§ 49-B — Operating a vessel after having consumed alcohol; under the age of twenty-one; per se

§ 49-b. Operating a vessel after having consumed alcohol; under the\nage of twenty-one; per se. 1. Prohibition. No person under the age of\ntwenty-one shall operate a vessel upon the waters of this state after\nhaving consumed alcohol as defined in this section. For purposes of this\nsection, a person under the age of twenty-one is deemed to have consumed\nalcohol only if such person has .02 of one per centum or more but not\nmore than .07 of one per centum by weight of alcohol in the person's\nblood, as shown by chemical analysis of such person's blood, breath,\nurine or saliva, made in accordance with the provisions of subdivision\nfour of section eleven hundred ninety-four of the vehicle and traffic\nlaw. Any person who operates a vessel in violation of this section, and\nwho is not charged with a violation of subdivision two of section\nforty-nine-a of this article arising out of the same incident shall be\nreferred to the department of motor vehicles for action in accordance\nwith the provisions of this section. Notwithstanding any provision of\nlaw to the contrary, a finding that a person under the age of twenty-one\noperated a vessel after having consumed alcohol in violation of this\nsection is not a judgment of conviction for a crime or any other\noffense.\n 2. Breath test for operators of vessel. Every person under the age of\ntwenty-one operating a vessel on the waters of the state which has been\ninvolved in an accident or which is operated in violation of any of the\nprovisions of this section or section forty-nine-a of this article which\nregulate the manner in which a vessel is to be properly operated while\nunderway shall, at the request of a police officer, submit to a breath\ntest to be administered by the police officer. If such test indicates\nthat such operator has consumed alcohol, the police officer may request\nsuch operator to submit to a chemical test in the manner set forth in\nthis section. For the purposes of this section, a vessel is being\n"operated" only when such vessel is underway and is being propelled in\nwhole or in part by mechanical power.\n 3. Chemical tests. (a) Any person under the age of twenty-one who\noperates a vessel on the waters of the state shall be requested to\nconsent to a chemical test of one or more of the following: breath,\nblood, urine, or saliva for the purpose of determining the alcoholic or\ndrug content of his blood, provided that such test is administered at\nthe direction of a police officer: (1) having reasonable grounds to\nbelieve such person to have been operating in violation of this section\nor paragraph (a), (b), (c), (d) or (e) of subdivision two of section\nforty-nine-a of this article and within two hours after such person has\nbeen placed under arrest, or detained pursuant to paragraph (c) of this\nsubdivision, for any such violation or (2) within two hours after a\nbreath test as provided in subdivision two of this section indicates\nthat alcohol has been consumed by such person and in accordance with the\nrules and regulations established by the police force of which the\nofficer is a member.\n (a-1) If such person having been detained pursuant to paragraph (c) of\nthis subdivision, and having thereafter been requested to submit to such\nchemical test and having been informed that the person's privilege to\noperate a vessel and any non-resident operating privilege shall be\nsuspended for refusal to submit to such chemical test or any portion\nthereof, whether or not there is a finding of operating a vessel after\nhaving consumed alcohol, refuses to submit to such chemical test or any\nportion thereof, unless a court order has been granted pursuant to\nsubdivision eight of section forty-nine-a of this article, the test\nshall not be given and a written report of such refusal shall be\nimmediately made by the police officer before whom such refusal was\nmade. Such report may be verified by having the report sworn to, or by\naffixing to such report a form notice that false statements made therein\nare punishable as a class A misdemeanor pursuant to section 210.45 of\nthe penal law and such form notice together with the subscription of the\ndeponent shall constitute a verification of the report. The report of\nthe police officer shall set forth reasonable grounds to believe such\nperson to have been operating a vessel in violation of this section, and\nthat said person had refused to submit to such chemical test. The report\nshall be forwarded to the commissioner of motor vehicles within\nforty-eight hours in a manner to be prescribed by such commissioner of\nmotor vehicles, and all subsequent proceedings with regard to refusal to\nsubmit to such chemical test by such person shall be as set forth in\nsubdivision six of this section. The police officer shall provide such\nperson with a hearing date schedule, a waiver form, and such other\ninformation as may be required by the commissioner of motor vehicles.\n (b) For the purposes of this subdivision, "reasonable grounds" to\nbelieve that a person has been operating a vessel after having consumed\nalcohol in violation of this section shall be determined by viewing the\ntotality of circumstances surrounding the incident which, when taken\ntogether, indicate that the operator was operating a vessel in violation\nof this section. Such circumstances may include any visible or\nbehavioral indication of alcohol consumption by the operator, the\nexistence of an open container containing or having contained an\nalcoholic beverage in or around the vessel being operated, or any other\nevidence surrounding the circumstances of the incident which indicates\nthat the operator has been operating a vessel after having consumed\nalcohol at the time of the incident.\n (c) Notwithstanding any other provision of law to the contrary, no\nperson under the age of twenty-one shall be arrested for an alleged\nviolation of this section. However, a person under the age of twenty-one\nfor whom a chemical test is authorized pursuant to this subdivision may\nbe temporarily detained by the police solely for the purpose of\nrequesting or administering such chemical test whenever arrest without a\nwarrant for a petty offense would be authorized in accordance with the\nprovisions of section 140.10 of the criminal procedure law.\n 4. Chemical test report and hearing. (a) Whenever a chemical test of\nthe breath, blood, urine or saliva of an operator who is under the age\nof twenty-one indicates that such person has operated a vessel in\nviolation of this section, and such person is not charged with violating\nany subdivision of section forty-nine-a of this article arising out of\nthe same incident, the police officer who administered the test shall\nforward a report of the results of such test to the department of motor\nvehicles within twenty-four hours of the time when such results are\navailable in a manner prescribed by the commissioner of motor vehicles,\nand the operator shall be given a hearing notice as provided in\nsubdivision five of this section, to appear before a hearing officer in\nthe county where the chemical test was administered, or in an adjoining\ncounty under such circumstances as prescribed by the commissioner of\nmotor vehicles, on a date to be established in accordance with a\nschedule promulgated by the commissioner of motor vehicles. Such hearing\nshall occur within thirty days of, but not less than forty-eight hours\nfrom, the date that the chemical test was administered, provided,\nhowever, where the commissioner of motor vehicles determines, based upon\nthe availability of hearing officers and the anticipated volume of\nhearings at a particular location, that the scheduling of such hearing\nwithin thirty days would impair the timely scheduling or conducting of\nother hearings, such hearing shall be scheduled at the next hearing date\nfor such particular location. When providing the operator with such\nhearing notice, the police officer shall also give to the operator, and\nshall, prior to the commencement of the hearing, provide to the\ndepartment of motor vehicles, copies of the following reports, documents\nand materials: any written report or document, or portion thereof,\nconcerning a physical examination, a scientific test or experiment,\nincluding the most recent record of inspection, or calibration or repair\nof machines or instruments utilized to perform such scientific tests or\nexperiments and the certification certificate, if any, held by the\noperator of the machine or instrument, which tests or examinations were\nmade by or at the request or direction of a public servant engaged in\nlaw enforcement activity. The report of the police officer shall 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\nverification of the report.\n (b) Every person under the age of twenty-one who is alleged to have\noperated a vessel after having consumed alcohol as set forth in this\nsection, and who is not charged with violating any subdivision of\nsection forty-nine-a of this article arising out of the same incident,\nis entitled to a hearing before a hearing officer in accordance with the\nprovisions of this section. Unless otherwise provided by law, the\nprivilege to operate a vessel or any non-resident operating privilege of\nsuch person shall not be suspended or revoked prior to the scheduled\ndate for such hearing.\n (i) The hearing shall be limited to the following issues: (1) did such\nperson operate the vessel; (2) was a valid request to submit to a\nchemical test made by the police officer in accordance with the\nprovisions of this section; (3) was such person less than twenty-one\nyears of age at the time of operation of the vessel; (4) was the\nchemical test properly administered in accordance with the provisions of\nthis section; (5) did the test find that such person had operated a\nvessel after having consumed alcohol as defined in this section; and (6)\ndid the police officer make a lawful stop of such person. The burden of\nproof shall be on the police officer to prove each of these issues by\nclear and convincing evidence.\n (ii) Every person who is entitled to a hearing pursuant to this\nsubdivision has the right to be present at the hearing; the right to be\nrepresented by attorney, or in the hearing officer's discretion, by any\nother person the operator chooses; the right to receive and review\ndiscovery materials as provided in this subdivision; the right not to\ntestify; the right to present evidence and witnesses in his own behalf,\nthe right to cross examine adverse witnesses, and the right to appeal\nfrom an adverse determination in accordance with article three-A of the\nvehicle and traffic law. Any person representing the operator must\nconform to the standards of conduct required of attorneys appearing\nbefore state courts, and failure to conform to these standards will be\ngrounds for declining to permit his continued appearance in the hearing.\n (iii) Hearings conducted pursuant to this subdivision shall be in\naccordance with this subdivision and with the provisions applicable to\nthe adjudication of traffic infractions pursuant to the following\nprovisions of part 124 of title fifteen of the codes, rules and\nregulations of the state of New York: paragraph (b) of section 124.1\nregarding the opening statement; paragraph (b) of section 124.2\nregarding the right to representation and to remain silent and\nparagraphs (a) through (e) of section 124.4 regarding the conduct of the\nhearing, procedure and refusal; provided, however, that nothing\ncontained in this subparagraph shall be deemed to preclude a hearing\nofficer from changing the order of a hearing conducted pursuant to this\nsubdivision as justice may require and for good cause shown.\n (iv) The rules governing receipt of evidence in a court of law shall\nnot apply in a hearing conducted pursuant to this subdivision except as\nfollows:\n (1) on the merits of the charge, and whether or not a party objects,\nthe hearing officer shall exclude from consideration the following: a\nprivileged communication; evidence which, for constitutional reasons,\nwould not be admissible in a court of law; evidence of prior misconduct,\nincompetency or illness, except where such evidence would be admissible\nin a court of law; evidence which is irrelevant or immaterial;\n (2) no negative inference shall be drawn from the operator's\nexercising the right not to testify.\n (v) If, after such hearing, the hearing officer, acting on behalf of\nthe commissioner of motor vehicles, finds all of the issues set forth in\nthis subdivision in the affirmative, the hearing officer shall suspend\nthe operating privilege or non-resident operating privilege of such\nperson in accordance with the time periods set forth in this section.\nIf, after such hearing, the hearing officer, acting on behalf of the\ncommissioner of motor vehicles, finds any of said issues in the\nnegative, the hearing officer must find that the operator did not\noperate a vessel after having consumed alcohol.\n (vi) A person who has had a privilege to operate a vessel or\nnon-resident operating privilege suspended pursuant to the provisions of\nthis section may appeal the finding of the hearing officer in accordance\nwith the provisions of article three-A of the vehicle and traffic law.\n (c) Unless an adjournment of the hearing date has been granted, upon\nthe operator's failure to appear for a scheduled hearing, the\ncommissioner shall suspend the privilege to operate a vessel or\nnon-resident operating privilege until the operator petitions the\ncommissioner of motor vehicles and a rescheduled hearing is conducted,\nprovided, however, the commissioner shall restore such person's\noperating privilege or non-resident operating privilege if such\nrescheduled hearing is adjourned at the request of a person other than\nthe operator. Requests for adjournments shall be made and determined in\naccordance with regulations promulgated by the commissioner of motor\nvehicles. If such a request by the operator for an adjournment is\ngranted, the commissioner of motor vehicles shall notify the operator of\nthe rescheduled hearing, which shall be scheduled for the next hearing\ndate. If a second or subsequent request by the operator for an\nadjournment is granted, the operator's privilege to operate a vessel or,\nnon-resident operating privilege, may be suspended pending the hearing\nat the time such adjournment is granted; provided, however, that the\nrecords of the department or the evidence already admitted furnishes\nreasonable grounds to believe such suspension is necessary to prevent\ncontinuing violations or a substantial safety hazard; and provided\nfurther, that such hearing shall be scheduled for the next hearing date.\n If a police officer does not appear for a hearing, the hearing officer\nshall have the authority to dismiss the charge. Any person may waive the\nright to a hearing under this subdivision, in a form and manner\nprescribed by the commissioner of motor vehicles, and may enter an\nadmission of guilt, in person or by mail, to the charge of operating a\nvessel in violation of this section. Such admission of guilt shall have\nthe same force and effect as a finding of guilt entered following a\nhearing conducted pursuant to this subdivision.\n 5. Hearing notice. The hearing notice issued to an operator pursuant\nto subdivision four of this section shall be in a form as prescribed by\nthe commissioner. In addition to containing information concerning the\ntime, date and location of the hearing, and such other information as\nthe commissioner deems appropriate, such hearing notice shall also\ncontain the following information: the date, time and place of the\noffense charged; the procedures for requesting an adjournment of a\nscheduled hearing as provided in this section, the operator's right to a\nhearing conducted pursuant to this section and the right to waive such\nhearing and plead guilty, either in person or by mail, to the offense\ncharged.\n 6. Refusal report and hearing. (a) Any person under the age of\ntwenty-one who is suspected of operating a vessel after having consumed\nalcohol in violation of this section, and who is not charged with\nviolating any subdivision of section forty-nine-a of this article\narising out of the same incident, and who has been requested to submit\nto a chemical test pursuant to subdivision three of this section and\nafter having been informed that his privilege to operate a vessel and\nany non-resident operating privilege shall be suspended for refusal to\nsubmit to such chemical test or any portion thereof, whether or not\nthere is a finding of operating a vessel after having consumed alcohol,\nand such person refuses to submit to such chemical test or any portion\nthereof, shall be entitled to a hearing in accordance with a schedule\npromulgated by the commissioner of motor vehicles, and such hearing\nshall occur within thirty days of, but not less than forty-eight hours\nfrom, the date of such refusal, provided, however, where the\ncommissioner of motor vehicles determines, based upon the availability\nof hearing officers and the anticipated volume of hearings at a\nparticular location, that the scheduling of such hearing within thirty\ndays would impair the timely scheduling or conducting of other hearings,\nsuch hearing shall be scheduled at the next hearing date for such\nparticular location.\n (b) Unless an adjournment of the hearing date has been granted, upon\nthe operator's failure to appear for a scheduled hearing, the\ncommissioner of motor vehicles shall suspend the operating privilege or\nnon-resident operating privilege until the operator petitions the\ncommissioner of motor vehicles and a rescheduled hearing is conducted,\nprovided, however, the commissioner shall restore such person's\noperator's privilege or non-resident operating privilege if such\nrescheduled hearing is adjourned at the request of a person other than\nthe operator. Requests for adjournments shall be made and determined in\naccordance with regulations promulgated by the commissioner of motor\nvehicles. If such a request by the operator for an adjournment is\ngranted, the commissioner of motor vehicles shall notify the operator of\nthe rescheduled hearing, which shall be scheduled for the next hearing\ndate. If a second or subsequent request by the operator for an\nadjournment is granted, the operator's privilege to operate a vessel or\nnon-resident operating privilege may be suspended pending the hearing at\nthe time such adjournment is granted; provided, however, that the\nrecords of the department of motor vehicles or the evidence already\nadmitted furnishes reasonable grounds to believe such suspension is\nnecessary to prevent continuing violations or a substantial safety\nhazard; and provided further, that such hearing shall be scheduled for\nthe next hearing date.\n If a police officer does not appear for a hearing, the hearing officer\nshall have the authority to dismiss the charge. Any person may waive the\nright to a hearing under this subdivision.\n (c) The hearing on the refusal to submit to a chemical test pursuant\nto this subdivision shall be limited to the following issues: (1) was a\nvalid request to submit to a chemical test made by the police officer in\naccordance with the provisions of subdivision three of this section; (2)\nwas such person given sufficient warning, in clear or unequivocal\nlanguage, prior to such refusal that such refusal to submit to such\nchemical test or any portion thereof, would result in the suspension of\nsuch person's privilege to operate a vessel or nonresident operating\nprivilege, whether or not such person is found to have operated a vessel\nafter having consumed alcohol; (3) did such person refuse to submit to\nsuch chemical test or any portion thereof; (4) did such person operate\nthe vessel; (5) was such person less than twenty-one years of age at the\ntime of operation of the vessel; (6) did the police officer make a\nlawful stop of such person. If, after such hearing, the hearing officer,\nacting on behalf of the commissioner of motor vehicles, finds on any one\nsaid issue in the negative, the hearing officer shall not suspend the\noperator's privilege to operate a vessel or non-resident operating\nprivilege and shall immediately terminate any outstanding suspension of\nthe operator's privilege to operate a vessel or non-resident operating\nprivilege arising from such refusal. If, after such hearing, the hearing\nofficer, acting on behalf of the commissioner of motor vehicles, finds\nall of the issues in the affirmative, such hearing officer shall\nimmediately suspend the privilege to operate a vessel or any\nnon-resident operating privilege in accordance with the provisions of\nthis section. A person who has had a privilege to operate a vessel or\nnon-resident operating privilege suspended pursuant to the provisions of\nthis section may appeal the findings of the hearing officer in\naccordance with the provisions of article three-A of the vehicle and\ntraffic law.\n (d) Any privilege which has been suspended pursuant to paragraph (c)\nof this subdivision shall not be restored for one year after such\nsuspension. Where such person under the age of twenty-one years has a\nprior finding, conviction or youthful offender adjudication resulting\nfrom a violation of this section or section forty-nine-a of this\narticle, not arising from the same incident, such privilege shall not be\nrestored for at least one year or until such person reaches the age of\ntwenty-one years, whichever is the greater period of time.\n 7. Effect of prior finding of having consumed alcohol. A prior finding\nthat a person under the age of twenty-one has operated a vessel after\nhaving consumed alcohol pursuant to this section shall have the same\neffect as a prior conviction of a violation of paragraph (a) of\nsubdivision two of section forty-nine-a of this article solely for the\npurpose of determining the length of any suspension required to be\nimposed under any provision of this article, provided that the\nsubsequent offense is committed prior to the expiration of the retention\nperiod for such prior offense or offenses set forth in paragraph (k) of\nsubdivision one of section two hundred one of the vehicle and traffic\nlaw.\n 8. Plea bargain limitations. (a) In any case wherein the charge laid\nbefore a court alleges a violation of paragraph (a) of subdivision two\nof section forty-nine-a of this article and the operator was under the\nage of twenty-one at the time of such violation, any plea of guilty\nthereafter entered in satisfaction of such charge must include at least\na plea of guilty to the violation of such subdivision; provided,\nhowever, such charge may instead be satisfied as provided in paragraph\n(b) of this subdivision, and, provided further that, if the district\nattorney, upon reviewing the available evidence, determines that the\ncharge of a violation of paragraph (a) of subdivision two of section\nforty-nine-a of this article is not warranted, such district attorney\nmay consent, and the court may allow a disposition by plea of guilty to\nanother charge in satisfaction of such charge; provided, however, in all\nsuch cases, the court shall set forth upon the record the basis for such\ndisposition.\n (b) In any case wherein the charge laid before a court alleges a\nviolation of paragraph (a) of subdivision two of section forty-nine-a of\nthis article by a person who was under the age of twenty-one at the time\nof commission of the offense, the court, with the consent of both\nparties, may allow the satisfaction of such charge by the defendant's\nagreement to be subject to action by the commissioner of motor vehicles\npursuant to this section. In any such case, the defendant shall waive\nthe right to a hearing under this section and such waiver shall have the\nsame force and effect as a finding of a violation of this section\nentered after a hearing conducted pursuant to this section. The\ndefendant shall execute such waiver in open court, and, if represented\nby counsel, in the presence of his attorney, on a form to be provided by\nthe commissioner of motor vehicles, which shall be forwarded by the\ncourt to the commissioner of motor vehicles within ninety-six hours. To\nbe valid, such form shall, at a minimum, contain clear and conspicuous\nlanguage advising the defendant that a duly executed waiver: (i) has the\nsame force and effect as a guilty finding following a hearing pursuant\nto this section; (ii) shall subject the defendant to the imposition of\nsanctions pursuant to this section; and (iii) may subject the defendant\nto increased sanctions upon a subsequent violation of this section or\nsection forty-nine-a of this article. Upon receipt of a duly executed\nwaiver pursuant to this paragraph, the commissioner of motor vehicles\nshall take such administrative action and impose such sanctions as may\nbe required by this section.\n 9. Sanctions. (a) Except as otherwise provided in this subdivision, a\nperson's privilege to operate a vessel upon the waters of the state\nshall be suspended for six months, where such person has been found to\nhave operated a vessel after having consumed alcohol in violation of\nthis section.\n (b) The suspension of operating privileges pursuant to this\nsubdivision shall be for one year or until such person reaches the age\nof twenty-one, whichever is the greater period of time, where such\nperson has been found to have operated a vessel after having consumed\nalcohol in violation of this section, and has previously been found to\nhave operated a vessel after having consumed alcohol in violation of\nthis section or has previously been convicted of, or adjudicated a\nyouthful offender for any violation of section forty-nine-a of this\narticle not arising out of the same incident.\n (c) Where the commissioner of motor vehicles determines that the\nperiod of suspension imposed pursuant to this section would extend\nbeyond the current boating season, such commissioner may direct that any\nportion of such suspension period take effect during the following\nboating season.\n 10. Civil penalty. (a) Unless otherwise provided, any person whose\nprivilege to operate a vessel has been suspended pursuant to the\nprovisions of this section shall also be liable for a civil penalty in\nthe amount of one hundred twenty-five dollars.\n (b) The first one hundred dollars of each civil penalty collected\npursuant to the provisions of this section shall be paid to the\ncommissioner of motor vehicles for deposit into the general fund and the\nremainder of all such civil penalties shall be paid to the commissioner\nof parks, recreation, and historic preservation for deposit into the "I\nLove NY Waterways" boating safety fund established pursuant to section\nninety-seven-nn of state finance law.\n 11. Nothing contained in this section shall be deemed to exempt\npersons under the age of twenty-one from arrest and prosecution under\nsection forty-nine-a of this article for an alleged violation of such\nsection.\n