New York State Law

Navigation Law

Consolidated Laws of New York's NAV code

Laws of New York

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NYS Navigation Law - Vessels

OPERATOR

Section Description
49 Operator.
49-A Operation of a vessel while under the influence of alcohol or drugs.
49-B Operating a vessel after having consumed alcohol; under the age of twenty-one; per se.
49-C Termination of unsafe operation.
  S 49. Operator.  1.  No  person  born  on or after May first, nineteen
  hundred ninety-six shall operate a mechanically propelled vessel on  the
  navigable  waters  of  the state or any tidewaters bordering on or lying
  within the boundaries of Nassau and Suffolk counties, unless:
    a. the operator is at least ten years old  and  is  the  holder  of  a
  boating safety certificate issued to him or her by the commissioner, the
  United   States  Power  Squadrons  or  the  United  States  coast  guard
  auxiliary; or
    b. the operator  is  younger  than  eighteen  years  of  age,  and  is
  accompanied  on the mechanically propelled vessel by at least one person
  who is at least eighteen years of age and is
    (i) the holder of a boating safety certificate issued to him or her by
  the commissioner, the United States Power Squadrons or the United States
  coast guard auxiliary, or
    (ii) not required  by  this  subdivision  to  hold  a  boating  safety
  certificate in order to operate a mechanically propelled vessel; or
    c.  the  operator  is  eighteen  years  of  age  or older, is a person
  required by this subdivision to hold a  boating  safety  certificate  in
  order  to operate a mechanically propelled vessel, and is accompanied on
  the mechanically propelled vessel by at least one person who is at least
  eighteen years of age and the holder of a boating safety certificate; or
    d. the operator is the owner of a recently purchased  vessel  and  may
  operate  such  vessel  without  the  otherwise  required  boating safety
  certificate for a period of time not to exceed one hundred  twenty  days
  from the date of purchase.
    e.  The  provisions of this subdivision shall not apply to persons who
  are: born before April thirtieth, nineteen hundred ninety-six; certified
  by the commissioner as boating safety instructors; members of the United
  States Power  Squadrons;  members  of  the  United  States  coast  guard
  auxiliary;  holders  of  public  vessel  licenses  pursuant  to  section
  sixty-four of  this  article;  police  officers,  peace  officers,  fire
  personnel,  rescue  personnel  or  lifeguards,  when  any such person is
  acting pursuant to assigned duties; or licensed to  operate  vessels  by
  the  United  States  coast  guard  or  the  Canadian  coast  guard.  The
  commissioner, by rule or regulation, may provide for  the  exemption  of
  additional persons not listed in this paragraph from the requirements of
  this section.
    f.  The  provisions of this subdivision shall supersede all local laws
  or ordinances relating to requirements for boating  safety  certificates
  to operate a mechanically propelled vessel.
    1-a.  a.  No  person  shall operate a personal watercraft or specialty
  prop-craft upon the navigable waters of  the  state  or  any  tidewaters
  bordering  on  or  lying  within  the  boundaries  of Nassau and Suffolk
  counties unless the operator is fourteen years of age or older  and  the
  holder  of, or is accompanied by a person over eighteen years of age who
  is  the  holder  of  a  boating  safety  certificate   issued   by   the
  commissioner, the United States power squadrons, the United States coast
  guard auxiliary, or other state or government, as a result of completing
  a course approved by the commissioner.
    b.  No  person  who is the owner of a personal watercraft or specialty
  prop-craft shall knowingly authorize or permit the operation thereof  on
  the  navigable  waters  of  the  state or any tidewaters bordering on or
  lying within the boundaries of Nassau or  Suffolk  counties  unless  the
  operator  is  fourteen  years  of  age or older and the holder of, or is
  accompanied by a person over eighteen years of age who is the holder  of
  a  boating  safety  certificate  issued  by the commissioner, the United
  States power squadrons, United States coast guard  auxiliary,  or  other
  state  or government, as a result of completing a course approved by the
  commissioner.
    c.  For the purposes of this subdivision "accompanied" shall mean upon
  the vessel. Provided, however, that until January  first,  two  thousand
  nine, in relation to a person less than fourteen years of age who is the
  holder  of  a boating safety certificate issued by the commissioner, the
  United States power squadrons, United States coast  guard  auxiliary  or
  other  state  or government, accompanied shall also mean within view and
  not more than five hundred  feet  from  a  person  aboard  a  vessel  or
  personal watercraft, who is over eighteen years of age and the holder of
  a  boating  safety  certificate  issued  by the commissioner, the United
  States power squadrons, United States coast  guard  auxiliary  or  other
  state  or government, as a result of completing a course approved by the
  commissioner.
    d. The provisions of this subdivision  shall  not  apply  to  persons:
  certified  by the commissioner as boating safety instructors; members of
  the United States power squadrons; members of the  United  States  coast
  guard  auxiliary;  holders of public vessel licenses pursuant to section
  sixty-four of this article; police officers acting pursuant to  assigned
  duties;  peace  officers  acting pursuant to assigned duties; lifeguards
  acting pursuant to assigned duties; fire  and  rescue  personnel  acting
  pursuant  to assigned duties; and persons licensed to operate vessels by
  the  United  States  coast  guard  or  the  Canadian  coast  guard.  The
  commissioner  by  rule  and  regulation may provide for the exemption of
  additional persons not listed in this paragraph from the requirements of
  this section.
    2. The failure of a person specified in subdivision one  or  one-a  of
  this section, to exhibit a boating safety certificate upon demand to any
  magistrate, peace officer, acting pursuant to his or her special duties,
  police  officer,  inspector of the state office of parks, recreation and
  historic preservation, traveling navigation inspector or  other  officer
  having  authority  to  enforce  the provisions of this chapter, shall be
  presumptive evidence  that  such  person  is  not  the  holder  of  such
  certificate.
    3. No person who is the owner of a mechanically propelled vessel shall
  knowingly  authorize  or  permit  the operation thereof on the navigable
  waters of the state or any tidewaters bordering on or lying  within  the
  boundaries of Nassau and Suffolk counties, unless:
    a. the operator is born on or before April thirtieth, nineteen hundred
  ninety-six; or,
    b.  the  operator  is  born  on  or  after May first, nineteen hundred
  ninety-six, is at least ten years of age and is the holder of a  boating
  safety  certificate issued to him or her by the commissioner, the United
  States Power Squadrons or the United States coast guard auxiliary, or
    c. the operator  is  younger  than  eighteen  years  of  age,  and  is
  accompanied  on the mechanically propelled vessel by at least one person
  eighteen years of age or older and is:
    (i) the holder of a boating safety certificate issued to him or her by
  the commissioner, the United States Power Squadrons or the United States
  coast guard auxiliary, or
    (ii) not required by subdivision one of this section to hold a boating
  safety certificate in order to operate a mechanically propelled  vessel;
  or
    d.  the  operator  is  eighteen  years  of  age  or older, is a person
  required by subdivision one of this section to  hold  a  boating  safety
  certificate  in order to operate a mechanically propelled vessel, and is
  accompanied by a person who is at least eighteen years of age and is the
  holder of a boating safety certificate.
    e. The provisions of this subdivision shall supersede all  local  laws
  or  ordinances  relating to requirements for boating safety certificates
  to operate a mechanically propelled vessel.
    4.  Whenever any police officer or peace officer authorized to enforce
  the provisions of this chapter having reasonable cause to believe that a
  person is operating a vessel in violation  of  section  forty-nine-a  of
  this  article,  or  any  other  provision  of  this  article for which a
  suspension may be imposed, such officer may demand of such person his or
  her name, address and an explanation of his or her conduct.
    5. The provisions of subdivisions one, one-a and two of  this  section
  shall  not  apply  while  the  operator  is  actually  preparing  for or
  competing in a regatta or boat race authorized under section thirty-four
  of this chapter or for which a marine event permit has  been  issued  by
  the United States coast guard.
    6. No person operating a vessel upon the navigable waters of the state
  or  on  the  tidewaters  bordering on and lying within the boundaries of
  Nassau or Suffolk county shall fail or refuse to comply with any  lawful
  order  or  direction  of  any  police  officer  or  peace officer acting
  pursuant to his or her special duties. Failure or refusal to comply with
  such lawful order or  direction  shall  be  a  violation  punishable  as
  provided for in subdivision seven of this section.
    7.  A  violation of subdivision one, one-a, two or six of this section
  shall  constitute  a  violation  punishable  as  set  forth  in  section
  seventy-three-c of this article.

  S 49-a. Operation  of a vessel while under the influence of alcohol or
  drugs. 1. Definitions. As used  in  this  section,  unless  the  context
  clearly indicates otherwise:
   (a)  The  term  "vessel"  shall  be every description of watercraft or
  other artificial contrivance propelled in whole or in part by mechanical
  power and, which is used  or  capable  of  being  used  as  a  means  of
  transportation  over  water,  and which is underway and not at anchor or
  made fast to the shore or ground. The  term  "vessel"  shall  include  a
  "public vessel" as defined herein unless otherwise specified.
    (b) The term "public vessel" shall mean and include every vessel which
  is  propelled  in  whole  or  in part by mechanical power and is used or
  operated for commercial purposes on the navigable waters of  the  state;
  that is either carrying passengers, carrying freight, towing, or for any
  other  use,  for  which  a  compensation is received, either directly or
  where provided as an accommodation, advantage, facility or privilege  at
  any place of public accommodation, resort or amusement.
    (c)  The  term  "waters  of  the  state" means all of the waterways or
  bodies of water located within New York state or that part of  any  body
  of  water  which  is adjacent to New York state over which the state has
  territorial jurisdiction, on which a vessel or public vessel may be used
  or operated, including Nassau and Suffolk counties.
    2. Offenses: criminal penalties. (a) No person shall operate a  vessel
  upon the waters of the state while his ability to operate such vessel is
  impaired  by the consumption of alcohol. A violation of this subdivision
  shall be an offense and shall be punishable by a fine of not  less  than
  three  hundred  dollars  nor  more  than  five  hundred  dollars,  or by
  imprisonment in a penitentiary or county jail for not more than  fifteen
  days,  or  by  both  such fine and imprisonment. A person who operates a
  vessel in violation of this  subdivision  after  being  convicted  of  a
  violation  of  any subdivision of this section within the preceding five
  years shall be punished by a fine of not less than five hundred  dollars
  nor  more  than  seven  hundred fifty dollars, or by imprisonment of not
  more than thirty days in a penitentiary or county jail or by  both  such
  fine  and  imprisonment.  A person who operates a vessel in violation of
  this subdivision after being convicted two or more times of a  violation
  of  any subdivision of this section within the preceding ten years shall
  be guilty of a misdemeanor, and shall be punished by a fine of not  less
  than  seven hundred fifty dollars nor more than fifteen hundred dollars,
  or by imprisonment of not  more  than  one  hundred  eighty  days  in  a
  penitentiary or county jail or by both such fine and imprisonment.
    (b)  No  such person shall operate a vessel other than a public vessel
  while he has .08 of one per centum or more by weight of alcohol  in  his
  blood, breath, urine, or saliva, as determined by the chemical test made
  pursuant to the provisions of subdivision seven of this section.
    (c)  No  such person shall operate a public vessel while he has .04 of
  one per centum or more by weight of alcohol in his blood, breath, urine,
  or saliva, as determined by the  chemical  test  made  pursuant  to  the
  provisions of subdivision seven of this section.
    (d)  No  person  shall  operate a vessel while he is in an intoxicated
  condition.
    (e) No person shall operate a vessel while his ability to operate such
  vessel is impaired by the use of  a  drug  as  defined  by  section  one
  hundred fourteen-a of the vehicle and traffic law.
    (f)  A violation of paragraph (b), (c), (d) or (e) of this subdivision
  shall be a misdemeanor and shall be  punishable  by  imprisonment  in  a
  penitentiary  or county jail for not more than one year, or by a fine of
  not less than five hundred dollars nor more than one  thousand  dollars,
  or by both such fine and imprisonment. A person who operates a vessel in
  violation  of  paragraph  (b), (c), (d) or (e) of this subdivision after
  having been convicted of a violation of paragraph (b), (c), (d)  or  (e)
  of  this  subdivision,  or  of operating a vessel or public vessel while
  intoxicated  or while under the influence of drugs, within the preceding
  ten years, shall be guilty of a class E felony and shall be punished  by
  a  period  of imprisonment as provided in the penal law, or by a fine of
  not less than one thousand dollars nor more than five thousand  dollars,
  or by both such fine and imprisonment. A person who operates a vessel in
  violation  of  paragraph  (b), (c), (d) or (e) of this subdivision after
  having been twice convicted of a violation of any of such paragraph (b),
  (c), (d) or (e) of this subdivision or of operating a vessel  or  public
  vessel  while  intoxicated  or  under the influence of drugs, within the
  preceding ten years, shall be guilty of a class D felony  and  shall  be
  punished  by  a fine of not less than two thousand dollars nor more than
  ten thousand dollars or by a period of imprisonment as provided  in  the
  penal law, or by both such fine and imprisonment.
    3.  Privilege  to  operate  a vessel; suspensions. (a) The court shall
  suspend a person's privilege to operate  a  vessel  and  may  suspend  a
  vessel registration for:
    (1)  a  period  of  at  least six but less than twelve months where an
  operator is convicted of a violation of paragraph (a) of subdivision two
  of this section.  In  determining  the  length  of  such  suspension  or
  suspensions,  the  court  may take into consideration the seriousness of
  the  offense  and  may  impose  a  period  of  suspension  whereby  such
  suspension  may  be  in  effect  during  a  portion  of  the  current or
  subsequent boating season;
    (2) a period of twelve months where an  operator  is  convicted  of  a
  violation  of  paragraph (b), (c), (d) or (e) of subdivision two of this
  section;
    (3) a period of twenty-four months where a person is  convicted  of  a
  violation  of  paragraph (b), (c), (d) or (e) of subdivision two of this
  section after having been convicted of a  violation  of  paragraph  (b),
  (c),  (d)  or  (e)  of subdivision two of this section or of operating a
  vessel or public vessel while intoxicated  or  under  the  influence  of
  drugs within the preceding ten years.
    (b)  The  court shall report each conviction recorded pursuant to this
  section to the commissioner of motor vehicles and  the  commissioner  of
  parks,  recreation  and  historic  preservation on forms provided by the
  department of motor vehicles. Such reports shall include the  length  of
  any  suspension  imposed  on  the  privilege to operate a vessel and any
  suspension imposed against a  vessel  registration.  The  department  of
  motor   vehicles   shall  maintain  a  record  of  all  convictions  and
  suspensions in order to effectuate the provisions of this section.
    4. (a) Operation  of  vessel  while  operating  privileges  have  been
  suspended. No person shall operate a vessel upon the waters of the state
  while  operating privileges have been suspended pursuant to this section
  or section forty-nine-b of this article. A violation of  the  provisions
  of this paragraph shall be a violation and shall be punishable by a fine
  of not less than three hundred fifty dollars nor more than seven hundred
  fifty  dollars  or  by imprisonment for a period of not more than ninety
  days, or by both such fine and imprisonment.
    (b) A person who is in violation of the provisions of paragraph (a) of
  this subdivision, and in addition is in violation of the  provisions  of
  any paragraph of subdivision two of this section arising out of the same
  incident,  shall  be guilty of a misdemeanor punishable by a fine of not
  less than five hundred dollars nor more than five thousand dollars or by
  a period of imprisonment for a period of not more than one  year  or  by
  both such fine and imprisonment.
    5.  Sentencing limitations. Notwithstanding any provision of the penal
  law, no judge or magistrate shall impose  a  sentence  of  unconditional
  discharge  for  a  violation  of  paragraph  (b),  (c),  (d)  or  (e) of
  subdivision two of this section nor shall he or she impose a sentence of
  conditional  discharge  unless such conditional discharge is accompanied
  by a sentence of a fine as provided in this section.
    6. Arrest and testing. (a) Notwithstanding the provisions  of  section
  140.10  of  the  criminal procedure law, a police officer may, without a
  warrant, arrest a person, in case of a violation  of  any  paragraph  of
  subdivision  two  of  this section, if such violation is coupled with an
  accident or collision in which such person is involved,  which  in  fact
  had been committed, though not in the police officer's presence, when he
  has reasonable cause to believe that the violation was committed by such
  person.  For  the purposes of this subdivision police officer shall also
  include a peace officer authorized to  enforce  this  chapter  when  the
  alleged violation constitutes a crime.
    (b)  Breath  test  for  operators  of vessel. Every person operating a
  vessel on the waters of the state which has been involved in an accident
  or which is operated in violation of  any  of  the  provisions  of  this
  section  which  regulate  the manner in which a vessel is to be properly
  operated while underway shall, at  the  request  of  a  police  officer,
  submit  to  a  breath  test to be administered by the police officer. If
  such test indicates that such operator has consumed alcohol, the  police
  officer  may  request  such operator to submit to a chemical test in the
  manner set forth in subdivision seven of this section. For the  purposes
  of  this  section, a vessel is being "operated" only when such vessel is
  underway and is being propelled in whole or in part by mechanical power.
    7. Chemical tests. (a) Any person who operates a vessel on the  waters
  of  the state shall be requested to consent to a chemical test of one or
  more of the following: breath, blood, urine, or saliva for  the  purpose
  of determining the alcoholic or drug content of his blood, provided that
  such  test  is  administered  at  the direction of a police officer: (1)
  having reasonable cause to believe such person to have been operating in
  violation of this subdivision or paragraph (a), (b), (c), (d) or (e)  of
  subdivision  two  of this section and within two hours after such person
  has been placed under arrest for any such violation or  (2)  within  two
  hours  after  a  breath test as provided in paragraph (b) of subdivision
  six of this section indicates that alcohol has  been  consumed  by  such
  person  and  in accordance with the rules and regulations established by
  the police force of which the officer is a member.
    (b) If such person having been placed under arrest or after  a  breath
  test indicates the presence of alcohol in the person's system and having
  thereafter  been  requested  to  submit to such chemical test and having
  been informed that the person's privilege to operate a vessel  shall  be
  immediately suspended for refusal to submit to such chemical test or any
  portion thereof, whether or not the person is found guilty of the charge
  for  which  such  person is arrested, refuses to submit to such chemical
  test or any portion thereof, unless  a  court  order  has  been  granted
  pursuant  to  subdivision  eight  of this section, the test shall not be
  given and a written report of such refusal shall be immediately made  by
  the police officer before whom such refusal was made. Such report may be
  verified  by having the report sworn to, or by affixing to such report a
  form notice that false statements made therein are punishable as a class
  A misdemeanor pursuant to section 210.45 of the penal law and such  form
  notice together with the subscription of the deponent shall constitute a
  verification  of  the report. The report of the police officer shall set
  forth reasonable grounds to believe such arrested person  to  have  been
  operating  a  vessel in violation of any paragraph of subdivision two of
  this section, that said person had refused to submit  to  such  chemical
  test,  and  that  no  chemical  test  was  administered  pursuant to the
  requirements of subdivision eight of this section. The report  shall  be
  presented  to the court upon the arraignment of the arrested person. The
  privilege to operate a vessel shall, upon  the  basis  of  such  written
  report, be temporarily suspended by the court without notice pending the
  determination  of  a  hearing  as provided herein. Copies of such report
  must  be  transmitted  by  the  court  to  the  commissioner  of  parks,
  recreation  and  historic  preservation  and  the  commissioner of motor
  vehicles and such transmittal may not be waived even with the consent of
  all the parties. Such report shall be  forwarded  to  each  commissioner
  within  forty-eight  hours  of such arraignment. The court shall provide
  such person with a hearing date schedule, a waiver form, and such  other
  information as may be required by the commissioner of motor vehicles. If
  a  hearing,  as  provided  for  in paragraph (c) of this subdivision, is
  waived  by  such  person,  the  commissioner  of  motor  vehicles  shall
  immediately suspend the privilege to operate a vessel, as of the date of
  receipt  of  such  waiver in accordance with the provisions of paragraph
  (d) of this subdivision.
    (c) Any person whose privilege to operate a vessel has been  suspended
  pursuant  to  paragraph (b) of this subdivision is entitled to a hearing
  in  accordance  with  a  hearing  schedule  to  be  promulgated  by  the
  commissioner  of  motor vehicles. If the department fails to provide for
  such hearing fifteen days after the  date  of  the  arraignment  of  the
  arrested  person, the privilege to operate a vessel of such person shall
  be reinstated pending a hearing pursuant to this  section.  The  hearing
  shall  be  limited  to  the following issues: (1) did the police officer
  have reasonable cause to believe that such person had been  operating  a
  vessel in violation of any paragraph of subdivision two of this section;
  (2)  did the police officer make a lawful arrest of such person; (3) was
  such person given sufficient warning, in clear or unequivocal  language,
  prior  to such refusal that such refusal to submit to such chemical test
  or any portion thereof, would result in the immediate suspension of such
  person's privilege to operate a vessel whether or  not  such  person  is
  found  guilty  of  the charge for which the arrest was made; and (4) did
  such person refuse to submit  to  such  chemical  test  or  any  portion
  thereof.  If,  after such hearing, the hearing officer, acting on behalf
  of the commissioner of motor vehicles, finds on any one of  said  issues
  in  the  negative,  the  hearing officer shall immediately terminate any
  suspension arising from  such  refusal.  If,  after  such  hearing,  the
  hearing  officer, acting on behalf of the commissioner of motor vehicles
  finds  all  of  the  issues  in  the  affirmative,  such  officer  shall
  immediately suspend the privilege to operate a vessel in accordance with
  the  provisions  of  paragraph (d) of this subdivision. A person who has
  had the privilege  to  operate  a  vessel  suspended  pursuant  to  this
  subdivision may appeal the findings of the hearing officer in accordance
  with  the  provisions of article three-A of the vehicle and traffic law.
  Any person may waive the right to a hearing under this section.  Failure
  by  such  person  to appear for the scheduled hearing shall constitute a
  waiver of such hearing, provided, however, that such person may petition
  the commissioner of motor vehicles for a new hearing which shall be held
  as soon as practicable.
    (d) (1) Any privilege to operate a vessel  which  has  been  suspended
  pursuant  to paragraph (c) of this subdivision shall not be restored for
  six months after such suspension. However, no such  privilege  shall  be
  restored  for  at least one year after such suspension in any case where
  the person was under the age of twenty-one at the time of  the  offense,
  has  had  a  prior  suspension  resulting  from  refusal  to submit to a
  chemical test pursuant to this subdivision or subdivision six of section
  forty-nine-b of this article, or has been convicted of  a  violation  of
  any  paragraph of subdivision two of this section not arising out of the
  same  incident,  within the five years immediately preceding the date of
  such suspension; provided, however, a prior finding that a person  under
  the  age of twenty-one has refused to submit to a chemical test pursuant
  to such subdivision six of section forty-nine-b of  this  article  shall
  have  the  same  effect as a prior finding of a refusal pursuant to this
  subdivision solely for the purpose of  determining  the  length  of  any
  suspension  required  to be imposed under any provision of this article,
  provided that the subsequent offense or refusal is committed or occurred
  prior to the expiration of the retention period for such  prior  refusal
  as  set forth in paragraph (k) of subdivision one of section two hundred
  one of the vehicle and traffic law.  Notwithstanding  any  provision  of
  this  paragraph to the contrary, any privilege to operate a vessel which
  has been suspended pursuant to paragraph (c) of this subdivision,  where
  the  person  was under the age of twenty-one at the time of the refusal,
  and such person under  the  age  of  twenty-one  has  a  prior  finding,
  conviction  or youthful offender adjudication resulting from a violation
  of this section or section forty-nine-b of  this  article,  not  arising
  from  the  same incident, shall not be restored for at least one year or
  until such person reaches the age of twenty-one years, whichever is  the
  greater period of time.
    (2)  Any  person  whose  privilege  to  operate  a vessel is suspended
  pursuant to the provisions of this subdivision shall also be liable  for
  a civil penalty in the amount of two hundred dollars except that if such
  suspension  is  a  second  or  subsequent  suspension  pursuant  to this
  subdivision issued within a five year period, or such  person  has  been
  convicted  of  a  violation  of any paragraph of subdivision two of this
  section within the past five years not arising out of the same incident,
  the civil penalty shall be in the amount of five  hundred  dollars.  The
  privilege  to  operate  a  vessel  shall  not be restored to such person
  unless such penalty has been paid. The first one hundred dollars of each
  penalty collected by the department of motor vehicles  pursuant  to  the
  provisions  of  this  subdivision  shall  be paid to the commissioner of
  motor vehicles for deposit to the general fund and the remainder of  all
  such  penalties  shall  be paid to the commissioner of parks, recreation
  and historic preservation for deposit  in  the  "I  Love  NY  Waterways"
  boating  safety  fund established pursuant to section ninety-seven-nn of
  the state finance law.
    (e) The commissioner  of  motor  vehicles  in  consultation  with  the
  commissioner  of  parks,  recreation  and  historic  preservation  shall
  promulgate such rules and regulations as may be necessary to  effectuate
  the provisions of this subdivision.
    (f)  Evidence  of  a  refusal to submit to such chemical test shall be
  admissible in any trial, proceeding or hearing based upon a violation of
  the provisions of this section, but only upon a showing that the  person
  was  given sufficient warning, in clear and unequivocal language, of the
  effect of such refusal and that the  person  persisted  in  his  or  her
  refusal.
    (g)  Upon  the  request of the person tested, the results of such test
  shall be made available to him or her.
    8. Compulsory chemical tests. (a) Notwithstanding  the  provisions  of
  subdivision  seven  of  this section, no person who operates a vessel in
  the waters of this state may refuse to submit to a chemical test of  one
  or  more  of  the  following:  breath,  blood,  urine or saliva, for the
  purpose of determining the alcoholic and/or drug content  of  the  blood
  when  a court order for such chemical test has been issued in accordance
  with the provisions of this subdivision.
    (b)  Upon  refusal  by  any person to submit to a chemical test or any
  portion thereof as described in paragraph (a) of this  subdivision,  the
  test  shall not be given unless a police officer or a district attorney,
  as defined in subdivision thirty-two of section  1.20  of  the  criminal
  procedure  law, requests and obtains a court order to compel a person to
  submit to a chemical test to determine the alcoholic or drug content  of
  the person's blood upon a finding of reasonable cause to believe that:
    (1) such person was the operator of a vessel and in the course of such
  operation  a  person  other  than  the  operator  was killed or suffered
  serious physical injury as defined in section 10.00 of  the  penal  law;
  and
    (2)  (i)  either  such  person operated the vessel in violation of any
  paragraph of subdivision two of this section, or
    (ii) a breath test administered by a police officer in accordance with
  subdivision six of this section indicates that alcohol has been consumed
  by such person; and
    (3) such person has been placed under lawful arrest; and
    (4) such person has refused to  submit  to  a  chemical  test  or  any
  portion   thereof,  requested  in  accordance  with  the  provisions  of
  subdivision seven of this section or is unable to give consent to such a
  test.
    (c) For the purpose of this subdivision "reasonable  cause"  shall  be
  determined  by  viewing  the  totality  of circumstances surrounding the
  incident which, when taken together,  indicate  that  the  operator  was
  operating  a  vessel in violation of any paragraph of subdivision two of
  this section. Such circumstances may include, but are  not  limited  to:
  evidence  that  the  operator was operating a vessel in violation of any
  provision of this chapter which regulates the manner in which  a  vessel
  is  to  be properly operated while underway at the time of the incident;
  any visible indication of alcohol or drug consumption or  impairment  by
  the  operator;  any  other evidence surrounding the circumstances of the
  incident which indicates that the operator has been operating  a  vessel
  while impaired by the consumption of alcohol or drugs or was intoxicated
  at the time of the incident.
    (d)  (1)  An  application  for a court order to compel submission to a
  chemical test or any portion thereof, may be made to any  supreme  court
  justice,  county  court  judge  or  district court judge in the judicial
  district in which the incident occurred, or if the incident occurred  in
  the  city  of  New York before any supreme court justice or judge of the
  criminal court of  the  city  of  New  York.  Such  application  may  be
  communicated   by   telephone,   radio  or  other  means  of  electronic
  communication, or in person.
    (2) The applicant must provide identification by name  and  title  and
  must  state the purpose of the communication. Upon being advised that an
  application for a court order to compel submission to a chemical test is
  being made, the court shall place under oath the applicant and any other
  person providing information in support of the application  as  provided
  in subparagraph three of this paragraph. After being sworn the applicant
  must state that the person from whom the chemical test was requested was
  the  operator  of a vessel and in the course of such operation a person,
  other than the operator, has been killed or seriously injured and, based
  upon the totality of circumstances, there is reasonable cause to believe
  that such person was operating a vessel in violation of any paragraph of
  subdivision two of this section and, after  being  placed  under  lawful
  arrest  such  person refused to submit to a chemical test or any portion
  thereof, in accordance with the provisions of this section or is  unable
  to  give  consent  to  such a test or any portion thereof. The applicant
  must make specific allegations of fact to support  such  statement.  Any
  other  person properly identified, may present sworn allegations of fact
  in support of the applicant's statement.
    (3)  Upon  being advised that an oral application for a court order to
  compel a person to submit to a chemical test is being made, a  judge  or
  justice  shall  place  under  oath  the  applicant  and any other person
  providing information in support of the application. Such oath or  oaths
  and all of the remaining communication must be recorded, either by means
  of  a  voice  recording  device  or  verbatim  stenographic  or verbatim
  longhand notes. If a voice recording device is used  or  a  stenographic
  record  made, the judge must have the record transcribed, certify to the
  accuracy  of  the  transcription  and  file  the  original  record   and
  transcription with the court within seventy-two hours of the issuance of
  the  court  order.  If  the  longhand  notes  are taken, the judge shall
  subscribe a copy and file it with the court within twenty-four hours  of
  the issuance of the order.
    (4)  If  the court is satisfied that the requirements for the issuance
  of a court order pursuant to the provisions of  paragraph  (b)  of  this
  subdivision  have  been  met,  it may grant the application and issue an
  order requiring the accused to submit to a chemical  test  to  determine
  the  alcoholic  and/or  drug  content  of  his  blood  and  ordering the
  withdrawal of a blood  sample  in  accordance  with  the  provisions  of
  subdivision  nine of this section. When a judge or justice determines to
  issue an order to compel submission to a chemical test based on an  oral
  application,   the   applicant  therefor  shall  prepare  the  order  in
  accordance with the instructions of the judge or justice. In  all  cases
  the  order  shall  include the name of the issuing judge or justice, the
  name of the applicant, and the date and time it was issued. It  must  be
  signed  by the judge or justice if issued in person, or by the applicant
  if issued orally.
    (5) Any false statement by an applicant or any other person in support
  of an application for a court order shall subject  such  person  to  the
  offenses  for  perjury set forth in article two hundred ten of the penal
  law.
    (e) An order issued pursuant to the  provisions  of  this  subdivision
  shall  require  that  a  chemical test to determine the alcoholic and/or
  drug  content  of  the  operator's  blood  must  be  administered.   The
  provisions  of  paragraphs  (a), (b) and (c) of subdivision nine of this
  section shall be applicable to any chemical test  administered  pursuant
  to this section.
    (f)  A  defendant  who has been compelled to submit to a chemical test
  pursuant to  the  provisions  of  this  subdivision  may  move  for  the
  suppression  of  such  evidence in accordance with article seven hundred
  ten of the criminal procedure law on the  grounds  that  the  order  was
  obtained  and  the  test  administered in violation of the provisions of
  this subdivision or any other applicable law.
    9. Testing procedures. (a) At the request of  a  police  officer,  the
  following  persons may withdraw blood for the purpose of determining the
  alcohol  or  drug  content  therein:  (1)  a  physician,  a   registered
  professional  nurse  or a registered physician's assistant; or (2) under
  the  supervision  and  at  the  direction  of  a  physician:  a  medical
  laboratory  technician  or  medical  technologist as classified by civil
  service; a phlebotomist; an advanced  emergency  medical  technician  as
  certified   by  the  department  of  health,  or  a  medical  laboratory
  technician or medical technologist employed  by  a  clinical  laboratory
  approved under title five of article five of the public health law. This
  limitation  shall  not  apply to the taking of a urine, saliva or breath
  specimen.
    (b)  No person entitled to withdraw blood pursuant to paragraph (a) of
  this subdivision or hospital employing such person and no other employer
  of such person shall be sued or held liable for any act done or  omitted
  in the course of withdrawing blood at the request of a police officer or
  peace  officer  acting  pursuant  to his special duties pursuant to this
  subdivision.
    (c) Any person who may  have  a  cause  of  action  arising  from  the
  withdrawal of blood as aforesaid, for which no personal liability exists
  under  paragraph  (b)  of  this  subdivision,  may  maintain such action
  against the state if the person entitled to withdraw blood  pursuant  to
  paragraph  (a)  of  this  subdivision  acted  at the request of a police
  officer or peace officer acting pursuant to his special duties, employed
  by the state, or against the appropriate political  subdivision  of  the
  state  if  the  person acted at the request of a police officer or peace
  officer acting pursuant to his special duties, employed by  a  political
  subdivision of the state. No action shall be maintained pursuant to this
  paragraph  unless  notice of claim is duly filed or served in compliance
  with law.
    (d) Notwithstanding the foregoing provisions of this  subdivision,  an
  action may be maintained by the state or a political subdivision thereof
  against a person entitled to withdraw blood pursuant to paragraph (a) of
  this  subdivision  or  hospital  employing  such person for whose act or
  omission the state or the political subdivision  has  been  held  liable
  under  this  subdivision  to  recover  damages, not exceeding the amount
  awarded to the claimant, that may have been sustained by  the  state  or
  the  political  subdivision by reason of gross negligence on the part of
  such person entitled to withdraw blood.
    (e) The testimony of any person, other than a physician,  entitled  to
  draw  blood  pursuant to paragraph (a) of this subdivision in respect to
  any such withdrawal of blood made by him may  be  received  in  evidence
  with  the  same  weight, force and effect as if such withdrawal of blood
  were made by a physician.
    (f) The provisions of paragraphs (b), (c) and (d) of this  subdivision
  shall  also  apply  with  regard to any person employed by a hospital as
  security personnel for  any  act  done  or  omitted  in  the  course  of
  withdrawing blood at the request of a police officer pursuant to a court
  order in accordance with this subdivision.
    (g)  The  person  tested  shall  be permitted to choose a physician to
  administer a chemical test in addition to the one  administered  at  the
  direction of the police officer.
    10.  Chemical  test evidence. (a) Upon the trial of any such action or
  proceeding arising out of actions alleged to have been committed by  any
  person  arrested  for a violation of any paragraph of subdivision two of
  this section, the court shall admit evidence of the amount of alcohol or
  drugs in the defendant's blood as shown by a test administered  pursuant
  to the provisions of subdivision seven or eight of this section.
    (b)  The  following effect shall be given to evidence of blood alcohol
  content, as determined by  such  tests,  of  a  person  arrested  for  a
  violation  of  any  paragraph of subdivision two of this section and who
  was operating a vessel other than a public vessel:
    (1) evidence that there was .05 of one per centum or less by weight of
  alcohol in such person's blood shall be prima facie  evidence  that  the
  ability  of  such  person  to  operate  a vessel was not impaired by the
  consumption of alcohol, and that such person was not in  an  intoxicated
  condition.
    (2)  evidence  that there was more than .05 of one per centum but less
  than .07 of one per centum of weight in such  person's  blood  shall  be
  prima  facie  evidence  that  such  person  was  not  in  an intoxicated
  condition, but such evidence shall be relevant evidence but not be given
  prima facie effect, in determining whether the ability of such person to
  operate a vessel was impaired by the consumption of alcohol.
    (3)  evidence  that  there  was .07 of one per centum or more but less
  than .08 of one per centum by weight of alcohol in his  blood  shall  be
  prima  facie  evidence  that  such  person  was  not  in  an intoxicated
  condition, but such evidence  shall  be  given  prima  facie  effect  in
  determining  whether  the ability of such person to operate a vessel was
  impaired by the consumption of alcohol.
    (c) Evidence of a refusal to submit to a chemical test or any  portion
  thereof shall be admissible in any trial or hearing provided the request
  to  submit  to such a test was made in accordance with the provisions of
  subdivision seven of this section.
    11. Limitations. (a) A vessel operator may be convicted of a violation
  of paragraphs (a), (b), (d) and (e) of subdivision two of this  section,
  notwithstanding  that  the  charge  laid  before  the  court  alleged  a
  violation of paragraph (b), (d)  or  (e)  of  subdivision  two  of  this
  section,  and  regardless of whether or not such condition is based on a
  plea of guilty.
    (b) In any case wherein the charge laid before  the  court  alleges  a
  violation  of  paragraph (b), (c), (d) or (e) of subdivision two of this
  section, any plea of guilty thereafter entered in satisfaction  of  such
  charge  must  include  at least a plea of guilty to the violation of the
  provisions of one of the paragraphs of such subdivision two and no other
  disposition by plea of guilty to any other  charge  in  satisfaction  of
  such  charge  shall  be  authorized;  provided, however, if the district
  attorney upon reviewing  the  available  evidence  determines  that  the
  charge  of  a  violation  of  subdivision  two  of  this  section is not
  warranted, he may consent, and the court may allow a disposition by plea
  of guilty to another charge in satisfaction of such charge.
    12. Suspension pending prosecution. (a) Without  notice,  pending  any
  prosecution,  the  court may suspend the right to operate a vessel where
  the vessel operator has been  charged  with  vehicular  assault  in  the
  second degree or vehicular manslaughter in the second degree as defined,
  respectively, in sections 120.03 and 125.12 of the penal law.
    (b)  A  suspension  under  this  subdivision shall occur no later than
  twenty days after the vessel  operator's  first  appearance  before  the
  court  on  the  charges or at the conclusion of all proceedings required
  for the arraignment, whichever comes first. In order for  the  court  to
  impose  such  suspension  it  must  find  that the accusatory instrument
  conforms to the requirements of section 100.40 of the criminal procedure
  law and there exists  reasonable  cause  to  believe  that  the  accused
  operated  a vessel in violation of section 120.03 or 125.12 of the penal
  law. At such time the operator shall be entitled to  an  opportunity  to
  make a statement regarding the enumerated issues and to present evidence
  tending  to rebut the court's findings. Where such suspension is imposed
  upon such pending charge  and  the  operator  has  requested  a  hearing
  pursuant  to  article  one hundred eighty of the criminal procedure law,
  the court shall conduct such hearing. If upon completion of the hearing,
  the court fails to find that there is reasonable cause to  believe  that
  the  operator  committed  a felony under section 120.03 or 125.12 of the
  penal law the court shall promptly direct restoration of such  operating
  privileges   to  the  operator  unless  such  operating  privileges  are
  suspended or revoked pursuant to any other provision of this chapter.
    13. Boating safety course. Upon the conviction of any  subdivision  of
  this  section,  the  court  shall,  in  addition  to any other penalties
  invoked under this section, require the convicted person, as a condition
  of the sentence, to complete a boating safety course of the state,  U.S.
  Power  Squadrons  or  U.S.  Coast  Guard  Auxiliary  and  show  proof of
  successful completion of such course to the court or its designee.

   S 49-b.  Operating  a vessel after having consumed alcohol; under the
  age of twenty-one; per se. 1. Prohibition. No person under  the  age  of
  twenty-one  shall  operate  a vessel upon the waters of this state after
  having consumed alcohol as defined in this section. For purposes of this
  section, a person under the age of twenty-one is deemed to have consumed
  alcohol only if such person has .02 of one per centum or  more  but  not
  more  than  .07  of  one per centum by weight of alcohol in the person's
  blood, as shown by chemical analysis of  such  person's  blood,  breath,
  urine  or  saliva, made in accordance with the provisions of subdivision
  four of section eleven hundred ninety-four of the  vehicle  and  traffic
  law.  Any person who operates a vessel in violation of this section, and
  who is not charged with  a  violation  of  subdivision  two  of  section
  forty-nine-a  of  this article arising out of the same incident shall be
  referred to the department of motor vehicles for  action  in  accordance
  with  the  provisions of this section.  Notwithstanding any provision of
  law to the contrary, a finding that a person under the age of twenty-one
  operated a vessel after having consumed alcohol  in  violation  of  this
  section  is  not  a  judgment  of  conviction  for  a crime or any other
  offense.
    2. Breath test for operators of vessel. Every person under the age  of
  twenty-one  operating a vessel on the waters of the state which has been
  involved in an accident or which is operated in violation of any of  the
  provisions of this section or section forty-nine-a of this article which
  regulate  the  manner in which a vessel is to be properly operated while
  underway shall, at the request of a police officer, submit to  a  breath
  test  to  be  administered by the police officer. If such test indicates
  that such operator has consumed alcohol, the police officer may  request
  such  operator  to  submit to a chemical test in the manner set forth in
  this section. For the purposes  of  this  section,  a  vessel  is  being
  "operated"  only  when such vessel is underway and is being propelled in
  whole or in part by mechanical power.
    3. Chemical tests. (a) Any person under  the  age  of  twenty-one  who
  operates  a  vessel  on  the  waters  of the state shall be requested to
  consent to a chemical test of one or  more  of  the  following:  breath,
  blood,  urine, or saliva for the purpose of determining the alcoholic or
  drug content of his blood, provided that such test  is  administered  at
  the  direction  of  a  police  officer: (1) having reasonable grounds to
  believe such person to have been operating in violation of this  section
  or  paragraph  (a),  (b),  (c), (d) or (e) of subdivision two of section
  forty-nine-a of this article and within two hours after such person  has
  been  placed under arrest, or detained pursuant to paragraph (c) of this
  subdivision, for any such violation or (2)  within  two  hours  after  a
  breath  test  as  provided  in subdivision two of this section indicates
  that alcohol has been consumed by such person and in accordance with the
  rules and regulations established by  the  police  force  of  which  the
  officer is a member.
    (a-1) If such person having been detained pursuant to paragraph (c) of
  this subdivision, and having thereafter been requested to submit to such
  chemical  test  and  having been informed that the person's privilege to
  operate a vessel and  any  non-resident  operating  privilege  shall  be
  suspended  for  refusal  to  submit to such chemical test or any portion
  thereof, whether or not there is a finding of operating a  vessel  after
  having  consumed alcohol, refuses to submit to such chemical test or any
  portion thereof, unless a court  order  has  been  granted  pursuant  to
  subdivision  eight  of  section  forty-nine-a  of this article, the test
  shall not be given and  a  written  report  of  such  refusal  shall  be
  immediately  made  by  the  police  officer before whom such refusal was
  made. Such report may be verified by having the report sworn to,  or  by
  affixing to such report a form notice that false statements made therein
  are  punishable  as  a class A misdemeanor pursuant to section 210.45 of
  the penal law and such form notice together with the subscription of the
  deponent  shall  constitute  a verification of the report. The report of
  the police officer shall set forth reasonable grounds  to  believe  such
  person to have been operating a vessel in violation of this section, and
  that said person had refused to submit to such chemical test. The report
  shall  be  forwarded  to  the  commissioner  of  motor  vehicles  within
  forty-eight hours in a manner to be prescribed by such  commissioner  of
  motor vehicles, and all subsequent proceedings with regard to refusal to
  submit  to  such  chemical  test by such person shall be as set forth in
  subdivision six of this section. The police officer shall  provide  such
  person  with  a  hearing  date  schedule,  a waiver form, and such other
  information as may be required by the commissioner of motor vehicles.
    (b) For the purposes of  this  subdivision,  "reasonable  grounds"  to
  believe  that a person has been operating a vessel after having consumed
  alcohol in violation of this section shall be determined by viewing  the
  totality  of  circumstances  surrounding  the incident which, when taken
  together, indicate that the operator was operating a vessel in violation
  of  this  section.  Such  circumstances  may  include  any  visible   or
  behavioral  indication  of  alcohol  consumption  by  the  operator, the
  existence of  an  open  container  containing  or  having  contained  an
  alcoholic  beverage in or around the vessel being operated, or any other
  evidence surrounding the circumstances of the incident  which  indicates
  that  the  operator  has  been  operating a vessel after having consumed
  alcohol at the time of the incident.
    (c) Notwithstanding any other provision of law  to  the  contrary,  no
  person  under  the  age  of  twenty-one shall be arrested for an alleged
  violation of this section. However, a person under the age of twenty-one
  for whom a chemical test is authorized pursuant to this subdivision  may
  be  temporarily  detained  by  the  police  solely  for  the  purpose of
  requesting or administering such chemical test whenever arrest without a
  warrant for a petty offense would be authorized in accordance  with  the
  provisions of section 140.10 of the criminal procedure law.
    4.  Chemical  test report and hearing. (a) Whenever a chemical test of
  the breath, blood, urine or saliva of an operator who is under  the  age
  of  twenty-one  indicates  that  such  person  has  operated a vessel in
  violation of this section, and such person is not charged with violating
  any subdivision of section forty-nine-a of this article arising  out  of
  the  same  incident,  the police officer who administered the test shall
  forward a report of the results of such test to the department of  motor
  vehicles  within  twenty-four  hours  of  the time when such results are
  available in a manner prescribed by the commissioner of motor  vehicles,
  and  the  operator  shall  be  given  a  hearing  notice  as provided in
  subdivision five of this section, to appear before a hearing officer  in
  the  county where the chemical test was administered, or in an adjoining
  county under such circumstances as prescribed  by  the  commissioner  of
  motor  vehicles,  on  a  date  to  be  established  in accordance with a
  schedule promulgated by the commissioner of motor vehicles. Such hearing
  shall occur within thirty days of, but not less than  forty-eight  hours
  from,  the  date  that  the  chemical  test  was administered, provided,
  however, where the commissioner of motor vehicles determines, based upon
  the availability of hearing  officers  and  the  anticipated  volume  of
  hearings  at  a particular location, that the scheduling of such hearing
  within thirty days would impair the timely scheduling or  conducting  of
  other hearings, such hearing shall be scheduled at the next hearing date
  for  such  particular  location.  When  providing the operator with such
  hearing notice, the police officer shall also give to the operator,  and
  shall,  prior  to  the  commencement  of  the  hearing,  provide  to the
  department of motor vehicles, copies of the following reports, documents
  and materials: any written  report  or  document,  or  portion  thereof,
  concerning  a  physical  examination,  a  scientific test or experiment,
  including the most recent record of inspection, or calibration or repair
  of machines or instruments utilized to perform such scientific tests  or
  experiments  and  the  certification  certificate,  if  any, held by the
  operator of the machine or instrument, which tests or examinations  were
  made  by  or  at the request or direction of a public servant engaged in
  law enforcement activity. The report of  the  police  officer  shall  be
  verified  by having the report sworn to, or by affixing to such report a
  form notice that false statements made therein are punishable as a class
  A misdemeanor pursuant to section 210.45 of the penal law and such  form
  notice  together  with the subscription of the deponent shall constitute
  verification of the report.
    (b) Every person under the age of twenty-one who is  alleged  to  have
  operated  a  vessel  after  having consumed alcohol as set forth in this
  section, and who is  not  charged  with  violating  any  subdivision  of
  section  forty-nine-a  of this article arising out of the same incident,
  is entitled to a hearing before a hearing officer in accordance with the
  provisions of this  section.  Unless  otherwise  provided  by  law,  the
  privilege to operate a vessel or any non-resident operating privilege of
  such  person  shall  not  be suspended or revoked prior to the scheduled
  date for such hearing.
    (i) The hearing shall be limited to the following issues: (1) did such
  person operate the vessel; (2) was  a  valid  request  to  submit  to  a
  chemical  test  made  by  the  police  officer  in  accordance  with the
  provisions of this section; (3) was such  person  less  than  twenty-one
  years  of  age  at  the  time  of  operation  of the vessel; (4) was the
  chemical test properly administered in accordance with the provisions of
  this section; (5) did the test find that  such  person  had  operated  a
  vessel after having consumed alcohol as defined in this section; and (6)
  did  the police officer make a lawful stop of such person. The burden of
  proof shall be on the police officer to prove each of  these  issues  by
  clear and convincing evidence.
    (ii)  Every  person  who  is  entitled  to  a hearing pursuant to this
  subdivision has the right to be present at the hearing; the right to  be
  represented  by attorney, or in the hearing officer's discretion, by any
  other person the operator chooses;  the  right  to  receive  and  review
  discovery  materials  as  provided in this subdivision; the right not to
  testify; the right to present evidence and witnesses in his own  behalf,
  the  right  to  cross examine adverse witnesses, and the right to appeal
  from an adverse determination in accordance with article three-A of  the
  vehicle  and  traffic  law.  Any  person  representing the operator must
  conform to the standards of  conduct  required  of  attorneys  appearing
  before  state  courts, and failure to conform to these standards will be
  grounds for declining to permit his continued appearance in the hearing.
    (iii) Hearings conducted pursuant to  this  subdivision  shall  be  in
  accordance  with  this subdivision and with the provisions applicable to
  the adjudication  of  traffic  infractions  pursuant  to  the  following
  provisions  of  part  124  of  title  fifteen  of  the  codes, rules and
  regulations of the state of New York: paragraph  (b)  of  section  124.1
  regarding   the  opening  statement;  paragraph  (b)  of  section  124.2
  regarding  the  right  to  representation  and  to  remain  silent   and
  paragraphs (a) through (e) of section 124.4 regarding the conduct of the
  hearing,   procedure   and  refusal;  provided,  however,  that  nothing
  contained in this subparagraph shall be deemed  to  preclude  a  hearing
  officer  from changing the order of a hearing conducted pursuant to this
  subdivision as justice may require and for good cause shown.
    (iv)  The  rules governing receipt of evidence in a court of law shall
  not apply in a hearing conducted pursuant to this subdivision except  as
  follows:
    (1)  on  the merits of the charge, and whether or not a party objects,
  the hearing officer shall exclude from consideration  the  following:  a
  privileged  communication;  evidence  which, for constitutional reasons,
  would not be admissible in a court of law; evidence of prior misconduct,
  incompetency or illness, except where such evidence would be  admissible
  in a court of law; evidence which is irrelevant or immaterial;
    (2)   no  negative  inference  shall  be  drawn  from  the  operator's
  exercising the right not to testify.
    (v) If, after such hearing, the hearing officer, acting on  behalf  of
  the commissioner of motor vehicles, finds all of the issues set forth in
  this  subdivision  in the affirmative, the hearing officer shall suspend
  the operating privilege or  non-resident  operating  privilege  of  such
  person  in  accordance  with the time periods set forth in this section.
  If, after such hearing, the hearing officer, acting  on  behalf  of  the
  commissioner  of  motor  vehicles,  finds  any  of  said  issues  in the
  negative, the hearing officer  must  find  that  the  operator  did  not
  operate a vessel after having consumed alcohol.
    (vi)  A  person  who  has  had  a  privilege  to  operate  a vessel or
  non-resident operating privilege suspended pursuant to the provisions of
  this section may appeal the finding of the hearing officer in accordance
  with the provisions of article three-A of the vehicle and traffic law.
    (c) Unless an adjournment of the hearing date has been  granted,  upon
  the   operator's   failure  to  appear  for  a  scheduled  hearing,  the
  commissioner  shall  suspend  the  privilege  to  operate  a  vessel  or
  non-resident  operating  privilege  until  the  operator  petitions  the
  commissioner of motor vehicles and a rescheduled hearing  is  conducted,
  provided,   however,   the  commissioner  shall  restore  such  person's
  operating  privilege  or  non-resident  operating  privilege   if   such
  rescheduled  hearing  is adjourned at the request of a person other than
  the operator.  Requests for adjournments shall be made and determined in
  accordance with regulations promulgated by  the  commissioner  of  motor
  vehicles.  If  such  a  request  by  the  operator for an adjournment is
  granted, the commissioner of motor vehicles shall notify the operator of
  the rescheduled hearing, which shall be scheduled for the  next  hearing
  date.    If  a  second  or  subsequent  request  by  the operator for an
  adjournment is granted, the operator's privilege to operate a vessel or,
  non-resident operating privilege, may be suspended pending  the  hearing
  at  the  time  such  adjournment is granted; provided, however, that the
  records of the department or the  evidence  already  admitted  furnishes
  reasonable  grounds  to  believe such suspension is necessary to prevent
  continuing violations or  a  substantial  safety  hazard;  and  provided
  further, that such hearing shall be scheduled for the next hearing date.
    If a police officer does not appear for a hearing, the hearing officer
  shall have the authority to dismiss the charge. Any person may waive the
  right  to  a  hearing  under  this  subdivision,  in  a  form and manner
  prescribed by the commissioner of  motor  vehicles,  and  may  enter  an
  admission  of  guilt, in person or by mail, to the charge of operating a
  vessel in violation of this section. Such admission of guilt shall  have
  the  same  force  and  effect  as a finding of guilt entered following a
  hearing conducted pursuant to this subdivision.
    5. Hearing notice. The hearing notice issued to an  operator  pursuant
  to  subdivision four of this section shall be in a form as prescribed by
  the commissioner. In addition to containing information  concerning  the
  time,  date  and  location of the hearing, and such other information as
  the commissioner deems  appropriate,  such  hearing  notice  shall  also
  contain  the  following  information:  the  date,  time and place of the
  offense  charged;  the  procedures  for  requesting  an adjournment of a
  scheduled hearing as provided in this section, the operator's right to a
  hearing conducted pursuant to this section and the right to  waive  such
  hearing  and  plead  guilty, either in person or by mail, to the offense
  charged.
    6. Refusal report and  hearing.  (a)  Any  person  under  the  age  of
  twenty-one  who is suspected of operating a vessel after having consumed
  alcohol in violation of this  section,  and  who  is  not  charged  with
  violating  any  subdivision  of  section  forty-nine-a  of  this article
  arising out of the same incident, and who has been requested  to  submit
  to  a  chemical  test  pursuant to subdivision three of this section and
  after having been informed that his privilege to operate  a  vessel  and
  any  non-resident  operating privilege shall be suspended for refusal to
  submit to such chemical test or any  portion  thereof,  whether  or  not
  there  is a finding of operating a vessel after having consumed alcohol,
  and such person refuses to submit to such chemical test or  any  portion
  thereof,  shall  be  entitled to a hearing in accordance with a schedule
  promulgated by the commissioner of  motor  vehicles,  and  such  hearing
  shall  occur  within thirty days of, but not less than forty-eight hours
  from,  the  date  of  such  refusal,  provided,   however,   where   the
  commissioner  of  motor vehicles determines, based upon the availability
  of hearing  officers  and  the  anticipated  volume  of  hearings  at  a
  particular  location,  that the scheduling of such hearing within thirty
  days would impair the timely scheduling or conducting of other hearings,
  such hearing shall be scheduled  at  the  next  hearing  date  for  such
  particular location.
    (b)  Unless  an adjournment of the hearing date has been granted, upon
  the  operator's  failure  to  appear  for  a  scheduled   hearing,   the
  commissioner  of motor vehicles shall suspend the operating privilege or
  non-resident  operating  privilege  until  the  operator  petitions  the
  commissioner  of  motor vehicles and a rescheduled hearing is conducted,
  provided,  however,  the  commissioner  shall  restore   such   person's
  operator's   privilege  or  non-resident  operating  privilege  if  such
  rescheduled hearing is adjourned at the request of a person  other  than
  the operator.  Requests for adjournments shall be made and determined in
  accordance  with  regulations  promulgated  by the commissioner of motor
  vehicles. If such a request  by  the  operator  for  an  adjournment  is
  granted, the commissioner of motor vehicles shall notify the operator of
  the  rescheduled  hearing, which shall be scheduled for the next hearing
  date.   If a second  or  subsequent  request  by  the  operator  for  an
  adjournment  is granted, the operator's privilege to operate a vessel or
  non-resident operating privilege may be suspended pending the hearing at
  the time such  adjournment  is  granted;  provided,  however,  that  the
  records  of  the  department  of  motor vehicles or the evidence already
  admitted furnishes reasonable grounds  to  believe  such  suspension  is
  necessary  to  prevent  continuing  violations  or  a substantial safety
  hazard; and provided further, that such hearing shall be  scheduled  for
  the next hearing date.
    If a police officer does not appear for a hearing, the hearing officer
  shall have the authority to dismiss the charge. Any person may waive the
  right to a hearing under this subdivision.
    (c)  The  hearing on the refusal to submit to a chemical test pursuant
  to this subdivision shall be limited to the following issues: (1) was  a
  valid request to submit to a chemical test made by the police officer in
  accordance with the provisions of subdivision three of this section; (2)
  was  such  person  given  sufficient  warning,  in  clear or unequivocal
  language, prior to such refusal that such  refusal  to  submit  to  such
  chemical  test or any portion thereof, would result in the suspension of
  such  person's  privilege  to  operate a vessel or nonresident operating
  privilege, whether or not such person is found to have operated a vessel
  after having consumed alcohol; (3) did such person refuse to  submit  to
  such  chemical  test or any portion thereof; (4) did such person operate
  the vessel; (5) was such person less than twenty-one years of age at the
  time of operation of the vessel; (6)  did  the  police  officer  make  a
  lawful stop of such person. If, after such hearing, the hearing officer,
  acting on behalf of the commissioner of motor vehicles, finds on any one
  said  issue  in  the negative, the hearing officer shall not suspend the
  operator's privilege to  operate  a  vessel  or  non-resident  operating
  privilege  and shall immediately terminate any outstanding suspension of
  the operator's privilege to operate a vessel or  non-resident  operating
  privilege arising from such refusal. If, after such hearing, the hearing
  officer,  acting  on behalf of the commissioner of motor vehicles, finds
  all of the  issues  in  the  affirmative,  such  hearing  officer  shall
  immediately   suspend   the   privilege  to  operate  a  vessel  or  any
  non-resident operating privilege in accordance with  the  provisions  of
  this  section.  A  person who has had a privilege to operate a vessel or
  non-resident operating privilege suspended pursuant to the provisions of
  this  section  may  appeal  the  findings  of  the  hearing  officer  in
  accordance  with  the  provisions  of article three-A of the vehicle and
  traffic law.
    (d) Any privilege which has been suspended pursuant to  paragraph  (c)
  of  this  subdivision  shall  not  be  restored  for one year after such
  suspension. Where such person under the age of twenty-one  years  has  a
  prior  finding,  conviction  or youthful offender adjudication resulting
  from a violation  of  this  section  or  section  forty-nine-a  of  this
  article, not arising from the same incident, such privilege shall not be
  restored  for  at least one year or until such person reaches the age of
  twenty-one years, whichever is the greater period of time.
    7. Effect of prior finding of having consumed alcohol. A prior finding
  that a person under the age of twenty-one has operated  a  vessel  after
  having  consumed  alcohol  pursuant  to this section shall have the same
  effect as a  prior  conviction  of  a  violation  of  paragraph  (a)  of
  subdivision  two  of section forty-nine-a of this article solely for the
  purpose of determining the length  of  any  suspension  required  to  be
  imposed   under  any  provision  of  this  article,  provided  that  the
  subsequent offense is committed prior to the expiration of the retention
  period for such prior offense or offenses set forth in paragraph (k)  of
  subdivision  one  of  section two hundred one of the vehicle and traffic
  law.
    8. Plea bargain limitations. (a) In any case wherein the  charge  laid
  before  a  court alleges a violation of paragraph (a) of subdivision two
  of section forty-nine-a of this article and the operator was  under  the
  age  of  twenty-one  at  the  time of such violation, any plea of guilty
  thereafter entered in satisfaction of such charge must include at  least
  a  plea  of  guilty  to  the  violation  of  such subdivision; provided,
  however, such charge may instead be satisfied as provided  in  paragraph
  (b)  of  this  subdivision,  and, provided further that, if the district
  attorney, upon reviewing the available  evidence,  determines  that  the
  charge  of  a  violation  of paragraph (a) of subdivision two of section
  forty-nine-a of this article is not warranted,  such  district  attorney
  may  consent, and the court may allow a disposition by plea of guilty to
  another charge in satisfaction of such charge; provided, however, in all
  such cases, the court shall set forth upon the record the basis for such
  disposition.
    (b)  In  any  case  wherein  the  charge laid before a court alleges a
  violation of paragraph (a) of subdivision two of section forty-nine-a of
  this article by a person who was under the age of twenty-one at the time
  of commission of the offense,  the  court,  with  the  consent  of  both
  parties,  may  allow  the satisfaction of such charge by the defendant's
  agreement to be subject to action by the commissioner of motor  vehicles
  pursuant  to  this  section. In any such case, the defendant shall waive
  the right to a hearing under this section and such waiver shall have the
  same force and effect as a  finding  of  a  violation  of  this  section
  entered  after  a  hearing  conducted  pursuant  to  this  section.  The
  defendant shall execute such waiver in open court, and,  if  represented
  by counsel, in the presence of his attorney, on a form to be provided by
  the  commissioner  of  motor  vehicles,  which shall be forwarded by the
  court to the commissioner of motor vehicles within ninety-six hours.  To
  be  valid,  such form shall, at a minimum, contain clear and conspicuous
  language advising the defendant that a duly executed waiver: (i) has the
  same force and effect as a guilty finding following a  hearing  pursuant
  to  this  section; (ii) shall subject the defendant to the imposition of
  sanctions pursuant to this section; and (iii) may subject the  defendant
  to  increased  sanctions  upon a subsequent violation of this section or
  section forty-nine-a of this article. Upon receipt of  a  duly  executed
  waiver  pursuant  to  this paragraph, the commissioner of motor vehicles
  shall take such administrative action and impose such sanctions  as  may
  be required by this section.
    9.  Sanctions. (a) Except as otherwise provided in this subdivision, a
  person's privilege to operate a vessel upon  the  waters  of  the  state
  shall  be  suspended for six months, where such person has been found to
  have operated a vessel after having consumed  alcohol  in  violation  of
  this section.
    (b)   The   suspension   of  operating  privileges  pursuant  to  this
  subdivision shall be for one year or until such person reaches  the  age
  of  twenty-one,  whichever  is  the  greater  period of time, where such
  person has been found to have operated a vessel  after  having  consumed
  alcohol  in  violation of this section, and has previously been found to
  have operated a vessel after having consumed  alcohol  in  violation  of
  this  section  or  has  previously  been  convicted of, or adjudicated a
  youthful offender for any violation  of  section  forty-nine-a  of  this
  article not arising out of the same incident.
    (c)  Where  the  commissioner  of  motor  vehicles determines that the
  period of suspension imposed  pursuant  to  this  section  would  extend
  beyond the current boating season, such commissioner may direct that any
  portion  of  such  suspension  period  take  effect during the following
  boating season.
    10. Civil penalty. (a) Unless otherwise  provided,  any  person  whose
  privilege  to  operate  a  vessel  has  been  suspended  pursuant to the
  provisions of this section shall also be liable for a civil  penalty  in
  the amount of one hundred twenty-five dollars.
    (b)  The  first  one  hundred  dollars of each civil penalty collected
  pursuant to the  provisions  of  this  section  shall  be  paid  to  the
  commissioner of motor vehicles for deposit into the general fund and the
  remainder  of all such civil penalties shall be paid to the commissioner
  of parks, recreation, and historic preservation for deposit into the  "I
  Love  NY  Waterways" boating safety fund established pursuant to section
  ninety-seven-nn of state finance law.
    11. Nothing contained in  this  section  shall  be  deemed  to  exempt
  persons  under  the  age of twenty-one from arrest and prosecution under
  section forty-nine-a of this article for an alleged  violation  of  such
  section.

  S 49-c.  Termination  of  unsafe operation. A police officer or peace
  officer,  acting  pursuant  to  his  or  her  special  duties,  who  has
  reasonable cause to believe that a vessel, including a rowboat, canoe or
  kayak,  is  being  operated,  in his or her presence, upon the navigable
  waters of the state, or any tidewaters bordering on or lying within  the
  boundaries  of  the  county  of  Nassau  or Suffolk, in violation of any
  section of this article, and that it would be so imminently hazardous to
  continue to operate such vessel as to be likely to cause an accident  or
  physical  injury,  may  direct  the master or operator of such vessel to
  cease operating upon such waters, and to proceed immediately to dock the
  vessel at the nearest available safe anchorage, dock  or  mooring  until
  the  violation  charged  by such officer is finally adjudicated or until
  such hazardous condition is remediated or otherwise corrected.

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