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