13 of the penal law or of aggravated vehicular 35 homicide, as defined in section 125.14 of such law, two or more times 36 within the preceding ten years; or (iii) following the arraignment of 37 any person charged with or, at the discretion of the court, prior to the 38 sentencing of any person convicted of operating a vessel in violation of 39 subdivision three or five or paragraph (b) of subdivision four of 40 section seventy-nine-d of this article while such person has .15 of one 41 per centum or more by weight of alcohol in the person's blood as shown 42 by a chemical analysis of such person's blood, breath, urine or saliva 43 made pursuant to the provisions of section seventy-nine-g of this arti- 44 cle or in violation of paragraph (a) of subdivision four of section 45 seventy-nine-d of this article. 46 (c) Mandatory assessment; procedure. The assessment ordered by a court 47 pursuant to this section shall be performed by an alcohol or substance 48 abuse professional or a licensed agency which shall forward the results, 49 in writing, to the court and to the defendant or his or her counsel 50 within thirty days of the date of such order. 51 3. Authorized disposition. When a sentence of probation or a condi- 52 tional discharge is imposed upon a person who has been required to 53 undergo an alcohol or substance abuse and dependency assessment pursuant 54 to subdivision two of this section and where such assessment indicates 55 that such person is in need of treatment for alcohol or substance abuse 56 or dependency, the court shall require, as a condition of such sentence,A. 883 39 1 that such person participate in and successfully complete such treat- 2 ment. Such treatment shall be provided by an alcohol or substance abuse 3 professional or a licensed agency. 4 4. Any case wherein a court has accepted a plea pursuant to the 5 provisions of subparagraph (ii) of paragraph (a) of subdivision thirteen 6 of section seventy-nine-d of this article and such plea includes as a 7 condition thereof that the defendant attend and complete the alcohol and 8 drug rehabilitation program established pursuant to section seventy- 9 nine-j of this article, including any assessment and treatment required 10 thereby, shall be deemed to be in compliance with the provisions of this 11 section. 12 5. The chief administrator of the office of court administration shall 13 make available to all courts in this state with jurisdiction in criminal 14 cases a list of alcohol and substance abuse professionals and licensed 15 agencies as provided by the office of alcoholism and substance abuse 16 services pursuant to subdivision (g) of section 19.07 of the mental 17 hygiene law. 18 6. Confidentiality of records. (a) The records and content of all 19 screenings, assessments and treatment conducted pursuant to this 20 section, including the identity, diagnosis and prognosis of each indi- 21 vidual who is the subject of such records, and including any statements 22 or admissions of such individual made during the course of such screen- 23 ings, assessments and treatment, shall be confidential, shall not be 24 disclosed except as authorized by this subdivision, and shall not be 25 entered or received as evidence at any civil, criminal or administrative 26 trial, hearing or proceeding. No person, other than a defendant to whom 27 such records are disclosed, may redisclose such records. 28 (b) Consistent with Section 290 dd-2 of Title 42 of the United States 29 Code, as such law may, from time to time, be amended, such records and 30 content may only be disclosed as follows: 31 (i) to a court for the sole purpose of requiring a defendant charged 32 with or convicted of a violation of subdivision two, three, four, five, 33 six, or seven of section seventy-nine-d of this article to undergo alco- 34 hol or substance abuse or dependency assessment or treatment; 35 (ii) to the defendant or his or her authorized representative; and 36 (iii) to medical personnel to the extent necessary to meet a bona fide 37 medical emergency. 38 7. Effect of completion of treatment. Except as provided in subpara- 39 graph (ix) of paragraph (b) of subdivision three of section seventy- 40 nine-f or in subparagraph three of paragraph (d) of subdivision two of 41 section seventy-nine-g of this article, upon successful completion of 42 treatment ordered pursuant to this section as certified by the alcohol 43 or substance abuse professional or licensed agency which provided such 44 treatment, the defendant may apply to the commissioner on a form 45 provided for that purpose, for the termination of the suspension or 46 revocation order issued as a result of the defendant's conviction. In 47 the exercise of discretion, upon receipt of such application, and upon 48 payment of any civil penalties for which the defendant may be liable, 49 the commissioner is authorized to terminate such order or orders and 50 return the defendant's privilege to operate a vessel in this state. 51 However, the commissioner shall not issue any new privilege to operate a 52 vessel nor restore any such privilege where said issuance or restoration 53 is prohibited by subdivision three of section seventy-nine-f of this 54 article. 55 § 79-n. Driver and boater responsibility assessment. The commissioner 56 shall work with the commissioner of motor vehicles to provide access toA. 883 40 1 the driver and boater responsibility assessment as provided in section 2 eleven hundred ninety-nine of the vehicle and traffic law. 3 § 2. Section 1196 of the vehicle and traffic law is amended by adding 4 a new subdivision 8 to read as follows: 5 8. The provisions of this section shall also be applicable to any 6 person convicted of any violation of section seventy-nine-d of the navi- 7 gation law, or any person found to have refused a chemical test in 8 accordance with the applicable provisions of the navigation law. 9 § 3. Section 1197 of the vehicle and traffic law is amended by adding 10 a new subdivision 11 to read as follows: 11 11. The provisions of this section shall also be applicable to perti- 12 nent provisions of article four-B of the navigation law. 13 § 4. Section 1199 of the vehicle and traffic law, as added by section 14 1 of part E of chapter 59 of the laws of 2004, is amended to read as 15 follows: 16 § 1199. Driver and boater responsibility assessment. 1. In addition to 17 any fines, fees, penalties and surcharges authorized by law, any person 18 convicted of a violation of any subdivision of section eleven hundred 19 ninety-two of this article or section seventy-nine-d of the navigation 20 law, or any person found to have refused a chemical test in accordance 21 with section eleven hundred ninety-four of this article or section 22 seventy-nine-g of the navigation law not arising out of the same inci- 23 dent as a conviction for a violation of any of the provisions of section 24 eleven hundred ninety-two of this article or section seventy-nine-d of 25 the navigation law, shall become liable to the department for payment of 26 a driver and boater responsibility assessment as provided in this 27 section. 28 2. The amount of the driver and boater responsibility assessment under 29 this section shall be two hundred fifty dollars per year for a three- 30 year period. 31 3. Upon receipt of evidence that a person is liable for the driver and 32 boater responsibility assessment required by this section, the commis- 33 sioner shall notify such person by first class mail to the address of 34 such person on file with the department or at the current address 35 provided by the United States postal service of the amount of such 36 assessment, the time and manner of making required payments, and that 37 failure to make payment shall result in the suspension of his or her 38 driver's license or privilege of obtaining a driver's license or privi- 39 lege to operate a vessel. 40 4. If a person shall fail to pay any driver and boater responsibility 41 assessment as provided in this section, the commissioner shall suspend 42 such person's driver's license or privilege of obtaining a license or 43 privilege to operate a vessel. Such suspension shall remain in effect 44 until any and all outstanding driver and boater responsibility assess- 45 ments have been paid in full. 46 5. The provisions of this section shall also be applicable to any 47 person convicted of any violation of [section forty-nine-a] article 48 four-B of the navigation law, any person convicted of a violation of 49 section 25.24 of the parks, recreation and historic preservation law, or 50 any person found to have refused a chemical test in accordance with the 51 applicable provisions of either the navigation law or the parks, recre- 52 ation and historic preservation law not arising out of the same incident 53 as such conviction. 54 § 5. Subdivision 5 of section 710.20 of the criminal procedure law, as 55 amended by chapter 629 of the laws of 1998, is amended to read as 56 follows:A. 883 41 1 5. Consists of a chemical test of the defendant's blood administered 2 in violation of the provisions of subdivision three of section eleven 3 hundred ninety-four of the vehicle and traffic law, subdivision [eight] 4 three of section [forty-nine-a] seventy-nine-g of the navigation law, 5 subdivision seven of section 25.24 of the parks, recreation and historic 6 preservation law, or any other applicable law; or 7 § 6. Subdivision 4 of section 49 of the navigation law, as added by 8 chapter 805 of the laws of 1992, is amended to read as follows: 9 4. Whenever any police officer or peace officer authorized to enforce 10 the provisions of this chapter having reasonable cause to believe that a 11 person is operating a vessel in violation of section [forty-nine-a] 12 seventy-nine-d of this [article] chapter, or any other provision of this 13 article or article four-B of this chapter for which a suspension may be 14 imposed, such officer may demand of such person his or her name, address 15 and an explanation of his or her conduct. 16 § 7. Subdivision 1 of section 120.03 of the penal law, as amended by 17 chapter 732 of the laws of 2006, is amended to read as follows: 18 (1) operates a motor vehicle in violation of subdivision two, three, 19 four or four-a of section eleven hundred ninety-two of the vehicle and 20 traffic law or operates a vessel or public vessel in violation of [para-21graph (b), (c), (d) or (e) of] subdivision [two] three, five, six, or 22 seven of section [forty-nine-a] seventy-nine-d of the navigation law, 23 and as a result of such intoxication or impairment by the use of a drug, 24 or by the combined influence of drugs or of alcohol and any drug or 25 drugs, operates such motor vehicle, vessel or public vessel in a manner 26 that causes such serious physical injury to such other person, or 27 § 8. Subdivision 1 of section 125.12 of the penal law, as amended by 28 chapter 732 of the laws of 2006, is amended to read as follows: 29 (1) operates a motor vehicle in violation of subdivision two, three, 30 four or four-a of section eleven hundred ninety-two of the vehicle and 31 traffic law or operates a vessel or public vessel in violation of [para-32graph (b), (c), (d) or (e) of] subdivision [two] three, five, six, or 33 seven of section [forty-nine-a] seventy-nine-d of the navigation law, 34 and as a result of such intoxication or impairment by the use of a drug, 35 or by the combined influence of drugs or of alcohol and any drug or 36 drugs, operates such motor vehicle, vessel or public vessel in a manner 37 that causes the death of such other person, or 38 § 9. Subdivision 5 of section 160.55 of the criminal procedure law, as 39 amended by chapter 391 of the laws of 1998, is amended to read as 40 follows: 41 5. (a) When a criminal action or proceeding is terminated against a 42 person by the entry of a waiver of a hearing pursuant to paragraph (c) 43 of subdivision ten of section eleven hundred ninety-two of the vehicle 44 and traffic law or paragraph (c) of subdivision thirteen of section 45 [forty-nine-b] seventy-nine-d of the navigation law, the record of the 46 criminal action shall be sealed in accordance with this subdivision. 47 Upon the entry of such waiver, the court or the clerk of the court shall 48 immediately notify the commissioner of the division of criminal justice 49 services and the heads of all appropriate police departments and other 50 law enforcement agencies that a waiver has been entered and that the 51 record of the action shall be sealed when the person reaches the age of 52 twenty-one or three years from the date of commission of the offense, 53 whichever is the greater period of time. At the expiration of such peri- 54 od, the commissioner of the division of criminal justice services and 55 the heads of all appropriate police departments and other law enforce-A. 883 42 1 ment agencies shall take the actions required by paragraphs (a), (b) and 2 (c) of subdivision one of section 160.50 of this article. 3 (b) Where a person under the age of twenty-one is referred by the 4 police to the department of motor vehicles for action pursuant to 5 section eleven hundred ninety-two-a or eleven hundred ninety-four-a of 6 the vehicle and traffic law, or section [forty-nine-b] seventy-nine-e or 7 seventy-nine-h of the navigation law and a finding in favor of the 8 motorist or operator is rendered, the commissioner of the department of 9 motor vehicles shall, as soon as practicable, but not later than three 10 years from the date of commission of the offense or when such person 11 reaches the age of twenty-one, whichever is the greater period of time, 12 notify the commissioner of the division of criminal justice services and 13 the heads of all appropriate police departments and other law enforce- 14 ment agencies that such finding in favor of the motorist or operator was 15 rendered. Upon receipt of such notification, the commissioner of the 16 division of criminal justice services and the heads of such police 17 departments and other law enforcement agencies shall take the actions 18 required by paragraphs (a), (b) and (c) of subdivision one of section 19 160.50 of this article. 20 (c) Where a person under the age of twenty-one is referred by the 21 police to the department of motor vehicles for action pursuant to 22 section eleven hundred ninety-two-a or eleven hundred ninety-four-a of 23 the vehicle and traffic law, or section [forty-nine-b] seventy-nine-e or 24 seventy-nine-h of the navigation law, and no notification is received by 25 the commissioner of the division of criminal justice services and the 26 heads of all appropriate police departments and other law enforcement 27 agencies pursuant to paragraph (b) of this subdivision, such commission- 28 er of the division of criminal justice services and such heads of police 29 departments and other law enforcement agencies shall, after three years 30 from the date of commission of the offense or when the person reaches 31 the age of twenty-one, whichever is the greater period of time, take the 32 actions required by paragraphs (a), (b) and (c) of subdivision one of 33 section 160.50 of this article. 34 § 10. Paragraph (k) of subdivision 1 of section 201 of the vehicle and 35 traffic law, as amended by chapter 391 of the laws of 1998, is amended 36 to read as follows: 37 (k) any records, including any reproductions or electronically created 38 images of such records and including any records received by the commis- 39 sioner from a court pursuant to paragraph (c) of subdivision ten of 40 section eleven hundred ninety-two of this chapter or paragraph (c) of 41 paragraph thirteen of section [forty-nine-b] seventy-nine-d of the navi- 42 gation law, relating to a finding of a violation of section eleven 43 hundred ninety-two-a of this chapter or a waiver of the right to a hear- 44 ing under section eleven hundred ninety-four-a of this chapter or a 45 finding of a refusal following a hearing conducted pursuant to subdivi- 46 sion three of section eleven hundred ninety-four-a of this chapter or a 47 finding of a violation of subdivision four of section [forty-nine-b] 48 seventy-nine-g of the navigation law or a waiver of the right to a hear- 49 ing or a finding of refusal following a hearing conducted pursuant to 50 such section, after remaining on file for three years after such finding 51 or entry of such waiver or refusal or until the person that is found to 52 have violated such section reaches the age of twenty-one, whichever is 53 the greater period of time. Upon the expiration of the period for 54 destruction of records pursuant to this paragraph, the entirety of the 55 proceedings concerning the violation or alleged violation of such 56 section eleven hundred ninety-two-a of this chapter or such sectionA. 883 43 1 [forty-nine-b] seventy-nine-e of the navigation law, from the initial 2 stop and detention of the operator to the entering of a finding and 3 imposition of sanctions pursuant to any subdivision of section eleven 4 hundred ninety-four-a of this chapter or of section [forty-nine-b] 5 seventy-nine-h of the navigation law shall be deemed a nullity, and the 6 operator shall be restored, in contemplation of law, to the status he or 7 she occupied before the initial stop and prosecution. 8 § 11. This act shall take effect on the one hundred twentieth day 9 after it shall have become a law.
