N.Y. Navigation Law § 49-a: Operation of a vessel while under the influence of alcohol or drugs

§ 49-a. Operation of a vessel while under the influence of alcohol or

drugs. 1. Definitions. As used in this section, unless the context

clearly indicates otherwise:

(a) The term "vessel" shall be every description of watercraft or

other artificial contrivance propelled in whole or in part by mechanical

power and, which is used or capable of being used as a means of

transportation over water, and which is underway and not at anchor or

made fast to the shore or ground. The term "vessel" shall include a

"public vessel" as defined herein unless otherwise specified.

(b) The term "public vessel" shall mean and include every vessel which

is propelled in whole or in part by mechanical power and is used or

operated for commercial purposes on the navigable waters of the state;

that is either carrying passengers, carrying freight, towing, or for any

other use, for which a compensation is received, either directly or

where provided as an accommodation, advantage, facility or privilege at

any place of public accommodation, resort or amusement.

(c) The term "waters of the state" means all of the waterways or

bodies of water located within New York state or that part of any body

of water which is adjacent to New York state over which the state has

territorial jurisdiction, on which a vessel or public vessel may be used

or operated, including Nassau and Suffolk counties.

2. Offenses: criminal penalties. (a) No person shall operate a vessel

upon the waters of the state while his or her ability to operate such

vessel is impaired by the consumption of alcohol. (1) A violation of

this subdivision shall be an offense and shall be punishable by a fine

of not less than three hundred dollars nor more than five hundred

dollars, or by imprisonment in a penitentiary or county jail for not

more than fifteen days, or by both such fine and imprisonment. (2) A

person who operates a vessel in violation of this subdivision after

being convicted of a violation of any subdivision of this section within

the preceding five years shall be punished by a fine of not less than

five hundred dollars nor more than seven hundred fifty dollars, or by

imprisonment of not more than thirty days in a penitentiary or county

jail or by both such fine and imprisonment. (3) A person who operates a

vessel in violation of this subdivision after being convicted two or

more times of a violation of any subdivision of this section within the

preceding ten years shall be guilty of a misdemeanor, and shall be

punished by a fine of not less than seven hundred fifty dollars nor more

than fifteen hundred dollars, or by imprisonment of not more than one

hundred eighty days in a penitentiary or county jail or by both such

fine and imprisonment.

(b) No such person shall operate a vessel other than a public vessel

while he has .08 of one per centum or more by weight of alcohol in his

blood, breath, urine, or saliva, as determined by the chemical test made

pursuant to the provisions of subdivision seven of this section.

(c) No such person shall operate a public vessel while he has .04 of

one per centum or more by weight of alcohol in his blood, breath, urine,

or saliva, as determined by the chemical test made pursuant to the

provisions of subdivision seven of this section.

(d) No person shall operate a vessel while he is in an intoxicated

condition.

(e) No person shall operate a vessel while his ability to operate such

vessel is impaired by the use of a drug as defined by section one

hundred fourteen-a of the vehicle and traffic law.

(e-1) No person sixteen years of age or older shall operate a vessel

in violation of paragraph (b), (d) or (e) of this subdivision while a

child who is fifteen years of age or less is a passenger in such vessel.

(f)(1) A violation of paragraph (b), (c), (d) or (e) of this

subdivision shall be a misdemeanor and shall be punishable by

imprisonment in a penitentiary or county jail for not more than one

year, or by a fine of not less than five hundred dollars nor more than

one thousand dollars, or by both such fine and imprisonment. (2) A

person who operates a vessel (i) in violation of paragraph (b), (c),

(d), (e) or (e-1) of this subdivision after having been convicted of a

violation of paragraph (b), (c), (d), (e) or (e-1) of this subdivision,

or of operating a vessel or public vessel while intoxicated or while

under the influence of drugs, within the preceding ten years, or (ii) in

violation of paragraph (e-1) of this subdivision, shall be guilty of a

class E felony and shall be punished by a period of imprisonment as

provided in the penal law, or by a fine of not less than one thousand

dollars nor more than five thousand dollars, or by both such fine and

imprisonment. (3) A person who operates a vessel in violation of

paragraph (b), (c), (d), (e) or (e-1) of this subdivision after having

been twice convicted of a violation of any of such paragraph (b), (c),

(d), (e) or (e-1) of this subdivision or of operating a vessel or public

vessel while intoxicated or under the influence of drugs, within the

preceding ten years, shall be guilty of a class D felony and shall be

punished by a fine of not less than two thousand dollars nor more than

ten thousand dollars or by a period of imprisonment as provided in the

penal law, or by both such fine and imprisonment.

3. Privilege to operate a vessel; suspensions. (a) The court shall

suspend a person's privilege to operate a vessel and may suspend a

vessel registration for:

(1) a period of at least six but less than twelve months where an

operator is convicted of a violation of paragraph (a) of subdivision two

of this section. In determining the length of such suspension or

suspensions, the court may take into consideration the seriousness of

the offense and may impose a period of suspension whereby such

suspension may be in effect during a portion of the current or

subsequent boating season;

(2) a period of twelve months where an operator is convicted of a

violation of paragraph (b), (c), (d) or (e) of subdivision two of this

section;

(3) a period of twenty-four months where a person is convicted of (i)

a violation of paragraph (b), (c), (d), (e) or (e-1) of subdivision two

of this section after having been convicted of a violation of paragraph

(b), (c), (d), (e) or (e-1) of subdivision two of this section or of

operating a vessel or public vessel while intoxicated or under the

influence of drugs within the preceding ten years, or (ii) a violation

of paragraph (e-1) of subdivision two of this section.

(b) The court shall report each conviction recorded pursuant to this

section to the commissioner of motor vehicles and the commissioner of

parks, recreation and historic preservation on forms provided by the

department of motor vehicles. Such reports shall include the length of

any suspension imposed on the privilege to operate a vessel and any

suspension imposed against a vessel registration. The department of

motor vehicles shall maintain a record of all convictions and

suspensions in order to effectuate the provisions of this section.

4. (a) Operation of vessel while operating privileges have been

suspended. No person shall operate a vessel upon the waters of the state

while operating privileges have been suspended pursuant to this section

or section forty-nine-b of this article. A violation of the provisions

of this paragraph shall be a violation and shall be punishable by a fine

of not less than three hundred fifty dollars nor more than seven hundred

fifty dollars or by imprisonment for a period of not more than ninety

days, or by both such fine and imprisonment.

(b) A person who is in violation of the provisions of paragraph (a) of

this subdivision, and in addition is in violation of the provisions of

any paragraph of subdivision two of this section arising out of the same

incident, shall be guilty of a misdemeanor punishable by a fine of not

less than five hundred dollars nor more than five thousand dollars or by

a period of imprisonment for a period of not more than one year or by

both such fine and imprisonment.

5. Sentencing limitations. Notwithstanding any provision of the penal

law, no judge or magistrate shall impose a sentence of unconditional

discharge for a violation of paragraph (b), (c), (d), (e) or (e-1) of

subdivision two of this section nor shall he or she impose a sentence of

conditional discharge unless such conditional discharge is accompanied

by a sentence of a fine as provided in this section.

5-a. Sentencing; previous convictions. When sentencing a person for a

violation of paragraph (b), (c), (d), (e) or (e-1) of subdivision two of

this section pursuant to subparagraph two of paragraph (f) of

subdivision two of this section, the court shall consider any prior

convictions the person may have for a violation of subdivision two,

two-a, three, four, or four-a of section eleven hundred ninety-two of

the vehicle and traffic law within the preceding ten years. When

sentencing a person for a violation of paragraph (b), (c), (d), (e) or

(e-1) of subdivision two of this section pursuant to subparagraph three

of paragraph (f) of subdivision two of this section, the court shall

consider any prior convictions the person may have for a violation of

subdivision two, two-a, three, four, or four-a of section eleven hundred

ninety-two of the vehicle and traffic law within the preceding ten

years. When sentencing a person for a violation of subparagraph two of

paragraph (a) of subdivision two of this section, the court shall

consider any prior convictions the person may have for a violation of

any subdivision of section eleven hundred ninety-two of the vehicle and

traffic law within the preceding five years. When sentencing a person

for a violation of subparagraph three of paragraph (a) of subdivision

two of this section, the court shall consider any prior convictions the

person may have for a violation of any subdivision of section eleven

hundred ninety-two of the vehicle and traffic law within the preceding

ten years.

6. Arrest and testing. (a) Notwithstanding the provisions of section

140.10 of the criminal procedure law, a police officer may, without a

warrant, arrest a person, in case of a violation of any paragraph of

subdivision two of this section, if such violation is coupled with an

accident or collision in which such person is involved, which in fact

had been committed, though not in the police officer's presence, when he

has reasonable cause to believe that the violation was committed by such

person. For the purposes of this subdivision police officer shall also

include a peace officer authorized to enforce this chapter when the

alleged violation constitutes a crime.

(b) Breath test for operators of vessel. Every person operating a

vessel on the waters of the state which has been involved in an accident

or which is operated in violation of any of the provisions of this

section which regulate the manner in which a vessel is to be properly

operated while underway shall, at the request of a police officer,

submit to a breath test to be administered by the police officer. If

such test indicates that such operator has consumed alcohol, the police

officer may request such operator to submit to a chemical test in the

manner set forth in subdivision seven of this section. For the purposes

of this section, a vessel is being "operated" only when such vessel is

underway and is being propelled in whole or in part by mechanical power.

7. Chemical tests. (a) Any person who operates a vessel on the waters

of the state shall be requested to consent to a chemical test of one or

more of the following: breath, blood, urine, or saliva for the purpose

of determining the alcoholic or drug content of his blood, provided that

such test is administered at the direction of a police officer: (1)

having reasonable cause to believe such person to have been operating in

violation of this subdivision or paragraph (a), (b), (c), (d), (e) or

(e-1) of subdivision two of this section and within two hours after such

person has been placed under arrest for any such violation or (2) within

two hours after a breath test as provided in paragraph (b) of

subdivision six of this section indicates that alcohol has been consumed

by such person and in accordance with the rules and regulations

established by the police force of which the officer is a member.

(b) If such person having been placed under arrest or after a breath

test indicates the presence of alcohol in the person's system and having

thereafter been requested to submit to such chemical test and having

been informed that the person's privilege to operate a vessel shall be

immediately suspended for refusal to submit to such chemical test or any

portion thereof, whether or not the person is found guilty of the charge

for which such person is arrested, refuses to submit to such chemical

test or any portion thereof, unless a court order has been granted

pursuant to subdivision eight of this section, the test shall not be

given and a written report of such refusal shall be immediately made by

the police officer before whom such refusal was made. Such report may be

verified by having the report sworn to, or by affixing to such report a

form notice that false statements made therein are punishable as a class

A misdemeanor pursuant to section 210.45 of the penal law and such form

notice together with the subscription of the deponent shall constitute a

verification of the report. The report of the police officer shall set

forth reasonable grounds to believe such arrested person to have been

operating a vessel in violation of any paragraph of subdivision two of

this section, that said person had refused to submit to such chemical

test, and that no chemical test was administered pursuant to the

requirements of subdivision eight of this section. The report shall be

presented to the court upon the arraignment of the arrested person. The

privilege to operate a vessel shall, upon the basis of such written

report, be temporarily suspended by the court without notice pending the

determination of a hearing as provided herein. Copies of such report

must be transmitted by the court to the commissioner of parks,

recreation and historic preservation and the commissioner of motor

vehicles and such transmittal may not be waived even with the consent of

all the parties. Such report shall be forwarded to each commissioner

within forty-eight hours of such arraignment. The court shall provide

such person with a hearing date schedule, a waiver form, and such other

information as may be required by the commissioner of motor vehicles. If

a hearing, as provided for in paragraph (c) of this subdivision, is

waived by such person, the commissioner of motor vehicles shall

immediately suspend the privilege to operate a vessel, as of the date of

receipt of such waiver in accordance with the provisions of paragraph

(d) of this subdivision.

(c) Any person whose privilege to operate a vessel has been suspended

pursuant to paragraph (b) of this subdivision is entitled to a hearing

in accordance with a hearing schedule to be promulgated by the

commissioner of motor vehicles. If the department fails to provide for

such hearing fifteen days after the date of the arraignment of the

arrested person, the privilege to operate a vessel of such person shall

be reinstated pending a hearing pursuant to this section. The hearing

shall be limited to the following issues: (1) did the police officer

have reasonable cause to believe that such person had been operating a

vessel in violation of any paragraph of subdivision two of this section;

(2) did the police officer make a lawful arrest of such person; (3) was

such person given sufficient warning, in clear or unequivocal language,

prior to such refusal that such refusal to submit to such chemical test

or any portion thereof, would result in the immediate suspension of such

person's privilege to operate a vessel whether or not such person is

found guilty of the charge for which the arrest was made; and (4) did

such person refuse to submit to such chemical test or any portion

thereof. If, after such hearing, the hearing officer, acting on behalf

of the commissioner of motor vehicles, finds on any one of said issues

in the negative, the hearing officer shall immediately terminate any

suspension arising from such refusal. If, after such hearing, the

hearing officer, acting on behalf of the commissioner of motor vehicles

finds all of the issues in the affirmative, such officer shall

immediately suspend the privilege to operate a vessel in accordance with

the provisions of paragraph (d) of this subdivision. A person who has

had the privilege to operate a vessel suspended pursuant to this

subdivision may appeal the findings of the hearing officer in accordance

with the provisions of article three-A of the vehicle and traffic law.

Any person may waive the right to a hearing under this section. Failure

by such person to appear for the scheduled hearing shall constitute a

waiver of such hearing, provided, however, that such person may petition

the commissioner of motor vehicles for a new hearing which shall be held

as soon as practicable.

(d) (1) Any privilege to operate a vessel which has been suspended

pursuant to paragraph (c) of this subdivision shall not be restored for

six months after such suspension. However, no such privilege shall be

restored for at least one year after such suspension in any case where

the person was under the age of twenty-one at the time of the offense,

has had a prior suspension resulting from refusal to submit to a

chemical test pursuant to this subdivision or subdivision six of section

forty-nine-b of this article, or has been convicted of a violation of

any paragraph of subdivision two of this section not arising out of the

same incident, within the five years immediately preceding the date of

such suspension; provided, however, a prior finding that a person under

the age of twenty-one has refused to submit to a chemical test pursuant

to such subdivision six of section forty-nine-b of this article shall

have the same effect as a prior finding of a refusal pursuant to this

subdivision solely for the purpose of determining the length of any

suspension required to be imposed under any provision of this article,

provided that the subsequent offense or refusal is committed or occurred

prior to the expiration of the retention period for such prior refusal

as set forth in paragraph (k) of subdivision one of section two hundred

one of the vehicle and traffic law. Notwithstanding any provision of

this paragraph to the contrary, any privilege to operate a vessel which

has been suspended pursuant to paragraph (c) of this subdivision, where

the person was under the age of twenty-one at the time of the refusal,

and such person under the age of twenty-one has a prior finding,

conviction or youthful offender adjudication resulting from a violation

of this section or section forty-nine-b of this article, not arising

from the same incident, shall not be restored for at least one year or

until such person reaches the age of twenty-one years, whichever is the

greater period of time.

(2) Any person whose privilege to operate a vessel is suspended

pursuant to the provisions of this subdivision shall also be liable for

a civil penalty in the amount of two hundred dollars except that if such

suspension is a second or subsequent suspension pursuant to this

subdivision issued within a five year period, or such person has been

convicted of a violation of any paragraph of subdivision two of this

section within the past five years not arising out of the same incident,

the civil penalty shall be in the amount of five hundred dollars. The

privilege to operate a vessel shall not be restored to such person

unless such penalty has been paid. The first one hundred dollars of each

penalty collected by the department of motor vehicles pursuant to the

provisions of this subdivision shall be paid to the commissioner of

motor vehicles for deposit to the general fund and the remainder of all

such penalties shall be paid to the commissioner of parks, recreation

and historic preservation for deposit in the "I Love NY Waterways"

boating safety fund established pursuant to section ninety-seven-nn of

the state finance law.

(e) The commissioner of motor vehicles in consultation with the

commissioner of parks, recreation and historic preservation shall

promulgate such rules and regulations as may be necessary to effectuate

the provisions of this subdivision.

(f) Evidence of a refusal to submit to such chemical test shall be

admissible in any trial, proceeding or hearing based upon a violation of

the provisions of this section, but only upon a showing that the person

was given sufficient warning, in clear and unequivocal language, of the

effect of such refusal and that the person persisted in his or her

refusal.

(g) Upon the request of the person tested, the results of such test

shall be made available to him or her.

8. Compulsory chemical tests. (a) Notwithstanding the provisions of

subdivision seven of this section, no person who operates a vessel in

the waters of this state may refuse to submit to a chemical test of one

or more of the following: breath, blood, urine or saliva, for the

purpose of determining the alcoholic and/or drug content of the blood

when a court order for such chemical test has been issued in accordance

with the provisions of this subdivision.

(b) Upon refusal by any person to submit to a chemical test or any

portion thereof as described in paragraph (a) of this subdivision, the

test shall not be given unless a police officer or a district attorney,

as defined in subdivision thirty-two of section 1.20 of the criminal

procedure law, requests and obtains a court order to compel a person to

submit to a chemical test to determine the alcoholic or drug content of

the person's blood upon a finding of reasonable cause to believe that:

(1) such person was the operator of a vessel and in the course of such

operation a person other than the operator was killed or suffered

serious physical injury as defined in section 10.00 of the penal law;

and

(2) (i) either such person operated the vessel in violation of any

paragraph of subdivision two of this section, or

(ii) a breath test administered by a police officer in accordance with

subdivision six of this section indicates that alcohol has been consumed

by such person; and

(3) such person has been placed under lawful arrest; and

(4) such person has refused to submit to a chemical test or any

portion thereof, requested in accordance with the provisions of

subdivision seven of this section or is unable to give consent to such a

test.

(c) For the purpose of this subdivision "reasonable cause" shall be

determined by viewing the totality of circumstances surrounding the

incident which, when taken together, indicate that the operator was

operating a vessel in violation of any paragraph of subdivision two of

this section. Such circumstances may include, but are not limited to:

evidence that the operator was operating a vessel in violation of any

provision of this chapter which regulates the manner in which a vessel

is to be properly operated while underway at the time of the incident;

any visible indication of alcohol or drug consumption or impairment by

the operator; any other evidence surrounding the circumstances of the

incident which indicates that the operator has been operating a vessel

while impaired by the consumption of alcohol or drugs or was intoxicated

at the time of the incident.

(d) (1) An application for a court order to compel submission to a

chemical test or any portion thereof, may be made to any supreme court

justice, county court judge or district court judge in the judicial

district in which the incident occurred, or if the incident occurred in

the city of New York before any supreme court justice or judge of the

criminal court of the city of New York. Such application may be

communicated by telephone, radio or other means of electronic

communication, or in person.

(2) The applicant must provide identification by name and title and

must state the purpose of the communication. Upon being advised that an

application for a court order to compel submission to a chemical test is

being made, the court shall place under oath the applicant and any other

person providing information in support of the application as provided

in subparagraph three of this paragraph. After being sworn the applicant

must state that the person from whom the chemical test was requested was

the operator of a vessel and in the course of such operation a person,

other than the operator, has been killed or seriously injured and, based

upon the totality of circumstances, there is reasonable cause to believe

that such person was operating a vessel in violation of any paragraph of

subdivision two of this section and, after being placed under lawful

arrest such person refused to submit to a chemical test or any portion

thereof, in accordance with the provisions of this section or is unable

to give consent to such a test or any portion thereof. The applicant

must make specific allegations of fact to support such statement. Any

other person properly identified, may present sworn allegations of fact

in support of the applicant's statement.

(3) Upon being advised that an oral application for a court order to

compel a person to submit to a chemical test is being made, a judge or

justice shall place under oath the applicant and any other person

providing information in support of the application. Such oath or oaths

and all of the remaining communication must be recorded, either by means

of a voice recording device or verbatim stenographic or verbatim

longhand notes. If a voice recording device is used or a stenographic

record made, the judge must have the record transcribed, certify to the

accuracy of the transcription and file the original record and

transcription with the court within seventy-two hours of the issuance of

the court order. If the longhand notes are taken, the judge shall

subscribe a copy and file it with the court within twenty-four hours of

the issuance of the order.

(4) If the court is satisfied that the requirements for the issuance

of a court order pursuant to the provisions of paragraph (b) of this

subdivision have been met, it may grant the application and issue an

order requiring the accused to submit to a chemical test to determine

the alcoholic and/or drug content of his blood and ordering the

withdrawal of a blood sample in accordance with the provisions of

subdivision nine of this section. When a judge or justice determines to

issue an order to compel submission to a chemical test based on an oral

application, the applicant therefor shall prepare the order in

accordance with the instructions of the judge or justice. In all cases

the order shall include the name of the issuing judge or justice, the

name of the applicant, and the date and time it was issued. It must be

signed by the judge or justice if issued in person, or by the applicant

if issued orally.

(5) Any false statement by an applicant or any other person in support

of an application for a court order shall subject such person to the

offenses for perjury set forth in article two hundred ten of the penal

law.

(e) An order issued pursuant to the provisions of this subdivision

shall require that a chemical test to determine the alcoholic and/or

drug content of the operator's blood must be administered. The

provisions of paragraphs (a), (b) and (c) of subdivision nine of this

section shall be applicable to any chemical test administered pursuant

to this section.

(f) A defendant who has been compelled to submit to a chemical test

pursuant to the provisions of this subdivision may move for the

suppression of such evidence in accordance with article seven hundred

ten of the criminal procedure law on the grounds that the order was

obtained and the test administered in violation of the provisions of

this subdivision or any other applicable law.

9. Testing procedures. (a) At the request of a police officer, the

following persons may withdraw blood for the purpose of determining the

alcohol or drug content therein: (1) a physician, a registered

professional nurse or a registered physician's assistant; or (2) under

the supervision and at the direction of a physician: a medical

laboratory technician or medical technologist as classified by civil

service; a phlebotomist; an advanced emergency medical technician as

certified by the department of health, or a medical laboratory

technician or medical technologist employed by a clinical laboratory

approved under title five of article five of the public health law. This

limitation shall not apply to the taking of a urine, saliva or breath

specimen.

(b) No person entitled to withdraw blood pursuant to paragraph (a) of

this subdivision or hospital employing such person and no other employer

of such person shall be sued or held liable for any act done or omitted

in the course of withdrawing blood at the request of a police officer or

peace officer acting pursuant to his special duties pursuant to this

subdivision.

(c) Any person who may have a cause of action arising from the

withdrawal of blood as aforesaid, for which no personal liability exists

under paragraph (b) of this subdivision, may maintain such action

against the state if the person entitled to withdraw blood pursuant to

paragraph (a) of this subdivision acted at the request of a police

officer or peace officer acting pursuant to his special duties, employed

by the state, or against the appropriate political subdivision of the

state if the person acted at the request of a police officer or peace

officer acting pursuant to his special duties, employed by a political

subdivision of the state. No action shall be maintained pursuant to this

paragraph unless notice of claim is duly filed or served in compliance

with law.

(d) Notwithstanding the foregoing provisions of this subdivision, an

action may be maintained by the state or a political subdivision thereof

against a person entitled to withdraw blood pursuant to paragraph (a) of

this subdivision or hospital employing such person for whose act or

omission the state or the political subdivision has been held liable

under this subdivision to recover damages, not exceeding the amount

awarded to the claimant, that may have been sustained by the state or

the political subdivision by reason of gross negligence on the part of

such person entitled to withdraw blood.

(e) The testimony of any person, other than a physician, entitled to

draw blood pursuant to paragraph (a) of this subdivision in respect to

any such withdrawal of blood made by him may be received in evidence

with the same weight, force and effect as if such withdrawal of blood

were made by a physician.

(f) The provisions of paragraphs (b), (c) and (d) of this subdivision

shall also apply with regard to any person employed by a hospital as

security personnel for any act done or omitted in the course of

withdrawing blood at the request of a police officer pursuant to a court

order in accordance with this subdivision.

(g) The person tested shall be permitted to choose a physician to

administer a chemical test in addition to the one administered at the

direction of the police officer.

10. Chemical test evidence. (a) Upon the trial of any such action or

proceeding arising out of actions alleged to have been committed by any

person arrested for a violation of any paragraph of subdivision two of

this section, the court shall admit evidence of the amount of alcohol or

drugs in the defendant's blood as shown by a test administered pursuant

to the provisions of subdivision seven or eight of this section.

(b) The following effect shall be given to evidence of blood alcohol

content, as determined by such tests, of a person arrested for a

violation of any paragraph of subdivision two of this section and who

was operating a vessel other than a public vessel:

(1) evidence that there was .05 of one per centum or less by weight of

alcohol in such person's blood shall be prima facie evidence that the

ability of such person to operate a vessel was not impaired by the

consumption of alcohol, and that such person was not in an intoxicated

condition.

(2) evidence that there was more than .05 of one per centum but less

than .07 of one per centum of weight in such person's blood shall be

prima facie evidence that such person was not in an intoxicated

condition, but such evidence shall be relevant evidence but not be given

prima facie effect, in determining whether the ability of such person to

operate a vessel was impaired by the consumption of alcohol.

(3) evidence that there was .07 of one per centum or more but less

than .08 of one per centum by weight of alcohol in his blood shall be

prima facie evidence that such person was not in an intoxicated

condition, but such evidence shall be given prima facie effect in

determining whether the ability of such person to operate a vessel was

impaired by the consumption of alcohol.

(c) Evidence of a refusal to submit to a chemical test or any portion

thereof shall be admissible in any trial or hearing provided the request

to submit to such a test was made in accordance with the provisions of

subdivision seven of this section.

11. Limitations. (a) A vessel operator may be convicted of a violation

of paragraphs (a), (b), (d) and (e) of subdivision two of this section,

notwithstanding that the charge laid before the court alleged a

violation of paragraph (b), (d) or (e) of subdivision two of this

section, and regardless of whether or not such condition is based on a

plea of guilty.

(b) In any case wherein the charge laid before the court alleges a

violation of paragraph (b), (c), (d) or (e) of subdivision two of this

section, any plea of guilty thereafter entered in satisfaction of such

charge must include at least a plea of guilty to the violation of the

provisions of one of the paragraphs of such subdivision two and no other

disposition by plea of guilty to any other charge in satisfaction of

such charge shall be authorized; provided, however, if the district

attorney upon reviewing the available evidence determines that the

charge of a violation of subdivision two of this section is not

warranted, he may consent, and the court may allow a disposition by plea

of guilty to another charge in satisfaction of such charge.

12. Suspension pending prosecution. (a) Without notice, pending any

prosecution, the court may suspend the right to operate a vessel where

the vessel operator has been charged with vehicular assault in the

second degree or vehicular manslaughter in the second degree as defined,

respectively, in sections 120.03 and 125.12 of the penal law.

(b) A suspension under this subdivision shall occur no later than

twenty days after the vessel operator's first appearance before the

court on the charges or at the conclusion of all proceedings required

for the arraignment, whichever comes first. In order for the court to

impose such suspension it must find that the accusatory instrument

conforms to the requirements of section 100.40 of the criminal procedure

law and there exists reasonable cause to believe that the accused

operated a vessel in violation of section 120.03 or 125.12 of the penal

law. At such time the operator shall be entitled to an opportunity to

make a statement regarding the enumerated issues and to present evidence

tending to rebut the court's findings. Where such suspension is imposed

upon such pending charge and the operator has requested a hearing

pursuant to article one hundred eighty of the criminal procedure law,

the court shall conduct such hearing. If upon completion of the hearing,

the court fails to find that there is reasonable cause to believe that

the operator committed a felony under section 120.03 or 125.12 of the

penal law the court shall promptly direct restoration of such operating

privileges to the operator unless such operating privileges are

suspended or revoked pursuant to any other provision of this chapter.

13. Boating safety course. Upon the conviction of any subdivision of

this section, the court shall, in addition to any other penalties

invoked under this section, require the convicted person, as a condition

of the sentence, to complete a boating safety course of the state, U.S.

Power Squadrons, U.S. Coast Guard Auxiliary or a powerboating course or

courses offered by the United States sailing association which are

approved by the commissioner and show proof of successful completion of

such course to the court or its designee.

14. Report. Where a law enforcement officer alleges a violation of

paragraph (e-1) of subdivision two of this section and the operator of

the vessel is sixteen years of age or older and is a parent, guardian,

custodian of, or other person legally responsible for, a child who is

fifteen years of age or less who is a passenger in such vessel, such

officer shall report or cause a report to be made in accordance with

title six of article six of the social services law, if applicable.