N.Y. Navigation Law § 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 by

affixing to such report a form notice that false statements made therein

are punishable as a class A misdemeanor pursuant to section 210.45 of

the penal law and such form notice together with the subscription of the

deponent shall constitute a verification of the report. The report of

the police officer shall set forth reasonable grounds to believe such

person to have been operating a vessel in violation of this section, and

that said person had refused to submit to such chemical test. The report

shall be forwarded to the commissioner of motor vehicles within

forty-eight hours in a manner to be prescribed by such commissioner of

motor vehicles, and all subsequent proceedings with regard to refusal to

submit to such chemical test by such person shall be as set forth in

subdivision six of this section. The police officer shall provide such

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

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

(b) For the purposes of this subdivision, "reasonable grounds" to

believe that a person has been operating a vessel after having consumed

alcohol in violation of this section shall be determined by viewing the

totality of circumstances surrounding the incident which, when taken

together, indicate that the operator was operating a vessel in violation

of this section. Such circumstances may include any visible or

behavioral indication of alcohol consumption by the operator, the

existence of an open container containing or having contained an

alcoholic beverage in or around the vessel being operated, or any other

evidence surrounding the circumstances of the incident which indicates

that the operator has been operating a vessel after having consumed

alcohol at the time of the incident.

(c) Notwithstanding any other provision of law to the contrary, no

person under the age of twenty-one shall be arrested for an alleged

violation of this section. However, a person under the age of twenty-one

for whom a chemical test is authorized pursuant to this subdivision may

be temporarily detained by the police solely for the purpose of

requesting or administering such chemical test whenever arrest without a

warrant for a petty offense would be authorized in accordance with the

provisions of section 140.10 of the criminal procedure law.

4. Chemical test report and hearing. (a) Whenever a chemical test of

the breath, blood, urine or saliva of an operator who is under the age

of twenty-one indicates that such person has operated a vessel in

violation of this section, and such person is not charged with violating

any subdivision of section forty-nine-a of this article arising out of

the same incident, the police officer who administered the test shall

forward a report of the results of such test to the department of motor

vehicles within twenty-four hours of the time when such results are

available in a manner prescribed by the commissioner of motor vehicles,

and the operator shall be given a hearing notice as provided in

subdivision five of this section, to appear before a hearing officer in

the county where the chemical test was administered, or in an adjoining

county under such circumstances as prescribed by the commissioner of

motor vehicles, on a date to be established in accordance with a

schedule promulgated by the commissioner of motor vehicles. Such hearing

shall occur within thirty days of, but not less than forty-eight hours

from, the date that the chemical test was administered, provided,

however, where the commissioner of motor vehicles determines, based upon

the availability of hearing officers and the anticipated volume of

hearings at a particular location, that the scheduling of such hearing

within thirty days would impair the timely scheduling or conducting of

other hearings, such hearing shall be scheduled at the next hearing date

for such particular location. When providing the operator with such

hearing notice, the police officer shall also give to the operator, and

shall, prior to the commencement of the hearing, provide to the

department of motor vehicles, copies of the following reports, documents

and materials: any written report or document, or portion thereof,

concerning a physical examination, a scientific test or experiment,

including the most recent record of inspection, or calibration or repair

of machines or instruments utilized to perform such scientific tests or

experiments and the certification certificate, if any, held by the

operator of the machine or instrument, which tests or examinations were

made by or at the request or direction of a public servant engaged in

law enforcement activity. The report of the police officer shall be

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

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

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

notice together with the subscription of the deponent shall constitute

verification of the report.

(b) Every person under the age of twenty-one who is alleged to have

operated a vessel after having consumed alcohol as set forth in this

section, and who is not charged with violating any subdivision of

section forty-nine-a of this article arising out of the same incident,

is entitled to a hearing before a hearing officer in accordance with the

provisions of this section. Unless otherwise provided by law, the

privilege to operate a vessel or any non-resident operating privilege of

such person shall not be suspended or revoked prior to the scheduled

date for such hearing.

(i) The hearing shall be limited to the following issues: (1) did such

person operate the vessel; (2) was a valid request to submit to a

chemical test made by the police officer in accordance with the

provisions of this section; (3) was such person less than twenty-one

years of age at the time of operation of the vessel; (4) was the

chemical test properly administered in accordance with the provisions of

this section; (5) did the test find that such person had operated a

vessel after having consumed alcohol as defined in this section; and (6)

did the police officer make a lawful stop of such person. The burden of

proof shall be on the police officer to prove each of these issues by

clear and convincing evidence.

(ii) Every person who is entitled to a hearing pursuant to this

subdivision has the right to be present at the hearing; the right to be

represented by attorney, or in the hearing officer's discretion, by any

other person the operator chooses; the right to receive and review

discovery materials as provided in this subdivision; the right not to

testify; the right to present evidence and witnesses in his own behalf,

the right to cross examine adverse witnesses, and the right to appeal

from an adverse determination in accordance with article three-A of the

vehicle and traffic law. Any person representing the operator must

conform to the standards of conduct required of attorneys appearing

before state courts, and failure to conform to these standards will be

grounds for declining to permit his continued appearance in the hearing.

(iii) Hearings conducted pursuant to this subdivision shall be in

accordance with this subdivision and with the provisions applicable to

the adjudication of traffic infractions pursuant to the following

provisions of part 124 of title fifteen of the codes, rules and

regulations of the state of New York: paragraph (b) of section 124.1

regarding the opening statement; paragraph (b) of section 124.2

regarding the right to representation and to remain silent and

paragraphs (a) through (e) of section 124.4 regarding the conduct of the

hearing, procedure and refusal; provided, however, that nothing

contained in this subparagraph shall be deemed to preclude a hearing

officer from changing the order of a hearing conducted pursuant to this

subdivision as justice may require and for good cause shown.

(iv) The rules governing receipt of evidence in a court of law shall

not apply in a hearing conducted pursuant to this subdivision except as

follows:

(1) on the merits of the charge, and whether or not a party objects,

the hearing officer shall exclude from consideration the following: a

privileged communication; evidence which, for constitutional reasons,

would not be admissible in a court of law; evidence of prior misconduct,

incompetency or illness, except where such evidence would be admissible

in a court of law; evidence which is irrelevant or immaterial;

(2) no negative inference shall be drawn from the operator's

exercising the right not to testify.

(v) If, after such hearing, the hearing officer, acting on behalf of

the commissioner of motor vehicles, finds all of the issues set forth in

this subdivision in the affirmative, the hearing officer shall suspend

the operating privilege or non-resident operating privilege of such

person in accordance with the time periods set forth in this section.

If, after such hearing, the hearing officer, acting on behalf of the

commissioner of motor vehicles, finds any of said issues in the

negative, the hearing officer must find that the operator did not

operate a vessel after having consumed alcohol.

(vi) A person who has had a privilege to operate a vessel or

non-resident operating privilege suspended pursuant to the provisions of

this section may appeal the finding of the hearing officer in accordance

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

(c) Unless an adjournment of the hearing date has been granted, upon

the operator's failure to appear for a scheduled hearing, the

commissioner shall suspend the privilege to operate a vessel or

non-resident operating privilege until the operator petitions the

commissioner of motor vehicles and a rescheduled hearing is conducted,

provided, however, the commissioner shall restore such person's

operating privilege or non-resident operating privilege if such

rescheduled hearing is adjourned at the request of a person other than

the operator. Requests for adjournments shall be made and determined in

accordance with regulations promulgated by the commissioner of motor

vehicles. If such a request by the operator for an adjournment is

granted, the commissioner of motor vehicles shall notify the operator of

the rescheduled hearing, which shall be scheduled for the next hearing

date. If a second or subsequent request by the operator for an

adjournment is granted, the operator's privilege to operate a vessel or,

non-resident operating privilege, may be suspended pending the hearing

at the time such adjournment is granted; provided, however, that the

records of the department or the evidence already admitted furnishes

reasonable grounds to believe such suspension is necessary to prevent

continuing violations or a substantial safety hazard; and provided

further, that such hearing shall be scheduled for the next hearing date.

If a police officer does not appear for a hearing, the hearing officer

shall have the authority to dismiss the charge. Any person may waive the

right to a hearing under this subdivision, in a form and manner

prescribed by the commissioner of motor vehicles, and may enter an

admission of guilt, in person or by mail, to the charge of operating a

vessel in violation of this section. Such admission of guilt shall have

the same force and effect as a finding of guilt entered following a

hearing conducted pursuant to this subdivision.

5. Hearing notice. The hearing notice issued to an operator pursuant

to subdivision four of this section shall be in a form as prescribed by

the commissioner. In addition to containing information concerning the

time, date and location of the hearing, and such other information as

the commissioner deems appropriate, such hearing notice shall also

contain the following information: the date, time and place of the

offense charged; the procedures for requesting an adjournment of a

scheduled hearing as provided in this section, the operator's right to a

hearing conducted pursuant to this section and the right to waive such

hearing and plead guilty, either in person or by mail, to the offense

charged.

6. Refusal report and hearing. (a) Any person under the age of

twenty-one who is suspected of operating a vessel after having consumed

alcohol in violation of this section, and who is not charged with

violating any subdivision of section forty-nine-a of this article

arising out of the same incident, and who has been requested to submit

to a chemical test pursuant to subdivision three of this section and

after having been informed that his privilege to operate a vessel and

any non-resident operating privilege shall be suspended for refusal to

submit to such chemical test or any portion thereof, whether or not

there is a finding of operating a vessel after having consumed alcohol,

and such person refuses to submit to such chemical test or any portion

thereof, shall be entitled to a hearing in accordance with a schedule

promulgated by the commissioner of motor vehicles, and such hearing

shall occur within thirty days of, but not less than forty-eight hours

from, the date of such refusal, provided, however, where the

commissioner of motor vehicles determines, based upon the availability

of hearing officers and the anticipated volume of hearings at a

particular location, that the scheduling of such hearing within thirty

days would impair the timely scheduling or conducting of other hearings,

such hearing shall be scheduled at the next hearing date for such

particular location.

(b) Unless an adjournment of the hearing date has been granted, upon

the operator's failure to appear for a scheduled hearing, the

commissioner of motor vehicles shall suspend the operating privilege or

non-resident operating privilege until the operator petitions the

commissioner of motor vehicles and a rescheduled hearing is conducted,

provided, however, the commissioner shall restore such person's

operator's privilege or non-resident operating privilege if such

rescheduled hearing is adjourned at the request of a person other than

the operator. Requests for adjournments shall be made and determined in

accordance with regulations promulgated by the commissioner of motor

vehicles. If such a request by the operator for an adjournment is

granted, the commissioner of motor vehicles shall notify the operator of

the rescheduled hearing, which shall be scheduled for the next hearing

date. If a second or subsequent request by the operator for an

adjournment is granted, the operator's privilege to operate a vessel or

non-resident operating privilege may be suspended pending the hearing at

the time such adjournment is granted; provided, however, that the

records of the department of motor vehicles or the evidence already

admitted furnishes reasonable grounds to believe such suspension is

necessary to prevent continuing violations or a substantial safety

hazard; and provided further, that such hearing shall be scheduled for

the next hearing date.

If a police officer does not appear for a hearing, the hearing officer

shall have the authority to dismiss the charge. Any person may waive the

right to a hearing under this subdivision.

(c) The hearing on the refusal to submit to a chemical test pursuant

to this subdivision shall be limited to the following issues: (1) was a

valid request to submit to a chemical test made by the police officer in

accordance with the provisions of subdivision three of this section; (2)

was such person given sufficient warning, in clear or unequivocal

language, prior to such refusal that such refusal to submit to such

chemical test or any portion thereof, would result in the suspension of

such person's privilege to operate a vessel or nonresident operating

privilege, whether or not such person is found to have operated a vessel

after having consumed alcohol; (3) did such person refuse to submit to

such chemical test or any portion thereof; (4) did such person operate

the vessel; (5) was such person less than twenty-one years of age at the

time of operation of the vessel; (6) did the police officer make a

lawful stop of such person. If, after such hearing, the hearing officer,

acting on behalf of the commissioner of motor vehicles, finds on any one

said issue in the negative, the hearing officer shall not suspend the

operator's privilege to operate a vessel or non-resident operating

privilege and shall immediately terminate any outstanding suspension of

the operator's privilege to operate a vessel or non-resident operating

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

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

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

immediately suspend the privilege to operate a vessel or any

non-resident operating privilege in accordance with the provisions of

this section. A person who has had a privilege to operate a vessel or

non-resident operating privilege suspended pursuant to the provisions of

this section may appeal the findings of the hearing officer in

accordance with the provisions of article three-A of the vehicle and

traffic law.

(d) Any privilege which has been suspended pursuant to paragraph (c)

of this subdivision shall not be restored for one year after such

suspension. Where such person under the age of twenty-one years has a

prior finding, conviction or youthful offender adjudication resulting

from a violation of this section or section forty-nine-a of this

article, not arising from the same incident, such privilege shall not be

restored for at least one year or until such person reaches the age of

twenty-one years, whichever is the greater period of time.

7. Effect of prior finding of having consumed alcohol. A prior finding

that a person under the age of twenty-one has operated a vessel after

having consumed alcohol pursuant to this section shall have the same

effect as a prior conviction of a violation of paragraph (a) of

subdivision two of section forty-nine-a of this article solely for the

purpose of determining the length of any suspension required to be

imposed under any provision of this article, provided that the

subsequent offense is committed prior to the expiration of the retention

period for such prior offense or offenses set forth in paragraph (k) of

subdivision one of section two hundred one of the vehicle and traffic

law.

8. Plea bargain limitations. (a) In any case wherein the charge laid

before a court alleges a violation of paragraph (a) of subdivision two

of section forty-nine-a of this article and the operator was under the

age of twenty-one at the time of such violation, any plea of guilty

thereafter entered in satisfaction of such charge must include at least

a plea of guilty to the violation of such subdivision; provided,

however, such charge may instead be satisfied as provided in paragraph

(b) of this subdivision, and, provided further that, if the district

attorney, upon reviewing the available evidence, determines that the

charge of a violation of paragraph (a) of subdivision two of section

forty-nine-a of this article is not warranted, such district attorney

may consent, and the court may allow a disposition by plea of guilty to

another charge in satisfaction of such charge; provided, however, in all

such cases, the court shall set forth upon the record the basis for such

disposition.

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

violation of paragraph (a) of subdivision two of section forty-nine-a of

this article by a person who was under the age of twenty-one at the time

of commission of the offense, the court, with the consent of both

parties, may allow the satisfaction of such charge by the defendant's

agreement to be subject to action by the commissioner of motor vehicles

pursuant to this section. In any such case, the defendant shall waive

the right to a hearing under this section and such waiver shall have the

same force and effect as a finding of a violation of this section

entered after a hearing conducted pursuant to this section. The

defendant shall execute such waiver in open court, and, if represented

by counsel, in the presence of his attorney, on a form to be provided by

the commissioner of motor vehicles, which shall be forwarded by the

court to the commissioner of motor vehicles within ninety-six hours. To

be valid, such form shall, at a minimum, contain clear and conspicuous

language advising the defendant that a duly executed waiver: (i) has the

same force and effect as a guilty finding following a hearing pursuant

to this section; (ii) shall subject the defendant to the imposition of

sanctions pursuant to this section; and (iii) may subject the defendant

to increased sanctions upon a subsequent violation of this section or

section forty-nine-a of this article. Upon receipt of a duly executed

waiver pursuant to this paragraph, the commissioner of motor vehicles

shall take such administrative action and impose such sanctions as may

be required by this section.

9. Sanctions. (a) Except as otherwise provided in this subdivision, a

person's privilege to operate a vessel upon the waters of the state

shall be suspended for six months, where such person has been found to

have operated a vessel after having consumed alcohol in violation of

this section.

(b) The suspension of operating privileges pursuant to this

subdivision shall be for one year or until such person reaches the age

of twenty-one, whichever is the greater period of time, where such

person has been found to have operated a vessel after having consumed

alcohol in violation of this section, and has previously been found to

have operated a vessel after having consumed alcohol in violation of

this section or has previously been convicted of, or adjudicated a

youthful offender for any violation of section forty-nine-a of this

article not arising out of the same incident.

(c) Where the commissioner of motor vehicles determines that the

period of suspension imposed pursuant to this section would extend

beyond the current boating season, such commissioner may direct that any

portion of such suspension period take effect during the following

boating season.

10. Civil penalty. (a) Unless otherwise provided, any person whose

privilege to operate a vessel has been suspended pursuant to the

provisions of this section shall also be liable for a civil penalty in

the amount of one hundred twenty-five dollars.

(b) The first one hundred dollars of each civil penalty collected

pursuant to the provisions of this section shall be paid to the

commissioner of motor vehicles for deposit into the general fund and the

remainder of all such civil penalties shall be paid to the commissioner

of parks, recreation, and historic preservation for deposit into the "I

Love NY Waterways" boating safety fund established pursuant to section

ninety-seven-nn of state finance law.

11. Nothing contained in this section shall be deemed to exempt

persons under the age of twenty-one from arrest and prosecution under

section forty-nine-a of this article for an alleged violation of such

section.