§ 49-A — Operation of a vessel while under the influence of alcohol or drugs

New York § 49-A

• Jurisdiction: New York
• Law NAV: Navigation
• Part 1: Vessels, General
• Art. 4: No title

Text

§ 49-a. Operation of a vessel while under the influence of alcohol or\ndrugs. 1. Definitions. As used in this section, unless the context\nclearly indicates otherwise:\n (a) The term "vessel" shall be every description of watercraft or\nother artificial contrivance propelled in whole or in part by mechanical\npower and, which is used or capable of being used as a means of\ntransportation over water, and which is underway and not at anchor or\nmade fast to the shore or ground. The term "vessel" shall include a\n"public vessel" as defined herein unless otherwise specified.\n (b) The term "public vessel" shall mean and include every vessel which\nis propelled in whole or in part by mechanical power and is used or\noperated for commercial purposes on the navigable waters of the state;\nthat is either carrying passengers, carrying freight, towing, or for any\nother use, for which a compensation is received, either directly or\nwhere provided as an accommodation, advantage, facility or privilege at\nany place of public accommodation, resort or amusement.\n (c) The term "waters of the state" means all of the waterways or\nbodies of water located within New York state or that part of any body\nof water which is adjacent to New York state over which the state has\nterritorial jurisdiction, on which a vessel or public vessel may be used\nor operated, including Nassau and Suffolk counties.\n 2. Offenses: criminal penalties. (a) No person shall operate a vessel\nupon the waters of the state while his or her ability to operate such\nvessel is impaired by the consumption of alcohol. (1) A violation of\nthis subdivision shall be an offense and shall be punishable by a fine\nof not less than three hundred dollars nor more than five hundred\ndollars, or by imprisonment in a penitentiary or county jail for not\nmore than fifteen days, or by both such fine and imprisonment. (2) A\nperson who operates a vessel in violation of this subdivision after\nbeing convicted of a violation of any subdivision of this section within\nthe preceding five years shall be punished by a fine of not less than\nfive hundred dollars nor more than seven hundred fifty dollars, or by\nimprisonment of not more than thirty days in a penitentiary or county\njail or by both such fine and imprisonment. (3) A person who operates a\nvessel in violation of this subdivision after being convicted two or\nmore times of a violation of any subdivision of this section within the\npreceding ten years shall be guilty of a misdemeanor, and shall be\npunished by a fine of not less than seven hundred fifty dollars nor more\nthan fifteen hundred dollars, or by imprisonment of not more than one\nhundred eighty days in a penitentiary or county jail or by both such\nfine and imprisonment.\n (b) No such person shall operate a vessel other than a public vessel\nwhile he has .08 of one per centum or more by weight of alcohol in his\nblood, breath, urine, or saliva, as determined by the chemical test made\npursuant to the provisions of subdivision seven of this section.\n (c) No such person shall operate a public vessel while he has .04 of\none per centum or more by weight of alcohol in his blood, breath, urine,\nor saliva, as determined by the chemical test made pursuant to the\nprovisions of subdivision seven of this section.\n (d) No person shall operate a vessel while he is in an intoxicated\ncondition.\n (e) No person shall operate a vessel while his ability to operate such\nvessel is impaired by the use of a drug as defined by section one\nhundred fourteen-a of the vehicle and traffic law.\n (e-1) No person sixteen years of age or older shall operate a vessel\nin violation of paragraph (b), (d) or (e) of this subdivision while a\nchild who is fifteen years of age or less is a passenger in such vessel.\n (f)(1) A violation of paragraph (b), (c), (d) or (e) of this\nsubdivision shall be a misdemeanor and shall be punishable by\nimprisonment in a penitentiary or county jail for not more than one\nyear, or by a fine of not less than five hundred dollars nor more than\none thousand dollars, or by both such fine and imprisonment. (2) A\nperson who operates a vessel (i) in violation of paragraph (b), (c),\n(d), (e) or (e-1) of this subdivision after having been convicted of a\nviolation of paragraph (b), (c), (d), (e) or (e-1) of this subdivision,\nor of operating a vessel or public vessel while intoxicated or while\nunder the influence of drugs, within the preceding ten years, or (ii) in\nviolation of paragraph (e-1) of this subdivision, shall be guilty of a\nclass E felony and shall be punished by a period of imprisonment as\nprovided in the penal law, or by a fine of not less than one thousand\ndollars nor more than five thousand dollars, or by both such fine and\nimprisonment. (3) A person who operates a vessel in violation of\nparagraph (b), (c), (d), (e) or (e-1) of this subdivision after having\nbeen twice convicted of a violation of any of such paragraph (b), (c),\n(d), (e) or (e-1) of this subdivision or of operating a vessel or public\nvessel while intoxicated or under the influence of drugs, within the\npreceding ten years, shall be guilty of a class D felony and shall be\npunished by a fine of not less than two thousand dollars nor more than\nten thousand dollars or by a period of imprisonment as provided in the\npenal law, or by both such fine and imprisonment.\n 3. Privilege to operate a vessel; suspensions. (a) The court shall\nsuspend a person's privilege to operate a vessel and may suspend a\nvessel registration for:\n (1) a period of at least six but less than twelve months where an\noperator is convicted of a violation of paragraph (a) of subdivision two\nof this section. In determining the length of such suspension or\nsuspensions, the court may take into consideration the seriousness of\nthe offense and may impose a period of suspension whereby such\nsuspension may be in effect during a portion of the current or\nsubsequent boating season;\n (2) a period of twelve months where an operator is convicted of a\nviolation of paragraph (b), (c), (d) or (e) of subdivision two of this\nsection;\n (3) a period of twenty-four months where a person is convicted of (i)\na violation of paragraph (b), (c), (d), (e) or (e-1) of subdivision two\nof this section after having been convicted of a violation of paragraph\n(b), (c), (d), (e) or (e-1) of subdivision two of this section or of\noperating a vessel or public vessel while intoxicated or under the\ninfluence of drugs within the preceding ten years, or (ii) a violation\nof paragraph (e-1) of subdivision two of this section.\n (b) The court shall report each conviction recorded pursuant to this\nsection to the commissioner of motor vehicles and the commissioner of\nparks, recreation and historic preservation on forms provided by the\ndepartment of motor vehicles. Such reports shall include the length of\nany suspension imposed on the privilege to operate a vessel and any\nsuspension imposed against a vessel registration. The department of\nmotor vehicles shall maintain a record of all convictions and\nsuspensions in order to effectuate the provisions of this section.\n 4. (a) Operation of vessel while operating privileges have been\nsuspended. No person shall operate a vessel upon the waters of the state\nwhile operating privileges have been suspended pursuant to this section\nor section forty-nine-b of this article. A violation of the provisions\nof this paragraph shall be a violation and shall be punishable by a fine\nof not less than three hundred fifty dollars nor more than seven hundred\nfifty dollars or by imprisonment for a period of not more than ninety\ndays, or by both such fine and imprisonment.\n (b) A person who is in violation of the provisions of paragraph (a) of\nthis subdivision, and in addition is in violation of the provisions of\nany paragraph of subdivision two of this section arising out of the same\nincident, shall be guilty of a misdemeanor punishable by a fine of not\nless than five hundred dollars nor more than five thousand dollars or by\na period of imprisonment for a period of not more than one year or by\nboth such fine and imprisonment.\n 5. Sentencing limitations. Notwithstanding any provision of the penal\nlaw, no judge or magistrate shall impose a sentence of unconditional\ndischarge for a violation of paragraph (b), (c), (d), (e) or (e-1) of\nsubdivision two of this section nor shall he or she impose a sentence of\nconditional discharge unless such conditional discharge is accompanied\nby a sentence of a fine as provided in this section.\n 5-a. Sentencing; previous convictions. When sentencing a person for a\nviolation of paragraph (b), (c), (d), (e) or (e-1) of subdivision two of\nthis section pursuant to subparagraph two of paragraph (f) of\nsubdivision two of this section, the court shall consider any prior\nconvictions the person may have for a violation of subdivision two,\ntwo-a, three, four, or four-a of section eleven hundred ninety-two of\nthe vehicle and traffic law within the preceding ten years. When\nsentencing a person for a violation of paragraph (b), (c), (d), (e) or\n(e-1) of subdivision two of this section pursuant to subparagraph three\nof paragraph (f) of subdivision two of this section, the court shall\nconsider any prior convictions the person may have for a violation of\nsubdivision two, two-a, three, four, or four-a of section eleven hundred\nninety-two of the vehicle and traffic law within the preceding ten\nyears. When sentencing a person for a violation of subparagraph two of\nparagraph (a) of subdivision two of this section, the court shall\nconsider any prior convictions the person may have for a violation of\nany subdivision of section eleven hundred ninety-two of the vehicle and\ntraffic law within the preceding five years. When sentencing a person\nfor a violation of subparagraph three of paragraph (a) of subdivision\ntwo of this section, the court shall consider any prior convictions the\nperson may have for a violation of any subdivision of section eleven\nhundred ninety-two of the vehicle and traffic law within the preceding\nten years.\n 6. Arrest and testing. (a) Notwithstanding the provisions of section\n140.10 of the criminal procedure law, a police officer may, without a\nwarrant, arrest a person, in case of a violation of any paragraph of\nsubdivision two of this section, if such violation is coupled with an\naccident or collision in which such person is involved, which in fact\nhad been committed, though not in the police officer's presence, when he\nhas reasonable cause to believe that the violation was committed by such\nperson. For the purposes of this subdivision police officer shall also\ninclude a peace officer authorized to enforce this chapter when the\nalleged violation constitutes a crime.\n (b) Breath test for operators of vessel. Every person operating a\nvessel on the waters of the state which has been involved in an accident\nor which is operated in violation of any of the provisions of this\nsection which regulate the manner in which a vessel is to be properly\noperated while underway shall, at the request of a police officer,\nsubmit to a breath test to be administered by the police officer. If\nsuch test indicates that such operator has consumed alcohol, the police\nofficer may request such operator to submit to a chemical test in the\nmanner set forth in subdivision seven of this section. For the purposes\nof this section, a vessel is being "operated" only when such vessel is\nunderway and is being propelled in whole or in part by mechanical power.\n 7. Chemical tests. (a) Any person who operates a vessel on the waters\nof the state shall be requested to consent to a chemical test of one or\nmore of the following: breath, blood, urine, or saliva for the purpose\nof determining the alcoholic or drug content of his blood, provided that\nsuch test is administered at the direction of a police officer: (1)\nhaving reasonable cause to believe such person to have been operating in\nviolation of this subdivision or paragraph (a), (b), (c), (d), (e) or\n(e-1) of subdivision two of this section and within two hours after such\nperson has been placed under arrest for any such violation or (2) within\ntwo hours after a breath test as provided in paragraph (b) of\nsubdivision six of this section indicates that alcohol has been consumed\nby such person and in accordance with the rules and regulations\nestablished by the police force of which the officer is a member.\n (b) If such person having been placed under arrest or after a breath\ntest indicates the presence of alcohol in the person's system and having\nthereafter been requested to submit to such chemical test and having\nbeen informed that the person's privilege to operate a vessel shall be\nimmediately suspended for refusal to submit to such chemical test or any\nportion thereof, whether or not the person is found guilty of the charge\nfor which such person is arrested, refuses to submit to such chemical\ntest or any portion thereof, unless a court order has been granted\npursuant to subdivision eight of this section, the test shall not be\ngiven and a written report of such refusal shall be immediately made by\nthe police officer before whom such refusal was made. Such report may be\nverified by having the report sworn to, or by affixing to such report a\nform notice that false statements made therein are punishable as a class\nA misdemeanor pursuant to section 210.45 of the penal law and such form\nnotice together with the subscription of the deponent shall constitute a\nverification of the report. The report of the police officer shall set\nforth reasonable grounds to believe such arrested person to have been\noperating a vessel in violation of any paragraph of subdivision two of\nthis section, that said person had refused to submit to such chemical\ntest, and that no chemical test was administered pursuant to the\nrequirements of subdivision eight of this section. The report shall be\npresented to the court upon the arraignment of the arrested person. The\nprivilege to operate a vessel shall, upon the basis of such written\nreport, be temporarily suspended by the court without notice pending the\ndetermination of a hearing as provided herein. Copies of such report\nmust be transmitted by the court to the commissioner of parks,\nrecreation and historic preservation and the commissioner of motor\nvehicles and such transmittal may not be waived even with the consent of\nall the parties. Such report shall be forwarded to each commissioner\nwithin forty-eight hours of such arraignment. The court shall provide\nsuch person with a hearing date schedule, a waiver form, and such other\ninformation as may be required by the commissioner of motor vehicles. If\na hearing, as provided for in paragraph (c) of this subdivision, is\nwaived by such person, the commissioner of motor vehicles shall\nimmediately suspend the privilege to operate a vessel, as of the date of\nreceipt of such waiver in accordance with the provisions of paragraph\n(d) of this subdivision.\n (c) Any person whose privilege to operate a vessel has been suspended\npursuant to paragraph (b) of this subdivision is entitled to a hearing\nin accordance with a hearing schedule to be promulgated by the\ncommissioner of motor vehicles. If the department fails to provide for\nsuch hearing fifteen days after the date of the arraignment of the\narrested person, the privilege to operate a vessel of such person shall\nbe reinstated pending a hearing pursuant to this section. The hearing\nshall be limited to the following issues: (1) did the police officer\nhave reasonable cause to believe that such person had been operating a\nvessel in violation of any paragraph of subdivision two of this section;\n(2) did the police officer make a lawful arrest of such person; (3) was\nsuch person given sufficient warning, in clear or unequivocal language,\nprior to such refusal that such refusal to submit to such chemical test\nor any portion thereof, would result in the immediate suspension of such\nperson's privilege to operate a vessel whether or not such person is\nfound guilty of the charge for which the arrest was made; and (4) did\nsuch person refuse to submit to such chemical test or any portion\nthereof. If, after such hearing, the hearing officer, acting on behalf\nof the commissioner of motor vehicles, finds on any one of said issues\nin the negative, the hearing officer shall immediately terminate any\nsuspension arising from such refusal. If, after such hearing, the\nhearing officer, acting on behalf of the commissioner of motor vehicles\nfinds all of the issues in the affirmative, such officer shall\nimmediately suspend the privilege to operate a vessel in accordance with\nthe provisions of paragraph (d) of this subdivision. A person who has\nhad the privilege to operate a vessel suspended pursuant to this\nsubdivision may appeal the findings of the hearing officer in accordance\nwith the provisions of article three-A of the vehicle and traffic law.\nAny person may waive the right to a hearing under this section. Failure\nby such person to appear for the scheduled hearing shall constitute a\nwaiver of such hearing, provided, however, that such person may petition\nthe commissioner of motor vehicles for a new hearing which shall be held\nas soon as practicable.\n (d) (1) Any privilege to operate a vessel which has been suspended\npursuant to paragraph (c) of this subdivision shall not be restored for\nsix months after such suspension. However, no such privilege shall be\nrestored for at least one year after such suspension in any case where\nthe person was under the age of twenty-one at the time of the offense,\nhas had a prior suspension resulting from refusal to submit to a\nchemical test pursuant to this subdivision or subdivision six of section\nforty-nine-b of this article, or has been convicted of a violation of\nany paragraph of subdivision two of this section not arising out of the\nsame incident, within the five years immediately preceding the date of\nsuch suspension; provided, however, a prior finding that a person under\nthe age of twenty-one has refused to submit to a chemical test pursuant\nto such subdivision six of section forty-nine-b of this article shall\nhave the same effect as a prior finding of a refusal pursuant to this\nsubdivision solely for the purpose of determining the length of any\nsuspension required to be imposed under any provision of this article,\nprovided that the subsequent offense or refusal is committed or occurred\nprior to the expiration of the retention period for such prior refusal\nas set forth in paragraph (k) of subdivision one of section two hundred\none of the vehicle and traffic law. Notwithstanding any provision of\nthis paragraph to the contrary, any privilege to operate a vessel which\nhas been suspended pursuant to paragraph (c) of this subdivision, where\nthe person was under the age of twenty-one at the time of the refusal,\nand such person under the age of twenty-one has a prior finding,\nconviction or youthful offender adjudication resulting from a violation\nof this section or section forty-nine-b of this article, not arising\nfrom the same incident, shall not be restored for at least one year or\nuntil such person reaches the age of twenty-one years, whichever is the\ngreater period of time.\n (2) Any person whose privilege to operate a vessel is suspended\npursuant to the provisions of this subdivision shall also be liable for\na civil penalty in the amount of two hundred dollars except that if such\nsuspension is a second or subsequent suspension pursuant to this\nsubdivision issued within a five year period, or such person has been\nconvicted of a violation of any paragraph of subdivision two of this\nsection within the past five years not arising out of the same incident,\nthe civil penalty shall be in the amount of five hundred dollars. The\nprivilege to operate a vessel shall not be restored to such person\nunless such penalty has been paid. The first one hundred dollars of each\npenalty collected by the department of motor vehicles pursuant to the\nprovisions of this subdivision shall be paid to the commissioner of\nmotor vehicles for deposit to the general fund and the remainder of all\nsuch penalties shall be paid to the commissioner of parks, recreation\nand historic preservation for deposit in the "I Love NY Waterways"\nboating safety fund established pursuant to section ninety-seven-nn of\nthe state finance law.\n (e) The commissioner of motor vehicles in consultation with the\ncommissioner of parks, recreation and historic preservation shall\npromulgate such rules and regulations as may be necessary to effectuate\nthe provisions of this subdivision.\n (f) Evidence of a refusal to submit to such chemical test shall be\nadmissible in any trial, proceeding or hearing based upon a violation of\nthe provisions of this section, but only upon a showing that the person\nwas given sufficient warning, in clear and unequivocal language, of the\neffect of such refusal and that the person persisted in his or her\nrefusal.\n (g) Upon the request of the person tested, the results of such test\nshall be made available to him or her.\n 8. Compulsory chemical tests. (a) Notwithstanding the provisions of\nsubdivision seven of this section, no person who operates a vessel in\nthe waters of this state may refuse to submit to a chemical test of one\nor more of the following: breath, blood, urine or saliva, for the\npurpose of determining the alcoholic and/or drug content of the blood\nwhen a court order for such chemical test has been issued in accordance\nwith the provisions of this subdivision.\n (b) Upon refusal by any person to submit to a chemical test or any\nportion thereof as described in paragraph (a) of this subdivision, the\ntest shall not be given unless a police officer or a district attorney,\nas defined in subdivision thirty-two of section 1.20 of the criminal\nprocedure law, requests and obtains a court order to compel a person to\nsubmit to a chemical test to determine the alcoholic or drug content of\nthe person's blood upon a finding of reasonable cause to believe that:\n (1) such person was the operator of a vessel and in the course of such\noperation a person other than the operator was killed or suffered\nserious physical injury as defined in section 10.00 of the penal law;\nand\n (2) (i) either such person operated the vessel in violation of any\nparagraph of subdivision two of this section, or\n (ii) a breath test administered by a police officer in accordance with\nsubdivision six of this section indicates that alcohol has been consumed\nby such person; and\n (3) such person has been placed under lawful arrest; and\n (4) such person has refused to submit to a chemical test or any\nportion thereof, requested in accordance with the provisions of\nsubdivision seven of this section or is unable to give consent to such a\ntest.\n (c) For the purpose of this subdivision "reasonable cause" shall be\ndetermined by viewing the totality of circumstances surrounding the\nincident which, when taken together, indicate that the operator was\noperating a vessel in violation of any paragraph of subdivision two of\nthis section. Such circumstances may include, but are not limited to:\nevidence that the operator was operating a vessel in violation of any\nprovision of this chapter which regulates the manner in which a vessel\nis to be properly operated while underway at the time of the incident;\nany visible indication of alcohol or drug consumption or impairment by\nthe operator; any other evidence surrounding the circumstances of the\nincident which indicates that the operator has been operating a vessel\nwhile impaired by the consumption of alcohol or drugs or was intoxicated\nat the time of the incident.\n (d) (1) An application for a court order to compel submission to a\nchemical test or any portion thereof, may be made to any supreme court\njustice, county court judge or district court judge in the judicial\ndistrict in which the incident occurred, or if the incident occurred in\nthe city of New York before any supreme court justice or judge of the\ncriminal court of the city of New York. Such application may be\ncommunicated by telephone, radio or other means of electronic\ncommunication, or in person.\n (2) The applicant must provide identification by name and title and\nmust state the purpose of the communication. Upon being advised that an\napplication for a court order to compel submission to a chemical test is\nbeing made, the court shall place under oath the applicant and any other\nperson providing information in support of the application as provided\nin subparagraph three of this paragraph. After being sworn the applicant\nmust state that the person from whom the chemical test was requested was\nthe operator of a vessel and in the course of such operation a person,\nother than the operator, has been killed or seriously injured and, based\nupon the totality of circumstances, there is reasonable cause to believe\nthat such person was operating a vessel in violation of any paragraph of\nsubdivision two of this section and, after being placed under lawful\narrest such person refused to submit to a chemical test or any portion\nthereof, in accordance with the provisions of this section or is unable\nto give consent to such a test or any portion thereof. The applicant\nmust make specific allegations of fact to support such statement. Any\nother person properly identified, may present sworn allegations of fact\nin support of the applicant's statement.\n (3) Upon being advised that an oral application for a court order to\ncompel a person to submit to a chemical test is being made, a judge or\njustice shall place under oath the applicant and any other person\nproviding information in support of the application. Such oath or oaths\nand all of the remaining communication must be recorded, either by means\nof a voice recording device or verbatim stenographic or verbatim\nlonghand notes. If a voice recording device is used or a stenographic\nrecord made, the judge must have the record transcribed, certify to the\naccuracy of the transcription and file the original record and\ntranscription with the court within seventy-two hours of the issuance of\nthe court order. If the longhand notes are taken, the judge shall\nsubscribe a copy and file it with the court within twenty-four hours of\nthe issuance of the order.\n (4) If the court is satisfied that the requirements for the issuance\nof a court order pursuant to the provisions of paragraph (b) of this\nsubdivision have been met, it may grant the application and issue an\norder requiring the accused to submit to a chemical test to determine\nthe alcoholic and/or drug content of his blood and ordering the\nwithdrawal of a blood sample in accordance with the provisions of\nsubdivision nine of this section. When a judge or justice determines to\nissue an order to compel submission to a chemical test based on an oral\napplication, the applicant therefor shall prepare the order in\naccordance with the instructions of the judge or justice. In all cases\nthe order shall include the name of the issuing judge or justice, the\nname of the applicant, and the date and time it was issued. It must be\nsigned by the judge or justice if issued in person, or by the applicant\nif issued orally.\n (5) Any false statement by an applicant or any other person in support\nof an application for a court order shall subject such person to the\noffenses for perjury set forth in article two hundred ten of the penal\nlaw.\n (e) An order issued pursuant to the provisions of this subdivision\nshall require that a chemical test to determine the alcoholic and/or\ndrug content of the operator's blood must be administered. The\nprovisions of paragraphs (a), (b) and (c) of subdivision nine of this\nsection shall be applicable to any chemical test administered pursuant\nto this section.\n (f) A defendant who has been compelled to submit to a chemical test\npursuant to the provisions of this subdivision may move for the\nsuppression of such evidence in accordance with article seven hundred\nten of the criminal procedure law on the grounds that the order was\nobtained and the test administered in violation of the provisions of\nthis subdivision or any other applicable law.\n 9. Testing procedures. (a) At the request of a police officer, the\nfollowing persons may withdraw blood for the purpose of determining the\nalcohol or drug content therein: (1) a physician, a registered\nprofessional nurse or a registered physician's assistant; or (2) under\nthe supervision and at the direction of a physician: a medical\nlaboratory technician or medical technologist as classified by civil\nservice; a phlebotomist; an advanced emergency medical technician as\ncertified by the department of health, or a medical laboratory\ntechnician or medical technologist employed by a clinical laboratory\napproved under title five of article five of the public health law. This\nlimitation shall not apply to the taking of a urine, saliva or breath\nspecimen.\n (b) No person entitled to withdraw blood pursuant to paragraph (a) of\nthis subdivision or hospital employing such person and no other employer\nof such person shall be sued or held liable for any act done or omitted\nin the course of withdrawing blood at the request of a police officer or\npeace officer acting pursuant to his special duties pursuant to this\nsubdivision.\n (c) Any person who may have a cause of action arising from the\nwithdrawal of blood as aforesaid, for which no personal liability exists\nunder paragraph (b) of this subdivision, may maintain such action\nagainst the state if the person entitled to withdraw blood pursuant to\nparagraph (a) of this subdivision acted at the request of a police\nofficer or peace officer acting pursuant to his special duties, employed\nby the state, or against the appropriate political subdivision of the\nstate if the person acted at the request of a police officer or peace\nofficer acting pursuant to his special duties, employed by a political\nsubdivision of the state. No action shall be maintained pursuant to this\nparagraph unless notice of claim is duly filed or served in compliance\nwith law.\n (d) Notwithstanding the foregoing provisions of this subdivision, an\naction may be maintained by the state or a political subdivision thereof\nagainst a person entitled to withdraw blood pursuant to paragraph (a) of\nthis subdivision or hospital employing such person for whose act or\nomission the state or the political subdivision has been held liable\nunder this subdivision to recover damages, not exceeding the amount\nawarded to the claimant, that may have been sustained by the state or\nthe political subdivision by reason of gross negligence on the part of\nsuch person entitled to withdraw blood.\n (e) The testimony of any person, other than a physician, entitled to\ndraw blood pursuant to paragraph (a) of this subdivision in respect to\nany such withdrawal of blood made by him may be received in evidence\nwith the same weight, force and effect as if such withdrawal of blood\nwere made by a physician.\n (f) The provisions of paragraphs (b), (c) and (d) of this subdivision\nshall also apply with regard to any person employed by a hospital as\nsecurity personnel for any act done or omitted in the course of\nwithdrawing blood at the request of a police officer pursuant to a court\norder in accordance with this subdivision.\n (g) The person tested shall be permitted to choose a physician to\nadminister a chemical test in addition to the one administered at the\ndirection of the police officer.\n 10. Chemical test evidence. (a) Upon the trial of any such action or\nproceeding arising out of actions alleged to have been committed by any\nperson arrested for a violation of any paragraph of subdivision two of\nthis section, the court shall admit evidence of the amount of alcohol or\ndrugs in the defendant's blood as shown by a test administered pursuant\nto the provisions of subdivision seven or eight of this section.\n (b) The following effect shall be given to evidence of blood alcohol\ncontent, as determined by such tests, of a person arrested for a\nviolation of any paragraph of subdivision two of this section and who\nwas operating a vessel other than a public vessel:\n (1) evidence that there was .05 of one per centum or less by weight of\nalcohol in such person's blood shall be prima facie evidence that the\nability of such person to operate a vessel was not impaired by the\nconsumption of alcohol, and that such person was not in an intoxicated\ncondition.\n (2) evidence that there was more than .05 of one per centum but less\nthan .07 of one per centum of weight in such person's blood shall be\nprima facie evidence that such person was not in an intoxicated\ncondition, but such evidence shall be relevant evidence but not be given\nprima facie effect, in determining whether the ability of such person to\noperate a vessel was impaired by the consumption of alcohol.\n (3) evidence that there was .07 of one per centum or more but less\nthan .08 of one per centum by weight of alcohol in his blood shall be\nprima facie evidence that such person was not in an intoxicated\ncondition, but such evidence shall be given prima facie effect in\ndetermining whether the ability of such person to operate a vessel was\nimpaired by the consumption of alcohol.\n (c) Evidence of a refusal to submit to a chemical test or any portion\nthereof shall be admissible in any trial or hearing provided the request\nto submit to such a test was made in accordance with the provisions of\nsubdivision seven of this section.\n 11. Limitations. (a) A vessel operator may be convicted of a violation\nof paragraphs (a), (b), (d) and (e) of subdivision two of this section,\nnotwithstanding that the charge laid before the court alleged a\nviolation of paragraph (b), (d) or (e) of subdivision two of this\nsection, and regardless of whether or not such condition is based on a\nplea of guilty.\n (b) In any case wherein the charge laid before the court alleges a\nviolation of paragraph (b), (c), (d) or (e) of subdivision two of this\nsection, any plea of guilty thereafter entered in satisfaction of such\ncharge must include at least a plea of guilty to the violation of the\nprovisions of one of the paragraphs of such subdivision two and no other\ndisposition by plea of guilty to any other charge in satisfaction of\nsuch charge shall be authorized; provided, however, if the district\nattorney upon reviewing the available evidence determines that the\ncharge of a violation of subdivision two of this section is not\nwarranted, he may consent, and the court may allow a disposition by plea\nof guilty to another charge in satisfaction of such charge.\n 12. Suspension pending prosecution. (a) Without notice, pending any\nprosecution, the court may suspend the right to operate a vessel where\nthe vessel operator has been charged with vehicular assault in the\nsecond degree or vehicular manslaughter in the second degree as defined,\nrespectively, in sections 120.03 and 125.12 of the penal law.\n (b) A suspension under this subdivision shall occur no later than\ntwenty days after the vessel operator's first appearance before the\ncourt on the charges or at the conclusion of all proceedings required\nfor the arraignment, whichever comes first. In order for the court to\nimpose such suspension it must find that the accusatory instrument\nconforms to the requirements of section 100.40 of the criminal procedure\nlaw and there exists reasonable cause to believe that the accused\noperated a vessel in violation of section 120.03 or 125.12 of the penal\nlaw. At such time the operator shall be entitled to an opportunity to\nmake a statement regarding the enumerated issues and to present evidence\ntending to rebut the court's findings. Where such suspension is imposed\nupon such pending charge and the operator has requested a hearing\npursuant to article one hundred eighty of the criminal procedure law,\nthe court shall conduct such hearing. If upon completion of the hearing,\nthe court fails to find that there is reasonable cause to believe that\nthe operator committed a felony under section 120.03 or 125.12 of the\npenal law the court shall promptly direct restoration of such operating\nprivileges to the operator unless such operating privileges are\nsuspended or revoked pursuant to any other provision of this chapter.\n 13. Boating safety course. Upon the conviction of any subdivision of\nthis section, the court shall, in addition to any other penalties\ninvoked under this section, require the convicted person, as a condition\nof the sentence, to complete a boating safety course of the state, U.S.\nPower Squadrons, U.S. Coast Guard Auxiliary or a powerboating course or\ncourses offered by the United States sailing association which are\napproved by the commissioner and show proof of successful completion of\nsuch course to the court or its designee.\n 14. Report. Where a law enforcement officer alleges a violation of\nparagraph (e-1) of subdivision two of this section and the operator of\nthe vessel is sixteen years of age or older and is a parent, guardian,\ncustodian of, or other person legally responsible for, a child who is\nfifteen years of age or less who is a passenger in such vessel, such\nofficer shall report or cause a report to be made in accordance with\ntitle six of article six of the social services law, if applicable.\n