Bill Text: NY A09867 | 2017-2018 | General Assembly | Introduced
Bill Title: Provides for the repeal of existing boating while intoxicated laws and replaces them with laws related to operation of a boat while under the influence of alcohol or drugs which closer resemble the existing DWI laws.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2018-02-15 - referred to transportation [A09867 Detail]
Download: New_York-2017-A09867-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 9867 IN ASSEMBLY February 15, 2018 ___________ Introduced by M. of A. WOERNER -- read once and referred to the Commit- tee on Transportation AN ACT to amend the navigation law, the vehicle and traffic law, the criminal procedure law and the penal law, in relation to operation of a vessel while under the influence of alcohol or drugs; and to repeal certain provisions of the navigation law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Sections 49-a and 49-b of the navigation law are REPEALED 2 and a new article 4-B is added to read as follows: 3 ARTICLE 4-B 4 ALCOHOL AND DRUG-RELATED OFFENSES AND PROCEDURES APPLICABLE 5 TO OPERATION OF A VESSEL 6 Section 79-d. Operation of a vessel while under the influence of alcohol 7 or drugs. 8 79-e. Operation of a vessel after having consumed alcohol; under 9 the age of twenty-one; per se. 10 79-f. Sanctions. 11 79-g. Arrest and testing. 12 79-h. Operation of a vessel after having consumed alcohol; under 13 twenty-one; procedure. 14 79-i. Chemical test evidence. 15 79-j. Alcohol and drug rehabilitation program within the depart- 16 ment of motor vehicles. 17 79-k. Special options program for operation of a vessel while 18 intoxicated. 19 79-l. Installation and operation of ignition interlock devices. 20 79-m. Special procedures and disposition involving alcohol and 21 substance abuse assessment and treatment. 22 79-n. Driver and boater responsibility assessment. 23 § 79-d. Operation of a vessel while under the influence of alcohol or 24 drugs. 1. Definitions. As used in this article, unless the context 25 clearly indicates otherwise: 26 (a) The term "vessel" shall be every description of watercraft or 27 other artificial contrivance propelled in whole or in part by mechanical 28 power and, which is used or capable of being used as a means of trans- 29 portation over water, and which is underway and not at anchor or made EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13765-02-8A. 9867 2 1 fast to the shore or ground. The term "vessel" shall include a "public 2 vessel" as defined in this section unless otherwise specified. 3 (b) The term "public vessel" shall mean and include every vessel which 4 is propelled in whole or in part by mechanical power and is used or 5 operated for commercial purposes on the navigable waters of the state; 6 that is either carrying passengers, carrying freight, towing, or for any 7 other use, for which a compensation is received, either directly or 8 where provided as an accommodation, advantage, facility or privilege at 9 any place of public accommodation, resort or amusement. 10 (c) The term "waters of the state" means all of the waterways or 11 bodies of water located within the state or that part of any body of 12 water which is adjacent to the state over which the state has territo- 13 rial jurisdiction, on which a vessel or public vessel may be used or 14 operated, including Nassau and Suffolk counties. 15 (d) The term "drug" means any substance listed in section thirty-three 16 hundred six of the public health law. 17 (e) The term "commissioner" means the commissioner of parks, recre- 18 ation and historic preservation. 19 2. Operation of a vessel while ability impaired. No person shall oper- 20 ate a vessel upon the waters of this state while the person's ability to 21 operate such vessel is impaired by the consumption of alcohol. 22 3. Operation of a vessel while intoxicated; per se. No person shall 23 operate a vessel upon the waters of this state while such person has .08 24 of one per centum or more by weight of alcohol in the person's blood as 25 shown by chemical analysis of such person's blood, breath, urine or 26 saliva, made pursuant to the provisions of section seventy-nine-g of 27 this article. 28 4. Aggravated operation of a vessel while intoxicated. (a) Per se. No 29 person shall operate a vessel upon the waters of this state while such 30 person has .18 of one per centum or more by weight of alcohol in such 31 person's blood as shown by chemical analysis of such person's blood, 32 breath, urine or saliva made pursuant to the provisions of section 33 seventy-nine-g of this article. 34 (b) With a child. No person shall operate a vessel in violation of 35 subdivision three, five, six or seven of this section while a child who 36 is fifteen years of age or less is a passenger in such vessel. 37 5. Operation of a vessel while intoxicated. No person shall operate a 38 vessel while in an intoxicated condition. 39 6. Operation of a vessel while ability impaired by drugs. No person 40 shall operate a vessel while the person's ability to operate such a 41 vessel is impaired by the use of a drug as defined in this section. 42 7. Operation of a vessel while ability impaired by the combined influ- 43 ence of drugs or of alcohol and any drug or drugs. No person shall oper- 44 ate a vessel while the person's ability to operate such vessel is 45 impaired by the combined influence of drugs or of alcohol and any drug 46 or drugs. 47 8. Public vessels: per se - level I. Notwithstanding the provisions of 48 section seventy-nine-i of this article, no person shall operate a public 49 vessel while such person has .04 of one per centum or more but not more 50 than .06 of one per centum by weight of alcohol in the person's blood as 51 shown by chemical analysis of such person's blood, breath, urine or 52 saliva, made pursuant to the provisions of section seventy-nine-g of 53 this article; provided, however, nothing contained in this subdivision 54 shall prohibit the imposition of a charge of a violation of subdivision 55 two of this section, or of section seventy-nine-e of this article where 56 a person under the age of twenty-one operates a public vessel where aA. 9867 3 1 chemical analysis of such person's blood, breath, urine, or saliva, made 2 pursuant to the provisions of section seventy-nine-g of this article, 3 indicates that such operator has .02 of one per centum or more but less 4 than .04 of one per centum by weight of alcohol in such operator's 5 blood. 6 9. Public vessels; per se - level II. Notwithstanding the provisions 7 of section seventy-nine-i of this article, no person shall operate a 8 public vessel while such person has more than .06 of one per centum but 9 less than .08 of one per centum by weight of alcohol in the person's 10 blood as shown by chemical analysis of such person's blood, breath, 11 urine or saliva, made pursuant to the provisions of section seventy- 12 nine-g of this article; provided, however, nothing contained in this 13 subdivision shall prohibit the imposition of a charge of a violation of 14 subdivision two of this section. 15 10. Effect of prior out-of-state conviction. A prior out-of-state 16 conviction for operating a vessel while under the influence of alcohol 17 or drugs shall be deemed to be a prior conviction of a violation of this 18 section for purposes of determining penalties imposed under this section 19 or for purposes of any administrative action required to be taken pursu- 20 ant to subdivision three of section seventy-nine-f of this article; 21 provided, however, that such conduct, had it occurred in this state, 22 would have constituted a misdemeanor or felony violation of any of the 23 provisions of this section. Provided, however, that if such conduct, had 24 it occurred in this state, would have constituted a violation of any 25 provisions of this section which are not misdemeanor or felony offenses, 26 then such conduct shall be deemed to be a prior conviction of a 27 violation of subdivision two of this section for purposes of determining 28 penalties imposed under this section or for purposes of any administra- 29 tive action required to be taken pursuant to subdivision three of 30 section seventy-nine-f of this article. 31 11. Effect of prior finding of having consumed alcohol. A prior find- 32 ing that a person under the age of twenty-one has operated a vessel 33 after having consumed alcohol pursuant to section seventy-nine-g of this 34 article shall have the same effect as a prior conviction of a violation 35 of subdivision two of this section solely for the purpose of determining 36 the length of any suspension or revocation of the operator's privilege 37 to operate a vessel required to be imposed under any provision of this 38 article, provided that the subsequent offense is committed prior to the 39 expiration of the retention period for such prior offense or offenses 40 set forth in paragraph (k) of subdivision one of section two hundred one 41 of the vehicle and traffic law. 42 12. Conviction of a different charge. An operator may be convicted of 43 a violation of subdivision two, three or five of this section, notwith- 44 standing that the charge laid before the court alleged a violation of 45 subdivision three or five of this section, and regardless of whether or 46 not such conviction is based on a plea of guilty. 47 13. Plea bargain limitations. (a) (i) In any case wherein the charge 48 laid before the court alleges a violation of subdivision three, five, 49 six or seven of this section, any plea of guilty thereafter entered in 50 satisfaction of such charge must include at least a plea of guilty to 51 the violation of the provisions of any of the subdivisions of this 52 section, other than subdivision eight or nine, and no other disposition 53 by plea of guilty to any other charge in satisfaction of such charge 54 shall be authorized; provided, however, if the district attorney, upon 55 reviewing the available evidence, determines that the charge of a 56 violation of this section is not warranted, such district attorney mayA. 9867 4 1 consent, and the court may allow a disposition by plea of guilty to 2 another charge in satisfaction of such charge; provided, however, in all 3 such cases, the court shall set forth upon the record the basis for such 4 disposition. 5 (ii) In any case wherein the charge laid before the court alleges a 6 violation of subdivision three, five, six or seven of this section, no 7 plea of guilty to subdivision two of this section shall be accepted by 8 the court unless such plea includes as a condition thereof the require- 9 ment that the defendant attend and complete the alcohol and drug reha- 10 bilitation program established pursuant to section seventy-nine-j of 11 this article, including any assessment and treatment required thereby; 12 provided, however, that such requirement may be waived by the court upon 13 application of the district attorney or the defendant demonstrating that 14 the defendant, as a condition of the plea, has been required to enter 15 into and complete an alcohol or drug treatment program prescribed pursu- 16 ant to an alcohol or substance abuse screening or assessment conducted 17 pursuant to section seventy-nine-m of this article or for other good 18 cause shown. The provisions of this subparagraph shall apply, notwith- 19 standing any bars to participation in the alcohol and drug rehabili- 20 tation program set forth in section seventy-nine-j of this article; 21 provided, however, that nothing in this paragraph shall authorize the 22 issuance of a conditional privilege to operate a vessel unless otherwise 23 authorized by law. 24 (iii) In any case wherein the charge laid before the court alleges a 25 violation of subdivision two of this section and the operator was under 26 the age of twenty-one at the time of such violation, any plea of guilty 27 thereafter entered in satisfaction of such charge must include at least 28 a plea of guilty to the violation of such subdivision; provided, howev- 29 er, such charge may instead be satisfied as provided in paragraph (c) of 30 this subdivision, and, provided further that, if the district attorney, 31 upon reviewing the available evidence, determines that the charge of a 32 violation of subdivision two of this section is not warranted, such 33 district attorney may consent, and the court may allow a disposition by 34 plea of guilty to another charge in satisfaction of such charge; 35 provided, however, in all such cases, the court shall set forth upon the 36 record the basis for such disposition. 37 (b) In any case wherein the charge laid before the court alleges a 38 violation of subdivision two or eight of this section while operating a 39 public vessel, any plea of guilty thereafter entered in satisfaction of 40 such charge must include at least a plea of guilty to the violation of 41 the provisions of any of the subdivisions of this section and no other 42 disposition by plea of guilty to any other charge in satisfaction of 43 such charge shall be authorized; provided, however, if the district 44 attorney upon reviewing the available evidence determines that the 45 charge of a violation of this section is not warranted, he or she may 46 consent, and the court may allow, a disposition by plea of guilty to 47 another charge is satisfaction of such charge. 48 (c) Except as provided in paragraph (b) of this subdivision, in any 49 case wherein the charge laid before the court alleges a violation of 50 subdivision two of this section by a person who was under the age of 51 twenty-one at the time of commission of the offense, the court, with the 52 consent of both parties, may allow the satisfaction of such charge by 53 the defendant's agreement to be subject to action by the commissioner 54 pursuant to section seventy-nine-h of this article. In any such case, 55 the defendant shall waive the right to a hearing under section seventy- 56 nine-h of this article and such waiver shall have the same force andA. 9867 5 1 effect as a finding of a violation of section seventy-nine-e of this 2 article entered after a hearing conducted pursuant to such section 3 seventy-nine-h. The defendant shall execute such waiver in open court, 4 and, if represented by counsel, in the presence of his or her attorney, 5 on a form to be provided by the commissioner, which shall be forwarded 6 by the court to the commissioner within ninety-six hours. To be valid, 7 such form shall, at a minimum, contain clear and conspicuous language 8 advising the defendant that a duly executed waiver: (i) has the same 9 force and effect as a guilty finding following a hearing pursuant to 10 section seventy-nine-h of this article; (ii) shall subject the defendant 11 to the imposition of sanctions pursuant to such section seventy-nine-h; 12 and (iii) may subject the defendant to increased sanctions upon a subse- 13 quent violation of this section or section seventy-nine-e of this arti- 14 cle. Upon receipt of a duly executed waiver pursuant to this paragraph, 15 the commissioner shall take such administrative action and impose such 16 sanctions as may be required by section seventy-nine-h of this article. 17 (d) In any case wherein the charge laid before the court alleges a 18 violation of subdivision four of this section, any plea of guilty there- 19 after entered in satisfaction of such charge must include at least a 20 plea of guilty to the violation of the provisions of subdivision three, 21 four or five of this section, and no other disposition by plea of guilty 22 to any other charge in satisfaction of such charge shall be authorized; 23 provided, however, if the district attorney, upon reviewing the avail- 24 able evidence, determines that the charge of a violation of this section 25 is not warranted, such district attorney may consent and the court may 26 allow a disposition by plea of guilty to another charge in satisfaction 27 of such charge, provided, however, in all such cases, the court shall 28 set forth upon the record the basis for such disposition. Provided, 29 further, however, that no such plea shall be accepted by the court 30 unless such plea includes as a condition thereof the requirement that 31 the defendant attend and complete the alcohol and drug rehabilitation 32 program established pursuant to section seventy-nine-j of this article, 33 including any assessment and treatment required thereby; provided, 34 however, that such requirement may be waived by the court upon applica- 35 tion of the district attorney or the defendant demonstrating that the 36 defendant, as a condition of the plea, has been required to enter into 37 and complete an alcohol or drug treatment program prescribed pursuant to 38 an alcohol or substance abuse screening or assessment conducted pursuant 39 to section seventy-nine-m of this article or for other good cause shown. 40 The provisions of this paragraph shall apply, notwithstanding any bars 41 to participation in the alcohol and drug rehabilitation program set 42 forth in section seventy-nine-j of this article; provided, however, that 43 nothing in this paragraph shall authorize the issuance of a conditional 44 privilege to operate a vessel unless otherwise authorized by law. 45 14. Charges against operator of a public vessel. No person other than 46 an operator of a public vessel may be charged with or convicted of a 47 violation of subdivision eight or nine of this section. 48 15. Operation of a vessel while intoxicated or while ability impaired 49 by drugs--serious physical injury or death or child in the vessel. (a) 50 In every case where a person is charged with a violation of subdivision 51 three, four, five, six or seven of this section, the law enforcement 52 officer alleging such charge shall make a clear notation in the 53 "Description of Violation" section of a simplified traffic information 54 (i) if, arising out of the same incident, someone other than the person 55 charged was killed or suffered serious physical injury as defined in 56 section 10.00 of the penal law; such notation shall be in the form of aA. 9867 6 1 "D" if someone other than the person charged was killed and such nota- 2 tion shall be in the form of a "S.P.I." if someone other than the person 3 charged suffered serious physical injury; and (ii) if a child aged 4 fifteen years or less was present in the vessel of the person charged 5 with a violation of subdivision three, four, five, six or seven of this 6 section; such notation shall be in the form of "C.I.V.". Provided, 7 however, that the failure to make such notations shall in no way affect 8 a charge for a violation of subdivision three, four, five, six or seven 9 of this section. 10 (b) Where a law enforcement officer alleges a violation of paragraph 11 (b) of subdivision four of this section and the operator of the vessel 12 is a parent, guardian, or custodian of, or other person legally respon- 13 sible for, a child aged fifteen years or less who is a passenger in such 14 vessel, then the officer shall report or cause a report to be made, if 15 applicable, in accordance with title six of article six of the social 16 services law. 17 § 79-e. Operation of a vessel after having consumed alcohol; under the 18 age of twenty-one; per se. No person under the age of twenty-one shall 19 operate a vessel after having consumed alcohol as described in this 20 section. For purposes of this section, a person under the age of twen- 21 ty-one is deemed to have consumed alcohol only if such person has .02 of 22 one per centum or more but not more than .07 of one per centum by weight 23 of alcohol in the person's blood, as shown by chemical analysis of such 24 person's blood, breath, urine or saliva, made pursuant to the provisions 25 of section seventy-nine-g of this article. Any person who operates a 26 vessel in violation of this section, and who is not charged with a 27 violation of any subdivision of section seventy-nine-d of this article 28 arising out of the same incident shall be referred to the office of 29 parks, recreation and historic preservation for action in accordance 30 with the provisions of section seventy-nine-h of this article. Except as 31 otherwise provided in subdivision eight of section seventy-nine-d of 32 this article, this section shall not apply to a person who operates a 33 public vessel. Notwithstanding any provision of law to the contrary, a 34 finding that a person under the age of twenty-one operated a vessel 35 after having consumed alcohol in violation of this section is not a 36 judgment of conviction for a crime or any other offense. 37 § 79-f. Sanctions. 1. Criminal penalties. (a) Operation of a vessel 38 while ability impaired. A violation of subdivision two of section seven- 39 ty-nine-d of this article shall be a violation and shall be punishable 40 by a fine of not less than three hundred dollars nor more than five 41 hundred dollars or by imprisonment in a penitentiary or county jail for 42 not more than fifteen days, or by both such fine and imprisonment. A 43 person who operates a vessel in violation of such subdivision after 44 having been convicted of a violation of any subdivision of section 45 seventy-nine-d of this article within the preceding five years shall be 46 punished by a fine of not less than five hundred dollars nor more than 47 seven hundred fifty dollars, or by imprisonment of not more than thirty 48 days in a penitentiary or county jail or by both such fine and imprison- 49 ment. A person who operates a vessel in violation of such subdivision 50 after having been convicted two or more times of a violation of any 51 subdivision of section seventy-nine-d of this article within the preced- 52 ing ten years shall be guilty of a misdemeanor, and shall be punished by 53 a fine of not less than seven hundred fifty dollars nor more than one 54 thousand five hundred dollars, or by imprisonment of not more than one 55 hundred eighty days in a penitentiary or county jail or by both such 56 fine and imprisonment.A. 9867 7 1 (b) Operation of a vessel while intoxicated or while ability impaired 2 by drugs or while ability impaired by the combined influence of drugs or 3 of alcohol and any drug or drugs; aggravated operation while intoxicat- 4 ed; misdemeanor offenses. (i) A violation of subdivision three, five, 5 six or seven of section seventy-nine-d of this article shall be a misde- 6 meanor and shall be punishable by a fine of not less than five hundred 7 dollars nor more than one thousand dollars, or by imprisonment in a 8 penitentiary or county jail for not more than one year, or by both such 9 fine and imprisonment. A violation of paragraph (a) of subdivision four 10 of section seventy-nine-d of this article shall be a misdemeanor and 11 shall be punishable by a fine of not less than one thousand dollars nor 12 more than two thousand five hundred dollars or by imprisonment in a 13 penitentiary or county jail for not more than one year, or by both such 14 fine and imprisonment. 15 (ii) In addition to the imposition of any fine or period of imprison- 16 ment set forth in this paragraph, the court shall also sentence such 17 person convicted of, or adjudicated a youthful offender for, a violation 18 of subdivision three, four or five of section seventy-nine-d of this 19 article to a term of probation or conditional discharge, as a condition 20 of which it shall order such person to install and maintain, in accord- 21 ance with the provisions of section eleven hundred ninety-eight of the 22 vehicle and traffic law, an ignition interlock device in any vessel 23 owned or operated by such person during the term of such probation or 24 conditional discharge imposed for such violation of section seventy- 25 nine-d of this article and in no event for a period of less than twelve 26 months; provided, however, that such period of interlock restriction 27 shall terminate upon submission of proof that such person installed and 28 maintained an ignition interlock device for at least six months, unless 29 the court ordered such person to install and maintain an ignition inter- 30 lock device for a longer period as authorized by this subparagraph and 31 specified in such order. The period of interlock restriction shall 32 commence from the earlier of the date of sentencing, or the date that an 33 ignition interlock device was installed in advance of sentencing. 34 Provided, however, the court may not authorize the operation of a vessel 35 by any person whose privilege to operate a vessel has been revoked 36 pursuant to the provisions of this section. 37 (c) Felony offenses. (i) A person who operates a vessel (A) in 38 violation of subdivision three, four, five, six or seven of section 39 seventy-nine-d of this article after having been convicted of a 40 violation of such subdivisions or of vehicular assault in the second or 41 first degree, as defined, in sections 120.03 and 120.04 and aggravated 42 vehicular assault as defined in section 120.04-a of the penal law or of 43 vehicular manslaughter in the second or first degree, as defined, in 44 sections 125.12 and 125.13 and aggravated vehicular homicide as defined 45 in section 125.14 of such law, within the preceding ten years, or (B) in 46 violation of paragraph (b) of subdivision four of section seventy-nine-d 47 of this article shall be guilty of a class E felony, and shall be 48 punished by a fine of not less than one thousand dollars nor more than 49 five thousand dollars or by a period of imprisonment as provided in the 50 penal law, or by both such fine and imprisonment. 51 (ii) A person who operates a vessel in violation of subdivision three, 52 four, five, six or seven of section seventy-nine-d of this article after 53 having been convicted of a violation of such subdivisions or of vehicu- 54 lar assault in the second or first degree, as defined in sections 120.03 55 and 120.04 and aggravated vehicular assault as defined in section 56 120.04-a of the penal law or of vehicular manslaughter in the second orA. 9867 8 1 first degree, as defined in sections 125.12 and 125.13 and aggravated 2 vehicular homicide as defined in section 125.14 of such law, twice with- 3 in the preceding ten years, shall be guilty of a class D felony, and 4 shall be punished by a fine of not less than two thousand dollars nor 5 more than ten thousand dollars or by a period of imprisonment as 6 provided in the penal law, or by both such fine and imprisonment. 7 (iii) A person who operates a vessel in violation of subdivision 8 three, four, five, six or seven of section seventy-nine-d of this arti- 9 cle after having been convicted of a violation of such subdivisions or 10 of vehicular assault in the second or first degree, as defined in 11 sections 120.03 and 120.04 and aggravated vehicular assault as defined 12 in section 120.04-a of the penal law or of vehicular manslaughter in the 13 second or first degree, as defined in sections 125.12 and 125.13 and 14 aggravated vehicular homicide as defined in section 125.14 of such law, 15 three or more times within the preceding fifteen years, shall be guilty 16 of a class D felony, and shall be punished by a fine of not less than 17 two thousand dollars nor more than ten thousand dollars or by a period 18 of imprisonment as provided in the penal law, or by both such fine and 19 imprisonment. 20 (iv) In addition to the imposition of any fine or period of imprison- 21 ment set forth in this paragraph, the court shall also sentence such 22 person convicted of, or adjudicated a youthful offender for, a violation 23 of subdivision three, four or five of section seventy-nine-d of this 24 article to a period of probation or conditional discharge, as a condi- 25 tion of which it shall order such person to install and maintain, in 26 accordance with the provisions of section eleven hundred ninety-eight of 27 the vehicle and traffic law, an ignition interlock device in any vessel 28 owned or operated by such person during the term of such probation or 29 conditional discharge imposed for such violation of section seventy- 30 nine-d of this article and in no event for a period of less than twelve 31 months; provided, however, that such period of interlock restriction 32 shall terminate upon submission of proof that such person installed and 33 maintained an ignition interlock device for at least six months, unless 34 the court ordered such person to install and maintain an ignition inter- 35 lock device for a longer period as authorized by this subparagraph and 36 specified in such order. The period of interlock restriction shall 37 commence from the earlier of the date of sentencing, or the date that an 38 ignition interlock device was installed in advance of sentencing. 39 Provided, however, the court may not authorize the operation of a vessel 40 by any person whose privilege to operate a vessel has been revoked 41 pursuant to the provisions of this section. 42 (d) Alcohol or drug-related offenses; special vessels. (i) A violation 43 of subdivision eight of section seventy-nine-d of this article shall be 44 a violation punishable as provided in paragraph (a) of this subdivision. 45 Except as provided in subparagraph (ii) or (vi) of this paragraph, a 46 violation of subdivision two, three, five, six, seven or nine of section 47 seventy-nine-d of this article wherein the violator is operating a 48 public vessel shall be a misdemeanor. A violation of subdivision two, 49 three, five, six or seven of section seventy-nine-d of this article 50 shall be punishable by a fine of not less than five hundred dollars nor 51 more than one thousand five hundred dollars or by a period of imprison- 52 ment as provided in the penal law, or by both such fine and imprison- 53 ment. A violation of subdivision nine of section seventy-nine-d of this 54 article shall be punishable by a fine of not less than five hundred 55 dollars nor more than one thousand five hundred dollars or by a period 56 of imprisonment not to exceed one hundred eighty days, or by both suchA. 9867 9 1 fine and imprisonment. A person who operates any such vessel in 2 violation of such subdivision nine after having been convicted of a 3 violation of subdivision two, three, four, five, six, seven or nine of 4 section seventy-nine-d of this article within the preceding five years 5 shall be punishable by a fine of not less than five hundred dollars nor 6 more than one thousand five hundred dollars or by a period of imprison- 7 ment as provided in the penal law, or by both such fine and imprison- 8 ment. A violation of subdivision four of section seventy-nine-d of this 9 article wherein the violator is operating a public vessel shall be a 10 class E felony punishable by a fine of not less than one thousand 11 dollars nor more than five thousand dollars or by a period of imprison- 12 ment as provided in the penal law, or by both such fine and imprison- 13 ment. 14 (ii) A violation of subdivision two of section seventy-nine-d of this 15 article wherein the violator is operating a vessel which contains flamm- 16 able gas, radioactive materials or explosives shall be a misdemeanor 17 punishable by a fine of not less than five hundred dollars nor more than 18 one thousand five hundred dollars or by a period of imprisonment as 19 provided in the penal law, or by both such fine and imprisonment. 20 (iii) (A) A person who operates a vessel in violation of subdivision 21 two, three, four, five, six or seven of section seventy-nine-d of this 22 article and which is punishable as provided in subparagraph (i) or (ii) 23 of this paragraph after having been convicted of a violation of any such 24 subdivision of section seventy-nine-d of this article and penalized 25 under subparagraph (i) or (ii) of this paragraph within the preceding 26 ten years, shall be guilty of a class E felony, which shall be punisha- 27 ble by a fine of not less than one thousand dollars nor more than five 28 thousand dollars, or by a period of imprisonment as provided in the 29 penal law, or by both such fine and imprisonment. A person who operates 30 a vessel in violation of subdivision nine of section seventy-nine-d of 31 this article after having been convicted of two or more violations of 32 subdivisions two, three, four, five, six, seven or nine of section 33 seventy-nine-d of this article within the preceding five years, any one 34 of which was a misdemeanor, shall be guilty of a class E felony, which 35 shall be punishable by a fine of not less than one thousand dollars nor 36 more than five thousand dollars, or by a period of imprisonment as 37 provided in the penal law, or by both such fine and imprisonment. In 38 addition, any person sentenced pursuant to this subparagraph shall be 39 subject to the disqualification provided in subparagraph (iii) of para- 40 graph (e) of subdivision three of this section. 41 (B) A person who operates a vessel in violation of subdivision two, 42 three, four, five, six or seven of section seventy-nine-d of this arti- 43 cle and which is punishable as provided in subparagraph (i) or (ii) of 44 this paragraph after having been convicted of a violation of any such 45 subdivision of section seventy-nine-d of this article and penalized 46 under subparagraph (i) or (ii) of this paragraph twice within the 47 preceding ten years, shall be guilty of a class D felony, which shall be 48 punishable by a fine of not less than two thousand dollars nor more than 49 ten thousand dollars, or by a period of imprisonment as provided in the 50 penal law, or by both such fine and imprisonment. A person who operates 51 a vessel in violation of subdivision nine of section seventy-nine-d of 52 this article after having been convicted of three or more violations of 53 subdivisions two, three, four, five, six, seven or nine of section 54 seventy-nine-d of this article within the preceding five years, any one 55 of which was a misdemeanor, shall be guilty of a class D felony, which 56 shall be punishable by a fine of not less than two thousand dollars norA. 9867 10 1 more than ten thousand dollars, or by a period of imprisonment as 2 provided in the penal law, or by both such fine and imprisonment. In 3 addition, any person sentenced pursuant to this subparagraph shall be 4 subject to the disqualification provided in subparagraph (iii) of para- 5 graph (e) of subdivision three of this section. 6 (iv) A violation of subdivision three, five, six or seven of section 7 seventy-nine-d of this article wherein the violator is operating a 8 vessel which contains flammable gas, radioactive materials or 9 explosives, shall be a class E felony punishable by a fine of not less 10 than one thousand dollars and such other penalties as provided for in 11 the penal law; provided, however, that a conviction for such violation 12 shall not be considered a predicate felony pursuant to section 70.06 of 13 such law, or a previous felony conviction pursuant to section 70.10 of 14 such law. A violation of subdivision four of section seventy-nine-d of 15 this article wherein the violator is operating a vessel which contains 16 flammable gas, radioactive materials or explosives, shall be a class D 17 felony punishable by a fine of not less than two thousand dollars nor 18 more than ten thousand dollars and such other penalties as provided for 19 in the penal law; provided, however, that a conviction for such 20 violation shall not be considered a predicate felony pursuant to section 21 70.06 of such law, or a previous felony conviction pursuant to section 22 70.10 of such law. 23 (v) The sentences required to be imposed by subparagraph (i), (ii), 24 (iii) or (iv) of this paragraph shall be imposed notwithstanding any 25 contrary provision of this chapter or the penal law. 26 (vi) Nothing contained in this paragraph shall prohibit the imposition 27 of a charge of any other felony set forth in this or any other provision 28 of law for any acts arising out of the same incident. 29 (e) Certain sentences prohibited. Notwithstanding any provisions of 30 the penal law, no judge or magistrate shall impose a sentence of uncon- 31 ditional discharge for a violation of any subdivision of section seven- 32 ty-nine-d of this article nor shall a judge or magistrate impose a 33 sentence of conditional discharge or probation unless such conditional 34 discharge or probation is accompanied by a sentence of a fine as 35 provided in this subdivision. 36 (f) Where the court imposes a sentence for a violation of any subdivi- 37 sion of section seventy-nine-d of this article, the court may require 38 the defendant, as a part of or as a condition of such sentence, to 39 attend a single session conducted by a victims impact program. For 40 purposes of this section, "victims impact program" means a program oper- 41 ated by a county, a city with a population of one million or more, by a 42 not-for-profit organization authorized by any such county or city, or a 43 combination thereof, in which presentations are made concerning the 44 impact of operating a vessel while under the influence of alcohol or 45 drugs to one or more persons who have been convicted of such offenses. A 46 description of any such program shall be filed with the commissioner and 47 with the coordinator of the special traffic options program for driving 48 while intoxicated established pursuant to section eleven hundred nine- 49 ty-seven of the vehicle and traffic law, and shall be made available to 50 the court upon request. Nothing contained herein shall be construed to 51 require any governmental entity to create such a victim impact program. 52 (g) The office of probation and correctional alternatives shall recom- 53 mend to the commissioner of the division of criminal justice services 54 regulations governing the monitoring of compliance by persons ordered to 55 install and maintain ignition interlock devices to provide standards for 56 monitoring by departments of probation, and options for monitoring ofA. 9867 11 1 compliance by such persons, that counties may adopt as an alternative to 2 monitoring by a department of probation. 3 2. Additional penalties. (a) Except as provided for in paragraph (b) 4 of this subdivision, a person who operates a vessel in violation of 5 subdivision three or five of section seventy-nine-d of this article 6 after having been convicted of a violation of such subdivisions within 7 the preceding five years shall, in addition to any other penalties which 8 may be imposed pursuant to subdivision one of this section, be sentenced 9 to a term of imprisonment of five days or, as an alternative to such 10 imprisonment, be required to perform thirty days of service for a public 11 or not-for-profit corporation, association, institution or agency as set 12 forth in paragraph (h) of subdivision two of section 65.10 of the penal 13 law as a condition of sentencing for such violation. Notwithstanding 14 the provisions of this paragraph, a sentence of a term of imprisonment 15 of five days or more pursuant to the provisions of subdivision one of 16 this section shall be deemed to be in compliance with this subdivision. 17 (b) A person who operates a vessel in violation of subdivision three 18 or five of section seventy-nine-d of this article after having been 19 convicted on two or more occasions of a violation of any of such subdi- 20 visions within the preceding five years shall, in addition to any other 21 penalties which may be imposed pursuant to subdivision one of this 22 section, be sentenced to a term of imprisonment of ten days or, as an 23 alternative to such imprisonment, be required to perform sixty days of 24 service for a public or not-for-profit corporation, association, insti- 25 tution or agency as set forth in paragraph (h) of subdivision two of 26 section 65.10 of the penal law as a condition of sentencing for such 27 violation. Notwithstanding the provisions of this paragraph, a sentence 28 of a term of imprisonment of ten days or more pursuant to the provisions 29 of subdivision one of this section shall be deemed to be in compliance 30 with this subdivision. 31 (c) A court sentencing a person pursuant to paragraph (a) or (b) of 32 this subdivision shall: (i) order the installation of an ignition inter- 33 lock device approved pursuant to section seventy-nine-l of this article 34 in any vessel owned or operated by the person so sentenced. Such 35 devices shall remain installed during any period of revocation of the 36 privilege to operate a vessel required to be imposed pursuant to para- 37 graph (b) of subdivision three of this section, and, upon the termi- 38 nation of such revocation period, for an additional period as determined 39 by the court; and (ii) order that such person receive an assessment of 40 the degree of their alcohol or substance abuse and dependency pursuant 41 to the provisions of section seventy-nine-m of this article. Where such 42 assessment indicates the need for treatment, such court is authorized to 43 impose treatment as a condition of such sentence except that such court 44 shall impose treatment as a condition of a sentence of probation or 45 conditional discharge pursuant to the provisions of subdivision three of 46 section seventy-nine-m of this article. Any person ordered to install an 47 ignition interlock device pursuant to this paragraph shall be subject to 48 the provisions of subdivisions four, five, seven, eight and nine of 49 section seventy-nine-l of this article. 50 (d) Confidentiality of records. The provisions of subdivision six of 51 section seventy-nine-m of this article shall apply to the records and 52 content of all assessments and treatment conducted pursuant to this 53 subdivision. 54 3. Privilege to operate a vessel sanctions. (a) Suspensions. Except as 55 otherwise provided in this subdivision, a privilege to operate a vesselA. 9867 12 1 shall be suspended and a registration may be suspended for the following 2 periods: 3 (i) Operation of a vessel while ability impaired. Ninety days, where 4 the holder is convicted of a violation of subdivision two of section 5 seventy-nine-d of this article; 6 (ii) Persons under the age of twenty-one; operating after having 7 consumed alcohol. Six months, where the holder has been found to have 8 operated a vessel after having consumed alcohol in violation of section 9 seventy-nine-e of this article where such person was under the age of 10 twenty-one at the time of commission of such violation. 11 (b) Revocations of the privilege to operate a vessel. A privilege to 12 operate a vessel shall be revoked and a registration may be revoked for 13 the following minimum periods: 14 (i) Operation of a vessel while ability impaired; prior offense. Six 15 months, where the holder is convicted of a violation of subdivision two 16 of section seventy-nine-d of this article committed within five years of 17 a conviction for a violation of any subdivision of such section seven- 18 ty-nine-d. 19 (ii) Operation of a vessel while ability impaired; misdemeanor 20 offense. Six months, where the holder is convicted of a violation of 21 subdivision two of section seventy-nine-d of this article committed 22 within ten years of two previous convictions for a violation of any 23 subdivision of such section seventy-nine-d. 24 (iii) Operation of a vessel while intoxicated or while ability 25 impaired by drugs or while ability impaired by the combined influence of 26 drugs or of alcohol and any drug or drugs; aggravated operation of a 27 vessel while intoxicated. Six months, where the holder is convicted of a 28 violation of subdivision three, five, six or seven of section seventy- 29 nine-d of this article. One year where the holder is convicted of a 30 violation of subdivision four of section seventy-nine-d of this article. 31 (iv) Operation of a vessel while intoxicated or while ability impaired 32 by drugs or while ability impaired by the combined influence of drugs or 33 of alcohol and any drug or drugs; aggravated operation of a vessel while 34 intoxicated; prior offense. One year, where the holder is convicted of a 35 violation of subdivision three, five, six or seven of section seventy- 36 nine-d of this article committed within ten years of a conviction for a 37 violation of subdivision three, five, six or seven of section seventy- 38 nine-d of this article. Eighteen months, where the holder is convicted 39 of a violation of subdivision four of section seventy-nine-d of this 40 article committed within ten years of a conviction for a violation of 41 subdivision three, four, five, six or seven of section seventy-nine-d of 42 this article; or where the holder is convicted of a violation of subdi- 43 vision three, five, six or seven of section seventy-nine-d of this arti- 44 cle committed within ten years of a conviction for a violation of subdi- 45 vision four of section seventy-nine-d of this article. 46 (v) Holder of a license issued to a master, pilot, engineer or joint 47 pilot and engineer. (A) Except as otherwise provided in this subpara- 48 graph, one year where the holder of a license issued to a master, pilot, 49 engineer or joint pilot and engineer, subject to section sixty-four of 50 this chapter, is convicted of a violation of any subdivision of section 51 seventy-nine-d of this article or if such holder is convicted of an 52 offense consisting of operating a vessel under the influence of alcohol 53 or drugs where such conviction was had outside of this state. 54 (B) Three years, where the holder is convicted of a violation of any 55 subdivision of section seventy-nine-d of this article, such violation 56 was committed while the holder was operating a public vessel transport-A. 9867 13 1 ing hazardous materials or if such holder is convicted of an offense 2 consisting of operating a public vessel under the influence of alcohol 3 or drugs where such conviction was had outside of this state. 4 (vi) Persons under the age of twenty-one. One year, where the holder 5 is convicted of or adjudicated a youthful offender for a violation of 6 any subdivision of section seventy-nine-d of this article, or is 7 convicted of or receives a youthful offender or other juvenile adjudi- 8 cation for an offense consisting of operating a vessel under the influ- 9 ence of intoxicating liquor where the conviction, or youthful offender 10 or other juvenile adjudication was had outside this state, where such 11 person was under the age of twenty-one at the time of commission of such 12 violation. 13 (vii) Persons under the age of twenty-one; prior offense or finding. 14 One year or until the holder reaches the age of twenty-one, whichever is 15 the greater period of time, where the holder has been found to have 16 operated a vessel after having consumed alcohol in violation of section 17 seventy-nine-e of this article, or is convicted of, or adjudicated a 18 youthful offender for, a violation of any subdivision of section seven- 19 ty-nine-d of this article, or is convicted of or receives a youthful 20 offender or juvenile adjudication for an offense consisting of operating 21 a vessel under the influence of intoxicating liquor where the 22 conviction, or youthful offender or other juvenile adjudication was had 23 outside this state, where such person was under the age of twenty-one at 24 the time of commission of such violation and has previously been found 25 to have operated a vessel after having consumed alcohol in violation of 26 section seventy-nine-e of this article, or has previously been convicted 27 of, or adjudicated a youthful offender for, any violation of section 28 seventy-nine-d of this article not arising out of the same incident, or 29 has previously been convicted of or received a youthful offender or 30 juvenile adjudication for an offense consisting of operating a vessel 31 under the influence of intoxicating liquor when the conviction, or 32 youthful offender or other juvenile adjudication was had outside this 33 state and not arising out of the same. 34 (viii) Out-of-state offenses. Except as provided in subparagraph (vi) 35 or (vii) of this paragraph: (A) ninety days, where the holder is 36 convicted of an offense consisting of operating a vessel under the 37 influence of intoxicating liquor where the conviction was had outside 38 this state and (B) six months, where the holder is convicted of, or 39 receives a youthful offender or other juvenile adjudication, which would 40 have been a misdemeanor or felony if committed by an adult, in 41 connection with, an offense consisting of operating a vessel under the 42 influence of or while impaired by the use of drugs where the conviction 43 or youthful offender or other juvenile adjudication was had outside this 44 state. 45 (ix) Effect of rehabilitation program. No period of revocation arising 46 out of subparagraph (v), (vi) or (vii) of this paragraph may be set 47 aside by the commissioner for the reason that such person was a partic- 48 ipant in the alcohol and drug rehabilitation program set forth in 49 section eleven hundred ninety-six of the vehicle and traffic law. 50 (x) Action required by commissioner. Where a court fails to impose, or 51 incorrectly imposes, a suspension or revocation required by this subdi- 52 vision, the commissioner shall, upon receipt of a certificate of 53 conviction filed, impose such mandated suspension or revocation, which 54 shall supersede any such order which the court may have imposed. 55 (xi) Limitation of certain mandatory revocations. Where revocation is 56 mandatory pursuant to subparagraph (v) of this paragraph for aA. 9867 14 1 conviction of a violation of subdivision eight of section seventy-nine-d 2 of this article, such revocation shall be issued only by the commission- 3 er and shall be applicable only to that portion of the holder's license 4 which permits the operation of public vessels, and the commissioner 5 shall immediately issue a privilege to operate a vessel, other than a 6 license issued to a master, pilot, engineer or joint pilot and engineer, 7 to such person provided that such person is otherwise eligible to 8 receive such privilege to operate a vessel and further provided that 9 issuing a license to such person does not create a substantial safety 10 hazard to the waters of the state. 11 (xii) Permanent revocation. (A) Notwithstanding any other provision of 12 this chapter to the contrary, whenever a revocation is imposed upon a 13 person for the refusal to submit to a chemical test pursuant to the 14 provisions of section seventy-nine-g of this article or conviction for 15 any violation of section seventy-nine-d of this article for which a 16 sentence of imprisonment may be imposed, and such person has: (1) within 17 the previous four years been twice convicted of any provisions of 18 section seventy-nine-d of this article or a violation of the penal law 19 for which a violation of such section seventy-nine-d is an essential 20 element and at least one such conviction was for a crime, or has twice 21 been found to have refused to submit to a chemical test pursuant to 22 section seventy-nine-g of this article, or has any combination of two 23 such convictions and findings of refusal not arising out of the same 24 incident; or (2) within the previous eight years been convicted three 25 times of any provision of section seventy-nine-d of this article for 26 which a sentence of imprisonment may be imposed or a violation of the 27 penal law for which a violation of such section seventy-nine-d is an 28 essential element and at least two such convictions were for crimes, or 29 has been found, on three separate occasions, to have refused to submit 30 to a chemical test pursuant to section seventy-nine-g of this article, 31 or has any combination of such convictions and findings of refusal not 32 arising out of the same incident, such revocation shall be permanent. 33 (B) The permanent revocation of the privilege to operate a vessel 34 required by clause (A) of this subparagraph shall be waived by the 35 commissioner after a period of five years has expired since the imposi- 36 tion of such permanent revocation, provided that during such five-year 37 period such person has not been found to have refused a chemical test 38 pursuant to section seventy-nine-g of this article while operating a 39 vessel and has not been convicted of a violation of any subdivision of 40 section seventy-nine-d of this article or a violation of the penal law 41 for which a violation of any subdivision of such section seventy-nine-d 42 is an essential element and either: 43 (1) that such person provides acceptable documentation to the commis- 44 sioner that such person has voluntarily enrolled in and successfully 45 completed an appropriate rehabilitation program; or 46 (2) that such person is granted a certificate of relief from disabili- 47 ties or a certificate of good conduct pursuant to article twenty-three 48 of the correction law. 49 Provided, however, that the commissioner may, on a case by case basis, 50 refuse to restore a privilege to operate a vessel which otherwise would 51 be restored pursuant to this item, in the interest of the public safety 52 and welfare. 53 (C) For revocations imposed pursuant to clause (A) of this subpara- 54 graph, the commissioner may adopt rules to permit conditional or 55 restricted operation of a vessel by any such person after a mandatoryA. 9867 15 1 revocation period of not less than three years subject to such criteria, 2 terms and conditions as established by the commissioner. 3 (D) Upon (1) a finding of refusal after having been convicted three 4 times within four years of a violation of any subdivision of section 5 seventy-nine-d of this article or of the penal law for which a violation 6 of any subdivision of such section seventy-nine-d is an essential 7 element or any combination of three such convictions not arising out of 8 the same incident within four years or (2) a fourth conviction of any 9 subdivision of section seventy-nine-d of this article after having been 10 convicted of any such subdivision of such section seventy-nine-d or of 11 the penal law for which a violation of any of such subdivisions of such 12 section seventy-nine-d is an essential element or any combination of 13 three such convictions not arising out of the same incident within four 14 years or (3) a finding of refusal after having been convicted four times 15 within eight years of a violation of any subdivision of section seven- 16 ty-nine-d of this article or of the penal law for which a violation of 17 any of such subdivisions of such section seventy-nine-d is an essential 18 element or any combination of four such convictions not arising out of 19 the same incident within eight years or (4) a fifth conviction of any 20 subdivision of section seventy-nine-d of this article after having been 21 convicted of such subdivision or of the penal law for which a violation 22 of any of such subdivisions of such section seventy-nine-d is an essen- 23 tial element or any combination of four such convictions not arising out 24 of the same incident within eight years, such revocation shall be perma- 25 nent. 26 (E) The permanent revocation of the privilege to operate a vessel 27 required by clause (D) of this subparagraph may be waived by the commis- 28 sioner after a period of eight years has expired since the imposition of 29 such permanent revocation provided: 30 (1) that during such eight-year period such person has not been found 31 to have refused a chemical test pursuant to section seventy-nine-g of 32 this article while operating a vessel and has not been convicted of a 33 violation of any subdivision of section seventy-nine-d of this article 34 or a violation of the penal law for which a violation of any such subdi- 35 visions of such section seventy-nine-d is an essential element; and 36 (2) that such person provides acceptable documentation to the commis- 37 sioner that such person has voluntarily enrolled in and successfully 38 completed an appropriate rehabilitation program; and 39 (3) after such documentation is accepted, that such person is granted 40 a certificate of relief from disabilities or a certificate of good 41 conduct pursuant to article twenty-three of the correction law. 42 Notwithstanding the provisions of this clause, nothing contained in 43 this clause shall be deemed to require the commissioner to restore a 44 privilege to operate a vessel to an applicant who otherwise has complied 45 with the requirements of this item, in the interest of the public safety 46 and welfare. 47 (F) Nothing contained in this subparagraph shall be deemed to reduce a 48 revocation of a privilege to operate a vessel period imposed pursuant to 49 any other provision of law. 50 (c) Reissuance of the privilege to operate a vessel; restrictions. 51 (i) Except as otherwise provided in this paragraph, where a privilege to 52 operate a vessel is revoked pursuant to paragraph (b) of this subdivi- 53 sion, no new privilege to operate a vessel shall be issued after the 54 expiration of the minimum period specified in such paragraph, except in 55 the discretion of the commissioner.A. 9867 16 1 (ii) Where a privilege to operate a vessel is revoked pursuant to 2 subparagraph (iii), (iv) or (viii) of paragraph (b) of this subdivision 3 for a violation of subdivision six of section seventy-nine-d of this 4 article, and where the individual does not have a privilege to operate a 5 vessel or the individual's privilege to operate a vessel was suspended 6 at the time of conviction or youthful offender or other juvenile adjudi- 7 cation, the commissioner shall not issue a new privilege to operate a 8 vessel nor restore the former privilege to operate a vessel for a period 9 of six months after such individual would otherwise have become eligible 10 to obtain a new privilege to operate a vessel or to have the former 11 privilege to operate a vessel restored; provided, however, that during 12 such delay period the commissioner may issue a restricted use privilege 13 to operate a vessel. 14 (iii) In no event shall a new privilege to operate a vessel be issued 15 where a person has been twice convicted of a violation of subdivision 16 five, six or seven of section seventy-nine-d of this article or of driv- 17 ing while intoxicated or of driving while ability is impaired by the use 18 of a drug or of driving while ability is impaired by the combined influ- 19 ence of drugs or of alcohol and any drug or drugs where physical injury, 20 as defined in section 10.00 of the penal law, has resulted from such 21 offense in each instance. 22 (d) Suspension or revocation; sentencing. (i) Where a suspension or 23 revocation, other than a revocation required to be issued by the commis- 24 sioner, is mandatory pursuant to paragraph (a) or (b) of this subdivi- 25 sion, the magistrate, justice or judge shall issue an order suspending 26 or revoking such privilege to operate a vessel upon sentencing, and the 27 privilege holder shall surrender such privilege to operate a vessel to 28 the court. Except as hereinafter provided, such suspension or revocation 29 shall take effect immediately. 30 (ii) Except where the privilege holder has been charged with a 31 violation of article one hundred twenty or one hundred twenty-five of 32 the penal law arising out of the same incident or convicted of such 33 violation or a violation of any subdivision of section seventy-nine-d of 34 this article within the preceding five years, the judge, justice or 35 magistrate may issue an order making said privilege to operate a vessel 36 suspension or revocation take effect twenty days after the date of 37 sentencing. The privilege holder shall be given a copy of said order 38 permitting the continuation of operating privileges for twenty days 39 after sentencing, if granted by the court. The court shall forward to 40 the commissioner a copy of any order issued pursuant to this paragraph 41 and the license, within ninety-six hours of sentencing. 42 (e) Special provisions. (i) Suspension pending prosecution; procedure. 43 (A) Without notice, pending any prosecution, the court shall suspend 44 such privilege to operate a vessel, where the holder has been charged 45 with a violation of subdivision three, four, five, six or seven of 46 section seventy-nine-d of this article and either (1) a violation of a 47 felony under article one hundred twenty or one hundred twenty-five of 48 the penal law arising out of the same incident, or (2) has been 49 convicted of any violation under section seventy-nine-d of this article 50 within the preceding five years. 51 (B) The suspension under the preceding clause shall occur no later 52 than twenty days after the holder's first appearance before the court on 53 the charges or at the conclusion of all proceedings required for the 54 arraignment. In order for the court to impose such suspension it must 55 find that the accusatory instrument conforms to the requirements of 56 section 100.40 of the criminal procedure law and there exists reasonableA. 9867 17 1 cause to believe that the holder operated a vessel in violation of 2 subdivision three, four, five, six or seven of section seventy-nine-d of 3 this article and either (1) the person had been convicted of any 4 violation under such section seventy-nine-d of this article within the 5 preceding five years; or (2) that the holder committed a violation of a 6 felony under article one hundred twenty or one hundred twenty-five of 7 the penal law. At such time the holder shall be entitled to an opportu- 8 nity to make a statement regarding the enumerated issues and to present 9 evidence tending to rebut the court's findings. Where such suspension is 10 imposed upon a pending charge of a violation of a felony under article 11 one hundred twenty or one hundred twenty-five of the penal law and the 12 holder has requested a hearing pursuant to article one hundred eighty of 13 the criminal procedure law, the court shall conduct such hearing. If 14 upon completion of the hearing, the court fails to find that there is 15 reasonable cause to believe that the holder committed a felony under 16 article one hundred twenty or one hundred twenty-five of the penal law 17 and the holder has not been previously convicted of any violation of 18 section seventy-nine-d of this article within the preceding five years 19 the court shall promptly notify the commissioner and direct restoration 20 of such privilege to operate a vessel to the privilege holder unless 21 such privilege to operate a vessel is suspended or revoked pursuant to 22 any other provision of this chapter. 23 (ii) Bail forfeiture. A privilege to operate a vessel shall be 24 suspended where the holder forfeits bail upon a charge of a violation of 25 any subdivision of section seventy-nine-d of this article. Such suspen- 26 sion shall not be terminated until the holder submits to the jurisdic- 27 tion of the court in which the bail was forfeited. 28 (iii) Permanent disqualification from operating certain vessels. (A) 29 Except as otherwise provided herein, in addition to any revocation set 30 forth in subparagraph (v) of paragraph (b) of this subdivision, any 31 person sentenced pursuant to subparagraph (ii) of paragraph (d) of 32 subdivision one of this section shall be permanently disqualified from 33 operating any vessel set forth in such paragraph. In addition, the 34 commissioner shall not issue such person a privilege to operate a vessel 35 valid for the operation of any vessel set forth therein by such person. 36 The commissioner may waive such disqualification and prohibition 37 hereinbefore provided after a period of five years has expired from such 38 sentencing provided: 39 (1) that during such five year period such person has not violated any 40 of the provisions of section seventy-nine-d of this article or any alco- 41 hol or drug related traffic offense in this state or in any jurisdiction 42 outside this state; 43 (2) that such person provides acceptable documentation to the commis- 44 sioner that such person is not in need of alcohol or drug treatment or 45 has satisfactorily completed a prescribed course of such treatment; and 46 (3) after such documentation is accepted, that such person is granted 47 a certificate of relief from disabilities or a certificate of good 48 conduct pursuant to article twenty-three of the correction law. 49 (B) Any person who is a holder of a license issued to a master, pilot, 50 engineer or joint pilot and engineer, on board of a public vessel and is 51 convicted of a violation of any subdivision of section seventy-nine-d of 52 this article who has had a prior finding of refusal to submit to a chem- 53 ical test pursuant to section seventy-nine-g of this article or has had 54 a prior conviction of any of the following offenses: any violation of 55 section seventy-nine-d of this article; any violation of section forty- 56 seven of this chapter; or has a prior conviction of any felony involvingA. 9867 18 1 the use of a vessel pursuant to section sixty-four-a of this chapter, 2 shall be permanently disqualified from operating a public vessel. The 3 commissioner may waive such disqualification and prohibition hereinbe- 4 fore provided after a period of ten years has expired from such sentence 5 provided: 6 (1) that during such ten year period such person has not been found to 7 have refused a chemical test pursuant to section seventy-nine-g of this 8 article while operating a vessel and has not been convicted of any one 9 of the following offenses while operating a vessel: any violation of 10 section seventy-nine-d of this article; any violation of section forty- 11 seven of this chapter; or has a prior conviction of any felony involving 12 the use of a vessel pursuant to section sixty-four-a of this chapter; 13 (2) that such person provides acceptable documentation to the commis- 14 sioner that such person is not in need of alcohol or drug treatment or 15 has satisfactorily completed a prescribed course of such treatment; and 16 (3) after such documentation is accepted, that such person is granted 17 a certificate of relief from disabilities or a certificate of good 18 conduct pursuant to article twenty-three of the correction law. 19 (C) Upon a third finding of refusal and/or conviction of any of the 20 offenses which require a permanent master, pilot, engineer or joint 21 pilot and engineer license revocation, such permanent revocation may not 22 be waived by the commissioner under any circumstances. 23 (iv) Youthful offenders. Where a youth is determined to be a youthful 24 offender, following a conviction of a violation of section 25 seventy-nine-d of this article for which a privilege to operate a vessel 26 suspension or revocation is mandatory, the court shall impose such 27 suspension or revocation as is otherwise required upon conviction and, 28 further, shall notify the commissioner of said suspension or revocation 29 and its finding that said violator is granted youthful offender status. 30 (v) Probation. When a privilege to operate a vessel has been revoked 31 pursuant to this chapter, and the holder has been sentenced to a period 32 of probation pursuant to section 65.00 of the penal law for a violation 33 of any provision of this chapter, or any other provision of the laws of 34 this state, and a condition of such probation is that the holder thereof 35 not operate a vessel or not apply for a privilege to operate a vessel 36 during the period of such condition of probation, the commissioner may 37 not restore such privilege until the period of the condition of 38 probation has expired. 39 (vi) Application for new privilege to operate a vessel. Where a privi- 40 lege to operate a vessel has been revoked pursuant to paragraph (b) of 41 this subdivision, or where the holder is subject to a condition of 42 probation as provided in subparagraph (v) of this paragraph, application 43 for a new privilege to operate a vessel may be made within forty-five 44 days prior to the expiration of such minimum period of revocation or 45 condition of probation, whichever expires last. 46 (vii) Suspension pending prosecution; excessive blood alcohol content. 47 (A) A court shall suspend a person's privilege to operate a vessel, 48 pending prosecution, of any person charged with a violation of subdivi- 49 sion three, four, five or seven of section seventy-nine-d of this arti- 50 cle who, at the time of arrest, is alleged to have had .08 of one 51 percent or more by weight of alcohol in such boater's blood as shown by 52 chemical analysis of blood, breath, urine or saliva, made pursuant to 53 subdivision two or three of section seventy-nine-g of this article. 54 (B) The suspension occurring under clause (A) of this subparagraph 55 shall occur no later than at the conclusion of all proceedings required 56 for the arraignment; provided, however, that if the results of any testA. 9867 19 1 administered pursuant to section seventy-nine-g of this article are not 2 available within such time period, the complainant police officer or 3 other public servant shall transmit such results to the court at the 4 time they become available, and the court shall, as soon as practicable 5 following the receipt of such results and in compliance with the 6 requirements of this subparagraph, suspend such privilege to operate a 7 vessel. In order for the court to impose such suspension it must find 8 that the accusatory instrument conforms to the requirements of section 9 100.40 of the criminal procedure law and there exists reasonable cause 10 to believe either that the holder operated a vessel while such holder 11 had .08 of one percent or more by weight of alcohol in his or her blood 12 as was shown by chemical analysis of such person's blood, breath, urine 13 or saliva, made pursuant to the provisions of section seventy-nine-g of 14 this article. At the time of such suspension the holder shall be enti- 15 tled to an opportunity to make a statement regarding this issue and to 16 present evidence tending to rebut the court's findings. 17 (C) Nothing contained in this subparagraph shall be construed to 18 prohibit or limit a court from imposing any other suspension pending 19 prosecution required or permitted by law. 20 (D) Notwithstanding any contrary provision of this chapter, if any 21 suspension occurring under this subparagraph has been in effect for a 22 period of thirty days, the holder may be issued a conditional privilege 23 to operate a vessel, in accordance with section seventy-nine-j of this 24 article, provided the holder of such privilege is otherwise eligible to 25 receive such conditional privilege. A conditional privilege issued 26 pursuant to this subparagraph shall not be valid for the operation of a 27 public vessel. The commissioner shall prescribe by regulation the proce- 28 dures for the issuance of such conditional privilege. 29 (E) If the court finds that the suspension imposed pursuant to this 30 subparagraph will result in extreme hardship, the court must issue such 31 suspension, but may grant a hardship privilege, which shall be issued on 32 a form prescribed by the commissioner. For the purposes of this clause, 33 "extreme hardship" shall mean the inability to obtain alternative means 34 of travel to or from the holder's employment, or to or from necessary 35 medical treatment for the holder or a member of the holder's household. 36 The burden of proving extreme hardship shall be on the holder who may 37 present material and relevant evidence. A finding of extreme hardship 38 may not be based solely upon the testimony of the holder. In no event 39 shall arraignment be adjourned or otherwise delayed more than three 40 business days solely for the purpose of allowing the holder to present 41 evidence of extreme hardship. The court shall set forth upon the 42 record, or otherwise set forth in writing, the factual basis for such 43 finding. The hardship privilege shall permit the operation of a vessel 44 only for travel to or from the holder's employment, or to or from neces- 45 sary medical treatment for the holder or a member of the holder's house- 46 hold. A hardship privilege shall not be valid for the operation of a 47 public vessel. 48 (f) Notice of charges to parent or guardian. Upon the first scheduled 49 appearance of any person under eighteen years of age who resides within 50 the household of his or her parent or guardian upon a charge of a 51 violation of subdivision two, three and/or five of section 52 seventy-nine-d of this article, the local criminal court before which 53 such first appearance is scheduled shall forthwith transmit written 54 notice of such appearance or failure to make such appearance to the 55 parent or guardian of such minor person; provided, however, that if an 56 arraignment and conviction of such person follows such appearance uponA. 9867 20 1 the same day, or in case such person waives arraignment and enters a 2 plea of guilty to the offense as charged in accordance with the 3 provisions of section eighteen hundred five of the vehicle and traffic 4 law, transmittal of notice of his or her conviction as provided in 5 section five hundred fourteen of the vehicle and traffic law shall be 6 sufficient and the notice required by this paragraph need not be given; 7 provided further that the failure of a local criminal court to transmit 8 the notice required by this paragraph shall in no manner affect the 9 validity of a conviction subsequently obtained. 10 § 79-g. Arrest and testing. 1. Arrest and field testing. (a) Arrest. 11 Notwithstanding the provisions of section 140.10 of the criminal proce- 12 dure law, a police officer may, without a warrant, arrest a person, in 13 case of a violation of subdivision two of section seventy-nine-d of this 14 article, if such violation is coupled with an accident or collision in 15 which such person is involved, which in fact has been committed, though 16 not in the police officer's presence, when the officer has reasonable 17 cause to believe that the violation was committed by such person. 18 (b) Field testing. Every person operating a vessel which has been 19 involved in an accident or which is operated in violation of any of the 20 provisions of this chapter shall, at the request of a police officer, 21 submit to a breath test to be administered by the police officer. If 22 such test indicates that such operator has consumed alcohol, the police 23 officer may request such operator to submit to a chemical test in the 24 manner set forth in subdivision two of this section. 25 2. Chemical tests. (a) When authorized. Any person who operates a 26 vessel in this state shall be deemed to have given consent to a chemical 27 test of one or more of the following: breath, blood, urine, or saliva, 28 for the purpose of determining the alcoholic and/or drug content of the 29 blood provided that such test is administered by or at the direction of 30 a police officer with respect to a chemical test of breath, urine or 31 saliva or, with respect to a chemical test of blood, at the direction of 32 a police officer: 33 (1) having reasonable grounds to believe such person to have been 34 operating in violation of any subdivision of section seventy-nine-d of 35 this article and within two hours after such person has been placed 36 under arrest for any such violation; or having reasonable grounds to 37 believe such person to have been operating in violation of section 38 seventy-nine-e of this article and within two hours after the stop of 39 such person for any such violation; 40 (2) within two hours after a breath test, as provided in paragraph (b) 41 of subdivision one of this section, indicates that alcohol has been 42 consumed by such person and in accordance with the rules and regulations 43 established by the police force of which the officer is a member; 44 (3) for the purposes of this paragraph, "reasonable grounds" to 45 believe that a person has been operating a vessel after having consumed 46 alcohol in violation of section seventy-nine-e of this article shall be 47 determined by viewing the totality of circumstances surrounding the 48 incident which, when taken together, indicate that the operator was 49 operating a vessel in violation of such subdivision. Such circumstances 50 may include any visible or behavioral indication of alcohol consumption 51 by the operator, the existence of an open container containing or having 52 contained an alcoholic beverage in or around the vessel operated by the 53 operator, or any other evidence surrounding the circumstances of the 54 incident which indicates that the operator has been operating a vessel 55 after having consumed alcohol at the time of the incident; orA. 9867 21 1 (4) notwithstanding any other provision of law to the contrary, no 2 person under the age of twenty-one shall be arrested for an alleged 3 violation of section seventy-nine-e of this article. However, a person 4 under the age of twenty-one for whom a chemical test is authorized 5 pursuant to this paragraph may be temporarily detained by the police 6 solely for the purpose of requesting or administering such chemical test 7 whenever arrest without a warrant for a petty offense would be author- 8 ized in accordance with the provisions of section 140.10 of the criminal 9 procedure law or paragraph (a) of subdivision one of this section. 10 (b) Report of refusal. (1) If: (A) such person having been placed 11 under arrest; or (B) after a breath test indicates the presence of alco- 12 hol in the person's system; or (C) with regard to a person under the age 13 of twenty-one, there are reasonable grounds to believe that such person 14 has been operating a vessel after having consumed alcohol in violation 15 of section seventy-nine-e of this article; and having thereafter been 16 requested to submit to such chemical test and having been informed that 17 the person's privilege to operate a vessel and any non-resident operat- 18 ing privilege shall be immediately suspended and subsequently revoked, 19 or, for operators under the age of twenty-one for whom there are reason- 20 able grounds to believe that such operator has been operating a vessel 21 after having consumed alcohol in violation of section seventy-nine-e of 22 this article, shall be revoked for refusal to submit to such chemical 23 test or any portion thereof, whether or not the person is found guilty 24 of the charge for which such person is arrested or detained, refuses to 25 submit to such chemical test or any portion thereof, unless a court 26 order has been granted pursuant to subdivision three of this section, 27 the test shall not be given and a written report of such refusal shall 28 be immediately made by the police officer before whom such refusal was 29 made. Such report may be verified by having the report sworn to, or by 30 affixing to such report a form notice that false statements made therein 31 are punishable as a class A misdemeanor pursuant to section 210.45 of 32 the penal law and such form notice together with the subscription of the 33 deponent shall constitute a verification of the report. 34 (2) The report of the police officer shall set forth reasonable 35 grounds to believe such arrested person or such detained person under 36 the age of twenty-one had been operating a vessel in violation of any 37 subdivision of section seventy-nine-d or seventy-nine-e of this article, 38 that said person had refused to submit to such chemical test, and that 39 no chemical test was administered pursuant to the requirements of subdi- 40 vision three of this section. The report shall be presented to the court 41 upon arraignment of an arrested person, provided, however, in the case 42 of a person under the age of twenty-one, for whom a test was authorized 43 pursuant to the provisions of subparagraph two or three of paragraph (a) 44 of this subdivision, and who has not been placed under arrest for a 45 violation of any of the provisions of section seventy-nine-d of this 46 article, such report shall be forwarded to the commissioner within 47 forty-eight hours in a manner to be prescribed by the commissioner, and 48 all subsequent proceedings with regard to refusal to submit to such 49 chemical test by such person shall be as set forth in subdivision four 50 of section seventy-nine-h of this article. 51 (3) For persons placed under arrest for a violation of any subdivision 52 of section seventy-nine-d of this article, the privilege to operate a 53 vessel and any non-resident operating privilege shall, upon the basis of 54 such written report, be temporarily suspended by the court without 55 notice pending the determination of a hearing as provided in paragraph 56 (c) of this subdivision. Copies of such report must be transmitted byA. 9867 22 1 the court to the commissioner and such transmittal may not be waived 2 even with the consent of all the parties. Such report shall be forwarded 3 to the commissioner within forty-eight hours of such arraignment. 4 (4) The court or the police officer, in the case of a person under the 5 age of twenty-one alleged to be operating a vessel after having consumed 6 alcohol, shall provide such person with a scheduled hearing date, a 7 waiver form, and such other information as may be required by the 8 commissioner. If a hearing, as provided for in paragraph (c) of this 9 subdivision, or subdivision four of section seventy-nine-h of this arti- 10 cle, is waived by such person, the commissioner shall immediately revoke 11 the privilege to operate a vessel or non-resident operating privilege, 12 as of the date of receipt of such waiver in accordance with the 13 provisions of paragraph (d) of this subdivision. 14 (c) Hearings. Any person whose privilege to operate a vessel or any 15 non-resident privilege has been suspended pursuant to paragraph (b) of 16 this subdivision is entitled to a hearing in accordance with a hearing 17 schedule to be promulgated by the commissioner of motor vehicles pursu- 18 ant to paragraph (c) of subdivision two of section eleven hundred nine- 19 ty-four of the vehicle and traffic law. If the department of motor vehi- 20 cles fails to provide for such hearing fifteen days after the date of 21 the arraignment of the arrested person, the privilege to operate a 22 vessel or non-resident operating privilege of such person shall be rein- 23 stated pending a hearing pursuant to this section. The hearing shall be 24 limited to the following issues: (1) did the police officer have reason- 25 able grounds to believe that such person had been operating a vessel in 26 violation of any subdivision of section seventy-nine-d of this article; 27 (2) did the police officer make a lawful arrest of such person; (3) was 28 such person given sufficient warning, in clear or unequivocal language, 29 prior to such refusal that such refusal to submit to such chemical test 30 or any portion thereof, would result in the immediate suspension and 31 subsequent revocation of such person's privilege to operate a vessel 32 whether or not such person is found guilty of the charge for which the 33 arrest was made; and (4) did such person refuse to submit to such chemi- 34 cal test or any portion thereof. If, after such hearing, the hearing 35 officer, acting on behalf of the commissioner of motor vehicles, finds 36 on any one of said issues in the negative, the hearing officer shall 37 immediately terminate any suspension arising from such refusal. If, 38 after such hearing, the hearing officer, acting on behalf of the commis- 39 sioner of motor vehicles finds all of the issues in the affirmative, 40 such officer shall immediately revoke the privilege to operate a vessel 41 or any non-resident operating privilege in accordance with the 42 provisions of paragraph (d) of this subdivision. A person who has had a 43 privilege to operate a vessel or non-resident operating privilege 44 suspended or revoked pursuant to this subdivision may appeal the find- 45 ings of the hearing officer in accordance with the provisions of article 46 three-A of the vehicle and traffic law. Any person may waive the right 47 to a hearing under this section. Failure by such person to appear for 48 the scheduled hearing shall constitute a waiver of such hearing, 49 provided, however, that such person may petition the commissioner of 50 motor vehicles for a new hearing which shall be held as soon as practi- 51 cable. The results of all hearings shall be referred to the commission- 52 er for purposes of taking proper action against a defendant's privilege 53 to operate a vessel. 54 (d) Sanctions. (1) Revocations. (A) Any privilege to operate a vessel 55 which has been revoked pursuant to paragraph (c) of this subdivision 56 shall not be restored for at least one year after such revocation, norA. 9867 23 1 thereafter, except in the discretion of the commissioner. However, no 2 such privilege to operate a vessel shall be restored for at least eigh- 3 teen months after such revocation, nor thereafter except in the 4 discretion of the commissioner, in any case where the person has had a 5 prior revocation resulting from refusal to submit to a chemical test, or 6 has been convicted of or found to be in violation of any subdivision of 7 section seventy-nine-d or section seventy-nine-e of this article not 8 arising out of the same incident, within the five years immediately 9 preceding the date of such revocation; provided, however, a prior find- 10 ing that a person under the age of twenty-one has refused to submit to a 11 chemical test pursuant to subdivision four of section seventy-nine-h of 12 this article shall have the same effect as a prior finding of a refusal 13 pursuant to this subdivision solely for the purpose of determining the 14 length of any license suspension or revocation required to be imposed 15 under any provision of this article, provided that the subsequent 16 offense or refusal is committed or occurred prior to the expiration of 17 the retention period for such prior refusal as set forth in paragraph 18 (k) of subdivision one of section two hundred one of the vehicle and 19 traffic law. 20 (B) Any privilege to operate a vessel which has been revoked pursuant 21 to paragraph (c) of this subdivision or pursuant to subdivision four of 22 section seventy-nine-h of this article, where the holder was under the 23 age of twenty-one years at the time of such refusal, shall not be 24 restored for at least one year, nor thereafter, except in the discretion 25 of the commissioner. Where such person under the age of twenty-one years 26 has a prior finding, conviction or youthful offender adjudication 27 resulting from a violation of section seventy-nine-d or section seven- 28 ty-nine-e of this article, not arising from the same incident, such 29 privilege to operate a vessel shall not be restored for at least one 30 year or until such person reaches the age of twenty-one years, whichever 31 is the greater period of time, nor thereafter, except in the discretion 32 of the commissioner. 33 (C) Any license issued to a master, pilot, engineer or joint pilot and 34 engineer which has been revoked pursuant to paragraph (c) of this subdi- 35 vision based upon a finding of refusal to submit to a chemical test, 36 where such finding occurs within or outside of this state, shall not be 37 restored for at least eighteen months after such revocation, nor there- 38 after, except in the discretion of the commissioner, but shall not be 39 restored for at least three years after such revocation, nor thereafter, 40 except in the discretion of the commissioner, if the holder of such 41 license was operating a vessel transporting hazardous materials at the 42 time of such refusal. However, such person shall be permanently disqual- 43 ified from operating a public vessel in any case where the holder has a 44 prior finding of refusal to submit to a chemical test pursuant to this 45 section or has a prior conviction of any of the following offenses: any 46 violation of section seventy-nine-d of this article; or any violation of 47 section forty-seven of this chapter. Provided that the commissioner may 48 waive such permanent revocation after a period of ten years has expired 49 from such revocation provided: 50 (i) that during such ten year period such person has not been found to 51 have refused a chemical test pursuant to this section and has not been 52 convicted of any one of the following offenses: any violation of section 53 seventy-nine-d of this article; refusal to submit to a chemical test 54 pursuant to this section; any violation of section forty-seven of this 55 chapter; or has a prior conviction of any felony involving the use of a 56 vessel pursuant to section sixty-four-a of this chapter;A. 9867 24 1 (ii) that such person provides acceptable documentation to the commis- 2 sioner that such person is not in need of alcohol or drug treatment or 3 has satisfactorily completed a prescribed course of such treatment; and 4 (iii) after such documentation is accepted, that such person is grant- 5 ed a certificate of relief from disabilities or a certificate of good 6 conduct pursuant to article twenty-three of the correction law by the 7 court in which such person was last penalized. 8 (D) Upon a third finding of refusal and/or conviction of any of the 9 offenses which require a permanent master, pilot, engineer or joint 10 pilot and engineer license revocation, such permanent revocation may not 11 be waived by the commissioner under any circumstances. 12 (2) Civil penalties. Except as otherwise provided, any person whose 13 privilege to operate a vessel or any non-resident operating privilege is 14 revoked pursuant to the provisions of this section shall also be liable 15 for a civil penalty in the amount of five hundred dollars except that if 16 such revocation is a second or subsequent revocation pursuant to this 17 section issued within a five year period, or such person has been 18 convicted of a violation of any subdivision of section seventy-nine-d of 19 this article within the past five years not arising out of the same 20 incident, the civil penalty shall be in the amount of seven hundred 21 fifty dollars. Any person whose privilege to operate a vessel is 22 revoked pursuant to the provisions of this section based upon a finding 23 of refusal to submit to a chemical test while operating a public vessel 24 shall also be liable for a civil penalty of five hundred fifty dollars 25 except that if such person has previously been found to have refused a 26 chemical test pursuant to this section while operating a public vessel 27 or has a prior conviction of any of the following offenses while operat- 28 ing a public vessel: any violation of section seventy-nine-d of this 29 article; any violation of section forty-seven of this chapter; or has a 30 prior conviction of any felony involving the use of a public vessel 31 pursuant to section sixty-four-a of this chapter, then the civil penalty 32 shall be seven hundred fifty dollars. No new privilege to operate a 33 vessel shall be issued, or non-resident operating privilege restored to 34 such person unless such penalty has been paid. All penalties collected 35 by the office pursuant to the provisions of this section shall be the 36 property of the state and shall be paid into the general fund of the 37 state treasury. 38 (3) Effect of rehabilitation program. No period of revocation arising 39 out of this section may be set aside by the commissioner for the reason 40 that such person was a participant in the alcohol and drug rehabili- 41 tation program set forth in section eleven hundred ninety-six of the 42 vehicle and traffic law. 43 (e) Regulations. The commissioner shall promulgate such rules and 44 regulations as may be necessary to effectuate the provisions of this 45 subdivision and subdivision one of this section. 46 (f) Evidence. Evidence of a refusal to submit to such chemical test or 47 any portion thereof shall be admissible in any trial, proceeding or 48 hearing based upon a violation of the provisions of section seventy- 49 nine-d of this article but only upon a showing that the person was given 50 sufficient warning, in clear and unequivocal language, of the effect of 51 such refusal and that the person persisted in the refusal. 52 (g) Results. Upon the request of the person who was tested, the 53 results of such test shall be made available to such person. 54 3. Compulsory chemical tests. (a) Court ordered chemical tests. 55 Notwithstanding the provisions of subdivision two of this section, no 56 person who operates a vessel upon the waters of the state may refuse toA. 9867 25 1 submit to a chemical test of one or more of the following: breath, 2 blood, urine or saliva, for the purpose of determining the alcoholic 3 and/or drug content of the blood when a court order for such chemical 4 test has been issued in accordance with the provisions of this subdivi- 5 sion. 6 (b) When authorized. Upon refusal by any person to submit to a chemi- 7 cal test or any portion thereof as described above, the test shall not 8 be given unless a police officer or a district attorney, as defined in 9 subdivision thirty-two of section 1.20 of the criminal procedure law, 10 requests and obtains a court order to compel a person to submit to a 11 chemical test to determine the alcoholic or drug content of the person's 12 blood upon a finding of reasonable cause to believe that: 13 (1) such person was the operator of a vessel and in the course of such 14 operation a person other than the operator was killed or suffered seri- 15 ous physical injury as defined in section 10.00 of the penal law; and 16 (2) (A) either such person operated the vessel in violation of any 17 subdivision of section seventy-nine-d of this article, or 18 (B) a breath test administered by a police officer in accordance with 19 paragraph (b) of subdivision one of this section indicates that alcohol 20 has been consumed by such person; and 21 (3) such person has been placed under lawful arrest; and 22 (4) such person has refused to submit to a chemical test or any 23 portion thereof, requested in accordance with the provisions of para- 24 graph (a) of subdivision two of this section or is unable to give 25 consent to such a test. 26 (c) Reasonable cause; definition. For the purpose of this subdivision 27 "reasonable cause" shall be determined by viewing the totality of 28 circumstances surrounding the incident which, when taken together, indi- 29 cate that the operator was operating a vessel in violation of section 30 seventy-nine-d of this article. Such circumstances may include, but are 31 not limited to: evidence that the operator was operating a vessel in 32 violation of any provision of this article or any other moving violation 33 at the time of the incident; any visible indication of alcohol or drug 34 consumption or impairment by the operator; the existence of an open 35 container containing an alcoholic beverage in or around the vessel oper- 36 ated by the operator; any other evidence surrounding the circumstances 37 of the incident which indicates that the operator has been operating a 38 vessel while impaired by the consumption of alcohol or drugs or intoxi- 39 cated at the time of the incident. 40 (d) Court order; procedure. (1) An application for a court order to 41 compel submission to a chemical test or any portion thereof, may be made 42 to any supreme court justice, county court judge or district court judge 43 in the judicial district in which the incident occurred, or if the inci- 44 dent occurred in the city of New York before any supreme court justice 45 or judge of the criminal court of the city of New York. Such application 46 may be communicated by telephone, radio or other means of electronic 47 communication, or in person. 48 (2) The applicant must provide identification by name and title and 49 must state the purpose of the communication. Upon being advised that an 50 application for a court order to compel submission to a chemical test is 51 being made, the court shall place under oath the applicant and any other 52 person providing information in support of the application as provided 53 in subparagraph three of this paragraph. After being sworn the applicant 54 must state that the person from whom the chemical test was requested was 55 the operator of a vessel and in the course of such operation a person, 56 other than the operator, has been killed or seriously injured and, basedA. 9867 26 1 upon the totality of circumstances, there is reasonable cause to believe 2 that such person was operating a vessel in violation of any subdivision 3 of section seventy-nine-d of this article and, after being placed under 4 lawful arrest such person refused to submit to a chemical test or any 5 portion thereof, in accordance with the provisions of this section or is 6 unable to give consent to such a test or any portion thereof. The 7 applicant must make specific allegations of fact to support such state- 8 ment. Any other person properly identified, may present sworn allega- 9 tions of fact in support of the applicant's statement. 10 (3) Upon being advised that an oral application for a court order to 11 compel a person to submit to a chemical test is being made, a judge or 12 justice shall place under oath the applicant and any other person 13 providing information in support of the application. Such oath or oaths 14 and all of the remaining communication must be recorded, either by means 15 of a voice recording device or verbatim stenographic or verbatim long- 16 hand notes. If a voice recording device is used or a stenographic record 17 made, the judge must have the record transcribed, certify to the accura- 18 cy of the transcription and file the original record and transcription 19 with the court within seventy-two hours of the issuance of the court 20 order. If the longhand notes are taken, the judge shall subscribe a copy 21 and file it with the court within twenty-four hours of the issuance of 22 the order. 23 (4) If the court is satisfied that the requirements for the issuance 24 of a court order pursuant to the provisions of paragraph (b) of this 25 subdivision have been met, it may grant the application and issue an 26 order requiring the accused to submit to a chemical test to determine 27 the alcoholic and/or drug content of his or her blood and ordering the 28 withdrawal of a blood sample in accordance with the provisions of para- 29 graph (a) of subdivision four of this section. When a judge or justice 30 determines to issue an order to compel submission to a chemical test 31 based on an oral application, the applicant therefor shall prepare the 32 order in accordance with the instructions of the judge or justice. In 33 all cases the order shall include the name of the issuing judge or 34 justice, the name of the applicant, and the date and time it was issued. 35 It must be signed by the judge or justice if issued in person, or by the 36 applicant if issued orally. 37 (5) Any false statement by an applicant or any other person in support 38 of an application for a court order shall subject such person to the 39 offenses for perjury set forth in article two hundred ten of the penal 40 law. 41 (6) The chief administrator of the courts shall establish a schedule 42 to provide that a sufficient number of judges or justices will be avail- 43 able in each judicial district to hear oral applications for court 44 orders as permitted by this section. 45 (e) Administration of compulsory chemical test. An order issued pursu- 46 ant to the provisions of this subdivision shall require that a chemical 47 test to determine the alcoholic and/or drug content of the operator's 48 blood must be administered. The provisions of subdivision four of this 49 section shall be applicable to any chemical test administered pursuant 50 to this section. 51 4. Testing procedures. (a) Persons authorized to withdraw blood; immu- 52 nity; testimony. (1) At the request of a police officer, the following 53 persons may withdraw blood for the purpose of determining the alcoholic 54 or drug content therein: (i) a physician, a registered professional 55 nurse, a registered physician assistant, a certified nurse practitioner, 56 or an advanced emergency medical technician as certified by the depart-A. 9867 27 1 ment of health; or (ii) under the supervision and at the direction of a 2 physician, registered physician assistant or certified nurse practition- 3 er acting within his or her lawful scope of practice, or upon the 4 express consent of the person eighteen years of age or older from whom 5 such blood is to be withdrawn: a clinical laboratory technician or clin- 6 ical laboratory technologist licensed pursuant to article one hundred 7 sixty-five of the education law; a phlebotomist; or a medical laboratory 8 technician or medical technologist employed by a clinical laboratory 9 approved under title five of article five of the public health law. 10 This limitation shall not apply to the taking of a urine, saliva or 11 breath specimen. 12 (2) No person entitled to withdraw blood pursuant to subparagraph one 13 of this paragraph or hospital employing such person, and no other 14 employer of such person shall be sued or held liable for any act done or 15 omitted in the course of withdrawing blood at the request of a police 16 officer pursuant to this section. 17 (3) Any person who may have a cause of action arising from the with- 18 drawal of blood as aforesaid, for which no personal liability exists 19 under subparagraph two of this paragraph, may maintain such action 20 against the state if any person entitled to withdraw blood pursuant to 21 this paragraph acted at the request of a police officer employed by the 22 state, or against the appropriate political subdivision of the state if 23 such person acted at the request of a police officer employed by a poli- 24 tical subdivision of the state. No action shall be maintained pursuant 25 to this subparagraph unless notice of claim is duly filed or served in 26 compliance with law. 27 (4) Notwithstanding the foregoing provisions of this paragraph an 28 action may be maintained by the state or a political subdivision thereof 29 against a person entitled to withdraw blood pursuant to subparagraph one 30 of this paragraph or hospital employing such person for whose act or 31 omission the state or the political subdivision has been held liable 32 under this paragraph to recover damages, not exceeding the amount 33 awarded to the claimant, that may have been sustained by the state or 34 the political subdivision by reason of gross negligence or bad faith on 35 the part of such person. 36 (5) The testimony of any person other than a physician, entitled to 37 withdraw blood pursuant to subparagraph one of this paragraph, in 38 respect to any such withdrawal of blood made by such person may be 39 received in evidence with the same weight, force and effect as if such 40 withdrawal of blood were made by a physician. 41 (6) The provisions of subparagraphs two, three and four of this para- 42 graph shall also apply with regard to any person employed by a hospital 43 as security personnel for any act done or omitted in the course of with- 44 drawing blood at the request of a police officer pursuant to a court 45 order in accordance with subdivision three of this section. 46 (b) Right to additional test. The person tested shall be permitted to 47 choose a physician to administer a chemical test in addition to the one 48 administered at the direction of the police officer. 49 (c) Rules and regulations. The department of health shall issue and 50 file rules and regulations approving satisfactory techniques or methods 51 of conducting chemical analyses of a person's blood, urine, breath or 52 saliva and to ascertain the qualifications and competence of individuals 53 to conduct and supervise chemical analyses of a person's blood, urine, 54 breath or saliva. If the analyses were made by an individual possessing 55 a permit issued by the department of health, this shall be presumptive 56 evidence that the examination was properly given. The provisions of thisA. 9867 28 1 paragraph do not prohibit the introduction as evidence of an analysis 2 made by an individual other than a person possessing a permit issued by 3 the department of health. 4 § 79-h. Operation of a vessel after having consumed alcohol; under 5 twenty-one; procedure. 1. Chemical test report and hearing. (a) Whenever 6 a chemical test of the breath, blood, urine or saliva of an operator who 7 is under the age of twenty-one indicates that such person has operated a 8 vessel in violation of section seventy-nine-e of this article, and such 9 person is not charged with violating any subdivision of section seven- 10 ty-nine-d of this article arising out of the same incident, the police 11 officer who administered the test shall forward a report of the results 12 of such test to the office of parks, recreation and historic preserva- 13 tion and the department of motor vehicles within twenty-four hours of 14 the time when such results are available in a manner prescribed by the 15 commissioner of motor vehicles, and the operator shall be given a hear- 16 ing notice as provided in subdivision two of this section, to appear 17 before a hearing officer in the county where the chemical test was 18 administered, or in an adjoining county under such circumstances as 19 prescribed by the commissioner of motor vehicles, on a date to be estab- 20 lished in accordance with a schedule promulgated by the commissioner of 21 motor vehicles. Such hearing shall occur within thirty days of, but not 22 less than forty-eight hours from, the date that the chemical test was 23 administered, provided, however, where the commissioner of motor vehi- 24 cles determines, based upon the availability of hearing officers and the 25 anticipated volume of hearings at a particular location, that the sched- 26 uling of such hearing within thirty days would impair the timely sched- 27 uling or conducting of other hearings pursuant to the vehicle and traf- 28 fic law, such hearing shall be scheduled at the next hearing date for 29 such particular location. When providing the operator with such hearing 30 notice, the police officer shall also give to the operator, and shall, 31 prior to the commencement of the hearing, provide to the department of 32 motor vehicles, copies of the following reports, documents and materi- 33 als: any written report or document, or portion thereof, concerning a 34 physical examination, a scientific test or experiment, including the 35 most recent record of inspection, or calibration or repair of machines 36 or instruments utilized to perform such scientific tests or experiments 37 and the certification certificate, if any, held by the operator of the 38 machine or instrument, which tests or examinations were made by or at 39 the request or direction of a public servant engaged in law enforcement 40 activity. The report of the police officer shall be verified by having 41 the report sworn to, or by affixing to such report a form notice that 42 false statements made therein are punishable as a class A misdemeanor 43 pursuant to section 210.45 of the penal law and such form notice togeth- 44 er with the subscription of the deponent shall constitute verification 45 of the report. 46 (b) Every person under the age of twenty-one who is alleged to have 47 operated a vessel after having consumed alcohol as set forth in section 48 seventy-nine-e of this article, and who is not charged with violating 49 any subdivision of section seventy-nine-d of this article arising out of 50 the same incident, is entitled to a hearing before a hearing officer in 51 accordance with the provisions of this section. Unless otherwise 52 provided by law, the privilege to operate a vessel or any non-resident 53 operating privilege of such person shall not be suspended or revoked 54 prior to the scheduled date for such hearing. 55 (i) The hearing shall be limited to the following issues: (1) did such 56 person operate the vessel; (2) was a valid request to submit to a chemi-A. 9867 29 1 cal test made by the police officer in accordance with the provisions of 2 section seventy-nine-g of this article; (3) was such person less than 3 twenty-one years of age at the time of operation of the vessel; (4) was 4 the chemical test properly administered in accordance with the 5 provisions of section seventy-nine-g of this article; (5) did the test 6 find that such person had operated a vessel after having consumed alco- 7 hol as defined in section seventy-nine-e of this article; and (6) did 8 the police officer make a lawful stop of such person. The burden of 9 proof shall be on the police officer to prove each of these issues by 10 clear and convincing evidence. 11 (ii) Every person who is entitled to a hearing pursuant to this subdi- 12 vision has the right to be present at the hearing; the right to be 13 represented by attorney, or in the hearing officer's discretion, by any 14 other person the operator chooses; the right to receive and review 15 discovery materials as provided in this subdivision; the right not to 16 testify; the right to present evidence and witnesses in his or her own 17 behalf; the right to cross examine adverse witnesses; and the right to 18 appeal from an adverse determination in accordance with article three-A 19 of the vehicle and traffic law. Any person representing the operator 20 must conform to the standards of conduct required of attorneys appearing 21 before state courts, and failure to conform to these standards will be 22 grounds for declining to permit his or her continued appearance in the 23 hearing. 24 (iii) Hearings conducted pursuant to this subdivision shall be in 25 accordance with this subdivision and with the provisions applicable to 26 the adjudication of traffic infractions pursuant to the following 27 provisions of part 124 of title fifteen of the codes, rules and regu- 28 lations of the state of New York: paragraph (b) of section 124.1 regard- 29 ing the opening statement; paragraph (b) of section 124.2 regarding the 30 right to representation and to remain silent and paragraphs (a) through 31 (e) of section 124.4 regarding the conduct of the hearing, procedure and 32 recusal; provided, however, that nothing contained in this subparagraph 33 shall be deemed to preclude a hearing officer from changing the order of 34 a hearing conducted pursuant to this subdivision as justice may require 35 and for good cause shown. 36 (iv) The rules governing receipt of evidence in a court of law shall 37 not apply in a hearing conducted pursuant to this subdivision except as 38 follows: 39 (1) on the merits of the charge, and whether or not a party objects, 40 the hearing officer shall exclude from consideration the following: a 41 privileged communication; evidence which, for constitutional reasons, 42 would not be admissible in a court of law; evidence of prior misconduct, 43 incompetency or illness, except where such evidence would be admissible 44 in a court of law; evidence which is irrelevant or immaterial; 45 (2) no negative inference shall be drawn from the operator's exercis- 46 ing the right not to testify. 47 (v) If, after such hearing, the hearing officer, acting on behalf of 48 the commissioner of motor vehicles, finds all of the issues set forth in 49 this subdivision in the affirmative, the hearing officer shall suspend 50 or revoke the privilege to operate a vessel or non-resident operating 51 privilege of such person in accordance with the time periods set forth 52 in subdivision two of section seventy-nine-f of this article. If, after 53 such hearing, the hearing officer, acting on behalf of the commissioner 54 of motor vehicles, finds any of said issues in the negative, the hearing 55 officer must find that the operator did not operate a vessel after 56 having consumed alcohol.A. 9867 30 1 (vi) A person who has had a privilege to operate a vessel or non-resi- 2 dent operating privilege suspended or revoked pursuant to the provisions 3 of this section may appeal the finding of the hearing officer in accord- 4 ance with the provisions of article three-A of the vehicle and traffic 5 law. 6 (c) Unless an adjournment of the hearing date has been granted, upon 7 the operator's failure to appear for a scheduled hearing, the commis- 8 sioner of motor vehicles shall report the failure to appear to the 9 commissioner and such commissioner shall suspend the privilege to oper- 10 ate a vessel or non-resident operating privilege until the operator 11 petitions the commissioner and a rescheduled hearing is conducted, 12 provided, however, the commissioner shall restore such person's privi- 13 lege to operate a vessel or non-resident operating privilege if such 14 rescheduled hearing is adjourned at the request of a person other than 15 the operator. Requests for adjournments shall be made and determined in 16 accordance with regulations promulgated by the commissioner of motor 17 vehicles. If such a request by the operator for an adjournment is grant- 18 ed, the commissioner of motor vehicles shall notify the operator of the 19 rescheduled hearing, which shall be scheduled for the next hearing date. 20 If a second or subsequent request by the operator for an adjournment is 21 granted, the operator's privilege to operate a vessel or non-resident 22 operating privilege may be suspended pending the hearing at the time 23 such adjournment is granted; provided, however, that the records of the 24 department of motor vehicles or the evidence already admitted furnishes 25 reasonable grounds to believe such suspension is necessary to prevent 26 continuing violations or a substantial safety hazard; and provided 27 further, that such hearing shall be scheduled for the next hearing date. 28 If a police officer does not appear for a hearing, the hearing officer 29 shall have the authority to dismiss the charge. Any person may waive the 30 right to a hearing under this subdivision, in a form and manner 31 prescribed by the commissioner of motor vehicles, and may enter an 32 admission of guilt, in person or by mail, to the charge of operating a 33 vessel in violation of section seventy-nine-e of this article. Such 34 admission of guilt shall have the same force and effect as a finding of 35 guilt entered following a hearing conducted pursuant to this subdivi- 36 sion. 37 2. Hearing notice. The hearing notice issued to an operator pursuant 38 to subdivision one of this section shall be in a form as prescribed by 39 the commissioner of motor vehicles. In addition to containing informa- 40 tion concerning the time, date and location of the hearing, and such 41 other information as the commissioner of motor vehicles deems appropri- 42 ate, such hearing notice shall also contain the following information: 43 the date, time and place of the offense charged; the procedures for 44 requesting an adjournment of a scheduled hearing as provided in this 45 section, the operator's right to a hearing conducted pursuant to this 46 section and the right to waive such hearing and plead guilty, either in 47 person or by mail, to the offense charged. 48 3. Civil penalty. Unless otherwise provided, any person whose privi- 49 lege to operate a vessel or any non-resident operating privilege is 50 suspended or revoked pursuant to the provisions of this section shall 51 also be liable for a civil penalty in the amount of one hundred twenty- 52 five dollars. The first fifty dollars of each penalty collected by the 53 department of motor vehicles pursuant to the provisions of this subdivi- 54 sion shall be paid to the commissioner of motor vehicles for deposit to 55 the general fund and the remainder of all such penalties shall be paid 56 to the commissioner for deposit in the "I Love NY Waterways" boatingA. 9867 31 1 safety fund established pursuant to section ninety-seven-nn of the state 2 finance law. 3 4. Refusal report and hearing. (a) Any person under the age of twen- 4 ty-one who is suspected of operating a vessel after having consumed 5 alcohol in violation of section seventy-nine-e of this article, and who 6 is not charged with violating any subdivision of section seventy-nine-d 7 of this article arising out of the same incident, and who has been 8 requested to submit to a chemical test pursuant to paragraph (a) of 9 subdivision two of section seventy-nine-g of this article and after 10 having been informed that his or her privilege to operate a vessel and 11 any non-resident operating privilege shall be revoked for refusal to 12 submit to such chemical test or any portion thereof, whether or not 13 there is a finding of operation of a vessel after having consumed alco- 14 hol, and such person refuses to submit to such chemical test or any 15 portion thereof, shall be entitled to a hearing in accordance with a 16 schedule promulgated by the commissioner of motor vehicles, and such 17 hearing shall occur within thirty days of, but not less than forty-eight 18 hours from, the date of such refusal, provided, however, where the 19 commissioner of motor vehicles determines, based upon the availability 20 of hearing officers and the anticipated volume of hearings at a partic- 21 ular location, that the scheduling of such hearing within thirty days 22 would impair the timely scheduling or conducting of other hearings 23 pursuant to this chapter, such hearing shall be scheduled at the next 24 hearing date for such particular location. 25 (b) Unless an adjournment of the hearing date has been granted, upon 26 the operator's failure to appear for a scheduled hearing, the commis- 27 sioner of motor vehicles shall report the failure to appear to the 28 commissioner and shall suspend the privilege to operate a vessel or 29 non-resident operating privilege until the operator petitions the 30 commissioner and a rescheduled hearing is conducted, provided, however, 31 the commissioner shall restore such person's privilege to operate a 32 vessel or non-resident operating privilege if such rescheduled hearing 33 is adjourned at the request of a person other than the operator. 34 Requests for adjournments shall be made and determined in accordance 35 with regulations promulgated by the commissioner of motor vehicles. If 36 such a request by the operator for an adjournment is granted, the 37 commissioner of motor vehicles shall notify the operator of the resched- 38 uled hearing, which shall be scheduled for the next hearing date. If a 39 second or subsequent request by the operator for an adjournment is 40 granted, the operator's privilege to operate a vessel or non-resident 41 operating privilege may be suspended pending the hearing at the time 42 such adjournment is granted; provided, however, that the records of the 43 department of motor vehicles or the evidence already admitted furnishes 44 reasonable grounds to believe such suspension is necessary to prevent 45 continuing violations or a substantial traffic safety hazard; and 46 provided further, that such hearing shall be scheduled for the next 47 hearing. 48 If a police officer does not appear for a hearing, the hearing officer 49 shall have the authority to dismiss the charge. Any person may waive the 50 right to a hearing under this subdivision. 51 (c) The hearing on the refusal to submit to a chemical test pursuant 52 to this subdivision shall be limited to the following issues: (1) was a 53 valid request to submit to a chemical test made by the police officer in 54 accordance with the provisions of section seventy-nine-g of this arti- 55 cle; (2) was such person given sufficient warning, in clear or unequiv- 56 ocal language, prior to such refusal that such refusal to submit to suchA. 9867 32 1 chemical test or any portion thereof, would result in the revocation of 2 such person's privilege to operate a vessel or non-resident operating 3 privilege, whether or not such person is found to have operated a vessel 4 after having consumed alcohol; (3) did such person refuse to submit to 5 such chemical test or any portion thereof; (4) did such person operate 6 the vessel; (5) was such person less than twenty-one years of age at the 7 time of operation of the vessel; and (6) did the police officer make a 8 lawful stop of such person. If, after such hearing, the hearing officer, 9 acting on behalf of the commissioner of motor vehicles, finds on any 10 said issue in the negative, the hearing officer shall not revoke the 11 operator's privilege to operate a vessel or non-resident operating priv- 12 ilege and shall immediately terminate any outstanding suspension of the 13 operator's privilege to operate a vessel or non-resident operating priv- 14 ilege arising from such refusal. If, after such hearing, the hearing 15 officer, acting on behalf of the commissioner of motor vehicles, finds 16 all of the issues in the affirmative, such hearing officer shall imme- 17 diately revoke privilege to operate a vessel or any non-resident operat- 18 ing privilege in accordance with the provisions of paragraph (d) of 19 subdivision two of section seventy-nine-g of this article. A person who 20 has had a privilege to operate a vessel or non-resident operating privi- 21 lege suspended or revoked pursuant to the provisions of this section may 22 appeal the findings of the hearing officer in accordance with the 23 provisions of article three-A of the vehicle and traffic law. 24 § 79-i. Chemical test evidence. 1. Admissibility. Upon the trial of 25 any action or proceeding arising out of actions alleged to have been 26 committed by any person arrested for a violation of any subdivision of 27 section seventy-nine-d of this article, the court shall admit evidence 28 of the amount of alcohol or drugs in the defendant's blood as shown by a 29 test administered pursuant to the provisions of section seventy-nine-g 30 of this article. 31 2. Probative value. The following effect shall be given to evidence of 32 blood-alcohol content, as determined by such tests, of a person arrested 33 for violation of section seventy-nine-d of this article: 34 (a) Evidence that there was .05 of one per centum or less by weight of 35 alcohol in such person's blood shall be prima facie evidence that the 36 ability of such person to operate a vessel was not impaired by the 37 consumption of alcohol, and that such person was not in an intoxicated 38 condition; 39 (b) Evidence that there was more than .05 of one per centum but less 40 than .07 of one per centum by weight of alcohol in such person's blood 41 shall be prima facie evidence that such person was not in an intoxicated 42 condition, but such evidence shall be relevant evidence, but shall not 43 be given prima facie effect, in determining whether the ability of such 44 person to operate a vessel was impaired by the consumption of alcohol; 45 and 46 (c) Evidence that there was .07 of one per centum or more but less 47 than .08 of one per centum by weight of alcohol in such person's blood 48 shall be prima facie evidence that such person was not in an intoxicated 49 condition, but such evidence shall be given prima facie effect in deter- 50 mining whether the ability of such person to operate a vessel was 51 impaired by the consumption of alcohol. 52 3. Suppression. A defendant who has been compelled to submit to a 53 chemical test pursuant to the provisions of subdivision three of section 54 seventy-nine-g of this article may move for the suppression of such 55 evidence in accordance with article seven hundred ten of the criminal 56 procedure law on the grounds that the order was obtained and the testA. 9867 33 1 administered in violation of the provisions of such subdivision or any 2 other applicable law. 3 § 79-j. Alcohol and drug rehabilitation program within the department 4 of motor vehicles. The commissioner shall work with the commissioner of 5 motor vehicles to provide access to the alcohol and drug rehabilitation 6 program established pursuant to section eleven hundred ninety-six of the 7 vehicle and traffic law to those persons convicted of alcohol or drug- 8 related operation of a vessel offenses or persons who have been adjudi- 9 cated youthful offenders for alcohol or drug-related operation of a 10 vessel offenses, or persons found to have been operating a vessel after 11 having consumed alcohol in violation of section seventy-nine-e of this 12 article, who choose to participate and who satisfy the criteria and meet 13 the requirements for participation as established by section eleven 14 hundred ninety-six of the vehicle and traffic law and the regulations 15 promulgated thereunder; provided, however, in the exercise of 16 discretion, the judge imposing sentence may prohibit the defendant from 17 enrolling in such program. 18 § 79-k. Special options program for operation of a vessel while intox- 19 icated. The commissioner shall work with the commissioner of motor vehi- 20 cles to include a plan for coordination of county, town, city and 21 village efforts to reduce alcohol-related boating injuries and fatali- 22 ties pursuant to section eleven hundred ninety-seven of the vehicle and 23 traffic law. 24 § 79-l. Installation and operation of ignition interlock devices. 1. 25 Applicability. The provisions of this section shall apply throughout the 26 state to each person required or otherwise ordered by a court as a 27 condition of probation or conditional discharge to install and operate 28 an ignition interlock device in any vessel which he or she owns or oper- 29 ates. 30 2. Requirements. (a) In addition to any other penalties prescribed by 31 law, the court shall require that any person who has been convicted of a 32 violation of subdivision three, four or five of section seventy-nine-d 33 of this article, or any crime defined by this chapter or the penal law 34 of which an alcohol-related violation of any provision of section seven- 35 ty-nine-d of this article is an essential element, to install and main- 36 tain, as a condition of probation or conditional discharge, a function- 37 ing ignition interlock device in accordance with the provisions of this 38 section and, as applicable, in accordance with the provisions of subdi- 39 vision one of section seventy-nine-f of this article. For any such indi- 40 vidual subject to a sentence of probation, installation and maintenance 41 of such ignition interlock device shall be a condition of probation. 42 (b) Nothing contained in this section shall prohibit a court, upon 43 application by a probation department, from modifying the conditions of 44 probation of any person convicted of any violation set forth in para- 45 graph (a) of this subdivision prior to the effective date of this 46 section, to require the installation and maintenance of a functioning 47 ignition interlock device, and such person shall thereafter be subject 48 to the provisions of this section. 49 (c) Nothing contained in this section shall authorize a court to 50 sentence any person to a period of probation or conditional discharge 51 for the purpose of subjecting such person to the provisions of this 52 section, unless such person would have otherwise been so eligible for a 53 sentence of probation or conditional discharge. 54 3. Conditions. (a) Notwithstanding any other provision of law, the 55 commissioner may grant a post-revocation conditional privilege to oper- 56 ate a vessel, as set forth in paragraph (b) of this subdivision, to aA. 9867 34 1 person who has been convicted of a violation of subdivision three, four 2 or five of section seventy-nine-d of this article and who has been 3 sentenced to a period of probation or conditional discharge, provided 4 the person has satisfied the minimum period of the revocation of the 5 privilege to operate a vessel established by law and the commissioner 6 has been notified that such person may operate only a vessel equipped 7 with a functioning ignition interlock device. In exercising discretion 8 relating to the issuance of a post-revocation conditional privilege to 9 operate a vessel pursuant to this subdivision, the commissioner shall 10 not deny such issuance based solely upon the number of convictions for 11 violations of any subdivision of section seventy-nine-d of this article 12 committed by such person within the ten years prior to application for 13 such privilege to operate a vessel. Upon the termination of the period 14 of probation or conditional discharge set by the court, the person may 15 apply to the commissioner for restoration of a privilege to operate a 16 vessel in accordance with this chapter. 17 (b) Notwithstanding any inconsistent provision of this chapter, a 18 post-revocation conditional privilege to operate a vessel granted pursu- 19 ant to paragraph (a) of this subdivision shall be valid only for use by 20 the holder thereof: (1) enroute to and from the holder's place of 21 employment; (2) if the holder's employment requires the operation of a 22 vessel then during the hours thereof; (3) enroute to and from a class or 23 course at an accredited school, college or university or at a state 24 approved institution of vocational or technical training; (4) to and 25 from court ordered probation activities; (5) to and from an office for 26 the transaction of business relating to such privilege to operate a 27 vessel; (6) for a three hour consecutive daytime period, chosen by the 28 office, on a day during which the participant is not engaged in usual 29 employment or vocation; (7) enroute to and from a medical examination or 30 treatment as part of a necessary medical treatment for such participant 31 or member of the participant's household, as evidenced by a written 32 statement to that effect from a licensed medical practitioner; (8) 33 enroute to and from a class or an activity which is an authorized part 34 of the alcohol and drug rehabilitation program and at which partic- 35 ipant's attendance is required; and (9) enroute to and from a place, 36 including a school, at which a child or children of the participant are 37 cared for on a regular basis and which is necessary for the participant 38 to maintain such participant's employment or enrollment at an accredited 39 school, college or university or at a state approved institution of 40 vocational or technical training. 41 (c) The post-revocation conditional privilege to operate a vessel 42 described in this subdivision may be revoked by the commissioner for 43 sufficient cause including but not limited to, failure to comply with 44 the terms of the condition of probation or conditional discharge set 45 forth by the court, conviction of any operation of a vessel offense 46 other than one involving a conviction of any alcohol or drug-related 47 offense, misdemeanor or felony or failure to install or maintain a court 48 ordered ignition interlock device. 49 (d) Nothing contained herein shall prohibit the court from requiring, 50 as a condition of probation or conditional discharge, the installation 51 of a functioning ignition interlock device in any vessel owned or oper- 52 ated by a person sentenced for a violation of subdivision three, four, 53 or five of section seventy-nine-d of this article, or any crime defined 54 by this chapter or the penal law of which an alcohol-related violation 55 of any provision of section seventy-nine-d of this article is an essen- 56 tial element, if the court in its discretion, determines that such aA. 9867 35 1 condition is necessary to ensure the public safety. Imposition of an 2 ignition interlock condition shall in no way limit the effect of any 3 period of suspension or revocation of a privilege to operate a vessel 4 set forth by the commissioner or the court. 5 (e) Nothing contained herein shall prevent the court from applying any 6 other conditions of probation or conditional discharge allowed by law, 7 including treatment for alcohol or drug abuse, restitution and community 8 service. 9 (f) The commissioner shall note on the operator's record of any person 10 restricted pursuant to this section that, in addition to any other 11 restrictions, conditions or limitations, such person may operate only a 12 vessel equipped with an ignition interlock device. 13 4. Proof of compliance and recording of condition. (a) Following impo- 14 sition by the court of the use of an ignition interlock device as a 15 condition of probation or conditional discharge it shall require the 16 person to provide proof of compliance with this section to the court and 17 the probation department or other monitor where such person is under 18 probation or conditional discharge supervision. If the person fails to 19 provide for such proof of installation, absent a finding by the court of 20 good cause for that failure which is entered in the record, the court 21 may revoke, modify, or terminate the person's sentence of probation or 22 conditional discharge as provided under law. Good cause may include a 23 finding that the person is not the owner of a vessel if such person 24 asserts under oath that such person is not the owner of any vessel and 25 that he or she will not operate any vessel during the period of inter- 26 lock restriction except as may be otherwise authorized pursuant to law. 27 "Owner" shall have the same meaning as provided in section one hundred 28 twenty-eight of the vehicle and traffic law. 29 (b) When a court imposes the condition specified in subdivision one of 30 this section, the court shall notify the commissioner in such manner as 31 the commissioner may prescribe, and the commissioner shall note such 32 condition on the operating record of the person subject to such condi- 33 tions. 34 5. Cost, installation and maintenance. (a) The cost of installing and 35 maintaining the ignition interlock device shall be borne by the person 36 subject to such condition unless the court determines such person is 37 financially unable to afford such cost whereupon such cost may be 38 imposed pursuant to a payment plan or waived. In the event of such waiv- 39 er, the cost of the device shall be borne in accordance with regulations 40 issued under paragraph (g) of subdivision one of section seventy-nine-f 41 of this article or pursuant to such other agreement as may be entered 42 into for provision of the device. Such cost shall be considered a fine 43 for the purposes of subdivision five of section 420.10 of the criminal 44 procedure law. Such cost shall not replace, but shall instead be in 45 addition to, any fines, surcharges, or other costs imposed pursuant to 46 this chapter or other applicable laws. 47 (b) The installation and service provider of the device shall be 48 responsible for the installation, calibration, and maintenance of such 49 device. 50 6. Certification. (a) The commissioner of the department of health 51 shall approve ignition interlock devices for installation pursuant to 52 subdivision one of this section and shall publish a list of approved 53 devices. 54 (b) After consultation with manufacturers of ignition interlock 55 devices and the commissioner, the commissioner of the department of 56 health, in consultation with the office of probation and correctionalA. 9867 36 1 alternatives, shall promulgate regulations regarding standards for, and 2 use of, ignition interlock devices. Such standards shall include 3 provisions for setting a minimum and maximum calibration range and shall 4 include, but not be limited to, requirements that the devices: 5 (1) have features that make circumventing difficult and that do not 6 interfere with the normal or safe operation of the vessel; 7 (2) work accurately and reliably in an unsupervised environment; 8 (3) resist tampering and give evidence if tampering is attempted; 9 (4) minimize inconvenience to a sober user; 10 (5) require a proper, deep, lung breath sample or other accurate meas- 11 ure of blood alcohol content equivalence; 12 (6) operate reliably over the range of vessel environments; 13 (7) correlate well with permissible levels of alcohol consumption as 14 may be established by the sentencing court or by any provision of law; 15 and 16 (8) are manufactured by a party covered by product liability insur- 17 ance. 18 (c) The commissioner of the department of health may, in his or her 19 discretion, adopt in whole or relevant part, the guidelines, rules, 20 regulations, studies, or independent laboratory tests performed on and 21 relied upon for the certification or approval of ignition interlock 22 devices by other states, their agencies or commissions. 23 7. Use of other vessels. (a) Any requirement of this article or the 24 penal law that a person operate a vessel only if it is equipped with an 25 ignition interlock device shall apply to every vessel operated by that 26 person including, but not limited to, vessels that are leased, rented or 27 loaned. 28 (b) No person shall knowingly rent, lease, or lend a vessel to a 29 person known to have had his or her privilege to operate a vessel 30 restricted to vessels equipped with an ignition interlock device unless 31 the vessel is so equipped. Any person whose privilege to operate a 32 vessel is so restricted shall notify any other person who rents, leases, 33 or loans a vessel to him or her of such operating restriction. 34 (c) Any violation of paragraph (a) or (b) of this subdivision shall be 35 a misdemeanor. 36 8. Employer vessel. Notwithstanding the provisions of subdivision one 37 and paragraph (d) of subdivision nine of this section, if a person is 38 required to operate a vessel owned by said person's employer in the 39 course and scope of his or her employment, the person may operate that 40 vessel without installation of an approved ignition interlock device 41 only in the course and scope of such employment and only if the employer 42 has been notified that the person's privilege to operate a vessel has 43 been restricted under the provisions of this article or the penal law 44 and the person whose privilege to operate a vessel has been so 45 restricted has provided the court and probation department with written 46 documentation indicating the employer has knowledge of the restriction 47 imposed and has granted permission for the person to operate the employ- 48 er's vessel without the device only for business purposes. The person 49 shall notify the court and the probation department of his or her inten- 50 tion to so operate the employer's vessel. A vessel owned by a business 51 entity when such business entity is all or partly owned or controlled by 52 a person otherwise subject to the provisions of this article or the 53 penal law is not a vessel owned by the employer for purposes of the 54 exemption provided in this subdivision. The provisions of this subdivi- 55 sion shall apply only to the operation of such vessel in the scope of 56 such employment.A. 9867 37 1 9. Circumvention of interlock device. (a) No person whose privilege to 2 operate a vessel is restricted pursuant to this article shall request, 3 solicit or allow any other person to blow into an ignition interlock 4 device, or to start a vessel equipped with the device, for the purpose 5 of providing the person so restricted with an operable vessel. 6 (b) No person shall blow into an ignition interlock device or start a 7 vessel equipped with the device for the purpose of providing an operable 8 vessel to a person whose privilege to operate a vessel is so restricted. 9 (c) No person shall tamper with or circumvent an otherwise operable 10 ignition interlock device. 11 (d) No person subject to a court ordered ignition interlock device 12 shall operate a vessel without such device. 13 (e) In addition to any other provisions of law, any person convicted 14 of a violation of paragraph (a), (b), (c), or (d) of this subdivision 15 shall be guilty of a class A misdemeanor. 16 10. Warning label. The department of health shall design a warning 17 label which the manufacturer shall affix to each ignition interlock 18 device upon installation in the state. The label shall contain a warning 19 that any person tampering, circumventing, or otherwise misusing the 20 device is guilty of a misdemeanor and may be subject to civil liability. 21 § 79-m. Special procedures and disposition involving alcohol and 22 substance abuse assessment and treatment. 1. Definitions. For purposes 23 of this section, the following terms shall have the following meanings: 24 (a) "Alcohol and substance abuse professional" shall mean persons 25 credentialed by the office of alcoholism and substance abuse services to 26 provide alcohol and substance abuse services pursuant to the mental 27 hygiene law and persons licensed by the state education department in an 28 appropriate health field, including licensed clinical social worker, 29 licensed master social worker, licensed mental health counselor, nurse 30 practitioner, physician, physician's assistant, psychiatrist, psychol- 31 ogist, and registered nurse. 32 (b) "Licensed agency" shall mean an agency licensed by the office of 33 alcoholism and substance abuse services to provide alcohol and substance 34 abuse services pursuant to the mental hygiene law. 35 2. Procedure. (a) Mandatory screening; when authorized. Upon the 36 arraignment of, or at the discretion of the court, prior to the sentenc- 37 ing of any person who (i) at arraignment is charged with or prior to 38 sentencing convicted of a first violation of operating a vessel in 39 violation of subdivision two, three or five or paragraph (b) of subdivi- 40 sion four of section seventy-nine-d of this article while such person 41 has less than .15 of one per centum by weight of alcohol in the person's 42 blood as shown by chemical analysis of such person's blood, breath, 43 urine or saliva made pursuant to the provisions of section 44 seventy-nine-g of this article, or in violation of subdivision six of 45 section seventy-nine-d of this article, or (ii) has refused to submit to 46 a chemical test pursuant to section seventy-nine-g of this article, the 47 court shall order such person to submit to screening for alcohol or 48 substance abuse and dependency using a standardized written screening 49 instrument developed by the office of alcoholism and substance abuse 50 services, to be administered by an alcohol or substance abuse profes- 51 sional. 52 (b) Mandatory assessment; when authorized. The court shall order a 53 defendant to undergo a formal alcohol or substance abuse and dependency 54 assessment by an alcohol or substance abuse professional or a licensed 55 agency: (i) when the screening required by paragraph (a) of this subdi- 56 vision indicates that a defendant is abusing or dependent upon alcoholA. 9867 38 1 or drugs; (ii) following the arraignment of any person charged with or, 2 at the discretion of the court, prior to the sentencing of any person 3 convicted of a violation of subdivision two, three, five, six or seven 4 of section seventy-nine-d of this article after having been convicted of 5 a violation of any subdivision of section seventy-nine-d of this article 6 or of vehicular assault in the second or first degree, as defined, 7 respectively, in sections 120.03 and 120.04 of the penal law or of 8 aggravated vehicular assault, as defined in section 120.04-a of such law 9 or of vehicular manslaughter in the second or first degree, as defined, 10 respectively, in sections 125.12 and 125.13 of such law or of aggravated 11 vehicular homicide, as defined in section 125.14 of such law within the 12 preceding five years or after having been convicted of a violation of 13 any subdivision of section seventy-nine-d of this article or of vehicu- 14 lar assault in the second or first degree, as defined, respectively, in 15 sections 120.03 and 120.04 of the penal law or of aggravated vehicular 16 assault, as defined in section 120.04-a of the penal law or of vehicular 17 manslaughter in the second or first degree, as defined, respectively, in 18 sections 125.12 and 125.13 of the penal law or of aggravated vehicular 19 homicide, as defined in section 125.14 of such law, two or more times 20 within the preceding ten years; or (iii) following the arraignment of 21 any person charged with or, at the discretion of the court, prior to the 22 sentencing of any person convicted of operating a vessel in violation of 23 subdivision three or five or paragraph (b) of subdivision four of 24 section seventy-nine-d of this article while such person has .15 of one 25 per centum or more by weight of alcohol in the person's blood as shown 26 by a chemical analysis of such person's blood, breath, urine or saliva 27 made pursuant to the provisions of section seventy-nine-g of this arti- 28 cle or in violation of paragraph (a) of subdivision four of section 29 seventy-nine-d of this article. 30 (c) Mandatory assessment; procedure. The assessment ordered by a court 31 pursuant to this section shall be performed by an alcohol or substance 32 abuse professional or a licensed agency which shall forward the results, 33 in writing, to the court and to the defendant or his or her counsel 34 within thirty days of the date of such order. 35 3. Authorized disposition. When a sentence of probation or a condi- 36 tional discharge is imposed upon a person who has been required to 37 undergo an alcohol or substance abuse and dependency assessment pursuant 38 to subdivision two of this section and where such assessment indicates 39 that such person is in need of treatment for alcohol or substance abuse 40 or dependency, the court shall require, as a condition of such sentence, 41 that such person participate in and successfully complete such treat- 42 ment. Such treatment shall be provided by an alcohol or substance abuse 43 professional or a licensed agency. 44 4. Any case wherein a court has accepted a plea pursuant to the 45 provisions of subparagraph (ii) of paragraph (a) of subdivision thirteen 46 of section seventy-nine-d of this article and such plea includes as a 47 condition thereof that the defendant attend and complete the alcohol and 48 drug rehabilitation program established pursuant to section seventy- 49 nine-j of this article, including any assessment and treatment required 50 thereby, shall be deemed to be in compliance with the provisions of this 51 section. 52 5. The chief administrator of the office of court administration shall 53 make available to all courts in this state with jurisdiction in criminal 54 cases a list of alcohol and substance abuse professionals and licensed 55 agencies as provided by the office of alcoholism and substance abuseA. 9867 39 1 services pursuant to subdivision (g) of section 19.07 of the mental 2 hygiene law. 3 6. Confidentiality of records. (a) The records and content of all 4 screenings, assessments and treatment conducted pursuant to this 5 section, including the identity, diagnosis and prognosis of each indi- 6 vidual who is the subject of such records, and including any statements 7 or admissions of such individual made during the course of such screen- 8 ings, assessments and treatment, shall be confidential, shall not be 9 disclosed except as authorized by this subdivision, and shall not be 10 entered or received as evidence at any civil, criminal or administrative 11 trial, hearing or proceeding. No person, other than a defendant to whom 12 such records are disclosed, may redisclose such records. 13 (b) Consistent with Section 290 dd-2 of Title 42 of the United States 14 Code, as such law may, from time to time, be amended, such records and 15 content may only be disclosed as follows: 16 (i) to a court for the sole purpose of requiring a defendant charged 17 with or convicted of a violation of subdivision two, three, four, five, 18 six, or seven of section seventy-nine-d of this article to undergo alco- 19 hol or substance abuse or dependency assessment or treatment; 20 (ii) to the defendant or his or her authorized representative; and 21 (iii) to medical personnel to the extent necessary to meet a bona fide 22 medical emergency. 23 7. Effect of completion of treatment. Except as provided in subpara- 24 graph (ix) of paragraph (b) of subdivision three of section seventy- 25 nine-f or in subparagraph three of paragraph (d) of subdivision two of 26 section seventy-nine-g of this article, upon successful completion of 27 treatment ordered pursuant to this section as certified by the alcohol 28 or substance abuse professional or licensed agency which provided such 29 treatment, the defendant may apply to the commissioner on a form 30 provided for that purpose, for the termination of the suspension or 31 revocation order issued as a result of the defendant's conviction. In 32 the exercise of discretion, upon receipt of such application, and upon 33 payment of any civil penalties for which the defendant may be liable, 34 the commissioner is authorized to terminate such order or orders and 35 return the defendant's privilege to operate a vessel in this state. 36 However, the commissioner shall not issue any new privilege to operate a 37 vessel nor restore any such privilege where said issuance or restoration 38 is prohibited by subdivision three of section seventy-nine-f of this 39 article. 40 § 79-n. Driver and boater responsibility assessment. The commissioner 41 shall work with the commissioner of motor vehicles to provide access to 42 the driver and boater responsibility assessment as provided in section 43 eleven hundred ninety-nine of the vehicle and traffic law. 44 § 2. Section 1196 of the vehicle and traffic law is amended by adding 45 a new subdivision 8 to read as follows: 46 8. The provisions of this section shall also be applicable to any 47 person convicted of any violation of section seventy-nine-d of the navi- 48 gation law, or any person found to have refused a chemical test in 49 accordance with the applicable provisions of the navigation law. 50 § 3. Section 1197 of the vehicle and traffic law is amended by adding 51 a new subdivision 11 to read as follows: 52 11. The provisions of this section shall also be applicable to perti- 53 nent provisions of article four-B of the navigation law. 54 § 4. Section 1199 of the vehicle and traffic law, as added by section 55 1 of part E of chapter 59 of the laws of 2004, is amended to read as 56 follows:A. 9867 40 1 § 1199. Driver and boater responsibility assessment. 1. In addition to 2 any fines, fees, penalties and surcharges authorized by law, any person 3 convicted of a violation of any subdivision of section eleven hundred 4 ninety-two of this article or section seventy-nine-d of the navigation 5 law, or any person found to have refused a chemical test in accordance 6 with section eleven hundred ninety-four of this article or section 7 seventy-nine-g of the navigation law not arising out of the same inci- 8 dent as a conviction for a violation of any of the provisions of section 9 eleven hundred ninety-two of this article or section seventy-nine-d of 10 the navigation law, shall become liable to the department for payment of 11 a driver and boater responsibility assessment as provided in this 12 section. 13 2. The amount of the driver and boater responsibility assessment under 14 this section shall be two hundred fifty dollars per year for a three- 15 year period. 16 3. Upon receipt of evidence that a person is liable for the driver and 17 boater responsibility assessment required by this section, the commis- 18 sioner shall notify such person by first class mail to the address of 19 such person on file with the department or at the current address 20 provided by the United States postal service of the amount of such 21 assessment, the time and manner of making required payments, and that 22 failure to make payment shall result in the suspension of his or her 23 driver's license or privilege of obtaining a driver's license or privi- 24 lege to operate a vessel. 25 4. If a person shall fail to pay any driver and boater responsibility 26 assessment as provided in this section, the commissioner shall suspend 27 such person's driver's license or privilege of obtaining a license or 28 privilege to operate a vessel. Such suspension shall remain in effect 29 until any and all outstanding driver and boater responsibility assess- 30 ments have been paid in full. 31 5. The provisions of this section shall also be applicable to any 32 person convicted of any violation of [section forty-nine-a] article 33 four-B of the navigation law, any person convicted of a violation of 34 section 25.24 of the parks, recreation and historic preservation law, or 35 any person found to have refused a chemical test in accordance with the 36 applicable provisions of either the navigation law or the parks, recre- 37 ation and historic preservation law not arising out of the same incident 38 as such conviction. 39 § 5. Subdivision 5 of section 710.20 of the criminal procedure law, as 40 amended by chapter 629 of the laws of 1998, is amended to read as 41 follows: 42 5. Consists of a chemical test of the defendant's blood administered 43 in violation of the provisions of subdivision three of section eleven 44 hundred ninety-four of the vehicle and traffic law, subdivision [eight] 45 three of section [forty-nine-a] seventy-nine-g of the navigation law, 46 subdivision seven of section 25.24 of the parks, recreation and historic 47 preservation law, or any other applicable law; or 48 § 6. Subdivision 4 of section 49 of the navigation law, as added by 49 chapter 805 of the laws of 1992, is amended to read as follows: 50 4. Whenever any police officer or peace officer authorized to enforce 51 the provisions of this chapter having reasonable cause to believe that a 52 person is operating a vessel in violation of section [forty-nine-a] 53 seventy-nine-d of this [article] chapter, or any other provision of this 54 article or article four-B of this chapter for which a suspension may be 55 imposed, such officer may demand of such person his or her name, address 56 and an explanation of his or her conduct.A. 9867 41 1 § 7. Subdivision 1 of section 120.03 of the penal law, as amended by 2 chapter 732 of the laws of 2006, is amended to read as follows: 3 (1) operates a motor vehicle in violation of subdivision two, three, 4 four or four-a of section eleven hundred ninety-two of the vehicle and 5 traffic law or operates a vessel or public vessel in violation of [para-6graph (b), (c), (d) or (e) of] subdivision [two] three, five, six, or 7 seven of section [forty-nine-a] seventy-nine-d of the navigation law, 8 and as a result of such intoxication or impairment by the use of a drug, 9 or by the combined influence of drugs or of alcohol and any drug or 10 drugs, operates such motor vehicle, vessel or public vessel in a manner 11 that causes such serious physical injury to such other person, or 12 § 8. Subdivision 1 of section 125.12 of the penal law, as amended by 13 chapter 732 of the laws of 2006, is amended to read as follows: 14 (1) operates a motor vehicle in violation of subdivision two, three, 15 four or four-a of section eleven hundred ninety-two of the vehicle and 16 traffic law or operates a vessel or public vessel in violation of [para-17graph (b), (c), (d) or (e) of] subdivision [two] three, five, six, or 18 seven of section [forty-nine-a] seventy-nine-d of the navigation law, 19 and as a result of such intoxication or impairment by the use of a drug, 20 or by the combined influence of drugs or of alcohol and any drug or 21 drugs, operates such motor vehicle, vessel or public vessel in a manner 22 that causes the death of such other person, or 23 § 9. Subdivision 5 of section 160.55 of the criminal procedure law, as 24 amended by chapter 391 of the laws of 1998, is amended to read as 25 follows: 26 5. (a) When a criminal action or proceeding is terminated against a 27 person by the entry of a waiver of a hearing pursuant to paragraph (c) 28 of subdivision ten of section eleven hundred ninety-two of the vehicle 29 and traffic law or paragraph (c) of subdivision thirteen of section 30 [forty-nine-b] seventy-nine-d of the navigation law, the record of the 31 criminal action shall be sealed in accordance with this subdivision. 32 Upon the entry of such waiver, the court or the clerk of the court shall 33 immediately notify the commissioner of the division of criminal justice 34 services and the heads of all appropriate police departments and other 35 law enforcement agencies that a waiver has been entered and that the 36 record of the action shall be sealed when the person reaches the age of 37 twenty-one or three years from the date of commission of the offense, 38 whichever is the greater period of time. At the expiration of such peri- 39 od, the commissioner of the division of criminal justice services and 40 the heads of all appropriate police departments and other law enforce- 41 ment agencies shall take the actions required by paragraphs (a), (b) and 42 (c) of subdivision one of section 160.50 of this article. 43 (b) Where a person under the age of twenty-one is referred by the 44 police to the department of motor vehicles for action pursuant to 45 section eleven hundred ninety-two-a or eleven hundred ninety-four-a of 46 the vehicle and traffic law, or section [forty-nine-b] seventy-nine-e or 47 seventy-nine-h of the navigation law and a finding in favor of the 48 motorist or operator is rendered, the commissioner of the department of 49 motor vehicles shall, as soon as practicable, but not later than three 50 years from the date of commission of the offense or when such person 51 reaches the age of twenty-one, whichever is the greater period of time, 52 notify the commissioner of the division of criminal justice services and 53 the heads of all appropriate police departments and other law enforce- 54 ment agencies that such finding in favor of the motorist or operator was 55 rendered. Upon receipt of such notification, the commissioner of the 56 division of criminal justice services and the heads of such policeA. 9867 42 1 departments and other law enforcement agencies shall take the actions 2 required by paragraphs (a), (b) and (c) of subdivision one of section 3 160.50 of this article. 4 (c) Where a person under the age of twenty-one is referred by the 5 police to the department of motor vehicles for action pursuant to 6 section eleven hundred ninety-two-a or eleven hundred ninety-four-a of 7 the vehicle and traffic law, or section [forty-nine-b] seventy-nine-e or 8 seventy-nine-h of the navigation law, and no notification is received by 9 the commissioner of the division of criminal justice services and the 10 heads of all appropriate police departments and other law enforcement 11 agencies pursuant to paragraph (b) of this subdivision, such commission- 12 er of the division of criminal justice services and such heads of police 13 departments and other law enforcement agencies shall, after three years 14 from the date of commission of the offense or when the person reaches 15 the age of twenty-one, whichever is the greater period of time, take the 16 actions required by paragraphs (a), (b) and (c) of subdivision one of 17 section 160.50 of this article. 18 § 10. Paragraph (k) of subdivision 1 of section 201 of the vehicle and 19 traffic law, as amended by chapter 391 of the laws of 1998, is amended 20 to read as follows: 21 (k) any records, including any reproductions or electronically created 22 images of such records and including any records received by the commis- 23 sioner from a court pursuant to paragraph (c) of subdivision ten of 24 section eleven hundred ninety-two of this chapter or paragraph (c) of 25 paragraph thirteen of section [forty-nine-b] seventy-nine-d of the navi- 26 gation law, relating to a finding of a violation of section eleven 27 hundred ninety-two-a of this chapter or a waiver of the right to a hear- 28 ing under section eleven hundred ninety-four-a of this chapter or a 29 finding of a refusal following a hearing conducted pursuant to subdivi- 30 sion three of section eleven hundred ninety-four-a of this chapter or a 31 finding of a violation of subdivision four of section [forty-nine-b] 32 seventy-nine-g of the navigation law or a waiver of the right to a hear- 33 ing or a finding of refusal following a hearing conducted pursuant to 34 such section, after remaining on file for three years after such finding 35 or entry of such waiver or refusal or until the person that is found to 36 have violated such section reaches the age of twenty-one, whichever is 37 the greater period of time. Upon the expiration of the period for 38 destruction of records pursuant to this paragraph, the entirety of the 39 proceedings concerning the violation or alleged violation of such 40 section eleven hundred ninety-two-a of this chapter or such section 41 [forty-nine-b] seventy-nine-e of the navigation law, from the initial 42 stop and detention of the operator to the entering of a finding and 43 imposition of sanctions pursuant to any subdivision of section eleven 44 hundred ninety-four-a of this chapter or of section [forty-nine-b] 45 seventy-nine-h of the navigation law shall be deemed a nullity, and the 46 operator shall be restored, in contemplation of law, to the status he or 47 she occupied before the initial stop and prosecution. 48 § 11. This act shall take effect on the one hundred twentieth day 49 after it shall have become a law.
