NY Nav L § 49-A (2021)
2021 New York Laws NAV - Navigation Article 4 - Vessels Part 1 - Vessels, General 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.  (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 in violation of paragraph (b), (c), (d) or (e) of this subdivision after having been convicted of  a  violation  of paragraph  (b),  (c),  (d) or (e) of this subdivision, or of operating a vessel or public vessel while intoxicated or while under  the  influence of  drugs,  within the preceding ten years, shall be guilty of a class E felony and shall be punished by a period of imprisonment as provided  in the  penal  law,  or by a fine of not less than one thousand dollars nor more than five thousand dollars, or by both such fine and  imprisonment. (3)  A  person who operates a vessel in violation of paragraph (b), (c), (d) or (e) of this subdivision after having been twice  convicted  of  a violation  of  any  of  such  paragraph  (b),  (c),  (d)  or (e) of this subdivision or of operating a vessel or public vessel while  intoxicated or  under  the influence of drugs, within the preceding ten years, shall be guilty of a class D felony and shall be punished by  a  fine  of  not less  than two thousand dollars nor more than ten thousand dollars or by a period of imprisonment as provided in the penal law, or by  both  such fine and imprisonment.   3.  Privilege  to  operate  a vessel; suspensions. (a) The court shall suspend a person's privilege to operate  a  vessel  and  may  suspend  a vessel registration for:  (1)  a  period  of  at  least six but less than twelve months where an operator is convicted of a violation of paragraph (a) of subdivision two of this section.  In  determining  the  length  of  such  suspension  or suspensions,  the  court  may take into consideration the seriousness of the  offense  and  may  impose  a  period  of  suspension  whereby  such suspension  may  be  in  effect  during  a  portion  of  the  current or subsequent boating season;  (2) a period of twelve months where an  operator  is  convicted  of  a violation  of  paragraph (b), (c), (d) or (e) of subdivision two of this section;  (3) a period of twenty-four months where a person is  convicted  of  a violation  of  paragraph (b), (c), (d) or (e) of subdivision two of this section after having been convicted of a  violation  of  paragraph  (b), (c),  (d)  or  (e)  of subdivision two of this section or of operating a vessel or public vessel while intoxicated  or  under  the  influence  of drugs within the preceding ten years.  (b)  The  court shall report each conviction recorded pursuant to this section to the commissioner of motor vehicles and  the  commissioner  of parks,  recreation  and  historic  preservation on forms provided by the department of motor vehicles. Such reports shall include the  length  of any  suspension  imposed  on  the  privilege to operate a vessel and any suspension imposed against a  vessel  registration.  The  department  of motor   vehicles   shall  maintain  a  record  of  all  convictions  and suspensions in order to effectuate the provisions of this section.   4. (a) Operation  of  vessel  while  operating  privileges  have  been suspended. No person shall operate a vessel upon the waters of the state while  operating privileges have been suspended pursuant to this section or section forty-nine-b of this article. A violation of  the  provisions of this paragraph shall be a violation and shall be punishable by a fine of not less than three hundred fifty dollars nor more than seven hundred fifty  dollars  or  by imprisonment for a period of not more than ninety days, or by both such fine and imprisonment.  (b) A person who is in violation of the provisions of paragraph (a) of this subdivision, and in addition is in violation of the  provisions  of any paragraph of subdivision two of this section arising out of the same incident,  shall  be guilty of a misdemeanor punishable by a fine of not less than five hundred dollars nor more than five thousand dollars or by  a period of imprisonment for a period of not more than one  year  or  by both such fine and imprisonment.   5.  Sentencing limitations. Notwithstanding any provision of the penal law, no judge or magistrate shall impose  a  sentence  of  unconditional discharge  for  a  violation  of  paragraph  (b),  (c),  (d)  or  (e) of subdivision two of this section nor shall he or she impose a sentence of conditional discharge unless such conditional discharge  is  accompanied by a sentence of a fine as provided in this section.   5-a.  Sentencing; previous convictions. When sentencing a person for a violation of paragraph (b), (c), (d) or (e) 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) or (e) 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) or (e) of  subdivision two of this section and within two hours after  such  person has  been  placed  under arrest for any such violation or (2) within two hours after a breath test as provided in paragraph  (b)  of  subdivision six  of  this  section  indicates that alcohol has been consumed by such person and in accordance with the rules and regulations  established  by the police force of which the officer is a member.  (b)  If  such person having been placed under arrest or after a breath test indicates the presence of alcohol in the person's system and having thereafter been requested to submit to such  chemical  test  and  having been  informed  that the person's privilege to operate a vessel shall be immediately suspended for refusal to submit to such chemical test or any portion thereof, whether or not the person is found guilty of the charge for which such person is arrested, refuses to submit  to  such  chemical test  or  any  portion  thereof,  unless  a court order has been granted pursuant to subdivision eight of this section, the  test  shall  not  be given  and a written report of such refusal shall be immediately made by the police officer before whom such refusal was made. Such report may be verified by having the report sworn to, or by affixing to such report  a form notice that false statements made therein are punishable as a class A  misdemeanor pursuant to section 210.45 of the penal law and such form notice together with the subscription of the deponent shall constitute a verification of the report. The report of the police officer  shall  set forth  reasonable  grounds  to believe such arrested person to have been operating a vessel in violation of any paragraph of subdivision  two  of this  section,  that  said person had refused to submit to such chemical test, and that  no  chemical  test  was  administered  pursuant  to  the requirements  of  subdivision eight of this section. The report shall be presented to the court upon the arraignment of the arrested person.  The privilege  to  operate  a  vessel  shall, upon the basis of such written report, be temporarily suspended by the court without notice pending the determination of a hearing as provided herein.  Copies  of  such  report must  be  transmitted  by  the  court  to  the  commissioner  of  parks, recreation and historic  preservation  and  the  commissioner  of  motor vehicles and such transmittal may not be waived even with the consent of all  the  parties.  Such  report shall be forwarded to each commissioner within forty-eight hours of such arraignment. The  court  shall  provide such  person with a hearing date schedule, a waiver form, and such other information as may be required by the commissioner of motor vehicles. If a hearing, as provided for in paragraph  (c)  of  this  subdivision,  is waived  by  such  person,  the  commissioner  of  motor  vehicles  shall immediately suspend the privilege to operate a vessel, as of the date of receipt of such waiver in accordance with the  provisions  of  paragraph (d) of this subdivision.  (c)  Any person whose privilege to operate a vessel has been suspended pursuant to paragraph (b) of this subdivision is entitled to  a  hearing in  accordance  with  a  hearing  schedule  to  be  promulgated  by  the commissioner of motor vehicles. If the department fails to  provide  for such  hearing  fifteen  days  after  the  date of the arraignment of the arrested person, the privilege to operate a vessel of such person  shall be  reinstated  pending  a hearing pursuant to this section. The hearing shall be limited to the following issues: (1)  did  the  police  officer have  reasonable  cause to believe that such person had been operating a vessel in violation of any paragraph of subdivision two of this section; (2) did the police officer make a lawful arrest of such person; (3)  was such  person given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical  test or any portion thereof, would result in the immediate suspension of such person's  privilege  to  operate  a vessel whether or not such person is  found guilty of the charge for which the arrest was made;  and  (4)  did such  person  refuse  to  submit  to  such  chemical test or any portion thereof. If, after such hearing, the hearing officer, acting  on  behalf of  the  commissioner of motor vehicles, finds on any one of said issues in the negative, the hearing officer  shall  immediately  terminate  any suspension  arising  from  such  refusal.  If,  after  such hearing, the hearing officer, acting on behalf of the commissioner of motor  vehicles finds  all  of  the  issues  in  the  affirmative,  such  officer  shall immediately suspend the privilege to operate a vessel in accordance with the provisions of paragraph (d) of this subdivision. A  person  who  has had  the  privilege  to  operate  a  vessel  suspended  pursuant to this subdivision may appeal the findings of the hearing officer in accordance with the provisions of article three-A of the vehicle and  traffic  law. Any  person may waive the right to a hearing under this section. Failure by such person to appear for the scheduled hearing  shall  constitute  a waiver of such hearing, provided, however, that such person may petition the commissioner of motor vehicles for a new hearing which shall be held as soon as practicable.  (d)  (1)  Any  privilege  to operate a vessel which has been suspended pursuant to paragraph (c) of this subdivision shall not be restored  for six  months  after  such suspension. However, no such privilege shall be restored for at least one year after such suspension in any  case  where the  person  was under the age of twenty-one at the time of the offense, has had a prior  suspension  resulting  from  refusal  to  submit  to  a chemical test pursuant to this subdivision or subdivision six of section forty-nine-b  of  this  article, or has been convicted of a violation of any paragraph of subdivision two of this section not arising out of  the same  incident,  within the five years immediately preceding the date of such suspension; provided, however, a prior finding that a person  under the  age of twenty-one has refused to submit to a chemical test pursuant to such subdivision six of section forty-nine-b of  this  article  shall have  the  same  effect as a prior finding of a refusal pursuant to this subdivision solely for the purpose of  determining  the  length  of  any suspension  required  to be imposed under any provision of this article, provided that the subsequent offense or refusal is committed or occurred prior to the expiration of the retention period for such  prior  refusal as  set forth in paragraph (k) of subdivision one of section two hundred one of the vehicle and traffic law.  Notwithstanding  any  provision  of this  paragraph to the contrary, any privilege to operate a vessel which has been suspended pursuant to paragraph (c) of this subdivision,  where the  person  was under the age of twenty-one at the time of the refusal, and such person under  the  age  of  twenty-one  has  a  prior  finding, conviction  or youthful offender adjudication resulting from a violation of this section or section forty-nine-b of  this  article,  not  arising from  the  same incident, shall not be restored for at least one year or until such person reaches the age of twenty-one years, whichever is  the greater period of time.  (2)  Any  person  whose  privilege  to  operate  a vessel is suspended pursuant to the provisions of this subdivision shall also be liable  for a civil penalty in the amount of two hundred dollars except that if such suspension  is  a  second  or  subsequent  suspension  pursuant  to this subdivision issued within a five year period, or such  person  has  been convicted  of  a  violation  of any paragraph of subdivision two of this section within the past five years not arising out of the same incident, the civil penalty shall be in the amount of five  hundred  dollars.  The privilege  to  operate  a  vessel  shall  not be restored to such person unless such penalty has been paid. The first one hundred dollars of each penalty collected by the department of motor vehicles  pursuant  to  the  provisions  of  this  subdivision  shall  be paid to the commissioner of motor vehicles for deposit to the general fund and the remainder of  all such  penalties  shall  be paid to the commissioner of parks, recreation and  historic  preservation  for  deposit  in  the "I Love NY Waterways" boating safety fund established pursuant to section  ninety-seven-nn  of the state finance law.  (e)  The  commissioner  of  motor  vehicles  in  consultation with the commissioner  of  parks,  recreation  and  historic  preservation  shall promulgate  such rules and regulations as may be necessary to effectuate the provisions of this subdivision.  (f) Evidence of a refusal to submit to such  chemical  test  shall  be admissible in any trial, proceeding or hearing based upon a violation of the  provisions of this section, but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of  the effect  of  such  refusal  and  that  the person persisted in his or her refusal.  (g) Upon the request of the person tested, the results  of  such  test shall be made available to him or her.   8.  Compulsory  chemical  tests. (a) Notwithstanding the provisions of subdivision seven of this section, no person who operates  a  vessel  in the  waters of this state may refuse to submit to a chemical test of one or more of the following:  breath,  blood,  urine  or  saliva,  for  the purpose  of  determining  the alcoholic and/or drug content of the blood when a court order for such chemical test has been issued in  accordance with the provisions of this subdivision.  (b)  Upon  refusal  by  any person to submit to a chemical test or any portion thereof as described in paragraph (a) of this  subdivision,  the test  shall not be given unless a police officer or a district attorney, as defined in subdivision thirty-two of section  1.20  of  the  criminal procedure  law, requests and obtains a court order to compel a person to submit to a chemical test to determine the alcoholic or drug content  of the person's blood upon a finding of reasonable cause to believe that:  (1) such person was the operator of a vessel and in the course of such operation  a  person  other  than  the  operator  was killed or suffered serious physical injury as defined in section 10.00 of  the  penal  law; and  (2)  (i)  either  such  person operated the vessel in violation of any paragraph of subdivision two of this section, or  (ii) a breath test administered by a police officer in accordance with subdivision six of this section indicates that alcohol has been consumed by such person; and  (3) such person has been placed under lawful arrest; and  (4) such person has refused to  submit  to  a  chemical  test  or  any portion   thereof,  requested  in  accordance  with  the  provisions  of subdivision seven of this section or is unable to give consent to such a test.  (c) For the purpose of this subdivision "reasonable  cause"  shall  be determined  by  viewing  the  totality  of circumstances surrounding the incident which, when taken together,  indicate  that  the  operator  was operating  a  vessel in violation of any paragraph of subdivision two of this section. Such circumstances may include, but are  not  limited  to: evidence  that  the  operator was operating a vessel in violation of any provision of this chapter which regulates the manner in which  a  vessel is  to  be properly operated while underway at the time of the incident; any visible indication of alcohol or drug consumption or  impairment  by the  operator;  any  other evidence surrounding the circumstances of the incident which indicates that the operator has been operating  a  vessel  while impaired by the consumption of alcohol or drugs or was intoxicated at the time of the incident.  (d)  (1)  An  application  for a court order to compel submission to a chemical test or any portion thereof, may be made to any  supreme  court justice,  county  court  judge  or  district court judge in the judicial district in which the incident occurred, or if the incident occurred  in the  city  of  New York before any supreme court justice or judge of the criminal court of  the  city  of  New  York.  Such  application  may  be communicated   by   telephone,   radio  or  other  means  of  electronic communication, or in person.  (2) The applicant must provide identification by name  and  title  and must  state the purpose of the communication. Upon being advised that an application for a court order to compel submission to a chemical test is being made, the court shall place under oath the applicant and any other person providing information in support of the application  as  provided in subparagraph three of this paragraph. After being sworn the applicant must state that the person from whom the chemical test was requested was the  operator  of a vessel and in the course of such operation a person, other than the operator, has been killed or seriously injured and, based upon the totality of circumstances, there is reasonable cause to believe that such person was operating a vessel in violation of any paragraph of subdivision two of this section and, after  being  placed  under  lawful arrest  such  person refused to submit to a chemical test or any portion thereof, in accordance with the provisions of this section or is  unable to  give  consent  to  such a test or any portion thereof. The applicant must make specific allegations of fact to support  such  statement.  Any other  person properly identified, may present sworn allegations of fact in support of the applicant's statement.  (3) Upon being advised that an oral application for a court  order  to compel  a  person to submit to a chemical test is being made, a judge or justice shall place under  oath  the  applicant  and  any  other  person providing  information in support of the application. Such oath or oaths and all of the remaining communication must be recorded, either by means of a  voice  recording  device  or  verbatim  stenographic  or  verbatim longhand  notes.  If  a voice recording device is used or a stenographic record made, the judge must have the record transcribed, certify to  the accuracy   of  the  transcription  and  file  the  original  record  and transcription with the court within seventy-two hours of the issuance of the court order. If the  longhand  notes  are  taken,  the  judge  shall subscribe  a copy and file it with the court within twenty-four hours of the issuance of the order.  (4) If the court is satisfied that the requirements for  the  issuance of  a  court  order  pursuant to the provisions of paragraph (b) of this subdivision have been met, it may grant the  application  and  issue  an order  requiring  the  accused to submit to a chemical test to determine the alcoholic  and/or  drug  content  of  his  blood  and  ordering  the withdrawal  of  a  blood  sample  in  accordance  with the provisions of subdivision nine of this section. When a judge or justice determines  to issue  an order to compel submission to a chemical test based on an oral application,  the  applicant  therefor  shall  prepare  the   order   in accordance  with  the instructions of the judge or justice. In all cases the order shall include the name of the issuing judge  or  justice,  the name  of  the applicant, and the date and time it was issued. It must be signed by the judge or justice if issued in person, or by the  applicant if issued orally.  (5) Any false statement by an applicant or any other person in support of  an  application  for  a court order shall subject such person to the  offenses for perjury set forth in article two hundred ten of  the  penal law.  (e)  An  order  issued  pursuant to the provisions of this subdivision shall require that a chemical test to  determine  the  alcoholic  and/or drug   content  of  the  operator's  blood  must  be  administered.  The provisions of paragraphs (a), (b) and (c) of subdivision  nine  of  this section  shall  be applicable to any chemical test administered pursuant to this section.  (f) A defendant who has been compelled to submit to  a  chemical  test pursuant  to  the  provisions  of  this  subdivision  may  move  for the suppression of such evidence in accordance with  article  seven  hundred ten  of  the  criminal  procedure  law on the grounds that the order was obtained and the test administered in violation  of  the  provisions  of this subdivision or any other applicable law.   9.  Testing  procedures.  (a)  At the request of a police officer, the following persons may withdraw blood for the purpose of determining  the alcohol   or  drug  content  therein:  (1)  a  physician,  a  registered professional nurse or a registered physician's assistant; or  (2)  under the  supervision  and  at  the  direction  of  a  physician:  a  medical laboratory technician or medical technologist  as  classified  by  civil service;  a  phlebotomist;  an  advanced emergency medical technician as certified  by  the  department  of  health,  or  a  medical   laboratory technician  or  medical  technologist  employed by a clinical laboratory approved under title five of article five of the public health law. This limitation shall not apply to the taking of a urine,  saliva  or  breath specimen.  (b)  No person entitled to withdraw blood pursuant to paragraph (a) of this subdivision or hospital employing such person and no other employer of such person shall be sued or held liable for any act done or  omitted in the course of withdrawing blood at the request of a police officer or peace  officer  acting  pursuant  to his special duties pursuant to this subdivision.  (c) Any person who may  have  a  cause  of  action  arising  from  the withdrawal of blood as aforesaid, for which no personal liability exists under  paragraph  (b)  of  this  subdivision,  may  maintain such action against the state if the person entitled to withdraw blood  pursuant  to paragraph  (a)  of  this  subdivision  acted  at the request of a police officer or peace officer acting pursuant to his special duties, employed by the state, or against the appropriate political  subdivision  of  the state  if  the  person acted at the request of a police officer or peace officer acting pursuant to his special duties, employed by  a  political subdivision of the state. No action shall be maintained pursuant to this paragraph  unless  notice of claim is duly filed or served in compliance with law.  (d) Notwithstanding the foregoing provisions of this  subdivision,  an action may be maintained by the state or a political subdivision thereof against a person entitled to withdraw blood pursuant to paragraph (a) of this  subdivision  or  hospital  employing  such person for whose act or omission the state or the political subdivision  has  been  held  liable under  this  subdivision  to  recover  damages, not exceeding the amount awarded to the claimant, that may have been sustained by  the  state  or the  political  subdivision by reason of gross negligence on the part of such person entitled to withdraw blood.  (e) The testimony of any person, other than a physician,  entitled  to draw  blood  pursuant to paragraph (a) of this subdivision in respect to any such withdrawal of blood made by him may  be  received  in  evidence with  the  same  weight, force and effect as if such withdrawal of blood were made by a physician.  (f) The provisions of paragraphs (b), (c) and (d) of this  subdivision shall  also  apply  with  regard to any person employed by a hospital as security personnel for  any  act  done  or  omitted  in  the  course  of withdrawing blood at the request of a police officer pursuant to a court order in accordance with this subdivision.  (g)  The  person  tested  shall  be permitted to choose a physician to administer a chemical test in addition to the one  administered  at  the direction of the police officer.   10.  Chemical  test evidence. (a) Upon the trial of any such action or proceeding arising out of actions alleged to have been committed by  any person  arrested  for a violation of any paragraph of subdivision two of this section, the court shall admit evidence of the amount of alcohol or drugs in the defendant's blood as shown by a test administered  pursuant to the provisions of subdivision seven or eight of this section.  (b)  The  following effect shall be given to evidence of blood alcohol content, as determined by  such  tests,  of  a  person  arrested  for  a violation  of  any  paragraph of subdivision two of this section and who was operating a vessel other than a public vessel:  (1) evidence that there was .05 of one per centum or less by weight of alcohol in such person's blood shall be prima facie  evidence  that  the ability  of  such  person  to  operate  a vessel was not impaired by the consumption of alcohol, and that such person was not in  an  intoxicated condition.  (2)  evidence  that there was more than .05 of one per centum but less than .07 of one per centum of weight in such  person's  blood  shall  be prima  facie  evidence  that  such  person  was  not  in  an intoxicated condition, but such evidence shall be relevant evidence but not be given prima facie effect, in determining whether the ability of such person to operate a vessel was impaired by the consumption of alcohol.  (3) evidence that there was .07 of one per centum  or  more  but  less than  .08  of  one per centum by weight of alcohol in his blood shall be prima facie  evidence  that  such  person  was  not  in  an  intoxicated condition,  but  such  evidence  shall  be  given  prima facie effect in determining whether the ability of such person to operate a  vessel  was impaired by the consumption of alcohol.  (c)  Evidence of a refusal to submit to a chemical test or any portion thereof shall be admissible in any trial or hearing provided the request to submit to such a test was made in accordance with the  provisions  of subdivision seven of this section.   11. Limitations. (a) A vessel operator may be convicted of a violation of  paragraphs (a), (b), (d) and (e) of subdivision two of this section, notwithstanding  that  the  charge  laid  before  the  court  alleged  a violation  of  paragraph  (b),  (d)  or  (e)  of subdivision two of this section, and regardless of whether or not such condition is based  on  a plea of guilty.  (b)  In  any  case  wherein the charge laid before the court alleges a violation of paragraph (b), (c), (d) or (e) of subdivision two  of  this section,  any  plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the  violation  of  the provisions of one of the paragraphs of such subdivision two and no other disposition  by  plea  of  guilty to any other charge in satisfaction of such charge shall be authorized;  provided,  however,  if  the  district attorney  upon  reviewing  the  available  evidence  determines that the charge of a  violation  of  subdivision  two  of  this  section  is  not warranted, he may consent, and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge.   12.  Suspension  pending  prosecution. (a) Without notice, pending any prosecution, the court may suspend the right to operate a  vessel  where  the  vessel  operator  has  been  charged  with vehicular assault in the second degree or vehicular manslaughter in the second degree as defined, respectively, in sections 120.03 and 125.12 of the penal law.  (b)  A  suspension  under  this  subdivision shall occur no later than twenty days after the vessel  operator's  first  appearance  before  the court  on  the  charges or at the conclusion of all proceedings required for the arraignment, whichever comes first. In order for  the  court  to impose  such  suspension  it  must  find  that the accusatory instrument conforms to the requirements of section 100.40 of the criminal procedure law and there exists  reasonable  cause  to  believe  that  the  accused operated  a vessel in violation of section 120.03 or 125.12 of the penal law. At such time the operator shall be entitled to  an  opportunity  to make a statement regarding the enumerated issues and to present evidence tending  to rebut the court's findings. Where such suspension is imposed upon such pending charge  and  the  operator  has  requested  a  hearing pursuant  to  article  one hundred eighty of the criminal procedure law, the court shall conduct such hearing. If upon completion of the hearing, the court fails to find that there is reasonable cause to  believe  that the  operator  committed  a felony under section 120.03 or 125.12 of the penal law the court shall promptly direct restoration of such  operating privileges   to  the  operator  unless  such  operating  privileges  are suspended or revoked pursuant to any other provision of this chapter.   13. Boating safety course. Upon the conviction of any  subdivision  of this  section,  the  court  shall,  in  addition  to any other penalties invoked under this section, require the convicted person, as a condition of the sentence, to complete a boating safety course of the state,  U.S. Power  Squadrons, 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.