2023 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.
(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.