Relates to operation of a vessel while under the influence of alcohol or drugs; repealer
download bill text pdf| Date of Action |
Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
|---|---|
| Feb 15, 2018 |
referred to transportation |
S T A T E O F N E W Y O R K
________________________________________________________________________
9867
I N A S S E M B L Y
February 15, 2018
___________
Introduced by M. of A. WOERNER -- read once and referred to the Commit-
tee on Transportation
AN ACT to amend the navigation law, the vehicle and traffic law, the
criminal procedure law and the penal law, in relation to operation of
a vessel while under the influence of alcohol or drugs; and to repeal
certain provisions of the navigation law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Sections 49-a and 49-b of the navigation law are REPEALED
and a new article 4-B is added to read as follows:
ARTICLE 4-B
ALCOHOL AND DRUG-RELATED OFFENSES AND PROCEDURES APPLICABLE
TO OPERATION OF A VESSEL
SECTION 79-D. OPERATION OF A VESSEL WHILE UNDER THE INFLUENCE OF ALCOHOL
OR DRUGS.
79-E. OPERATION OF A VESSEL AFTER HAVING CONSUMED ALCOHOL; UNDER
THE AGE OF TWENTY-ONE; PER SE.
79-F. SANCTIONS.
79-G. ARREST AND TESTING.
79-H. OPERATION OF A VESSEL AFTER HAVING CONSUMED ALCOHOL; UNDER
TWENTY-ONE; PROCEDURE.
79-I. CHEMICAL TEST EVIDENCE.
79-J. ALCOHOL AND DRUG REHABILITATION PROGRAM WITHIN THE DEPART-
MENT OF MOTOR VEHICLES.
79-K. SPECIAL OPTIONS PROGRAM FOR OPERATION OF A VESSEL WHILE
INTOXICATED.
79-L. INSTALLATION AND OPERATION OF IGNITION INTERLOCK DEVICES.
79-M. SPECIAL PROCEDURES AND DISPOSITION INVOLVING ALCOHOL AND
SUBSTANCE ABUSE ASSESSMENT AND TREATMENT.
79-N. DRIVER AND BOATER RESPONSIBILITY ASSESSMENT.
§ 79-D. OPERATION OF A VESSEL WHILE UNDER THE INFLUENCE OF ALCOHOL OR
DRUGS. 1. DEFINITIONS. AS USED IN THIS ARTICLE, 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 TRANS-
PORTATION OVER WATER, AND WHICH IS UNDERWAY AND NOT AT ANCHOR OR MADE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13765-02-8
A. 9867 2
FAST TO THE SHORE OR GROUND. THE TERM "VESSEL" SHALL INCLUDE A "PUBLIC
VESSEL" AS DEFINED IN THIS SECTION 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 THE STATE OR THAT PART OF ANY BODY OF
WATER WHICH IS ADJACENT TO THE STATE OVER WHICH THE STATE HAS TERRITO-
RIAL JURISDICTION, ON WHICH A VESSEL OR PUBLIC VESSEL MAY BE USED OR
OPERATED, INCLUDING NASSAU AND SUFFOLK COUNTIES.
(D) THE TERM "DRUG" MEANS ANY SUBSTANCE LISTED IN SECTION THIRTY-THREE
HUNDRED SIX OF THE PUBLIC HEALTH LAW.
(E) THE TERM "COMMISSIONER" MEANS THE COMMISSIONER OF PARKS, RECRE-
ATION AND HISTORIC PRESERVATION.
2. OPERATION OF A VESSEL WHILE ABILITY IMPAIRED. NO PERSON SHALL OPER-
ATE A VESSEL UPON THE WATERS OF THIS STATE WHILE THE PERSON'S ABILITY TO
OPERATE SUCH VESSEL IS IMPAIRED BY THE CONSUMPTION OF ALCOHOL.
3. OPERATION OF A VESSEL WHILE INTOXICATED; PER SE. NO PERSON SHALL
OPERATE A VESSEL UPON THE WATERS OF THIS STATE WHILE SUCH PERSON HAS .08
OF ONE PER CENTUM OR MORE BY WEIGHT OF ALCOHOL IN THE PERSON'S BLOOD AS
SHOWN BY CHEMICAL ANALYSIS OF SUCH PERSON'S BLOOD, BREATH, URINE OR
SALIVA, MADE PURSUANT TO THE PROVISIONS OF SECTION SEVENTY-NINE-G OF
THIS ARTICLE.
4. AGGRAVATED OPERATION OF A VESSEL WHILE INTOXICATED. (A) PER SE. NO
PERSON SHALL OPERATE A VESSEL UPON THE WATERS OF THIS STATE WHILE SUCH
PERSON HAS .18 OF ONE PER CENTUM OR MORE BY WEIGHT OF ALCOHOL IN SUCH
PERSON'S BLOOD AS SHOWN BY CHEMICAL ANALYSIS OF SUCH PERSON'S BLOOD,
BREATH, URINE OR SALIVA MADE PURSUANT TO THE PROVISIONS OF SECTION
SEVENTY-NINE-G OF THIS ARTICLE.
(B) WITH A CHILD. NO PERSON SHALL OPERATE A VESSEL IN VIOLATION OF
SUBDIVISION THREE, FIVE, SIX OR SEVEN OF THIS SECTION WHILE A CHILD WHO
IS FIFTEEN YEARS OF AGE OR LESS IS A PASSENGER IN SUCH VESSEL.
5. OPERATION OF A VESSEL WHILE INTOXICATED. NO PERSON SHALL OPERATE A
VESSEL WHILE IN AN INTOXICATED CONDITION.
6. OPERATION OF A VESSEL WHILE ABILITY IMPAIRED BY DRUGS. NO PERSON
SHALL OPERATE A VESSEL WHILE THE PERSON'S ABILITY TO OPERATE SUCH A
VESSEL IS IMPAIRED BY THE USE OF A DRUG AS DEFINED IN THIS SECTION.
7. OPERATION OF A VESSEL WHILE ABILITY IMPAIRED BY THE COMBINED INFLU-
ENCE OF DRUGS OR OF ALCOHOL AND ANY DRUG OR DRUGS. NO PERSON SHALL OPER-
ATE A VESSEL WHILE THE PERSON'S ABILITY TO OPERATE SUCH VESSEL IS
IMPAIRED BY THE COMBINED INFLUENCE OF DRUGS OR OF ALCOHOL AND ANY DRUG
OR DRUGS.
8. PUBLIC VESSELS: PER SE - LEVEL I. NOTWITHSTANDING THE PROVISIONS OF
SECTION SEVENTY-NINE-I OF THIS ARTICLE, NO PERSON SHALL OPERATE A PUBLIC
VESSEL WHILE SUCH PERSON HAS .04 OF ONE PER CENTUM OR MORE BUT NOT MORE
THAN .06 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 PURSUANT TO THE PROVISIONS OF SECTION SEVENTY-NINE-G OF
THIS ARTICLE; PROVIDED, HOWEVER, NOTHING CONTAINED IN THIS SUBDIVISION
SHALL PROHIBIT THE IMPOSITION OF A CHARGE OF A VIOLATION OF SUBDIVISION
TWO OF THIS SECTION, OR OF SECTION SEVENTY-NINE-E OF THIS ARTICLE WHERE
A PERSON UNDER THE AGE OF TWENTY-ONE OPERATES A PUBLIC VESSEL WHERE A
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CHEMICAL ANALYSIS OF SUCH PERSON'S BLOOD, BREATH, URINE, OR SALIVA, MADE
PURSUANT TO THE PROVISIONS OF SECTION SEVENTY-NINE-G OF THIS ARTICLE,
INDICATES THAT SUCH OPERATOR HAS .02 OF ONE PER CENTUM OR MORE BUT LESS
THAN .04 OF ONE PER CENTUM BY WEIGHT OF ALCOHOL IN SUCH OPERATOR'S
BLOOD.
9. PUBLIC VESSELS; PER SE - LEVEL II. NOTWITHSTANDING THE PROVISIONS
OF SECTION SEVENTY-NINE-I OF THIS ARTICLE, NO PERSON SHALL OPERATE A
PUBLIC VESSEL WHILE SUCH PERSON HAS MORE THAN .06 OF ONE PER CENTUM BUT
LESS THAN .08 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 PURSUANT TO THE PROVISIONS OF SECTION SEVENTY-
NINE-G OF THIS ARTICLE; PROVIDED, HOWEVER, NOTHING CONTAINED IN THIS
SUBDIVISION SHALL PROHIBIT THE IMPOSITION OF A CHARGE OF A VIOLATION OF
SUBDIVISION TWO OF THIS SECTION.
10. EFFECT OF PRIOR OUT-OF-STATE CONVICTION. A PRIOR OUT-OF-STATE
CONVICTION FOR OPERATING A VESSEL WHILE UNDER THE INFLUENCE OF ALCOHOL
OR DRUGS SHALL BE DEEMED TO BE A PRIOR CONVICTION OF A VIOLATION OF THIS
SECTION FOR PURPOSES OF DETERMINING PENALTIES IMPOSED UNDER THIS SECTION
OR FOR PURPOSES OF ANY ADMINISTRATIVE ACTION REQUIRED TO BE TAKEN PURSU-
ANT TO SUBDIVISION THREE OF SECTION SEVENTY-NINE-F OF THIS ARTICLE;
PROVIDED, HOWEVER, THAT SUCH CONDUCT, HAD IT OCCURRED IN THIS STATE,
WOULD HAVE CONSTITUTED A MISDEMEANOR OR FELONY VIOLATION OF ANY OF THE
PROVISIONS OF THIS SECTION. PROVIDED, HOWEVER, THAT IF SUCH CONDUCT, HAD
IT OCCURRED IN THIS STATE, WOULD HAVE CONSTITUTED A VIOLATION OF ANY
PROVISIONS OF THIS SECTION WHICH ARE NOT MISDEMEANOR OR FELONY OFFENSES,
THEN SUCH CONDUCT SHALL BE DEEMED TO BE A PRIOR CONVICTION OF A
VIOLATION OF SUBDIVISION TWO OF THIS SECTION FOR PURPOSES OF DETERMINING
PENALTIES IMPOSED UNDER THIS SECTION OR FOR PURPOSES OF ANY ADMINISTRA-
TIVE ACTION REQUIRED TO BE TAKEN PURSUANT TO SUBDIVISION THREE OF
SECTION SEVENTY-NINE-F OF THIS ARTICLE.
11. EFFECT OF PRIOR FINDING OF HAVING CONSUMED ALCOHOL. A PRIOR FIND-
ING THAT A PERSON UNDER THE AGE OF TWENTY-ONE HAS OPERATED A VESSEL
AFTER HAVING CONSUMED ALCOHOL PURSUANT TO SECTION SEVENTY-NINE-G OF THIS
ARTICLE SHALL HAVE THE SAME EFFECT AS A PRIOR CONVICTION OF A VIOLATION
OF SUBDIVISION TWO OF THIS SECTION SOLELY FOR THE PURPOSE OF DETERMINING
THE LENGTH OF ANY SUSPENSION OR REVOCATION OF THE OPERATOR'S PRIVILEGE
TO OPERATE A VESSEL 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.
12. CONVICTION OF A DIFFERENT CHARGE. AN OPERATOR MAY BE CONVICTED OF
A VIOLATION OF SUBDIVISION TWO, THREE OR FIVE OF THIS SECTION, NOTWITH-
STANDING THAT THE CHARGE LAID BEFORE THE COURT ALLEGED A VIOLATION OF
SUBDIVISION THREE OR FIVE OF THIS SECTION, AND REGARDLESS OF WHETHER OR
NOT SUCH CONVICTION IS BASED ON A PLEA OF GUILTY.
13. PLEA BARGAIN LIMITATIONS. (A) (I) IN ANY CASE WHEREIN THE CHARGE
LAID BEFORE THE COURT ALLEGES A VIOLATION OF SUBDIVISION THREE, FIVE,
SIX OR SEVEN 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 ANY OF THE SUBDIVISIONS OF THIS
SECTION, OTHER THAN SUBDIVISION EIGHT OR NINE, 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 THIS SECTION IS NOT WARRANTED, SUCH DISTRICT ATTORNEY MAY
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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.
(II) IN ANY CASE WHEREIN THE CHARGE LAID BEFORE THE COURT ALLEGES A
VIOLATION OF SUBDIVISION THREE, FIVE, SIX OR SEVEN OF THIS SECTION, NO
PLEA OF GUILTY TO SUBDIVISION TWO OF THIS SECTION SHALL BE ACCEPTED BY
THE COURT UNLESS SUCH PLEA INCLUDES AS A CONDITION THEREOF THE REQUIRE-
MENT THAT THE DEFENDANT ATTEND AND COMPLETE THE ALCOHOL AND DRUG REHA-
BILITATION PROGRAM ESTABLISHED PURSUANT TO SECTION SEVENTY-NINE-J OF
THIS ARTICLE, INCLUDING ANY ASSESSMENT AND TREATMENT REQUIRED THEREBY;
PROVIDED, HOWEVER, THAT SUCH REQUIREMENT MAY BE WAIVED BY THE COURT UPON
APPLICATION OF THE DISTRICT ATTORNEY OR THE DEFENDANT DEMONSTRATING THAT
THE DEFENDANT, AS A CONDITION OF THE PLEA, HAS BEEN REQUIRED TO ENTER
INTO AND COMPLETE AN ALCOHOL OR DRUG TREATMENT PROGRAM PRESCRIBED PURSU-
ANT TO AN ALCOHOL OR SUBSTANCE ABUSE SCREENING OR ASSESSMENT CONDUCTED
PURSUANT TO SECTION SEVENTY-NINE-M OF THIS ARTICLE OR FOR OTHER GOOD
CAUSE SHOWN. THE PROVISIONS OF THIS SUBPARAGRAPH SHALL APPLY, NOTWITH-
STANDING ANY BARS TO PARTICIPATION IN THE ALCOHOL AND DRUG REHABILI-
TATION PROGRAM SET FORTH IN SECTION SEVENTY-NINE-J OF THIS ARTICLE;
PROVIDED, HOWEVER, THAT NOTHING IN THIS PARAGRAPH SHALL AUTHORIZE THE
ISSUANCE OF A CONDITIONAL PRIVILEGE TO OPERATE A VESSEL UNLESS OTHERWISE
AUTHORIZED BY LAW.
(III) IN ANY CASE WHEREIN THE CHARGE LAID BEFORE THE COURT ALLEGES A
VIOLATION OF SUBDIVISION TWO OF THIS SECTION 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, HOWEV-
ER, SUCH CHARGE MAY INSTEAD BE SATISFIED AS PROVIDED IN PARAGRAPH (C) OF
THIS SUBDIVISION, AND, PROVIDED FURTHER THAT, 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, 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 THE COURT ALLEGES A
VIOLATION OF SUBDIVISION TWO OR EIGHT OF THIS SECTION WHILE OPERATING A
PUBLIC VESSEL, 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 ANY OF THE SUBDIVISIONS OF THIS SECTION 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 THIS SECTION IS NOT WARRANTED, HE OR SHE MAY
CONSENT, AND THE COURT MAY ALLOW, A DISPOSITION BY PLEA OF GUILTY TO
ANOTHER CHARGE IS SATISFACTION OF SUCH CHARGE.
(C) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION, IN ANY
CASE WHEREIN THE CHARGE LAID BEFORE THE COURT ALLEGES A VIOLATION OF
SUBDIVISION TWO OF THIS SECTION 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
PURSUANT TO SECTION SEVENTY-NINE-H OF THIS ARTICLE. IN ANY SUCH CASE,
THE DEFENDANT SHALL WAIVE THE RIGHT TO A HEARING UNDER SECTION SEVENTY-
NINE-H OF THIS ARTICLE AND SUCH WAIVER SHALL HAVE THE SAME FORCE AND
A. 9867 5
EFFECT AS A FINDING OF A VIOLATION OF SECTION SEVENTY-NINE-E OF THIS
ARTICLE ENTERED AFTER A HEARING CONDUCTED PURSUANT TO SUCH SECTION
SEVENTY-NINE-H. THE DEFENDANT SHALL EXECUTE SUCH WAIVER IN OPEN COURT,
AND, IF REPRESENTED BY COUNSEL, IN THE PRESENCE OF HIS OR HER ATTORNEY,
ON A FORM TO BE PROVIDED BY THE COMMISSIONER, WHICH SHALL BE FORWARDED
BY THE COURT TO THE COMMISSIONER 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
SECTION SEVENTY-NINE-H OF THIS ARTICLE; (II) SHALL SUBJECT THE DEFENDANT
TO THE IMPOSITION OF SANCTIONS PURSUANT TO SUCH SECTION SEVENTY-NINE-H;
AND (III) MAY SUBJECT THE DEFENDANT TO INCREASED SANCTIONS UPON A SUBSE-
QUENT VIOLATION OF THIS SECTION OR SECTION SEVENTY-NINE-E OF THIS ARTI-
CLE. UPON RECEIPT OF A DULY EXECUTED WAIVER PURSUANT TO THIS PARAGRAPH,
THE COMMISSIONER SHALL TAKE SUCH ADMINISTRATIVE ACTION AND IMPOSE SUCH
SANCTIONS AS MAY BE REQUIRED BY SECTION SEVENTY-NINE-H OF THIS ARTICLE.
(D) IN ANY CASE WHEREIN THE CHARGE LAID BEFORE THE COURT ALLEGES A
VIOLATION OF SUBDIVISION FOUR OF THIS SECTION, ANY PLEA OF GUILTY THERE-
AFTER ENTERED IN SATISFACTION OF SUCH CHARGE MUST INCLUDE AT LEAST A
PLEA OF GUILTY TO THE VIOLATION OF THE PROVISIONS OF SUBDIVISION THREE,
FOUR OR FIVE OF THIS SECTION, 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 AVAIL-
ABLE EVIDENCE, DETERMINES THAT THE CHARGE OF A VIOLATION OF THIS SECTION
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. PROVIDED,
FURTHER, HOWEVER, THAT NO SUCH PLEA SHALL BE ACCEPTED BY THE COURT
UNLESS SUCH PLEA INCLUDES AS A CONDITION THEREOF THE REQUIREMENT THAT
THE DEFENDANT ATTEND AND COMPLETE THE ALCOHOL AND DRUG REHABILITATION
PROGRAM ESTABLISHED PURSUANT TO SECTION SEVENTY-NINE-J OF THIS ARTICLE,
INCLUDING ANY ASSESSMENT AND TREATMENT REQUIRED THEREBY; PROVIDED,
HOWEVER, THAT SUCH REQUIREMENT MAY BE WAIVED BY THE COURT UPON APPLICA-
TION OF THE DISTRICT ATTORNEY OR THE DEFENDANT DEMONSTRATING THAT THE
DEFENDANT, AS A CONDITION OF THE PLEA, HAS BEEN REQUIRED TO ENTER INTO
AND COMPLETE AN ALCOHOL OR DRUG TREATMENT PROGRAM PRESCRIBED PURSUANT TO
AN ALCOHOL OR SUBSTANCE ABUSE SCREENING OR ASSESSMENT CONDUCTED PURSUANT
TO SECTION SEVENTY-NINE-M OF THIS ARTICLE OR FOR OTHER GOOD CAUSE SHOWN.
THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY, NOTWITHSTANDING ANY BARS
TO PARTICIPATION IN THE ALCOHOL AND DRUG REHABILITATION PROGRAM SET
FORTH IN SECTION SEVENTY-NINE-J OF THIS ARTICLE; PROVIDED, HOWEVER, THAT
NOTHING IN THIS PARAGRAPH SHALL AUTHORIZE THE ISSUANCE OF A CONDITIONAL
PRIVILEGE TO OPERATE A VESSEL UNLESS OTHERWISE AUTHORIZED BY LAW.
14. CHARGES AGAINST OPERATOR OF A PUBLIC VESSEL. NO PERSON OTHER THAN
AN OPERATOR OF A PUBLIC VESSEL MAY BE CHARGED WITH OR CONVICTED OF A
VIOLATION OF SUBDIVISION EIGHT OR NINE OF THIS SECTION.
15. OPERATION OF A VESSEL WHILE INTOXICATED OR WHILE ABILITY IMPAIRED
BY DRUGS--SERIOUS PHYSICAL INJURY OR DEATH OR CHILD IN THE VESSEL. (A)
IN EVERY CASE WHERE A PERSON IS CHARGED WITH A VIOLATION OF SUBDIVISION
THREE, FOUR, FIVE, SIX OR SEVEN OF THIS SECTION, THE LAW ENFORCEMENT
OFFICER ALLEGING SUCH CHARGE SHALL MAKE A CLEAR NOTATION IN THE
"DESCRIPTION OF VIOLATION" SECTION OF A SIMPLIFIED TRAFFIC INFORMATION
(I) IF, ARISING OUT OF THE SAME INCIDENT, SOMEONE OTHER THAN THE PERSON
CHARGED WAS KILLED OR SUFFERED SERIOUS PHYSICAL INJURY AS DEFINED IN
SECTION 10.00 OF THE PENAL LAW; SUCH NOTATION SHALL BE IN THE FORM OF A
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"D" IF SOMEONE OTHER THAN THE PERSON CHARGED WAS KILLED AND SUCH NOTA-
TION SHALL BE IN THE FORM OF A "S.P.I." IF SOMEONE OTHER THAN THE PERSON
CHARGED SUFFERED SERIOUS PHYSICAL INJURY; AND (II) IF A CHILD AGED
FIFTEEN YEARS OR LESS WAS PRESENT IN THE VESSEL OF THE PERSON CHARGED
WITH A VIOLATION OF SUBDIVISION THREE, FOUR, FIVE, SIX OR SEVEN OF THIS
SECTION; SUCH NOTATION SHALL BE IN THE FORM OF "C.I.V.". PROVIDED,
HOWEVER, THAT THE FAILURE TO MAKE SUCH NOTATIONS SHALL IN NO WAY AFFECT
A CHARGE FOR A VIOLATION OF SUBDIVISION THREE, FOUR, FIVE, SIX OR SEVEN
OF THIS SECTION.
(B) WHERE A LAW ENFORCEMENT OFFICER ALLEGES A VIOLATION OF PARAGRAPH
(B) OF SUBDIVISION FOUR OF THIS SECTION AND THE OPERATOR OF THE VESSEL
IS A PARENT, GUARDIAN, OR CUSTODIAN OF, OR OTHER PERSON LEGALLY RESPON-
SIBLE FOR, A CHILD AGED FIFTEEN YEARS OR LESS WHO IS A PASSENGER IN SUCH
VESSEL, THEN THE OFFICER SHALL REPORT OR CAUSE A REPORT TO BE MADE, IF
APPLICABLE, IN ACCORDANCE WITH TITLE SIX OF ARTICLE SIX OF THE SOCIAL
SERVICES LAW.
§ 79-E. OPERATION OF A VESSEL AFTER HAVING CONSUMED ALCOHOL; UNDER THE
AGE OF TWENTY-ONE; PER SE. NO PERSON UNDER THE AGE OF TWENTY-ONE SHALL
OPERATE A VESSEL AFTER HAVING CONSUMED ALCOHOL AS DESCRIBED IN THIS
SECTION. FOR PURPOSES OF THIS SECTION, A PERSON UNDER THE AGE OF TWEN-
TY-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 PURSUANT TO THE PROVISIONS
OF SECTION SEVENTY-NINE-G OF THIS ARTICLE. ANY PERSON WHO OPERATES A
VESSEL IN VIOLATION OF THIS SECTION, AND WHO IS NOT CHARGED WITH A
VIOLATION OF ANY SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE
ARISING OUT OF THE SAME INCIDENT SHALL BE REFERRED TO THE OFFICE OF
PARKS, RECREATION AND HISTORIC PRESERVATION FOR ACTION IN ACCORDANCE
WITH THE PROVISIONS OF SECTION SEVENTY-NINE-H OF THIS ARTICLE. EXCEPT AS
OTHERWISE PROVIDED IN SUBDIVISION EIGHT OF SECTION SEVENTY-NINE-D OF
THIS ARTICLE, THIS SECTION SHALL NOT APPLY TO A PERSON WHO OPERATES A
PUBLIC VESSEL. 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.
§ 79-F. SANCTIONS. 1. CRIMINAL PENALTIES. (A) OPERATION OF A VESSEL
WHILE ABILITY IMPAIRED. A VIOLATION OF SUBDIVISION TWO OF SECTION SEVEN-
TY-NINE-D OF THIS ARTICLE SHALL BE A VIOLATION 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. A
PERSON WHO OPERATES A VESSEL IN VIOLATION OF SUCH SUBDIVISION AFTER
HAVING BEEN CONVICTED OF A VIOLATION OF ANY SUBDIVISION OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE 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 IMPRISON-
MENT. A PERSON WHO OPERATES A VESSEL IN VIOLATION OF SUCH SUBDIVISION
AFTER HAVING BEEN CONVICTED TWO OR MORE TIMES OF A VIOLATION OF ANY
SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE WITHIN THE PRECED-
ING 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 ONE
THOUSAND FIVE 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.
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(B) OPERATION OF A VESSEL WHILE INTOXICATED OR WHILE ABILITY IMPAIRED
BY DRUGS OR WHILE ABILITY IMPAIRED BY THE COMBINED INFLUENCE OF DRUGS OR
OF ALCOHOL AND ANY DRUG OR DRUGS; AGGRAVATED OPERATION WHILE INTOXICAT-
ED; MISDEMEANOR OFFENSES. (I) A VIOLATION OF SUBDIVISION THREE, FIVE,
SIX OR SEVEN OF SECTION SEVENTY-NINE-D OF THIS ARTICLE SHALL BE A MISDE-
MEANOR AND SHALL BE PUNISHABLE BY A FINE OF NOT LESS THAN FIVE HUNDRED
DOLLARS NOR MORE THAN ONE THOUSAND DOLLARS, OR BY IMPRISONMENT IN A
PENITENTIARY OR COUNTY JAIL FOR NOT MORE THAN ONE YEAR, OR BY BOTH SUCH
FINE AND IMPRISONMENT. A VIOLATION OF PARAGRAPH (A) OF SUBDIVISION FOUR
OF SECTION SEVENTY-NINE-D OF THIS ARTICLE SHALL BE A MISDEMEANOR AND
SHALL BE PUNISHABLE BY A FINE OF NOT LESS THAN ONE THOUSAND DOLLARS NOR
MORE THAN TWO THOUSAND FIVE HUNDRED DOLLARS OR BY IMPRISONMENT IN A
PENITENTIARY OR COUNTY JAIL FOR NOT MORE THAN ONE YEAR, OR BY BOTH SUCH
FINE AND IMPRISONMENT.
(II) IN ADDITION TO THE IMPOSITION OF ANY FINE OR PERIOD OF IMPRISON-
MENT SET FORTH IN THIS PARAGRAPH, THE COURT SHALL ALSO SENTENCE SUCH
PERSON CONVICTED OF, OR ADJUDICATED A YOUTHFUL OFFENDER FOR, A VIOLATION
OF SUBDIVISION THREE, FOUR OR FIVE OF SECTION SEVENTY-NINE-D OF THIS
ARTICLE TO A TERM OF PROBATION OR CONDITIONAL DISCHARGE, AS A CONDITION
OF WHICH IT SHALL ORDER SUCH PERSON TO INSTALL AND MAINTAIN, IN ACCORD-
ANCE WITH THE PROVISIONS OF SECTION ELEVEN HUNDRED NINETY-EIGHT OF THE
VEHICLE AND TRAFFIC LAW, AN IGNITION INTERLOCK DEVICE IN ANY VESSEL
OWNED OR OPERATED BY SUCH PERSON DURING THE TERM OF SUCH PROBATION OR
CONDITIONAL DISCHARGE IMPOSED FOR SUCH VIOLATION OF SECTION SEVENTY-
NINE-D OF THIS ARTICLE AND IN NO EVENT FOR A PERIOD OF LESS THAN TWELVE
MONTHS; PROVIDED, HOWEVER, THAT SUCH PERIOD OF INTERLOCK RESTRICTION
SHALL TERMINATE UPON SUBMISSION OF PROOF THAT SUCH PERSON INSTALLED AND
MAINTAINED AN IGNITION INTERLOCK DEVICE FOR AT LEAST SIX MONTHS, UNLESS
THE COURT ORDERED SUCH PERSON TO INSTALL AND MAINTAIN AN IGNITION INTER-
LOCK DEVICE FOR A LONGER PERIOD AS AUTHORIZED BY THIS SUBPARAGRAPH AND
SPECIFIED IN SUCH ORDER. THE PERIOD OF INTERLOCK RESTRICTION SHALL
COMMENCE FROM THE EARLIER OF THE DATE OF SENTENCING, OR THE DATE THAT AN
IGNITION INTERLOCK DEVICE WAS INSTALLED IN ADVANCE OF SENTENCING.
PROVIDED, HOWEVER, THE COURT MAY NOT AUTHORIZE THE OPERATION OF A VESSEL
BY ANY PERSON WHOSE PRIVILEGE TO OPERATE A VESSEL HAS BEEN REVOKED
PURSUANT TO THE PROVISIONS OF THIS SECTION.
(C) FELONY OFFENSES. (I) A PERSON WHO OPERATES A VESSEL (A) IN
VIOLATION OF SUBDIVISION THREE, FOUR, FIVE, SIX OR SEVEN OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE AFTER HAVING BEEN CONVICTED OF A
VIOLATION OF SUCH SUBDIVISIONS OR OF VEHICULAR ASSAULT IN THE SECOND OR
FIRST DEGREE, AS DEFINED, IN SECTIONS 120.03 AND 120.04 AND AGGRAVATED
VEHICULAR ASSAULT AS DEFINED IN SECTION 120.04-A OF THE PENAL LAW OR OF
VEHICULAR MANSLAUGHTER IN THE SECOND OR FIRST DEGREE, AS DEFINED, IN
SECTIONS 125.12 AND 125.13 AND AGGRAVATED VEHICULAR HOMICIDE AS DEFINED
IN SECTION 125.14 OF SUCH LAW, WITHIN THE PRECEDING TEN YEARS, OR (B) IN
VIOLATION OF PARAGRAPH (B) OF SUBDIVISION FOUR OF SECTION SEVENTY-NINE-D
OF THIS ARTICLE SHALL BE GUILTY OF A CLASS E FELONY, AND SHALL BE
PUNISHED BY A FINE OF NOT LESS THAN ONE THOUSAND DOLLARS NOR MORE THAN
FIVE THOUSAND DOLLARS OR BY A PERIOD OF IMPRISONMENT AS PROVIDED IN THE
PENAL LAW, OR BY BOTH SUCH FINE AND IMPRISONMENT.
(II) A PERSON WHO OPERATES A VESSEL IN VIOLATION OF SUBDIVISION THREE,
FOUR, FIVE, SIX OR SEVEN OF SECTION SEVENTY-NINE-D OF THIS ARTICLE AFTER
HAVING BEEN CONVICTED OF A VIOLATION OF SUCH SUBDIVISIONS OR OF VEHICU-
LAR ASSAULT IN THE SECOND OR FIRST DEGREE, AS DEFINED IN SECTIONS 120.03
AND 120.04 AND AGGRAVATED VEHICULAR ASSAULT AS DEFINED IN SECTION
120.04-A OF THE PENAL LAW OR OF VEHICULAR MANSLAUGHTER IN THE SECOND OR
A. 9867 8
FIRST DEGREE, AS DEFINED IN SECTIONS 125.12 AND 125.13 AND AGGRAVATED
VEHICULAR HOMICIDE AS DEFINED IN SECTION 125.14 OF SUCH LAW, TWICE WITH-
IN 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.
(III) A PERSON WHO OPERATES A VESSEL IN VIOLATION OF SUBDIVISION
THREE, FOUR, FIVE, SIX OR SEVEN OF SECTION SEVENTY-NINE-D OF THIS ARTI-
CLE AFTER HAVING BEEN CONVICTED OF A VIOLATION OF SUCH SUBDIVISIONS OR
OF VEHICULAR ASSAULT IN THE SECOND OR FIRST DEGREE, AS DEFINED IN
SECTIONS 120.03 AND 120.04 AND AGGRAVATED VEHICULAR ASSAULT AS DEFINED
IN SECTION 120.04-A OF THE PENAL LAW OR OF VEHICULAR MANSLAUGHTER IN THE
SECOND OR FIRST DEGREE, AS DEFINED IN SECTIONS 125.12 AND 125.13 AND
AGGRAVATED VEHICULAR HOMICIDE AS DEFINED IN SECTION 125.14 OF SUCH LAW,
THREE OR MORE TIMES WITHIN THE PRECEDING FIFTEEN 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.
(IV) IN ADDITION TO THE IMPOSITION OF ANY FINE OR PERIOD OF IMPRISON-
MENT SET FORTH IN THIS PARAGRAPH, THE COURT SHALL ALSO SENTENCE SUCH
PERSON CONVICTED OF, OR ADJUDICATED A YOUTHFUL OFFENDER FOR, A VIOLATION
OF SUBDIVISION THREE, FOUR OR FIVE OF SECTION SEVENTY-NINE-D OF THIS
ARTICLE TO A PERIOD OF PROBATION OR CONDITIONAL DISCHARGE, AS A CONDI-
TION OF WHICH IT SHALL ORDER SUCH PERSON TO INSTALL AND MAINTAIN, IN
ACCORDANCE WITH THE PROVISIONS OF SECTION ELEVEN HUNDRED NINETY-EIGHT OF
THE VEHICLE AND TRAFFIC LAW, AN IGNITION INTERLOCK DEVICE IN ANY VESSEL
OWNED OR OPERATED BY SUCH PERSON DURING THE TERM OF SUCH PROBATION OR
CONDITIONAL DISCHARGE IMPOSED FOR SUCH VIOLATION OF SECTION SEVENTY-
NINE-D OF THIS ARTICLE AND IN NO EVENT FOR A PERIOD OF LESS THAN TWELVE
MONTHS; PROVIDED, HOWEVER, THAT SUCH PERIOD OF INTERLOCK RESTRICTION
SHALL TERMINATE UPON SUBMISSION OF PROOF THAT SUCH PERSON INSTALLED AND
MAINTAINED AN IGNITION INTERLOCK DEVICE FOR AT LEAST SIX MONTHS, UNLESS
THE COURT ORDERED SUCH PERSON TO INSTALL AND MAINTAIN AN IGNITION INTER-
LOCK DEVICE FOR A LONGER PERIOD AS AUTHORIZED BY THIS SUBPARAGRAPH AND
SPECIFIED IN SUCH ORDER. THE PERIOD OF INTERLOCK RESTRICTION SHALL
COMMENCE FROM THE EARLIER OF THE DATE OF SENTENCING, OR THE DATE THAT AN
IGNITION INTERLOCK DEVICE WAS INSTALLED IN ADVANCE OF SENTENCING.
PROVIDED, HOWEVER, THE COURT MAY NOT AUTHORIZE THE OPERATION OF A VESSEL
BY ANY PERSON WHOSE PRIVILEGE TO OPERATE A VESSEL HAS BEEN REVOKED
PURSUANT TO THE PROVISIONS OF THIS SECTION.
(D) ALCOHOL OR DRUG-RELATED OFFENSES; SPECIAL VESSELS. (I) A VIOLATION
OF SUBDIVISION EIGHT OF SECTION SEVENTY-NINE-D OF THIS ARTICLE SHALL BE
A VIOLATION PUNISHABLE AS PROVIDED IN PARAGRAPH (A) OF THIS SUBDIVISION.
EXCEPT AS PROVIDED IN SUBPARAGRAPH (II) OR (VI) OF THIS PARAGRAPH, A
VIOLATION OF SUBDIVISION TWO, THREE, FIVE, SIX, SEVEN OR NINE OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE WHEREIN THE VIOLATOR IS OPERATING A
PUBLIC VESSEL SHALL BE A MISDEMEANOR. A VIOLATION OF SUBDIVISION TWO,
THREE, FIVE, SIX OR SEVEN OF SECTION SEVENTY-NINE-D OF THIS ARTICLE
SHALL BE PUNISHABLE BY A FINE OF NOT LESS THAN FIVE HUNDRED DOLLARS NOR
MORE THAN ONE THOUSAND FIVE HUNDRED DOLLARS OR BY A PERIOD OF IMPRISON-
MENT AS PROVIDED IN THE PENAL LAW, OR BY BOTH SUCH FINE AND IMPRISON-
MENT. A VIOLATION OF SUBDIVISION NINE OF SECTION SEVENTY-NINE-D OF THIS
ARTICLE SHALL BE PUNISHABLE BY A FINE OF NOT LESS THAN FIVE HUNDRED
DOLLARS NOR MORE THAN ONE THOUSAND FIVE HUNDRED DOLLARS OR BY A PERIOD
OF IMPRISONMENT NOT TO EXCEED ONE HUNDRED EIGHTY DAYS, OR BY BOTH SUCH
A. 9867 9
FINE AND IMPRISONMENT. A PERSON WHO OPERATES ANY SUCH VESSEL IN
VIOLATION OF SUCH SUBDIVISION NINE AFTER HAVING BEEN CONVICTED OF A
VIOLATION OF SUBDIVISION TWO, THREE, FOUR, FIVE, SIX, SEVEN OR NINE OF
SECTION SEVENTY-NINE-D OF THIS ARTICLE WITHIN THE PRECEDING FIVE YEARS
SHALL BE PUNISHABLE BY A FINE OF NOT LESS THAN FIVE HUNDRED DOLLARS NOR
MORE THAN ONE THOUSAND FIVE HUNDRED DOLLARS OR BY A PERIOD OF IMPRISON-
MENT AS PROVIDED IN THE PENAL LAW, OR BY BOTH SUCH FINE AND IMPRISON-
MENT. A VIOLATION OF SUBDIVISION FOUR OF SECTION SEVENTY-NINE-D OF THIS
ARTICLE WHEREIN THE VIOLATOR IS OPERATING A PUBLIC VESSEL SHALL BE A
CLASS E FELONY PUNISHABLE BY A FINE OF NOT LESS THAN ONE THOUSAND
DOLLARS NOR MORE THAN FIVE THOUSAND DOLLARS OR BY A PERIOD OF IMPRISON-
MENT AS PROVIDED IN THE PENAL LAW, OR BY BOTH SUCH FINE AND IMPRISON-
MENT.
(II) A VIOLATION OF SUBDIVISION TWO OF SECTION SEVENTY-NINE-D OF THIS
ARTICLE WHEREIN THE VIOLATOR IS OPERATING A VESSEL WHICH CONTAINS FLAMM-
ABLE GAS, RADIOACTIVE MATERIALS OR EXPLOSIVES SHALL BE A MISDEMEANOR
PUNISHABLE BY A FINE OF NOT LESS THAN FIVE HUNDRED DOLLARS NOR MORE THAN
ONE THOUSAND FIVE HUNDRED DOLLARS OR BY A PERIOD OF IMPRISONMENT AS
PROVIDED IN THE PENAL LAW, OR BY BOTH SUCH FINE AND IMPRISONMENT.
(III) (A) A PERSON WHO OPERATES A VESSEL IN VIOLATION OF SUBDIVISION
TWO, THREE, FOUR, FIVE, SIX OR SEVEN OF SECTION SEVENTY-NINE-D OF THIS
ARTICLE AND WHICH IS PUNISHABLE AS PROVIDED IN SUBPARAGRAPH (I) OR (II)
OF THIS PARAGRAPH AFTER HAVING BEEN CONVICTED OF A VIOLATION OF ANY SUCH
SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE AND PENALIZED
UNDER SUBPARAGRAPH (I) OR (II) OF THIS PARAGRAPH WITHIN THE PRECEDING
TEN YEARS, SHALL BE GUILTY OF A CLASS E FELONY, WHICH SHALL BE PUNISHA-
BLE BY A FINE OF NOT LESS THAN ONE THOUSAND DOLLARS NOR MORE THAN FIVE
THOUSAND DOLLARS, OR BY A PERIOD OF IMPRISONMENT AS PROVIDED IN THE
PENAL LAW, OR BY BOTH SUCH FINE AND IMPRISONMENT. A PERSON WHO OPERATES
A VESSEL IN VIOLATION OF SUBDIVISION NINE OF SECTION SEVENTY-NINE-D OF
THIS ARTICLE AFTER HAVING BEEN CONVICTED OF TWO OR MORE VIOLATIONS OF
SUBDIVISIONS TWO, THREE, FOUR, FIVE, SIX, SEVEN OR NINE OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE WITHIN THE PRECEDING FIVE YEARS, ANY ONE
OF WHICH WAS A MISDEMEANOR, SHALL BE GUILTY OF A CLASS E FELONY, WHICH
SHALL BE PUNISHABLE BY A FINE OF NOT LESS THAN ONE THOUSAND DOLLARS NOR
MORE THAN FIVE THOUSAND DOLLARS, OR BY A PERIOD OF IMPRISONMENT AS
PROVIDED IN THE PENAL LAW, OR BY BOTH SUCH FINE AND IMPRISONMENT. IN
ADDITION, ANY PERSON SENTENCED PURSUANT TO THIS SUBPARAGRAPH SHALL BE
SUBJECT TO THE DISQUALIFICATION PROVIDED IN SUBPARAGRAPH (III) OF PARA-
GRAPH (E) OF SUBDIVISION THREE OF THIS SECTION.
(B) A PERSON WHO OPERATES A VESSEL IN VIOLATION OF SUBDIVISION TWO,
THREE, FOUR, FIVE, SIX OR SEVEN OF SECTION SEVENTY-NINE-D OF THIS ARTI-
CLE AND WHICH IS PUNISHABLE AS PROVIDED IN SUBPARAGRAPH (I) OR (II) OF
THIS PARAGRAPH AFTER HAVING BEEN CONVICTED OF A VIOLATION OF ANY SUCH
SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE AND PENALIZED
UNDER SUBPARAGRAPH (I) OR (II) OF THIS PARAGRAPH TWICE WITHIN THE
PRECEDING TEN YEARS, SHALL BE GUILTY OF A CLASS D FELONY, WHICH SHALL BE
PUNISHABLE 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. A PERSON WHO OPERATES
A VESSEL IN VIOLATION OF SUBDIVISION NINE OF SECTION SEVENTY-NINE-D OF
THIS ARTICLE AFTER HAVING BEEN CONVICTED OF THREE OR MORE VIOLATIONS OF
SUBDIVISIONS TWO, THREE, FOUR, FIVE, SIX, SEVEN OR NINE OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE WITHIN THE PRECEDING FIVE YEARS, ANY ONE
OF WHICH WAS A MISDEMEANOR, SHALL BE GUILTY OF A CLASS D FELONY, WHICH
SHALL BE PUNISHABLE BY A FINE OF NOT LESS THAN TWO THOUSAND DOLLARS NOR
A. 9867 10
MORE THAN TEN THOUSAND DOLLARS, OR BY A PERIOD OF IMPRISONMENT AS
PROVIDED IN THE PENAL LAW, OR BY BOTH SUCH FINE AND IMPRISONMENT. IN
ADDITION, ANY PERSON SENTENCED PURSUANT TO THIS SUBPARAGRAPH SHALL BE
SUBJECT TO THE DISQUALIFICATION PROVIDED IN SUBPARAGRAPH (III) OF PARA-
GRAPH (E) OF SUBDIVISION THREE OF THIS SECTION.
(IV) A VIOLATION OF SUBDIVISION THREE, FIVE, SIX OR SEVEN OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE WHEREIN THE VIOLATOR IS OPERATING A
VESSEL WHICH CONTAINS FLAMMABLE GAS, RADIOACTIVE MATERIALS OR
EXPLOSIVES, SHALL BE A CLASS E FELONY PUNISHABLE BY A FINE OF NOT LESS
THAN ONE THOUSAND DOLLARS AND SUCH OTHER PENALTIES AS PROVIDED FOR IN
THE PENAL LAW; PROVIDED, HOWEVER, THAT A CONVICTION FOR SUCH VIOLATION
SHALL NOT BE CONSIDERED A PREDICATE FELONY PURSUANT TO SECTION 70.06 OF
SUCH LAW, OR A PREVIOUS FELONY CONVICTION PURSUANT TO SECTION 70.10 OF
SUCH LAW. A VIOLATION OF SUBDIVISION FOUR OF SECTION SEVENTY-NINE-D OF
THIS ARTICLE WHEREIN THE VIOLATOR IS OPERATING A VESSEL WHICH CONTAINS
FLAMMABLE GAS, RADIOACTIVE MATERIALS OR EXPLOSIVES, SHALL BE A CLASS D
FELONY PUNISHABLE BY A FINE OF NOT LESS THAN TWO THOUSAND DOLLARS NOR
MORE THAN TEN THOUSAND DOLLARS AND SUCH OTHER PENALTIES AS PROVIDED FOR
IN THE PENAL LAW; PROVIDED, HOWEVER, THAT A CONVICTION FOR SUCH
VIOLATION SHALL NOT BE CONSIDERED A PREDICATE FELONY PURSUANT TO SECTION
70.06 OF SUCH LAW, OR A PREVIOUS FELONY CONVICTION PURSUANT TO SECTION
70.10 OF SUCH LAW.
(V) THE SENTENCES REQUIRED TO BE IMPOSED BY SUBPARAGRAPH (I), (II),
(III) OR (IV) OF THIS PARAGRAPH SHALL BE IMPOSED NOTWITHSTANDING ANY
CONTRARY PROVISION OF THIS CHAPTER OR THE PENAL LAW.
(VI) NOTHING CONTAINED IN THIS PARAGRAPH SHALL PROHIBIT THE IMPOSITION
OF A CHARGE OF ANY OTHER FELONY SET FORTH IN THIS OR ANY OTHER PROVISION
OF LAW FOR ANY ACTS ARISING OUT OF THE SAME INCIDENT.
(E) CERTAIN SENTENCES PROHIBITED. NOTWITHSTANDING ANY PROVISIONS OF
THE PENAL LAW, NO JUDGE OR MAGISTRATE SHALL IMPOSE A SENTENCE OF UNCON-
DITIONAL DISCHARGE FOR A VIOLATION OF ANY SUBDIVISION OF SECTION SEVEN-
TY-NINE-D OF THIS ARTICLE NOR SHALL A JUDGE OR MAGISTRATE IMPOSE A
SENTENCE OF CONDITIONAL DISCHARGE OR PROBATION UNLESS SUCH CONDITIONAL
DISCHARGE OR PROBATION IS ACCOMPANIED BY A SENTENCE OF A FINE AS
PROVIDED IN THIS SUBDIVISION.
(F) WHERE THE COURT IMPOSES A SENTENCE FOR A VIOLATION OF ANY SUBDIVI-
SION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE, THE COURT MAY REQUIRE
THE DEFENDANT, AS A PART OF OR AS A CONDITION OF SUCH SENTENCE, TO
ATTEND A SINGLE SESSION CONDUCTED BY A VICTIMS IMPACT PROGRAM. FOR
PURPOSES OF THIS SECTION, "VICTIMS IMPACT PROGRAM" MEANS A PROGRAM OPER-
ATED BY A COUNTY, A CITY WITH A POPULATION OF ONE MILLION OR MORE, BY A
NOT-FOR-PROFIT ORGANIZATION AUTHORIZED BY ANY SUCH COUNTY OR CITY, OR A
COMBINATION THEREOF, IN WHICH PRESENTATIONS ARE MADE CONCERNING THE
IMPACT OF OPERATING A VESSEL WHILE UNDER THE INFLUENCE OF ALCOHOL OR
DRUGS TO ONE OR MORE PERSONS WHO HAVE BEEN CONVICTED OF SUCH OFFENSES. A
DESCRIPTION OF ANY SUCH PROGRAM SHALL BE FILED WITH THE COMMISSIONER AND
WITH THE COORDINATOR OF THE SPECIAL TRAFFIC OPTIONS PROGRAM FOR DRIVING
WHILE INTOXICATED ESTABLISHED PURSUANT TO SECTION ELEVEN HUNDRED NINE-
TY-SEVEN OF THE VEHICLE AND TRAFFIC LAW, AND SHALL BE MADE AVAILABLE TO
THE COURT UPON REQUEST. NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO
REQUIRE ANY GOVERNMENTAL ENTITY TO CREATE SUCH A VICTIM IMPACT PROGRAM.
(G) THE OFFICE OF PROBATION AND CORRECTIONAL ALTERNATIVES SHALL RECOM-
MEND TO THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES
REGULATIONS GOVERNING THE MONITORING OF COMPLIANCE BY PERSONS ORDERED TO
INSTALL AND MAINTAIN IGNITION INTERLOCK DEVICES TO PROVIDE STANDARDS FOR
MONITORING BY DEPARTMENTS OF PROBATION, AND OPTIONS FOR MONITORING OF
A. 9867 11
COMPLIANCE BY SUCH PERSONS, THAT COUNTIES MAY ADOPT AS AN ALTERNATIVE TO
MONITORING BY A DEPARTMENT OF PROBATION.
2. ADDITIONAL PENALTIES. (A) EXCEPT AS PROVIDED FOR IN PARAGRAPH (B)
OF THIS SUBDIVISION, A PERSON WHO OPERATES A VESSEL IN VIOLATION OF
SUBDIVISION THREE OR FIVE OF SECTION SEVENTY-NINE-D OF THIS ARTICLE
AFTER HAVING BEEN CONVICTED OF A VIOLATION OF SUCH SUBDIVISIONS WITHIN
THE PRECEDING FIVE YEARS SHALL, IN ADDITION TO ANY OTHER PENALTIES WHICH
MAY BE IMPOSED PURSUANT TO SUBDIVISION ONE OF THIS SECTION, BE SENTENCED
TO A TERM OF IMPRISONMENT OF FIVE DAYS OR, AS AN ALTERNATIVE TO SUCH
IMPRISONMENT, BE REQUIRED TO PERFORM THIRTY DAYS OF SERVICE FOR A PUBLIC
OR NOT-FOR-PROFIT CORPORATION, ASSOCIATION, INSTITUTION OR AGENCY AS SET
FORTH IN PARAGRAPH (H) OF SUBDIVISION TWO OF SECTION 65.10 OF THE PENAL
LAW AS A CONDITION OF SENTENCING FOR SUCH VIOLATION. NOTWITHSTANDING
THE PROVISIONS OF THIS PARAGRAPH, A SENTENCE OF A TERM OF IMPRISONMENT
OF FIVE DAYS OR MORE PURSUANT TO THE PROVISIONS OF SUBDIVISION ONE OF
THIS SECTION SHALL BE DEEMED TO BE IN COMPLIANCE WITH THIS SUBDIVISION.
(B) A PERSON WHO OPERATES A VESSEL IN VIOLATION OF SUBDIVISION THREE
OR FIVE OF SECTION SEVENTY-NINE-D OF THIS ARTICLE AFTER HAVING BEEN
CONVICTED ON TWO OR MORE OCCASIONS OF A VIOLATION OF ANY OF SUCH SUBDI-
VISIONS WITHIN THE PRECEDING FIVE YEARS SHALL, IN ADDITION TO ANY OTHER
PENALTIES WHICH MAY BE IMPOSED PURSUANT TO SUBDIVISION ONE OF THIS
SECTION, BE SENTENCED TO A TERM OF IMPRISONMENT OF TEN DAYS OR, AS AN
ALTERNATIVE TO SUCH IMPRISONMENT, BE REQUIRED TO PERFORM SIXTY DAYS OF
SERVICE FOR A PUBLIC OR NOT-FOR-PROFIT CORPORATION, ASSOCIATION, INSTI-
TUTION OR AGENCY AS SET FORTH IN PARAGRAPH (H) OF SUBDIVISION TWO OF
SECTION 65.10 OF THE PENAL LAW AS A CONDITION OF SENTENCING FOR SUCH
VIOLATION. NOTWITHSTANDING THE PROVISIONS OF THIS PARAGRAPH, A SENTENCE
OF A TERM OF IMPRISONMENT OF TEN DAYS OR MORE PURSUANT TO THE PROVISIONS
OF SUBDIVISION ONE OF THIS SECTION SHALL BE DEEMED TO BE IN COMPLIANCE
WITH THIS SUBDIVISION.
(C) A COURT SENTENCING A PERSON PURSUANT TO PARAGRAPH (A) OR (B) OF
THIS SUBDIVISION SHALL: (I) ORDER THE INSTALLATION OF AN IGNITION INTER-
LOCK DEVICE APPROVED PURSUANT TO SECTION SEVENTY-NINE-L OF THIS ARTICLE
IN ANY VESSEL OWNED OR OPERATED BY THE PERSON SO SENTENCED. SUCH
DEVICES SHALL REMAIN INSTALLED DURING ANY PERIOD OF REVOCATION OF THE
PRIVILEGE TO OPERATE A VESSEL REQUIRED TO BE IMPOSED PURSUANT TO PARA-
GRAPH (B) OF SUBDIVISION THREE OF THIS SECTION, AND, UPON THE TERMI-
NATION OF SUCH REVOCATION PERIOD, FOR AN ADDITIONAL PERIOD AS DETERMINED
BY THE COURT; AND (II) ORDER THAT SUCH PERSON RECEIVE AN ASSESSMENT OF
THE DEGREE OF THEIR ALCOHOL OR SUBSTANCE ABUSE AND DEPENDENCY PURSUANT
TO THE PROVISIONS OF SECTION SEVENTY-NINE-M OF THIS ARTICLE. WHERE SUCH
ASSESSMENT INDICATES THE NEED FOR TREATMENT, SUCH COURT IS AUTHORIZED TO
IMPOSE TREATMENT AS A CONDITION OF SUCH SENTENCE EXCEPT THAT SUCH COURT
SHALL IMPOSE TREATMENT AS A CONDITION OF A SENTENCE OF PROBATION OR
CONDITIONAL DISCHARGE PURSUANT TO THE PROVISIONS OF SUBDIVISION THREE OF
SECTION SEVENTY-NINE-M OF THIS ARTICLE. ANY PERSON ORDERED TO INSTALL AN
IGNITION INTERLOCK DEVICE PURSUANT TO THIS PARAGRAPH SHALL BE SUBJECT TO
THE PROVISIONS OF SUBDIVISIONS FOUR, FIVE, SEVEN, EIGHT AND NINE OF
SECTION SEVENTY-NINE-L OF THIS ARTICLE.
(D) CONFIDENTIALITY OF RECORDS. THE PROVISIONS OF SUBDIVISION SIX OF
SECTION SEVENTY-NINE-M OF THIS ARTICLE SHALL APPLY TO THE RECORDS AND
CONTENT OF ALL ASSESSMENTS AND TREATMENT CONDUCTED PURSUANT TO THIS
SUBDIVISION.
3. PRIVILEGE TO OPERATE A VESSEL SANCTIONS. (A) SUSPENSIONS. EXCEPT AS
OTHERWISE PROVIDED IN THIS SUBDIVISION, A PRIVILEGE TO OPERATE A VESSEL
A. 9867 12
SHALL BE SUSPENDED AND A REGISTRATION MAY BE SUSPENDED FOR THE FOLLOWING
PERIODS:
(I) OPERATION OF A VESSEL WHILE ABILITY IMPAIRED. NINETY DAYS, WHERE
THE HOLDER IS CONVICTED OF A VIOLATION OF SUBDIVISION TWO OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE;
(II) PERSONS UNDER THE AGE OF TWENTY-ONE; OPERATING AFTER HAVING
CONSUMED ALCOHOL. SIX MONTHS, WHERE THE HOLDER HAS BEEN FOUND TO HAVE
OPERATED A VESSEL AFTER HAVING CONSUMED ALCOHOL IN VIOLATION OF SECTION
SEVENTY-NINE-E OF THIS ARTICLE WHERE SUCH PERSON WAS UNDER THE AGE OF
TWENTY-ONE AT THE TIME OF COMMISSION OF SUCH VIOLATION.
(B) REVOCATIONS OF THE PRIVILEGE TO OPERATE A VESSEL. A PRIVILEGE TO
OPERATE A VESSEL SHALL BE REVOKED AND A REGISTRATION MAY BE REVOKED FOR
THE FOLLOWING MINIMUM PERIODS:
(I) OPERATION OF A VESSEL WHILE ABILITY IMPAIRED; PRIOR OFFENSE. SIX
MONTHS, WHERE THE HOLDER IS CONVICTED OF A VIOLATION OF SUBDIVISION TWO
OF SECTION SEVENTY-NINE-D OF THIS ARTICLE COMMITTED WITHIN FIVE YEARS OF
A CONVICTION FOR A VIOLATION OF ANY SUBDIVISION OF SUCH SECTION SEVEN-
TY-NINE-D.
(II) OPERATION OF A VESSEL WHILE ABILITY IMPAIRED; MISDEMEANOR
OFFENSE. SIX MONTHS, WHERE THE HOLDER IS CONVICTED OF A VIOLATION OF
SUBDIVISION TWO OF SECTION SEVENTY-NINE-D OF THIS ARTICLE COMMITTED
WITHIN TEN YEARS OF TWO PREVIOUS CONVICTIONS FOR A VIOLATION OF ANY
SUBDIVISION OF SUCH SECTION SEVENTY-NINE-D.
(III) OPERATION OF A VESSEL WHILE INTOXICATED OR WHILE ABILITY
IMPAIRED BY DRUGS OR WHILE ABILITY IMPAIRED BY THE COMBINED INFLUENCE OF
DRUGS OR OF ALCOHOL AND ANY DRUG OR DRUGS; AGGRAVATED OPERATION OF A
VESSEL WHILE INTOXICATED. SIX MONTHS, WHERE THE HOLDER IS CONVICTED OF A
VIOLATION OF SUBDIVISION THREE, FIVE, SIX OR SEVEN OF SECTION SEVENTY-
NINE-D OF THIS ARTICLE. ONE YEAR WHERE THE HOLDER IS CONVICTED OF A
VIOLATION OF SUBDIVISION FOUR OF SECTION SEVENTY-NINE-D OF THIS ARTICLE.
(IV) OPERATION OF A VESSEL WHILE INTOXICATED OR WHILE ABILITY IMPAIRED
BY DRUGS OR WHILE ABILITY IMPAIRED BY THE COMBINED INFLUENCE OF DRUGS OR
OF ALCOHOL AND ANY DRUG OR DRUGS; AGGRAVATED OPERATION OF A VESSEL WHILE
INTOXICATED; PRIOR OFFENSE. ONE YEAR, WHERE THE HOLDER IS CONVICTED OF A
VIOLATION OF SUBDIVISION THREE, FIVE, SIX OR SEVEN OF SECTION SEVENTY-
NINE-D OF THIS ARTICLE COMMITTED WITHIN TEN YEARS OF A CONVICTION FOR A
VIOLATION OF SUBDIVISION THREE, FIVE, SIX OR SEVEN OF SECTION SEVENTY-
NINE-D OF THIS ARTICLE. EIGHTEEN MONTHS, WHERE THE HOLDER IS CONVICTED
OF A VIOLATION OF SUBDIVISION FOUR OF SECTION SEVENTY-NINE-D OF THIS
ARTICLE COMMITTED WITHIN TEN YEARS OF A CONVICTION FOR A VIOLATION OF
SUBDIVISION THREE, FOUR, FIVE, SIX OR SEVEN OF SECTION SEVENTY-NINE-D OF
THIS ARTICLE; OR WHERE THE HOLDER IS CONVICTED OF A VIOLATION OF SUBDI-
VISION THREE, FIVE, SIX OR SEVEN OF SECTION SEVENTY-NINE-D OF THIS ARTI-
CLE COMMITTED WITHIN TEN YEARS OF A CONVICTION FOR A VIOLATION OF SUBDI-
VISION FOUR OF SECTION SEVENTY-NINE-D OF THIS ARTICLE.
(V) HOLDER OF A LICENSE ISSUED TO A MASTER, PILOT, ENGINEER OR JOINT
PILOT AND ENGINEER. (A) EXCEPT AS OTHERWISE PROVIDED IN THIS SUBPARA-
GRAPH, ONE YEAR WHERE THE HOLDER OF A LICENSE ISSUED TO A MASTER, PILOT,
ENGINEER OR JOINT PILOT AND ENGINEER, SUBJECT TO SECTION SIXTY-FOUR OF
THIS CHAPTER, IS CONVICTED OF A VIOLATION OF ANY SUBDIVISION OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE OR IF SUCH HOLDER IS CONVICTED OF AN
OFFENSE CONSISTING OF OPERATING A VESSEL UNDER THE INFLUENCE OF ALCOHOL
OR DRUGS WHERE SUCH CONVICTION WAS HAD OUTSIDE OF THIS STATE.
(B) THREE YEARS, WHERE THE HOLDER IS CONVICTED OF A VIOLATION OF ANY
SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE, SUCH VIOLATION
WAS COMMITTED WHILE THE HOLDER WAS OPERATING A PUBLIC VESSEL TRANSPORT-
A. 9867 13
ING HAZARDOUS MATERIALS OR IF SUCH HOLDER IS CONVICTED OF AN OFFENSE
CONSISTING OF OPERATING A PUBLIC VESSEL UNDER THE INFLUENCE OF ALCOHOL
OR DRUGS WHERE SUCH CONVICTION WAS HAD OUTSIDE OF THIS STATE.
(VI) PERSONS UNDER THE AGE OF TWENTY-ONE. ONE YEAR, WHERE THE HOLDER
IS CONVICTED OF OR ADJUDICATED A YOUTHFUL OFFENDER FOR A VIOLATION OF
ANY SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE, OR IS
CONVICTED OF OR RECEIVES A YOUTHFUL OFFENDER OR OTHER JUVENILE ADJUDI-
CATION FOR AN OFFENSE CONSISTING OF OPERATING A VESSEL UNDER THE INFLU-
ENCE OF INTOXICATING LIQUOR WHERE THE CONVICTION, OR YOUTHFUL OFFENDER
OR OTHER JUVENILE ADJUDICATION WAS HAD OUTSIDE THIS STATE, WHERE SUCH
PERSON WAS UNDER THE AGE OF TWENTY-ONE AT THE TIME OF COMMISSION OF SUCH
VIOLATION.
(VII) PERSONS UNDER THE AGE OF TWENTY-ONE; PRIOR OFFENSE OR FINDING.
ONE YEAR OR UNTIL THE HOLDER REACHES THE AGE OF TWENTY-ONE, WHICHEVER IS
THE GREATER PERIOD OF TIME, WHERE THE HOLDER HAS BEEN FOUND TO HAVE
OPERATED A VESSEL AFTER HAVING CONSUMED ALCOHOL IN VIOLATION OF SECTION
SEVENTY-NINE-E OF THIS ARTICLE, OR IS CONVICTED OF, OR ADJUDICATED A
YOUTHFUL OFFENDER FOR, A VIOLATION OF ANY SUBDIVISION OF SECTION SEVEN-
TY-NINE-D OF THIS ARTICLE, OR IS CONVICTED OF OR RECEIVES A YOUTHFUL
OFFENDER OR JUVENILE ADJUDICATION FOR AN OFFENSE CONSISTING OF OPERATING
A VESSEL UNDER THE INFLUENCE OF INTOXICATING LIQUOR WHERE THE
CONVICTION, OR YOUTHFUL OFFENDER OR OTHER JUVENILE ADJUDICATION WAS HAD
OUTSIDE THIS STATE, WHERE SUCH PERSON WAS UNDER THE AGE OF TWENTY-ONE AT
THE TIME OF COMMISSION OF SUCH VIOLATION AND HAS PREVIOUSLY BEEN FOUND
TO HAVE OPERATED A VESSEL AFTER HAVING CONSUMED ALCOHOL IN VIOLATION OF
SECTION SEVENTY-NINE-E OF THIS ARTICLE, OR HAS PREVIOUSLY BEEN CONVICTED
OF, OR ADJUDICATED A YOUTHFUL OFFENDER FOR, ANY VIOLATION OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE NOT ARISING OUT OF THE SAME INCIDENT, OR
HAS PREVIOUSLY BEEN CONVICTED OF OR RECEIVED A YOUTHFUL OFFENDER OR
JUVENILE ADJUDICATION FOR AN OFFENSE CONSISTING OF OPERATING A VESSEL
UNDER THE INFLUENCE OF INTOXICATING LIQUOR WHEN THE CONVICTION, OR
YOUTHFUL OFFENDER OR OTHER JUVENILE ADJUDICATION WAS HAD OUTSIDE THIS
STATE AND NOT ARISING OUT OF THE SAME.
(VIII) OUT-OF-STATE OFFENSES. EXCEPT AS PROVIDED IN SUBPARAGRAPH (VI)
OR (VII) OF THIS PARAGRAPH: (A) NINETY DAYS, WHERE THE HOLDER IS
CONVICTED OF AN OFFENSE CONSISTING OF OPERATING A VESSEL UNDER THE
INFLUENCE OF INTOXICATING LIQUOR WHERE THE CONVICTION WAS HAD OUTSIDE
THIS STATE AND (B) SIX MONTHS, WHERE THE HOLDER IS CONVICTED OF, OR
RECEIVES A YOUTHFUL OFFENDER OR OTHER JUVENILE ADJUDICATION, WHICH WOULD
HAVE BEEN A MISDEMEANOR OR FELONY IF COMMITTED BY AN ADULT, IN
CONNECTION WITH, AN OFFENSE CONSISTING OF OPERATING A VESSEL UNDER THE
INFLUENCE OF OR WHILE IMPAIRED BY THE USE OF DRUGS WHERE THE CONVICTION
OR YOUTHFUL OFFENDER OR OTHER JUVENILE ADJUDICATION WAS HAD OUTSIDE THIS
STATE.
(IX) EFFECT OF REHABILITATION PROGRAM. NO PERIOD OF REVOCATION ARISING
OUT OF SUBPARAGRAPH (V), (VI) OR (VII) OF THIS PARAGRAPH MAY BE SET
ASIDE BY THE COMMISSIONER FOR THE REASON THAT SUCH PERSON WAS A PARTIC-
IPANT IN THE ALCOHOL AND DRUG REHABILITATION PROGRAM SET FORTH IN
SECTION ELEVEN HUNDRED NINETY-SIX OF THE VEHICLE AND TRAFFIC LAW.
(X) ACTION REQUIRED BY COMMISSIONER. WHERE A COURT FAILS TO IMPOSE, OR
INCORRECTLY IMPOSES, A SUSPENSION OR REVOCATION REQUIRED BY THIS SUBDI-
VISION, THE COMMISSIONER SHALL, UPON RECEIPT OF A CERTIFICATE OF
CONVICTION FILED, IMPOSE SUCH MANDATED SUSPENSION OR REVOCATION, WHICH
SHALL SUPERSEDE ANY SUCH ORDER WHICH THE COURT MAY HAVE IMPOSED.
(XI) LIMITATION OF CERTAIN MANDATORY REVOCATIONS. WHERE REVOCATION IS
MANDATORY PURSUANT TO SUBPARAGRAPH (V) OF THIS PARAGRAPH FOR A
A. 9867 14
CONVICTION OF A VIOLATION OF SUBDIVISION EIGHT OF SECTION SEVENTY-NINE-D
OF THIS ARTICLE, SUCH REVOCATION SHALL BE ISSUED ONLY BY THE COMMISSION-
ER AND SHALL BE APPLICABLE ONLY TO THAT PORTION OF THE HOLDER'S LICENSE
WHICH PERMITS THE OPERATION OF PUBLIC VESSELS, AND THE COMMISSIONER
SHALL IMMEDIATELY ISSUE A PRIVILEGE TO OPERATE A VESSEL, OTHER THAN A
LICENSE ISSUED TO A MASTER, PILOT, ENGINEER OR JOINT PILOT AND ENGINEER,
TO SUCH PERSON PROVIDED THAT SUCH PERSON IS OTHERWISE ELIGIBLE TO
RECEIVE SUCH PRIVILEGE TO OPERATE A VESSEL AND FURTHER PROVIDED THAT
ISSUING A LICENSE TO SUCH PERSON DOES NOT CREATE A SUBSTANTIAL SAFETY
HAZARD TO THE WATERS OF THE STATE.
(XII) PERMANENT REVOCATION. (A) NOTWITHSTANDING ANY OTHER PROVISION OF
THIS CHAPTER TO THE CONTRARY, WHENEVER A REVOCATION IS IMPOSED UPON A
PERSON FOR THE REFUSAL TO SUBMIT TO A CHEMICAL TEST PURSUANT TO THE
PROVISIONS OF SECTION SEVENTY-NINE-G OF THIS ARTICLE OR CONVICTION FOR
ANY VIOLATION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE FOR WHICH A
SENTENCE OF IMPRISONMENT MAY BE IMPOSED, AND SUCH PERSON HAS: (1) WITHIN
THE PREVIOUS FOUR YEARS BEEN TWICE CONVICTED OF ANY PROVISIONS OF
SECTION SEVENTY-NINE-D OF THIS ARTICLE OR A VIOLATION OF THE PENAL LAW
FOR WHICH A VIOLATION OF SUCH SECTION SEVENTY-NINE-D IS AN ESSENTIAL
ELEMENT AND AT LEAST ONE SUCH CONVICTION WAS FOR A CRIME, OR HAS TWICE
BEEN FOUND TO HAVE REFUSED TO SUBMIT TO A CHEMICAL TEST PURSUANT TO
SECTION SEVENTY-NINE-G OF THIS ARTICLE, OR HAS ANY COMBINATION OF TWO
SUCH CONVICTIONS AND FINDINGS OF REFUSAL NOT ARISING OUT OF THE SAME
INCIDENT; OR (2) WITHIN THE PREVIOUS EIGHT YEARS BEEN CONVICTED THREE
TIMES OF ANY PROVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE FOR
WHICH A SENTENCE OF IMPRISONMENT MAY BE IMPOSED OR A VIOLATION OF THE
PENAL LAW FOR WHICH A VIOLATION OF SUCH SECTION SEVENTY-NINE-D IS AN
ESSENTIAL ELEMENT AND AT LEAST TWO SUCH CONVICTIONS WERE FOR CRIMES, OR
HAS BEEN FOUND, ON THREE SEPARATE OCCASIONS, TO HAVE REFUSED TO SUBMIT
TO A CHEMICAL TEST PURSUANT TO SECTION SEVENTY-NINE-G OF THIS ARTICLE,
OR HAS ANY COMBINATION OF SUCH CONVICTIONS AND FINDINGS OF REFUSAL NOT
ARISING OUT OF THE SAME INCIDENT, SUCH REVOCATION SHALL BE PERMANENT.
(B) THE PERMANENT REVOCATION OF THE PRIVILEGE TO OPERATE A VESSEL
REQUIRED BY CLAUSE (A) OF THIS SUBPARAGRAPH SHALL BE WAIVED BY THE
COMMISSIONER AFTER A PERIOD OF FIVE YEARS HAS EXPIRED SINCE THE IMPOSI-
TION OF SUCH PERMANENT REVOCATION, PROVIDED THAT DURING SUCH FIVE-YEAR
PERIOD SUCH PERSON HAS NOT BEEN FOUND TO HAVE REFUSED A CHEMICAL TEST
PURSUANT TO SECTION SEVENTY-NINE-G OF THIS ARTICLE WHILE OPERATING A
VESSEL AND HAS NOT BEEN CONVICTED OF A VIOLATION OF ANY SUBDIVISION OF
SECTION SEVENTY-NINE-D OF THIS ARTICLE OR A VIOLATION OF THE PENAL LAW
FOR WHICH A VIOLATION OF ANY SUBDIVISION OF SUCH SECTION SEVENTY-NINE-D
IS AN ESSENTIAL ELEMENT AND EITHER:
(1) THAT SUCH PERSON PROVIDES ACCEPTABLE DOCUMENTATION TO THE COMMIS-
SIONER THAT SUCH PERSON HAS VOLUNTARILY ENROLLED IN AND SUCCESSFULLY
COMPLETED AN APPROPRIATE REHABILITATION PROGRAM; OR
(2) THAT SUCH PERSON IS GRANTED A CERTIFICATE OF RELIEF FROM DISABILI-
TIES OR A CERTIFICATE OF GOOD CONDUCT PURSUANT TO ARTICLE TWENTY-THREE
OF THE CORRECTION LAW.
PROVIDED, HOWEVER, THAT THE COMMISSIONER MAY, ON A CASE BY CASE BASIS,
REFUSE TO RESTORE A PRIVILEGE TO OPERATE A VESSEL WHICH OTHERWISE WOULD
BE RESTORED PURSUANT TO THIS ITEM, IN THE INTEREST OF THE PUBLIC SAFETY
AND WELFARE.
(C) FOR REVOCATIONS IMPOSED PURSUANT TO CLAUSE (A) OF THIS SUBPARA-
GRAPH, THE COMMISSIONER MAY ADOPT RULES TO PERMIT CONDITIONAL OR
RESTRICTED OPERATION OF A VESSEL BY ANY SUCH PERSON AFTER A MANDATORY
A. 9867 15
REVOCATION PERIOD OF NOT LESS THAN THREE YEARS SUBJECT TO SUCH CRITERIA,
TERMS AND CONDITIONS AS ESTABLISHED BY THE COMMISSIONER.
(D) UPON (1) A FINDING OF REFUSAL AFTER HAVING BEEN CONVICTED THREE
TIMES WITHIN FOUR YEARS OF A VIOLATION OF ANY SUBDIVISION OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE OR OF THE PENAL LAW FOR WHICH A VIOLATION
OF ANY SUBDIVISION OF SUCH SECTION SEVENTY-NINE-D IS AN ESSENTIAL
ELEMENT OR ANY COMBINATION OF THREE SUCH CONVICTIONS NOT ARISING OUT OF
THE SAME INCIDENT WITHIN FOUR YEARS OR (2) A FOURTH CONVICTION OF ANY
SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE AFTER HAVING BEEN
CONVICTED OF ANY SUCH SUBDIVISION OF SUCH SECTION SEVENTY-NINE-D OR OF
THE PENAL LAW FOR WHICH A VIOLATION OF ANY OF SUCH SUBDIVISIONS OF SUCH
SECTION SEVENTY-NINE-D IS AN ESSENTIAL ELEMENT OR ANY COMBINATION OF
THREE SUCH CONVICTIONS NOT ARISING OUT OF THE SAME INCIDENT WITHIN FOUR
YEARS OR (3) A FINDING OF REFUSAL AFTER HAVING BEEN CONVICTED FOUR TIMES
WITHIN EIGHT YEARS OF A VIOLATION OF ANY SUBDIVISION OF SECTION SEVEN-
TY-NINE-D OF THIS ARTICLE OR OF THE PENAL LAW FOR WHICH A VIOLATION OF
ANY OF SUCH SUBDIVISIONS OF SUCH SECTION SEVENTY-NINE-D IS AN ESSENTIAL
ELEMENT OR ANY COMBINATION OF FOUR SUCH CONVICTIONS NOT ARISING OUT OF
THE SAME INCIDENT WITHIN EIGHT YEARS OR (4) A FIFTH CONVICTION OF ANY
SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE AFTER HAVING BEEN
CONVICTED OF SUCH SUBDIVISION OR OF THE PENAL LAW FOR WHICH A VIOLATION
OF ANY OF SUCH SUBDIVISIONS OF SUCH SECTION SEVENTY-NINE-D IS AN ESSEN-
TIAL ELEMENT OR ANY COMBINATION OF FOUR SUCH CONVICTIONS NOT ARISING OUT
OF THE SAME INCIDENT WITHIN EIGHT YEARS, SUCH REVOCATION SHALL BE PERMA-
NENT.
(E) THE PERMANENT REVOCATION OF THE PRIVILEGE TO OPERATE A VESSEL
REQUIRED BY CLAUSE (D) OF THIS SUBPARAGRAPH MAY BE WAIVED BY THE COMMIS-
SIONER AFTER A PERIOD OF EIGHT YEARS HAS EXPIRED SINCE THE IMPOSITION OF
SUCH PERMANENT REVOCATION PROVIDED:
(1) THAT DURING SUCH EIGHT-YEAR PERIOD SUCH PERSON HAS NOT BEEN FOUND
TO HAVE REFUSED A CHEMICAL TEST PURSUANT TO SECTION SEVENTY-NINE-G OF
THIS ARTICLE WHILE OPERATING A VESSEL AND HAS NOT BEEN CONVICTED OF A
VIOLATION OF ANY SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE
OR A VIOLATION OF THE PENAL LAW FOR WHICH A VIOLATION OF ANY SUCH SUBDI-
VISIONS OF SUCH SECTION SEVENTY-NINE-D IS AN ESSENTIAL ELEMENT; AND
(2) THAT SUCH PERSON PROVIDES ACCEPTABLE DOCUMENTATION TO THE COMMIS-
SIONER THAT SUCH PERSON HAS VOLUNTARILY ENROLLED IN AND SUCCESSFULLY
COMPLETED AN APPROPRIATE REHABILITATION PROGRAM; AND
(3) AFTER SUCH DOCUMENTATION IS ACCEPTED, THAT SUCH PERSON IS GRANTED
A CERTIFICATE OF RELIEF FROM DISABILITIES OR A CERTIFICATE OF GOOD
CONDUCT PURSUANT TO ARTICLE TWENTY-THREE OF THE CORRECTION LAW.
NOTWITHSTANDING THE PROVISIONS OF THIS CLAUSE, NOTHING CONTAINED IN
THIS CLAUSE SHALL BE DEEMED TO REQUIRE THE COMMISSIONER TO RESTORE A
PRIVILEGE TO OPERATE A VESSEL TO AN APPLICANT WHO OTHERWISE HAS COMPLIED
WITH THE REQUIREMENTS OF THIS ITEM, IN THE INTEREST OF THE PUBLIC SAFETY
AND WELFARE.
(F) NOTHING CONTAINED IN THIS SUBPARAGRAPH SHALL BE DEEMED TO REDUCE A
REVOCATION OF A PRIVILEGE TO OPERATE A VESSEL PERIOD IMPOSED PURSUANT TO
ANY OTHER PROVISION OF LAW.
(C) REISSUANCE OF THE PRIVILEGE TO OPERATE A VESSEL; RESTRICTIONS.
(I) EXCEPT AS OTHERWISE PROVIDED IN THIS PARAGRAPH, WHERE A PRIVILEGE TO
OPERATE A VESSEL IS REVOKED PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVI-
SION, NO NEW PRIVILEGE TO OPERATE A VESSEL SHALL BE ISSUED AFTER THE
EXPIRATION OF THE MINIMUM PERIOD SPECIFIED IN SUCH PARAGRAPH, EXCEPT IN
THE DISCRETION OF THE COMMISSIONER.
A. 9867 16
(II) WHERE A PRIVILEGE TO OPERATE A VESSEL IS REVOKED PURSUANT TO
SUBPARAGRAPH (III), (IV) OR (VIII) OF PARAGRAPH (B) OF THIS SUBDIVISION
FOR A VIOLATION OF SUBDIVISION SIX OF SECTION SEVENTY-NINE-D OF THIS
ARTICLE, AND WHERE THE INDIVIDUAL DOES NOT HAVE A PRIVILEGE TO OPERATE A
VESSEL OR THE INDIVIDUAL'S PRIVILEGE TO OPERATE A VESSEL WAS SUSPENDED
AT THE TIME OF CONVICTION OR YOUTHFUL OFFENDER OR OTHER JUVENILE ADJUDI-
CATION, THE COMMISSIONER SHALL NOT ISSUE A NEW PRIVILEGE TO OPERATE A
VESSEL NOR RESTORE THE FORMER PRIVILEGE TO OPERATE A VESSEL FOR A PERIOD
OF SIX MONTHS AFTER SUCH INDIVIDUAL WOULD OTHERWISE HAVE BECOME ELIGIBLE
TO OBTAIN A NEW PRIVILEGE TO OPERATE A VESSEL OR TO HAVE THE FORMER
PRIVILEGE TO OPERATE A VESSEL RESTORED; PROVIDED, HOWEVER, THAT DURING
SUCH DELAY PERIOD THE COMMISSIONER MAY ISSUE A RESTRICTED USE PRIVILEGE
TO OPERATE A VESSEL.
(III) IN NO EVENT SHALL A NEW PRIVILEGE TO OPERATE A VESSEL BE ISSUED
WHERE A PERSON HAS BEEN TWICE CONVICTED OF A VIOLATION OF SUBDIVISION
FIVE, SIX OR SEVEN OF SECTION SEVENTY-NINE-D OF THIS ARTICLE OR OF DRIV-
ING WHILE INTOXICATED OR OF DRIVING WHILE ABILITY IS IMPAIRED BY THE USE
OF A DRUG OR OF DRIVING WHILE ABILITY IS IMPAIRED BY THE COMBINED INFLU-
ENCE OF DRUGS OR OF ALCOHOL AND ANY DRUG OR DRUGS WHERE PHYSICAL INJURY,
AS DEFINED IN SECTION 10.00 OF THE PENAL LAW, HAS RESULTED FROM SUCH
OFFENSE IN EACH INSTANCE.
(D) SUSPENSION OR REVOCATION; SENTENCING. (I) WHERE A SUSPENSION OR
REVOCATION, OTHER THAN A REVOCATION REQUIRED TO BE ISSUED BY THE COMMIS-
SIONER, IS MANDATORY PURSUANT TO PARAGRAPH (A) OR (B) OF THIS SUBDIVI-
SION, THE MAGISTRATE, JUSTICE OR JUDGE SHALL ISSUE AN ORDER SUSPENDING
OR REVOKING SUCH PRIVILEGE TO OPERATE A VESSEL UPON SENTENCING, AND THE
PRIVILEGE HOLDER SHALL SURRENDER SUCH PRIVILEGE TO OPERATE A VESSEL TO
THE COURT. EXCEPT AS HEREINAFTER PROVIDED, SUCH SUSPENSION OR REVOCATION
SHALL TAKE EFFECT IMMEDIATELY.
(II) EXCEPT WHERE THE PRIVILEGE HOLDER HAS BEEN CHARGED WITH A
VIOLATION OF ARTICLE ONE HUNDRED TWENTY OR ONE HUNDRED TWENTY-FIVE OF
THE PENAL LAW ARISING OUT OF THE SAME INCIDENT OR CONVICTED OF SUCH
VIOLATION OR A VIOLATION OF ANY SUBDIVISION OF SECTION SEVENTY-NINE-D OF
THIS ARTICLE WITHIN THE PRECEDING FIVE YEARS, THE JUDGE, JUSTICE OR
MAGISTRATE MAY ISSUE AN ORDER MAKING SAID PRIVILEGE TO OPERATE A VESSEL
SUSPENSION OR REVOCATION TAKE EFFECT TWENTY DAYS AFTER THE DATE OF
SENTENCING. THE PRIVILEGE HOLDER SHALL BE GIVEN A COPY OF SAID ORDER
PERMITTING THE CONTINUATION OF OPERATING PRIVILEGES FOR TWENTY DAYS
AFTER SENTENCING, IF GRANTED BY THE COURT. THE COURT SHALL FORWARD TO
THE COMMISSIONER A COPY OF ANY ORDER ISSUED PURSUANT TO THIS PARAGRAPH
AND THE LICENSE, WITHIN NINETY-SIX HOURS OF SENTENCING.
(E) SPECIAL PROVISIONS. (I) SUSPENSION PENDING PROSECUTION; PROCEDURE.
(A) WITHOUT NOTICE, PENDING ANY PROSECUTION, THE COURT SHALL SUSPEND
SUCH PRIVILEGE TO OPERATE A VESSEL, WHERE THE HOLDER HAS BEEN CHARGED
WITH A VIOLATION OF SUBDIVISION THREE, FOUR, FIVE, SIX OR SEVEN OF
SECTION SEVENTY-NINE-D OF THIS ARTICLE AND EITHER (1) A VIOLATION OF A
FELONY UNDER ARTICLE ONE HUNDRED TWENTY OR ONE HUNDRED TWENTY-FIVE OF
THE PENAL LAW ARISING OUT OF THE SAME INCIDENT, OR (2) HAS BEEN
CONVICTED OF ANY VIOLATION UNDER SECTION SEVENTY-NINE-D OF THIS ARTICLE
WITHIN THE PRECEDING FIVE YEARS.
(B) THE SUSPENSION UNDER THE PRECEDING CLAUSE SHALL OCCUR NO LATER
THAN TWENTY DAYS AFTER THE HOLDER'S FIRST APPEARANCE BEFORE THE COURT ON
THE CHARGES OR AT THE CONCLUSION OF ALL PROCEEDINGS REQUIRED FOR THE
ARRAIGNMENT. 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
A. 9867 17
CAUSE TO BELIEVE THAT THE HOLDER OPERATED A VESSEL IN VIOLATION OF
SUBDIVISION THREE, FOUR, FIVE, SIX OR SEVEN OF SECTION SEVENTY-NINE-D OF
THIS ARTICLE AND EITHER (1) THE PERSON HAD BEEN CONVICTED OF ANY
VIOLATION UNDER SUCH SECTION SEVENTY-NINE-D OF THIS ARTICLE WITHIN THE
PRECEDING FIVE YEARS; OR (2) THAT THE HOLDER COMMITTED A VIOLATION OF A
FELONY UNDER ARTICLE ONE HUNDRED TWENTY OR ONE HUNDRED TWENTY-FIVE OF
THE PENAL LAW. AT SUCH TIME THE HOLDER SHALL BE ENTITLED TO AN OPPORTU-
NITY 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 A PENDING CHARGE OF A VIOLATION OF A FELONY UNDER ARTICLE
ONE HUNDRED TWENTY OR ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW AND THE
HOLDER 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 HOLDER COMMITTED A FELONY UNDER
ARTICLE ONE HUNDRED TWENTY OR ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW
AND THE HOLDER HAS NOT BEEN PREVIOUSLY CONVICTED OF ANY VIOLATION OF
SECTION SEVENTY-NINE-D OF THIS ARTICLE WITHIN THE PRECEDING FIVE YEARS
THE COURT SHALL PROMPTLY NOTIFY THE COMMISSIONER AND DIRECT RESTORATION
OF SUCH PRIVILEGE TO OPERATE A VESSEL TO THE PRIVILEGE HOLDER UNLESS
SUCH PRIVILEGE TO OPERATE A VESSEL IS SUSPENDED OR REVOKED PURSUANT TO
ANY OTHER PROVISION OF THIS CHAPTER.
(II) BAIL FORFEITURE. A PRIVILEGE TO OPERATE A VESSEL SHALL BE
SUSPENDED WHERE THE HOLDER FORFEITS BAIL UPON A CHARGE OF A VIOLATION OF
ANY SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE. SUCH SUSPEN-
SION SHALL NOT BE TERMINATED UNTIL THE HOLDER SUBMITS TO THE JURISDIC-
TION OF THE COURT IN WHICH THE BAIL WAS FORFEITED.
(III) PERMANENT DISQUALIFICATION FROM OPERATING CERTAIN VESSELS. (A)
EXCEPT AS OTHERWISE PROVIDED HEREIN, IN ADDITION TO ANY REVOCATION SET
FORTH IN SUBPARAGRAPH (V) OF PARAGRAPH (B) OF THIS SUBDIVISION, ANY
PERSON SENTENCED PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH (D) OF
SUBDIVISION ONE OF THIS SECTION SHALL BE PERMANENTLY DISQUALIFIED FROM
OPERATING ANY VESSEL SET FORTH IN SUCH PARAGRAPH. IN ADDITION, THE
COMMISSIONER SHALL NOT ISSUE SUCH PERSON A PRIVILEGE TO OPERATE A VESSEL
VALID FOR THE OPERATION OF ANY VESSEL SET FORTH THEREIN BY SUCH PERSON.
THE COMMISSIONER MAY WAIVE SUCH DISQUALIFICATION AND PROHIBITION
HEREINBEFORE PROVIDED AFTER A PERIOD OF FIVE YEARS HAS EXPIRED FROM SUCH
SENTENCING PROVIDED:
(1) THAT DURING SUCH FIVE YEAR PERIOD SUCH PERSON HAS NOT VIOLATED ANY
OF THE PROVISIONS OF SECTION SEVENTY-NINE-D OF THIS ARTICLE OR ANY ALCO-
HOL OR DRUG RELATED TRAFFIC OFFENSE IN THIS STATE OR IN ANY JURISDICTION
OUTSIDE THIS STATE;
(2) THAT SUCH PERSON PROVIDES ACCEPTABLE DOCUMENTATION TO THE COMMIS-
SIONER THAT SUCH PERSON IS NOT IN NEED OF ALCOHOL OR DRUG TREATMENT OR
HAS SATISFACTORILY COMPLETED A PRESCRIBED COURSE OF SUCH TREATMENT; AND
(3) AFTER SUCH DOCUMENTATION IS ACCEPTED, THAT SUCH PERSON IS GRANTED
A CERTIFICATE OF RELIEF FROM DISABILITIES OR A CERTIFICATE OF GOOD
CONDUCT PURSUANT TO ARTICLE TWENTY-THREE OF THE CORRECTION LAW.
(B) ANY PERSON WHO IS A HOLDER OF A LICENSE ISSUED TO A MASTER, PILOT,
ENGINEER OR JOINT PILOT AND ENGINEER, ON BOARD OF A PUBLIC VESSEL AND IS
CONVICTED OF A VIOLATION OF ANY SUBDIVISION OF SECTION SEVENTY-NINE-D OF
THIS ARTICLE WHO HAS HAD A PRIOR FINDING OF REFUSAL TO SUBMIT TO A CHEM-
ICAL TEST PURSUANT TO SECTION SEVENTY-NINE-G OF THIS ARTICLE OR HAS HAD
A PRIOR CONVICTION OF ANY OF THE FOLLOWING OFFENSES: ANY VIOLATION OF
SECTION SEVENTY-NINE-D OF THIS ARTICLE; ANY VIOLATION OF SECTION FORTY-
SEVEN OF THIS CHAPTER; OR HAS A PRIOR CONVICTION OF ANY FELONY INVOLVING
A. 9867 18
THE USE OF A VESSEL PURSUANT TO SECTION SIXTY-FOUR-A OF THIS CHAPTER,
SHALL BE PERMANENTLY DISQUALIFIED FROM OPERATING A PUBLIC VESSEL. THE
COMMISSIONER MAY WAIVE SUCH DISQUALIFICATION AND PROHIBITION HEREINBE-
FORE PROVIDED AFTER A PERIOD OF TEN YEARS HAS EXPIRED FROM SUCH SENTENCE
PROVIDED:
(1) THAT DURING SUCH TEN YEAR PERIOD SUCH PERSON HAS NOT BEEN FOUND TO
HAVE REFUSED A CHEMICAL TEST PURSUANT TO SECTION SEVENTY-NINE-G OF THIS
ARTICLE WHILE OPERATING A VESSEL AND HAS NOT BEEN CONVICTED OF ANY ONE
OF THE FOLLOWING OFFENSES WHILE OPERATING A VESSEL: ANY VIOLATION OF
SECTION SEVENTY-NINE-D OF THIS ARTICLE; ANY VIOLATION OF SECTION FORTY-
SEVEN OF THIS CHAPTER; OR HAS A PRIOR CONVICTION OF ANY FELONY INVOLVING
THE USE OF A VESSEL PURSUANT TO SECTION SIXTY-FOUR-A OF THIS CHAPTER;
(2) THAT SUCH PERSON PROVIDES ACCEPTABLE DOCUMENTATION TO THE COMMIS-
SIONER THAT SUCH PERSON IS NOT IN NEED OF ALCOHOL OR DRUG TREATMENT OR
HAS SATISFACTORILY COMPLETED A PRESCRIBED COURSE OF SUCH TREATMENT; AND
(3) AFTER SUCH DOCUMENTATION IS ACCEPTED, THAT SUCH PERSON IS GRANTED
A CERTIFICATE OF RELIEF FROM DISABILITIES OR A CERTIFICATE OF GOOD
CONDUCT PURSUANT TO ARTICLE TWENTY-THREE OF THE CORRECTION LAW.
(C) UPON A THIRD FINDING OF REFUSAL AND/OR CONVICTION OF ANY OF THE
OFFENSES WHICH REQUIRE A PERMANENT MASTER, PILOT, ENGINEER OR JOINT
PILOT AND ENGINEER LICENSE REVOCATION, SUCH PERMANENT REVOCATION MAY NOT
BE WAIVED BY THE COMMISSIONER UNDER ANY CIRCUMSTANCES.
(IV) YOUTHFUL OFFENDERS. WHERE A YOUTH IS DETERMINED TO BE A YOUTHFUL
OFFENDER, FOLLOWING A CONVICTION OF A VIOLATION OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE FOR WHICH A PRIVILEGE TO OPERATE A VESSEL
SUSPENSION OR REVOCATION IS MANDATORY, THE COURT SHALL IMPOSE SUCH
SUSPENSION OR REVOCATION AS IS OTHERWISE REQUIRED UPON CONVICTION AND,
FURTHER, SHALL NOTIFY THE COMMISSIONER OF SAID SUSPENSION OR REVOCATION
AND ITS FINDING THAT SAID VIOLATOR IS GRANTED YOUTHFUL OFFENDER STATUS.
(V) PROBATION. WHEN A PRIVILEGE TO OPERATE A VESSEL HAS BEEN REVOKED
PURSUANT TO THIS CHAPTER, AND THE HOLDER HAS BEEN SENTENCED TO A PERIOD
OF PROBATION PURSUANT TO SECTION 65.00 OF THE PENAL LAW FOR A VIOLATION
OF ANY PROVISION OF THIS CHAPTER, OR ANY OTHER PROVISION OF THE LAWS OF
THIS STATE, AND A CONDITION OF SUCH PROBATION IS THAT THE HOLDER THEREOF
NOT OPERATE A VESSEL OR NOT APPLY FOR A PRIVILEGE TO OPERATE A VESSEL
DURING THE PERIOD OF SUCH CONDITION OF PROBATION, THE COMMISSIONER MAY
NOT RESTORE SUCH PRIVILEGE UNTIL THE PERIOD OF THE CONDITION OF
PROBATION HAS EXPIRED.
(VI) APPLICATION FOR NEW PRIVILEGE TO OPERATE A VESSEL. WHERE A PRIVI-
LEGE TO OPERATE A VESSEL HAS BEEN REVOKED PURSUANT TO PARAGRAPH (B) OF
THIS SUBDIVISION, OR WHERE THE HOLDER IS SUBJECT TO A CONDITION OF
PROBATION AS PROVIDED IN SUBPARAGRAPH (V) OF THIS PARAGRAPH, APPLICATION
FOR A NEW PRIVILEGE TO OPERATE A VESSEL MAY BE MADE WITHIN FORTY-FIVE
DAYS PRIOR TO THE EXPIRATION OF SUCH MINIMUM PERIOD OF REVOCATION OR
CONDITION OF PROBATION, WHICHEVER EXPIRES LAST.
(VII) SUSPENSION PENDING PROSECUTION; EXCESSIVE BLOOD ALCOHOL CONTENT.
(A) A COURT SHALL SUSPEND A PERSON'S PRIVILEGE TO OPERATE A VESSEL,
PENDING PROSECUTION, OF ANY PERSON CHARGED WITH A VIOLATION OF SUBDIVI-
SION THREE, FOUR, FIVE OR SEVEN OF SECTION SEVENTY-NINE-D OF THIS ARTI-
CLE WHO, AT THE TIME OF ARREST, IS ALLEGED TO HAVE HAD .08 OF ONE
PERCENT OR MORE BY WEIGHT OF ALCOHOL IN SUCH BOATER'S BLOOD AS SHOWN BY
CHEMICAL ANALYSIS OF BLOOD, BREATH, URINE OR SALIVA, MADE PURSUANT TO
SUBDIVISION TWO OR THREE OF SECTION SEVENTY-NINE-G OF THIS ARTICLE.
(B) THE SUSPENSION OCCURRING UNDER CLAUSE (A) OF THIS SUBPARAGRAPH
SHALL OCCUR NO LATER THAN AT THE CONCLUSION OF ALL PROCEEDINGS REQUIRED
FOR THE ARRAIGNMENT; PROVIDED, HOWEVER, THAT IF THE RESULTS OF ANY TEST
A. 9867 19
ADMINISTERED PURSUANT TO SECTION SEVENTY-NINE-G OF THIS ARTICLE ARE NOT
AVAILABLE WITHIN SUCH TIME PERIOD, THE COMPLAINANT POLICE OFFICER OR
OTHER PUBLIC SERVANT SHALL TRANSMIT SUCH RESULTS TO THE COURT AT THE
TIME THEY BECOME AVAILABLE, AND THE COURT SHALL, AS SOON AS PRACTICABLE
FOLLOWING THE RECEIPT OF SUCH RESULTS AND IN COMPLIANCE WITH THE
REQUIREMENTS OF THIS SUBPARAGRAPH, SUSPEND SUCH PRIVILEGE TO OPERATE A
VESSEL. 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 EITHER THAT THE HOLDER OPERATED A VESSEL WHILE SUCH HOLDER
HAD .08 OF ONE PERCENT OR MORE BY WEIGHT OF ALCOHOL IN HIS OR HER BLOOD
AS WAS SHOWN BY CHEMICAL ANALYSIS OF SUCH PERSON'S BLOOD, BREATH, URINE
OR SALIVA, MADE PURSUANT TO THE PROVISIONS OF SECTION SEVENTY-NINE-G OF
THIS ARTICLE. AT THE TIME OF SUCH SUSPENSION THE HOLDER SHALL BE ENTI-
TLED TO AN OPPORTUNITY TO MAKE A STATEMENT REGARDING THIS ISSUE AND TO
PRESENT EVIDENCE TENDING TO REBUT THE COURT'S FINDINGS.
(C) NOTHING CONTAINED IN THIS SUBPARAGRAPH SHALL BE CONSTRUED TO
PROHIBIT OR LIMIT A COURT FROM IMPOSING ANY OTHER SUSPENSION PENDING
PROSECUTION REQUIRED OR PERMITTED BY LAW.
(D) NOTWITHSTANDING ANY CONTRARY PROVISION OF THIS CHAPTER, IF ANY
SUSPENSION OCCURRING UNDER THIS SUBPARAGRAPH HAS BEEN IN EFFECT FOR A
PERIOD OF THIRTY DAYS, THE HOLDER MAY BE ISSUED A CONDITIONAL PRIVILEGE
TO OPERATE A VESSEL, IN ACCORDANCE WITH SECTION SEVENTY-NINE-J OF THIS
ARTICLE, PROVIDED THE HOLDER OF SUCH PRIVILEGE IS OTHERWISE ELIGIBLE TO
RECEIVE SUCH CONDITIONAL PRIVILEGE. A CONDITIONAL PRIVILEGE ISSUED
PURSUANT TO THIS SUBPARAGRAPH SHALL NOT BE VALID FOR THE OPERATION OF A
PUBLIC VESSEL. THE COMMISSIONER SHALL PRESCRIBE BY REGULATION THE PROCE-
DURES FOR THE ISSUANCE OF SUCH CONDITIONAL PRIVILEGE.
(E) IF THE COURT FINDS THAT THE SUSPENSION IMPOSED PURSUANT TO THIS
SUBPARAGRAPH WILL RESULT IN EXTREME HARDSHIP, THE COURT MUST ISSUE SUCH
SUSPENSION, BUT MAY GRANT A HARDSHIP PRIVILEGE, WHICH SHALL BE ISSUED ON
A FORM PRESCRIBED BY THE COMMISSIONER. FOR THE PURPOSES OF THIS CLAUSE,
"EXTREME HARDSHIP" SHALL MEAN THE INABILITY TO OBTAIN ALTERNATIVE MEANS
OF TRAVEL TO OR FROM THE HOLDER'S EMPLOYMENT, OR TO OR FROM NECESSARY
MEDICAL TREATMENT FOR THE HOLDER OR A MEMBER OF THE HOLDER'S HOUSEHOLD.
THE BURDEN OF PROVING EXTREME HARDSHIP SHALL BE ON THE HOLDER WHO MAY
PRESENT MATERIAL AND RELEVANT EVIDENCE. A FINDING OF EXTREME HARDSHIP
MAY NOT BE BASED SOLELY UPON THE TESTIMONY OF THE HOLDER. IN NO EVENT
SHALL ARRAIGNMENT BE ADJOURNED OR OTHERWISE DELAYED MORE THAN THREE
BUSINESS DAYS SOLELY FOR THE PURPOSE OF ALLOWING THE HOLDER TO PRESENT
EVIDENCE OF EXTREME HARDSHIP. THE COURT SHALL SET FORTH UPON THE
RECORD, OR OTHERWISE SET FORTH IN WRITING, THE FACTUAL BASIS FOR SUCH
FINDING. THE HARDSHIP PRIVILEGE SHALL PERMIT THE OPERATION OF A VESSEL
ONLY FOR TRAVEL TO OR FROM THE HOLDER'S EMPLOYMENT, OR TO OR FROM NECES-
SARY MEDICAL TREATMENT FOR THE HOLDER OR A MEMBER OF THE HOLDER'S HOUSE-
HOLD. A HARDSHIP PRIVILEGE SHALL NOT BE VALID FOR THE OPERATION OF A
PUBLIC VESSEL.
(F) NOTICE OF CHARGES TO PARENT OR GUARDIAN. UPON THE FIRST SCHEDULED
APPEARANCE OF ANY PERSON UNDER EIGHTEEN YEARS OF AGE WHO RESIDES WITHIN
THE HOUSEHOLD OF HIS OR HER PARENT OR GUARDIAN UPON A CHARGE OF A
VIOLATION OF SUBDIVISION TWO, THREE AND/OR FIVE OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE, THE LOCAL CRIMINAL COURT BEFORE WHICH
SUCH FIRST APPEARANCE IS SCHEDULED SHALL FORTHWITH TRANSMIT WRITTEN
NOTICE OF SUCH APPEARANCE OR FAILURE TO MAKE SUCH APPEARANCE TO THE
PARENT OR GUARDIAN OF SUCH MINOR PERSON; PROVIDED, HOWEVER, THAT IF AN
ARRAIGNMENT AND CONVICTION OF SUCH PERSON FOLLOWS SUCH APPEARANCE UPON
A. 9867 20
THE SAME DAY, OR IN CASE SUCH PERSON WAIVES ARRAIGNMENT AND ENTERS A
PLEA OF GUILTY TO THE OFFENSE AS CHARGED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION EIGHTEEN HUNDRED FIVE OF THE VEHICLE AND TRAFFIC
LAW, TRANSMITTAL OF NOTICE OF HIS OR HER CONVICTION AS PROVIDED IN
SECTION FIVE HUNDRED FOURTEEN OF THE VEHICLE AND TRAFFIC LAW SHALL BE
SUFFICIENT AND THE NOTICE REQUIRED BY THIS PARAGRAPH NEED NOT BE GIVEN;
PROVIDED FURTHER THAT THE FAILURE OF A LOCAL CRIMINAL COURT TO TRANSMIT
THE NOTICE REQUIRED BY THIS PARAGRAPH SHALL IN NO MANNER AFFECT THE
VALIDITY OF A CONVICTION SUBSEQUENTLY OBTAINED.
§ 79-G. ARREST AND TESTING. 1. ARREST AND FIELD TESTING. (A) ARREST.
NOTWITHSTANDING THE PROVISIONS OF SECTION 140.10 OF THE CRIMINAL PROCE-
DURE LAW, A POLICE OFFICER MAY, WITHOUT A WARRANT, ARREST A PERSON, IN
CASE OF A VIOLATION OF SUBDIVISION TWO OF SECTION SEVENTY-NINE-D OF THIS
ARTICLE, IF SUCH VIOLATION IS COUPLED WITH AN ACCIDENT OR COLLISION IN
WHICH SUCH PERSON IS INVOLVED, WHICH IN FACT HAS BEEN COMMITTED, THOUGH
NOT IN THE POLICE OFFICER'S PRESENCE, WHEN THE OFFICER HAS REASONABLE
CAUSE TO BELIEVE THAT THE VIOLATION WAS COMMITTED BY SUCH PERSON.
(B) FIELD TESTING. EVERY PERSON OPERATING A VESSEL WHICH HAS BEEN
INVOLVED IN AN ACCIDENT OR WHICH IS OPERATED IN VIOLATION OF ANY OF THE
PROVISIONS OF THIS CHAPTER 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 TWO OF THIS SECTION.
2. CHEMICAL TESTS. (A) WHEN AUTHORIZED. ANY PERSON WHO OPERATES A
VESSEL IN THIS STATE SHALL BE DEEMED TO HAVE GIVEN CONSENT 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 PROVIDED THAT SUCH TEST IS ADMINISTERED BY OR AT THE DIRECTION OF
A POLICE OFFICER WITH RESPECT TO A CHEMICAL TEST OF BREATH, URINE OR
SALIVA OR, WITH RESPECT TO A CHEMICAL TEST OF BLOOD, AT THE DIRECTION OF
A POLICE OFFICER:
(1) HAVING REASONABLE GROUNDS TO BELIEVE SUCH PERSON TO HAVE BEEN
OPERATING IN VIOLATION OF ANY SUBDIVISION OF SECTION SEVENTY-NINE-D OF
THIS ARTICLE AND WITHIN TWO HOURS AFTER SUCH PERSON HAS BEEN PLACED
UNDER ARREST FOR ANY SUCH VIOLATION; OR HAVING REASONABLE GROUNDS TO
BELIEVE SUCH PERSON TO HAVE BEEN OPERATING IN VIOLATION OF SECTION
SEVENTY-NINE-E OF THIS ARTICLE AND WITHIN TWO HOURS AFTER THE STOP OF
SUCH PERSON FOR ANY SUCH VIOLATION;
(2) WITHIN TWO HOURS AFTER A BREATH TEST, AS PROVIDED IN PARAGRAPH (B)
OF SUBDIVISION ONE 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;
(3) FOR THE PURPOSES OF THIS PARAGRAPH, "REASONABLE GROUNDS" TO
BELIEVE THAT A PERSON HAS BEEN OPERATING A VESSEL AFTER HAVING CONSUMED
ALCOHOL IN VIOLATION OF SECTION SEVENTY-NINE-E OF THIS ARTICLE 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 SUCH SUBDIVISION. 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 OPERATED BY THE
OPERATOR, 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; OR
A. 9867 21
(4) 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 SECTION SEVENTY-NINE-E OF THIS ARTICLE. HOWEVER, A PERSON
UNDER THE AGE OF TWENTY-ONE FOR WHOM A CHEMICAL TEST IS AUTHORIZED
PURSUANT TO THIS PARAGRAPH 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 AUTHOR-
IZED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 140.10 OF THE CRIMINAL
PROCEDURE LAW OR PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION.
(B) REPORT OF REFUSAL. (1) IF: (A) SUCH PERSON HAVING BEEN PLACED
UNDER ARREST; OR (B) AFTER A BREATH TEST INDICATES THE PRESENCE OF ALCO-
HOL IN THE PERSON'S SYSTEM; OR (C) WITH REGARD TO A PERSON UNDER THE AGE
OF TWENTY-ONE, THERE ARE REASONABLE GROUNDS TO BELIEVE THAT SUCH PERSON
HAS BEEN OPERATING A VESSEL AFTER HAVING CONSUMED ALCOHOL IN VIOLATION
OF SECTION SEVENTY-NINE-E OF THIS ARTICLE; 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 OPERAT-
ING PRIVILEGE SHALL BE IMMEDIATELY SUSPENDED AND SUBSEQUENTLY REVOKED,
OR, FOR OPERATORS UNDER THE AGE OF TWENTY-ONE FOR WHOM THERE ARE REASON-
ABLE GROUNDS TO BELIEVE THAT SUCH OPERATOR HAS BEEN OPERATING A VESSEL
AFTER HAVING CONSUMED ALCOHOL IN VIOLATION OF SECTION SEVENTY-NINE-E OF
THIS ARTICLE, SHALL BE REVOKED 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 OR DETAINED, REFUSES TO
SUBMIT TO SUCH CHEMICAL TEST OR ANY PORTION THEREOF, UNLESS A COURT
ORDER HAS BEEN GRANTED PURSUANT TO SUBDIVISION THREE 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.
(2) THE REPORT OF THE POLICE OFFICER SHALL SET FORTH REASONABLE
GROUNDS TO BELIEVE SUCH ARRESTED PERSON OR SUCH DETAINED PERSON UNDER
THE AGE OF TWENTY-ONE HAD BEEN OPERATING A VESSEL IN VIOLATION OF ANY
SUBDIVISION OF SECTION SEVENTY-NINE-D OR SEVENTY-NINE-E OF THIS ARTICLE,
THAT SAID PERSON HAD REFUSED TO SUBMIT TO SUCH CHEMICAL TEST, AND THAT
NO CHEMICAL TEST WAS ADMINISTERED PURSUANT TO THE REQUIREMENTS OF SUBDI-
VISION THREE OF THIS SECTION. THE REPORT SHALL BE PRESENTED TO THE COURT
UPON ARRAIGNMENT OF AN ARRESTED PERSON, PROVIDED, HOWEVER, IN THE CASE
OF A PERSON UNDER THE AGE OF TWENTY-ONE, FOR WHOM A TEST WAS AUTHORIZED
PURSUANT TO THE PROVISIONS OF SUBPARAGRAPH TWO OR THREE OF PARAGRAPH (A)
OF THIS SUBDIVISION, AND WHO HAS NOT BEEN PLACED UNDER ARREST FOR A
VIOLATION OF ANY OF THE PROVISIONS OF SECTION SEVENTY-NINE-D OF THIS
ARTICLE, SUCH REPORT SHALL BE FORWARDED TO THE COMMISSIONER WITHIN
FORTY-EIGHT HOURS IN A MANNER TO BE PRESCRIBED BY THE COMMISSIONER, AND
ALL SUBSEQUENT PROCEEDINGS WITH REGARD TO REFUSAL TO SUBMIT TO SUCH
CHEMICAL TEST BY SUCH PERSON SHALL BE AS SET FORTH IN SUBDIVISION FOUR
OF SECTION SEVENTY-NINE-H OF THIS ARTICLE.
(3) FOR PERSONS PLACED UNDER ARREST FOR A VIOLATION OF ANY SUBDIVISION
OF SECTION SEVENTY-NINE-D OF THIS ARTICLE, THE PRIVILEGE TO OPERATE A
VESSEL AND ANY NON-RESIDENT OPERATING PRIVILEGE SHALL, UPON THE BASIS OF
SUCH WRITTEN REPORT, BE TEMPORARILY SUSPENDED BY THE COURT WITHOUT
NOTICE PENDING THE DETERMINATION OF A HEARING AS PROVIDED IN PARAGRAPH
(C) OF THIS SUBDIVISION. COPIES OF SUCH REPORT MUST BE TRANSMITTED BY
A. 9867 22
THE COURT TO THE COMMISSIONER AND SUCH TRANSMITTAL MAY NOT BE WAIVED
EVEN WITH THE CONSENT OF ALL THE PARTIES. SUCH REPORT SHALL BE FORWARDED
TO THE COMMISSIONER WITHIN FORTY-EIGHT HOURS OF SUCH ARRAIGNMENT.
(4) THE COURT OR THE POLICE OFFICER, IN THE CASE OF A PERSON UNDER THE
AGE OF TWENTY-ONE ALLEGED TO BE OPERATING A VESSEL AFTER HAVING CONSUMED
ALCOHOL, SHALL PROVIDE SUCH PERSON WITH A SCHEDULED HEARING DATE, A
WAIVER FORM, AND SUCH OTHER INFORMATION AS MAY BE REQUIRED BY THE
COMMISSIONER. IF A HEARING, AS PROVIDED FOR IN PARAGRAPH (C) OF THIS
SUBDIVISION, OR SUBDIVISION FOUR OF SECTION SEVENTY-NINE-H OF THIS ARTI-
CLE, IS WAIVED BY SUCH PERSON, THE COMMISSIONER SHALL IMMEDIATELY REVOKE
THE PRIVILEGE TO OPERATE A VESSEL OR NON-RESIDENT OPERATING PRIVILEGE,
AS OF THE DATE OF RECEIPT OF SUCH WAIVER IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH (D) OF THIS SUBDIVISION.
(C) HEARINGS. ANY PERSON WHOSE PRIVILEGE TO OPERATE A VESSEL OR ANY
NON-RESIDENT PRIVILEGE 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 PURSU-
ANT TO PARAGRAPH (C) OF SUBDIVISION TWO OF SECTION ELEVEN HUNDRED NINE-
TY-FOUR OF THE VEHICLE AND TRAFFIC LAW. IF THE DEPARTMENT OF MOTOR VEHI-
CLES FAILS TO PROVIDE FOR SUCH HEARING FIFTEEN DAYS AFTER THE DATE OF
THE ARRAIGNMENT OF THE ARRESTED PERSON, THE PRIVILEGE TO OPERATE A
VESSEL OR NON-RESIDENT OPERATING PRIVILEGE OF SUCH PERSON SHALL BE REIN-
STATED PENDING A HEARING PURSUANT TO THIS SECTION. THE HEARING SHALL BE
LIMITED TO THE FOLLOWING ISSUES: (1) DID THE POLICE OFFICER HAVE REASON-
ABLE GROUNDS TO BELIEVE THAT SUCH PERSON HAD BEEN OPERATING A VESSEL IN
VIOLATION OF ANY SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE;
(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 AND
SUBSEQUENT REVOCATION 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 CHEMI-
CAL 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 COMMIS-
SIONER OF MOTOR VEHICLES FINDS ALL OF THE ISSUES IN THE AFFIRMATIVE,
SUCH OFFICER SHALL IMMEDIATELY REVOKE THE PRIVILEGE TO OPERATE A VESSEL
OR ANY NON-RESIDENT OPERATING PRIVILEGE IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH (D) OF THIS SUBDIVISION. A PERSON WHO HAS HAD A
PRIVILEGE TO OPERATE A VESSEL OR NON-RESIDENT OPERATING PRIVILEGE
SUSPENDED OR REVOKED PURSUANT TO THIS SUBDIVISION MAY APPEAL THE FIND-
INGS 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 PRACTI-
CABLE. THE RESULTS OF ALL HEARINGS SHALL BE REFERRED TO THE COMMISSION-
ER FOR PURPOSES OF TAKING PROPER ACTION AGAINST A DEFENDANT'S PRIVILEGE
TO OPERATE A VESSEL.
(D) SANCTIONS. (1) REVOCATIONS. (A) ANY PRIVILEGE TO OPERATE A VESSEL
WHICH HAS BEEN REVOKED PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION
SHALL NOT BE RESTORED FOR AT LEAST ONE YEAR AFTER SUCH REVOCATION, NOR
A. 9867 23
THEREAFTER, EXCEPT IN THE DISCRETION OF THE COMMISSIONER. HOWEVER, NO
SUCH PRIVILEGE TO OPERATE A VESSEL SHALL BE RESTORED FOR AT LEAST EIGH-
TEEN MONTHS AFTER SUCH REVOCATION, NOR THEREAFTER EXCEPT IN THE
DISCRETION OF THE COMMISSIONER, IN ANY CASE WHERE THE PERSON HAS HAD A
PRIOR REVOCATION RESULTING FROM REFUSAL TO SUBMIT TO A CHEMICAL TEST, OR
HAS BEEN CONVICTED OF OR FOUND TO BE IN VIOLATION OF ANY SUBDIVISION OF
SECTION SEVENTY-NINE-D OR SECTION SEVENTY-NINE-E OF THIS ARTICLE NOT
ARISING OUT OF THE SAME INCIDENT, WITHIN THE FIVE YEARS IMMEDIATELY
PRECEDING THE DATE OF SUCH REVOCATION; PROVIDED, HOWEVER, A PRIOR FIND-
ING THAT A PERSON UNDER THE AGE OF TWENTY-ONE HAS REFUSED TO SUBMIT TO A
CHEMICAL TEST PURSUANT TO SUBDIVISION FOUR OF SECTION SEVENTY-NINE-H 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 LICENSE SUSPENSION OR REVOCATION 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.
(B) ANY PRIVILEGE TO OPERATE A VESSEL WHICH HAS BEEN REVOKED PURSUANT
TO PARAGRAPH (C) OF THIS SUBDIVISION OR PURSUANT TO SUBDIVISION FOUR OF
SECTION SEVENTY-NINE-H OF THIS ARTICLE, WHERE THE HOLDER WAS UNDER THE
AGE OF TWENTY-ONE YEARS AT THE TIME OF SUCH REFUSAL, SHALL NOT BE
RESTORED FOR AT LEAST ONE YEAR, NOR THEREAFTER, EXCEPT IN THE DISCRETION
OF THE COMMISSIONER. WHERE SUCH PERSON UNDER THE AGE OF TWENTY-ONE YEARS
HAS A PRIOR FINDING, CONVICTION OR YOUTHFUL OFFENDER ADJUDICATION
RESULTING FROM A VIOLATION OF SECTION SEVENTY-NINE-D OR SECTION SEVEN-
TY-NINE-E OF THIS ARTICLE, NOT ARISING FROM THE SAME INCIDENT, SUCH
PRIVILEGE TO OPERATE A VESSEL 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, NOR THEREAFTER, EXCEPT IN THE DISCRETION
OF THE COMMISSIONER.
(C) ANY LICENSE ISSUED TO A MASTER, PILOT, ENGINEER OR JOINT PILOT AND
ENGINEER WHICH HAS BEEN REVOKED PURSUANT TO PARAGRAPH (C) OF THIS SUBDI-
VISION BASED UPON A FINDING OF REFUSAL TO SUBMIT TO A CHEMICAL TEST,
WHERE SUCH FINDING OCCURS WITHIN OR OUTSIDE OF THIS STATE, SHALL NOT BE
RESTORED FOR AT LEAST EIGHTEEN MONTHS AFTER SUCH REVOCATION, NOR THERE-
AFTER, EXCEPT IN THE DISCRETION OF THE COMMISSIONER, BUT SHALL NOT BE
RESTORED FOR AT LEAST THREE YEARS AFTER SUCH REVOCATION, NOR THEREAFTER,
EXCEPT IN THE DISCRETION OF THE COMMISSIONER, IF THE HOLDER OF SUCH
LICENSE WAS OPERATING A VESSEL TRANSPORTING HAZARDOUS MATERIALS AT THE
TIME OF SUCH REFUSAL. HOWEVER, SUCH PERSON SHALL BE PERMANENTLY DISQUAL-
IFIED FROM OPERATING A PUBLIC VESSEL IN ANY CASE WHERE THE HOLDER HAS A
PRIOR FINDING OF REFUSAL TO SUBMIT TO A CHEMICAL TEST PURSUANT TO THIS
SECTION OR HAS A PRIOR CONVICTION OF ANY OF THE FOLLOWING OFFENSES: ANY
VIOLATION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE; OR ANY VIOLATION OF
SECTION FORTY-SEVEN OF THIS CHAPTER. PROVIDED THAT THE COMMISSIONER MAY
WAIVE SUCH PERMANENT REVOCATION AFTER A PERIOD OF TEN YEARS HAS EXPIRED
FROM SUCH REVOCATION PROVIDED:
(I) THAT DURING SUCH TEN YEAR PERIOD SUCH PERSON HAS NOT BEEN FOUND TO
HAVE REFUSED A CHEMICAL TEST PURSUANT TO THIS SECTION AND HAS NOT BEEN
CONVICTED OF ANY ONE OF THE FOLLOWING OFFENSES: ANY VIOLATION OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE; REFUSAL TO SUBMIT TO A CHEMICAL TEST
PURSUANT TO THIS SECTION; ANY VIOLATION OF SECTION FORTY-SEVEN OF THIS
CHAPTER; OR HAS A PRIOR CONVICTION OF ANY FELONY INVOLVING THE USE OF A
VESSEL PURSUANT TO SECTION SIXTY-FOUR-A OF THIS CHAPTER;
A. 9867 24
(II) THAT SUCH PERSON PROVIDES ACCEPTABLE DOCUMENTATION TO THE COMMIS-
SIONER THAT SUCH PERSON IS NOT IN NEED OF ALCOHOL OR DRUG TREATMENT OR
HAS SATISFACTORILY COMPLETED A PRESCRIBED COURSE OF SUCH TREATMENT; AND
(III) AFTER SUCH DOCUMENTATION IS ACCEPTED, THAT SUCH PERSON IS GRANT-
ED A CERTIFICATE OF RELIEF FROM DISABILITIES OR A CERTIFICATE OF GOOD
CONDUCT PURSUANT TO ARTICLE TWENTY-THREE OF THE CORRECTION LAW BY THE
COURT IN WHICH SUCH PERSON WAS LAST PENALIZED.
(D) UPON A THIRD FINDING OF REFUSAL AND/OR CONVICTION OF ANY OF THE
OFFENSES WHICH REQUIRE A PERMANENT MASTER, PILOT, ENGINEER OR JOINT
PILOT AND ENGINEER LICENSE REVOCATION, SUCH PERMANENT REVOCATION MAY NOT
BE WAIVED BY THE COMMISSIONER UNDER ANY CIRCUMSTANCES.
(2) CIVIL PENALTIES. EXCEPT AS OTHERWISE PROVIDED, ANY PERSON WHOSE
PRIVILEGE TO OPERATE A VESSEL OR ANY NON-RESIDENT OPERATING PRIVILEGE IS
REVOKED PURSUANT TO THE PROVISIONS OF THIS SECTION SHALL ALSO BE LIABLE
FOR A CIVIL PENALTY IN THE AMOUNT OF FIVE HUNDRED DOLLARS EXCEPT THAT IF
SUCH REVOCATION IS A SECOND OR SUBSEQUENT REVOCATION PURSUANT TO THIS
SECTION ISSUED WITHIN A FIVE YEAR PERIOD, OR SUCH PERSON HAS BEEN
CONVICTED OF A VIOLATION OF ANY SUBDIVISION OF SECTION SEVENTY-NINE-D OF
THIS ARTICLE WITHIN THE PAST FIVE YEARS NOT ARISING OUT OF THE SAME
INCIDENT, THE CIVIL PENALTY SHALL BE IN THE AMOUNT OF SEVEN HUNDRED
FIFTY DOLLARS. ANY PERSON WHOSE PRIVILEGE TO OPERATE A VESSEL IS
REVOKED PURSUANT TO THE PROVISIONS OF THIS SECTION BASED UPON A FINDING
OF REFUSAL TO SUBMIT TO A CHEMICAL TEST WHILE OPERATING A PUBLIC VESSEL
SHALL ALSO BE LIABLE FOR A CIVIL PENALTY OF FIVE HUNDRED FIFTY DOLLARS
EXCEPT THAT IF SUCH PERSON HAS PREVIOUSLY BEEN FOUND TO HAVE REFUSED A
CHEMICAL TEST PURSUANT TO THIS SECTION WHILE OPERATING A PUBLIC VESSEL
OR HAS A PRIOR CONVICTION OF ANY OF THE FOLLOWING OFFENSES WHILE OPERAT-
ING A PUBLIC VESSEL: ANY VIOLATION OF SECTION SEVENTY-NINE-D OF THIS
ARTICLE; ANY VIOLATION OF SECTION FORTY-SEVEN OF THIS CHAPTER; OR HAS A
PRIOR CONVICTION OF ANY FELONY INVOLVING THE USE OF A PUBLIC VESSEL
PURSUANT TO SECTION SIXTY-FOUR-A OF THIS CHAPTER, THEN THE CIVIL PENALTY
SHALL BE SEVEN HUNDRED FIFTY DOLLARS. NO NEW PRIVILEGE TO OPERATE A
VESSEL SHALL BE ISSUED, OR NON-RESIDENT OPERATING PRIVILEGE RESTORED TO
SUCH PERSON UNLESS SUCH PENALTY HAS BEEN PAID. ALL PENALTIES COLLECTED
BY THE OFFICE PURSUANT TO THE PROVISIONS OF THIS SECTION SHALL BE THE
PROPERTY OF THE STATE AND SHALL BE PAID INTO THE GENERAL FUND OF THE
STATE TREASURY.
(3) EFFECT OF REHABILITATION PROGRAM. NO PERIOD OF REVOCATION ARISING
OUT OF THIS SECTION MAY BE SET ASIDE BY THE COMMISSIONER FOR THE REASON
THAT SUCH PERSON WAS A PARTICIPANT IN THE ALCOHOL AND DRUG REHABILI-
TATION PROGRAM SET FORTH IN SECTION ELEVEN HUNDRED NINETY-SIX OF THE
VEHICLE AND TRAFFIC LAW.
(E) REGULATIONS. THE COMMISSIONER SHALL PROMULGATE SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO EFFECTUATE THE PROVISIONS OF THIS
SUBDIVISION AND SUBDIVISION ONE OF THIS SECTION.
(F) EVIDENCE. EVIDENCE OF A REFUSAL TO SUBMIT TO SUCH CHEMICAL TEST OR
ANY PORTION THEREOF SHALL BE ADMISSIBLE IN ANY TRIAL, PROCEEDING OR
HEARING BASED UPON A VIOLATION OF THE PROVISIONS OF SECTION SEVENTY-
NINE-D OF THIS ARTICLE 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 THE REFUSAL.
(G) RESULTS. UPON THE REQUEST OF THE PERSON WHO WAS TESTED, THE
RESULTS OF SUCH TEST SHALL BE MADE AVAILABLE TO SUCH PERSON.
3. COMPULSORY CHEMICAL TESTS. (A) COURT ORDERED CHEMICAL TESTS.
NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION, NO
PERSON WHO OPERATES A VESSEL UPON THE WATERS OF THE STATE MAY REFUSE TO
A. 9867 25
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 SUBDIVI-
SION.
(B) WHEN AUTHORIZED. UPON REFUSAL BY ANY PERSON TO SUBMIT TO A CHEMI-
CAL TEST OR ANY PORTION THEREOF AS DESCRIBED ABOVE, 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 SERI-
OUS PHYSICAL INJURY AS DEFINED IN SECTION 10.00 OF THE PENAL LAW; AND
(2) (A) EITHER SUCH PERSON OPERATED THE VESSEL IN VIOLATION OF ANY
SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE, OR
(B) A BREATH TEST ADMINISTERED BY A POLICE OFFICER IN ACCORDANCE WITH
PARAGRAPH (B) OF SUBDIVISION ONE 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 PARA-
GRAPH (A) OF SUBDIVISION TWO OF THIS SECTION OR IS UNABLE TO GIVE
CONSENT TO SUCH A TEST.
(C) REASONABLE CAUSE; DEFINITION. FOR THE PURPOSE OF THIS SUBDIVISION
"REASONABLE CAUSE" SHALL BE DETERMINED BY VIEWING THE TOTALITY OF
CIRCUMSTANCES SURROUNDING THE INCIDENT WHICH, WHEN TAKEN TOGETHER, INDI-
CATE THAT THE OPERATOR WAS OPERATING A VESSEL IN VIOLATION OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE. SUCH CIRCUMSTANCES MAY INCLUDE, BUT ARE
NOT LIMITED TO: EVIDENCE THAT THE OPERATOR WAS OPERATING A VESSEL IN
VIOLATION OF ANY PROVISION OF THIS ARTICLE OR ANY OTHER MOVING VIOLATION
AT THE TIME OF THE INCIDENT; ANY VISIBLE INDICATION OF ALCOHOL OR DRUG
CONSUMPTION OR IMPAIRMENT BY THE OPERATOR; THE EXISTENCE OF AN OPEN
CONTAINER CONTAINING AN ALCOHOLIC BEVERAGE IN OR AROUND THE VESSEL OPER-
ATED 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 INTOXI-
CATED AT THE TIME OF THE INCIDENT.
(D) COURT ORDER; PROCEDURE. (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 INCI-
DENT 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
A. 9867 26
UPON THE TOTALITY OF CIRCUMSTANCES, THERE IS REASONABLE CAUSE TO BELIEVE
THAT SUCH PERSON WAS OPERATING A VESSEL IN VIOLATION OF ANY SUBDIVISION
OF SECTION SEVENTY-NINE-D OF THIS ARTICLE 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 STATE-
MENT. ANY OTHER PERSON PROPERLY IDENTIFIED, MAY PRESENT SWORN ALLEGA-
TIONS 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 LONG-
HAND NOTES. IF A VOICE RECORDING DEVICE IS USED OR A STENOGRAPHIC RECORD
MADE, THE JUDGE MUST HAVE THE RECORD TRANSCRIBED, CERTIFY TO THE ACCURA-
CY 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 OR HER BLOOD AND ORDERING THE
WITHDRAWAL OF A BLOOD SAMPLE IN ACCORDANCE WITH THE PROVISIONS OF PARA-
GRAPH (A) OF SUBDIVISION FOUR 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.
(6) THE CHIEF ADMINISTRATOR OF THE COURTS SHALL ESTABLISH A SCHEDULE
TO PROVIDE THAT A SUFFICIENT NUMBER OF JUDGES OR JUSTICES WILL BE AVAIL-
ABLE IN EACH JUDICIAL DISTRICT TO HEAR ORAL APPLICATIONS FOR COURT
ORDERS AS PERMITTED BY THIS SECTION.
(E) ADMINISTRATION OF COMPULSORY CHEMICAL TEST. AN ORDER ISSUED PURSU-
ANT 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 SUBDIVISION FOUR OF THIS
SECTION SHALL BE APPLICABLE TO ANY CHEMICAL TEST ADMINISTERED PURSUANT
TO THIS SECTION.
4. TESTING PROCEDURES. (A) PERSONS AUTHORIZED TO WITHDRAW BLOOD; IMMU-
NITY; TESTIMONY. (1) AT THE REQUEST OF A POLICE OFFICER, THE FOLLOWING
PERSONS MAY WITHDRAW BLOOD FOR THE PURPOSE OF DETERMINING THE ALCOHOLIC
OR DRUG CONTENT THEREIN: (I) A PHYSICIAN, A REGISTERED PROFESSIONAL
NURSE, A REGISTERED PHYSICIAN ASSISTANT, A CERTIFIED NURSE PRACTITIONER,
OR AN ADVANCED EMERGENCY MEDICAL TECHNICIAN AS CERTIFIED BY THE DEPART-
A. 9867 27
MENT OF HEALTH; OR (II) UNDER THE SUPERVISION AND AT THE DIRECTION OF A
PHYSICIAN, REGISTERED PHYSICIAN ASSISTANT OR CERTIFIED NURSE PRACTITION-
ER ACTING WITHIN HIS OR HER LAWFUL SCOPE OF PRACTICE, OR UPON THE
EXPRESS CONSENT OF THE PERSON EIGHTEEN YEARS OF AGE OR OLDER FROM WHOM
SUCH BLOOD IS TO BE WITHDRAWN: A CLINICAL LABORATORY TECHNICIAN OR CLIN-
ICAL LABORATORY TECHNOLOGIST LICENSED PURSUANT TO ARTICLE ONE HUNDRED
SIXTY-FIVE OF THE EDUCATION LAW; A PHLEBOTOMIST; 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.
(2) NO PERSON ENTITLED TO WITHDRAW BLOOD PURSUANT TO SUBPARAGRAPH ONE
OF THIS PARAGRAPH 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 PURSUANT TO THIS SECTION.
(3) ANY PERSON WHO MAY HAVE A CAUSE OF ACTION ARISING FROM THE WITH-
DRAWAL OF BLOOD AS AFORESAID, FOR WHICH NO PERSONAL LIABILITY EXISTS
UNDER SUBPARAGRAPH TWO OF THIS PARAGRAPH, MAY MAINTAIN SUCH ACTION
AGAINST THE STATE IF ANY PERSON ENTITLED TO WITHDRAW BLOOD PURSUANT TO
THIS PARAGRAPH ACTED AT THE REQUEST OF A POLICE OFFICER EMPLOYED BY THE
STATE, OR AGAINST THE APPROPRIATE POLITICAL SUBDIVISION OF THE STATE IF
SUCH PERSON ACTED AT THE REQUEST OF A POLICE OFFICER EMPLOYED BY A POLI-
TICAL SUBDIVISION OF THE STATE. NO ACTION SHALL BE MAINTAINED PURSUANT
TO THIS SUBPARAGRAPH UNLESS NOTICE OF CLAIM IS DULY FILED OR SERVED IN
COMPLIANCE WITH LAW.
(4) NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS PARAGRAPH AN
ACTION MAY BE MAINTAINED BY THE STATE OR A POLITICAL SUBDIVISION THEREOF
AGAINST A PERSON ENTITLED TO WITHDRAW BLOOD PURSUANT TO SUBPARAGRAPH ONE
OF THIS PARAGRAPH OR HOSPITAL EMPLOYING SUCH PERSON FOR WHOSE ACT OR
OMISSION THE STATE OR THE POLITICAL SUBDIVISION HAS BEEN HELD LIABLE
UNDER THIS PARAGRAPH 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 OR BAD FAITH ON
THE PART OF SUCH PERSON.
(5) THE TESTIMONY OF ANY PERSON OTHER THAN A PHYSICIAN, ENTITLED TO
WITHDRAW BLOOD PURSUANT TO SUBPARAGRAPH ONE OF THIS PARAGRAPH, IN
RESPECT TO ANY SUCH WITHDRAWAL OF BLOOD MADE BY SUCH PERSON MAY BE
RECEIVED IN EVIDENCE WITH THE SAME WEIGHT, FORCE AND EFFECT AS IF SUCH
WITHDRAWAL OF BLOOD WERE MADE BY A PHYSICIAN.
(6) THE PROVISIONS OF SUBPARAGRAPHS TWO, THREE AND FOUR OF THIS PARA-
GRAPH 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 WITH-
DRAWING BLOOD AT THE REQUEST OF A POLICE OFFICER PURSUANT TO A COURT
ORDER IN ACCORDANCE WITH SUBDIVISION THREE OF THIS SECTION.
(B) RIGHT TO ADDITIONAL TEST. 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.
(C) RULES AND REGULATIONS. THE DEPARTMENT OF HEALTH SHALL ISSUE AND
FILE RULES AND REGULATIONS APPROVING SATISFACTORY TECHNIQUES OR METHODS
OF CONDUCTING CHEMICAL ANALYSES OF A PERSON'S BLOOD, URINE, BREATH OR
SALIVA AND TO ASCERTAIN THE QUALIFICATIONS AND COMPETENCE OF INDIVIDUALS
TO CONDUCT AND SUPERVISE CHEMICAL ANALYSES OF A PERSON'S BLOOD, URINE,
BREATH OR SALIVA. IF THE ANALYSES WERE MADE BY AN INDIVIDUAL POSSESSING
A PERMIT ISSUED BY THE DEPARTMENT OF HEALTH, THIS SHALL BE PRESUMPTIVE
EVIDENCE THAT THE EXAMINATION WAS PROPERLY GIVEN. THE PROVISIONS OF THIS
A. 9867 28
PARAGRAPH DO NOT PROHIBIT THE INTRODUCTION AS EVIDENCE OF AN ANALYSIS
MADE BY AN INDIVIDUAL OTHER THAN A PERSON POSSESSING A PERMIT ISSUED BY
THE DEPARTMENT OF HEALTH.
§ 79-H. OPERATION OF A VESSEL AFTER HAVING CONSUMED ALCOHOL; UNDER
TWENTY-ONE; PROCEDURE. 1. 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 SECTION SEVENTY-NINE-E OF THIS ARTICLE, AND SUCH
PERSON IS NOT CHARGED WITH VIOLATING ANY SUBDIVISION OF SECTION SEVEN-
TY-NINE-D 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 OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVA-
TION AND 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 HEAR-
ING NOTICE AS PROVIDED IN SUBDIVISION TWO 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 ESTAB-
LISHED 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 VEHI-
CLES DETERMINES, BASED UPON THE AVAILABILITY OF HEARING OFFICERS AND THE
ANTICIPATED VOLUME OF HEARINGS AT A PARTICULAR LOCATION, THAT THE SCHED-
ULING OF SUCH HEARING WITHIN THIRTY DAYS WOULD IMPAIR THE TIMELY SCHED-
ULING OR CONDUCTING OF OTHER HEARINGS PURSUANT TO THE VEHICLE AND TRAF-
FIC LAW, 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 MATERI-
ALS: 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 TOGETH-
ER 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 SECTION
SEVENTY-NINE-E OF THIS ARTICLE, AND WHO IS NOT CHARGED WITH VIOLATING
ANY SUBDIVISION OF SECTION SEVENTY-NINE-D 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 CHEMI-
A. 9867 29
CAL TEST MADE BY THE POLICE OFFICER IN ACCORDANCE WITH THE PROVISIONS OF
SECTION SEVENTY-NINE-G OF THIS ARTICLE; (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 SECTION SEVENTY-NINE-G OF THIS ARTICLE; (5) DID THE TEST
FIND THAT SUCH PERSON HAD OPERATED A VESSEL AFTER HAVING CONSUMED ALCO-
HOL AS DEFINED IN SECTION SEVENTY-NINE-E OF THIS ARTICLE; 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 SUBDI-
VISION 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 OR HER 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 OR HER 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 REGU-
LATIONS OF THE STATE OF NEW YORK: PARAGRAPH (B) OF SECTION 124.1 REGARD-
ING 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
RECUSAL; 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 EXERCIS-
ING 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
OR REVOKE THE PRIVILEGE TO OPERATE A VESSEL OR NON-RESIDENT OPERATING
PRIVILEGE OF SUCH PERSON IN ACCORDANCE WITH THE TIME PERIODS SET FORTH
IN SUBDIVISION TWO OF SECTION SEVENTY-NINE-F OF THIS ARTICLE. 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.
A. 9867 30
(VI) A PERSON WHO HAS HAD A PRIVILEGE TO OPERATE A VESSEL OR NON-RESI-
DENT OPERATING PRIVILEGE SUSPENDED OR REVOKED PURSUANT TO THE PROVISIONS
OF THIS SECTION MAY APPEAL THE FINDING OF THE HEARING OFFICER IN ACCORD-
ANCE 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 COMMIS-
SIONER OF MOTOR VEHICLES SHALL REPORT THE FAILURE TO APPEAR TO THE
COMMISSIONER AND SUCH COMMISSIONER SHALL SUSPEND THE PRIVILEGE TO OPER-
ATE A VESSEL OR NON-RESIDENT OPERATING PRIVILEGE UNTIL THE OPERATOR
PETITIONS THE COMMISSIONER AND A RESCHEDULED HEARING IS CONDUCTED,
PROVIDED, HOWEVER, THE COMMISSIONER SHALL RESTORE SUCH PERSON'S PRIVI-
LEGE TO OPERATE A VESSEL 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 GRANT-
ED, 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, 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 SECTION SEVENTY-NINE-E OF THIS ARTICLE. SUCH
ADMISSION OF GUILT SHALL HAVE THE SAME FORCE AND EFFECT AS A FINDING OF
GUILT ENTERED FOLLOWING A HEARING CONDUCTED PURSUANT TO THIS SUBDIVI-
SION.
2. HEARING NOTICE. THE HEARING NOTICE ISSUED TO AN OPERATOR PURSUANT
TO SUBDIVISION ONE OF THIS SECTION SHALL BE IN A FORM AS PRESCRIBED BY
THE COMMISSIONER OF MOTOR VEHICLES. IN ADDITION TO CONTAINING INFORMA-
TION CONCERNING THE TIME, DATE AND LOCATION OF THE HEARING, AND SUCH
OTHER INFORMATION AS THE COMMISSIONER OF MOTOR VEHICLES DEEMS APPROPRI-
ATE, 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.
3. CIVIL PENALTY. UNLESS OTHERWISE PROVIDED, ANY PERSON WHOSE PRIVI-
LEGE TO OPERATE A VESSEL OR ANY NON-RESIDENT OPERATING PRIVILEGE IS
SUSPENDED OR REVOKED PURSUANT TO THE PROVISIONS OF THIS SECTION SHALL
ALSO BE LIABLE FOR A CIVIL PENALTY IN THE AMOUNT OF ONE HUNDRED TWENTY-
FIVE DOLLARS. THE FIRST FIFTY DOLLARS OF EACH PENALTY COLLECTED BY THE
DEPARTMENT OF MOTOR VEHICLES PURSUANT TO THE PROVISIONS OF THIS SUBDIVI-
SION 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 FOR DEPOSIT IN THE "I LOVE NY WATERWAYS" BOATING
A. 9867 31
SAFETY FUND ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-NN OF THE STATE
FINANCE LAW.
4. REFUSAL REPORT AND HEARING. (A) ANY PERSON UNDER THE AGE OF TWEN-
TY-ONE WHO IS SUSPECTED OF OPERATING A VESSEL AFTER HAVING CONSUMED
ALCOHOL IN VIOLATION OF SECTION SEVENTY-NINE-E OF THIS ARTICLE, AND WHO
IS NOT CHARGED WITH VIOLATING ANY SUBDIVISION OF SECTION SEVENTY-NINE-D
OF THIS ARTICLE ARISING OUT OF THE SAME INCIDENT, AND WHO HAS BEEN
REQUESTED TO SUBMIT TO A CHEMICAL TEST PURSUANT TO PARAGRAPH (A) OF
SUBDIVISION TWO OF SECTION SEVENTY-NINE-G OF THIS ARTICLE AND AFTER
HAVING BEEN INFORMED THAT HIS OR HER PRIVILEGE TO OPERATE A VESSEL AND
ANY NON-RESIDENT OPERATING PRIVILEGE SHALL BE REVOKED FOR REFUSAL TO
SUBMIT TO SUCH CHEMICAL TEST OR ANY PORTION THEREOF, WHETHER OR NOT
THERE IS A FINDING OF OPERATION OF A VESSEL AFTER HAVING CONSUMED ALCO-
HOL, 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 PARTIC-
ULAR LOCATION, THAT THE SCHEDULING OF SUCH HEARING WITHIN THIRTY DAYS
WOULD IMPAIR THE TIMELY SCHEDULING OR CONDUCTING OF OTHER HEARINGS
PURSUANT TO THIS CHAPTER, 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 COMMIS-
SIONER OF MOTOR VEHICLES SHALL REPORT THE FAILURE TO APPEAR TO THE
COMMISSIONER AND SHALL SUSPEND THE PRIVILEGE TO OPERATE A VESSEL OR
NON-RESIDENT OPERATING PRIVILEGE UNTIL THE OPERATOR PETITIONS THE
COMMISSIONER AND A RESCHEDULED HEARING IS CONDUCTED, PROVIDED, HOWEVER,
THE COMMISSIONER SHALL RESTORE SUCH PERSON'S PRIVILEGE TO OPERATE A
VESSEL 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 RESCHED-
ULED 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 TRAFFIC SAFETY HAZARD; AND
PROVIDED FURTHER, THAT SUCH HEARING SHALL BE SCHEDULED FOR THE NEXT
HEARING.
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 SECTION SEVENTY-NINE-G OF THIS ARTI-
CLE; (2) WAS SUCH PERSON GIVEN SUFFICIENT WARNING, IN CLEAR OR UNEQUIV-
OCAL LANGUAGE, PRIOR TO SUCH REFUSAL THAT SUCH REFUSAL TO SUBMIT TO SUCH
A. 9867 32
CHEMICAL TEST OR ANY PORTION THEREOF, WOULD RESULT IN THE REVOCATION OF
SUCH PERSON'S PRIVILEGE TO OPERATE A VESSEL OR NON-RESIDENT 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; AND (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
SAID ISSUE IN THE NEGATIVE, THE HEARING OFFICER SHALL NOT REVOKE THE
OPERATOR'S PRIVILEGE TO OPERATE A VESSEL OR NON-RESIDENT OPERATING PRIV-
ILEGE AND SHALL IMMEDIATELY TERMINATE ANY OUTSTANDING SUSPENSION OF THE
OPERATOR'S PRIVILEGE TO OPERATE A VESSEL OR NON-RESIDENT OPERATING PRIV-
ILEGE 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 IMME-
DIATELY REVOKE PRIVILEGE TO OPERATE A VESSEL OR ANY NON-RESIDENT OPERAT-
ING PRIVILEGE IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (D) OF
SUBDIVISION TWO OF SECTION SEVENTY-NINE-G OF THIS ARTICLE. A PERSON WHO
HAS HAD A PRIVILEGE TO OPERATE A VESSEL OR NON-RESIDENT OPERATING PRIVI-
LEGE SUSPENDED OR REVOKED 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.
§ 79-I. CHEMICAL TEST EVIDENCE. 1. ADMISSIBILITY. UPON THE TRIAL OF
ANY ACTION OR PROCEEDING ARISING OUT OF ACTIONS ALLEGED TO HAVE BEEN
COMMITTED BY ANY PERSON ARRESTED FOR A VIOLATION OF ANY SUBDIVISION OF
SECTION SEVENTY-NINE-D OF THIS ARTICLE, 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 SECTION SEVENTY-NINE-G
OF THIS ARTICLE.
2. PROBATIVE VALUE. THE FOLLOWING EFFECT SHALL BE GIVEN TO EVIDENCE OF
BLOOD-ALCOHOL CONTENT, AS DETERMINED BY SUCH TESTS, OF A PERSON ARRESTED
FOR VIOLATION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE:
(A) 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;
(B) EVIDENCE THAT THERE WAS MORE THAN .05 OF ONE PER CENTUM BUT LESS
THAN .07 OF ONE PER CENTUM BY WEIGHT OF ALCOHOL 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 SHALL 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;
AND
(C) EVIDENCE THAT THERE WAS .07 OF ONE PER CENTUM OR MORE BUT LESS
THAN .08 OF ONE PER CENTUM BY WEIGHT OF ALCOHOL IN SUCH PERSON'S 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 DETER-
MINING WHETHER THE ABILITY OF SUCH PERSON TO OPERATE A VESSEL WAS
IMPAIRED BY THE CONSUMPTION OF ALCOHOL.
3. SUPPRESSION. A DEFENDANT WHO HAS BEEN COMPELLED TO SUBMIT TO A
CHEMICAL TEST PURSUANT TO THE PROVISIONS OF SUBDIVISION THREE OF SECTION
SEVENTY-NINE-G OF THIS ARTICLE 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
A. 9867 33
ADMINISTERED IN VIOLATION OF THE PROVISIONS OF SUCH SUBDIVISION OR ANY
OTHER APPLICABLE LAW.
§ 79-J. ALCOHOL AND DRUG REHABILITATION PROGRAM WITHIN THE DEPARTMENT
OF MOTOR VEHICLES. THE COMMISSIONER SHALL WORK WITH THE COMMISSIONER OF
MOTOR VEHICLES TO PROVIDE ACCESS TO THE ALCOHOL AND DRUG REHABILITATION
PROGRAM ESTABLISHED PURSUANT TO SECTION ELEVEN HUNDRED NINETY-SIX OF THE
VEHICLE AND TRAFFIC LAW TO THOSE PERSONS CONVICTED OF ALCOHOL OR DRUG-
RELATED OPERATION OF A VESSEL OFFENSES OR PERSONS WHO HAVE BEEN ADJUDI-
CATED YOUTHFUL OFFENDERS FOR ALCOHOL OR DRUG-RELATED OPERATION OF A
VESSEL OFFENSES, OR PERSONS FOUND TO HAVE BEEN OPERATING A VESSEL AFTER
HAVING CONSUMED ALCOHOL IN VIOLATION OF SECTION SEVENTY-NINE-E OF THIS
ARTICLE, WHO CHOOSE TO PARTICIPATE AND WHO SATISFY THE CRITERIA AND MEET
THE REQUIREMENTS FOR PARTICIPATION AS ESTABLISHED BY SECTION ELEVEN
HUNDRED NINETY-SIX OF THE VEHICLE AND TRAFFIC LAW AND THE REGULATIONS
PROMULGATED THEREUNDER; PROVIDED, HOWEVER, IN THE EXERCISE OF
DISCRETION, THE JUDGE IMPOSING SENTENCE MAY PROHIBIT THE DEFENDANT FROM
ENROLLING IN SUCH PROGRAM.
§ 79-K. SPECIAL OPTIONS PROGRAM FOR OPERATION OF A VESSEL WHILE INTOX-
ICATED. THE COMMISSIONER SHALL WORK WITH THE COMMISSIONER OF MOTOR VEHI-
CLES TO INCLUDE A PLAN FOR COORDINATION OF COUNTY, TOWN, CITY AND
VILLAGE EFFORTS TO REDUCE ALCOHOL-RELATED BOATING INJURIES AND FATALI-
TIES PURSUANT TO SECTION ELEVEN HUNDRED NINETY-SEVEN OF THE VEHICLE AND
TRAFFIC LAW.
§ 79-L. INSTALLATION AND OPERATION OF IGNITION INTERLOCK DEVICES. 1.
APPLICABILITY. THE PROVISIONS OF THIS SECTION SHALL APPLY THROUGHOUT THE
STATE TO EACH PERSON REQUIRED OR OTHERWISE ORDERED BY A COURT AS A
CONDITION OF PROBATION OR CONDITIONAL DISCHARGE TO INSTALL AND OPERATE
AN IGNITION INTERLOCK DEVICE IN ANY VESSEL WHICH HE OR SHE OWNS OR OPER-
ATES.
2. REQUIREMENTS. (A) IN ADDITION TO ANY OTHER PENALTIES PRESCRIBED BY
LAW, THE COURT SHALL REQUIRE THAT ANY PERSON WHO HAS BEEN CONVICTED OF A
VIOLATION OF SUBDIVISION THREE, FOUR OR FIVE OF SECTION SEVENTY-NINE-D
OF THIS ARTICLE, OR ANY CRIME DEFINED BY THIS CHAPTER OR THE PENAL LAW
OF WHICH AN ALCOHOL-RELATED VIOLATION OF ANY PROVISION OF SECTION SEVEN-
TY-NINE-D OF THIS ARTICLE IS AN ESSENTIAL ELEMENT, TO INSTALL AND MAIN-
TAIN, AS A CONDITION OF PROBATION OR CONDITIONAL DISCHARGE, A FUNCTION-
ING IGNITION INTERLOCK DEVICE IN ACCORDANCE WITH THE PROVISIONS OF THIS
SECTION AND, AS APPLICABLE, IN ACCORDANCE WITH THE PROVISIONS OF SUBDI-
VISION ONE OF SECTION SEVENTY-NINE-F OF THIS ARTICLE. FOR ANY SUCH INDI-
VIDUAL SUBJECT TO A SENTENCE OF PROBATION, INSTALLATION AND MAINTENANCE
OF SUCH IGNITION INTERLOCK DEVICE SHALL BE A CONDITION OF PROBATION.
(B) NOTHING CONTAINED IN THIS SECTION SHALL PROHIBIT A COURT, UPON
APPLICATION BY A PROBATION DEPARTMENT, FROM MODIFYING THE CONDITIONS OF
PROBATION OF ANY PERSON CONVICTED OF ANY VIOLATION SET FORTH IN PARA-
GRAPH (A) OF THIS SUBDIVISION PRIOR TO THE EFFECTIVE DATE OF THIS
SECTION, TO REQUIRE THE INSTALLATION AND MAINTENANCE OF A FUNCTIONING
IGNITION INTERLOCK DEVICE, AND SUCH PERSON SHALL THEREAFTER BE SUBJECT
TO THE PROVISIONS OF THIS SECTION.
(C) NOTHING CONTAINED IN THIS SECTION SHALL AUTHORIZE A COURT TO
SENTENCE ANY PERSON TO A PERIOD OF PROBATION OR CONDITIONAL DISCHARGE
FOR THE PURPOSE OF SUBJECTING SUCH PERSON TO THE PROVISIONS OF THIS
SECTION, UNLESS SUCH PERSON WOULD HAVE OTHERWISE BEEN SO ELIGIBLE FOR A
SENTENCE OF PROBATION OR CONDITIONAL DISCHARGE.
3. CONDITIONS. (A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE
COMMISSIONER MAY GRANT A POST-REVOCATION CONDITIONAL PRIVILEGE TO OPER-
ATE A VESSEL, AS SET FORTH IN PARAGRAPH (B) OF THIS SUBDIVISION, TO A
A. 9867 34
PERSON WHO HAS BEEN CONVICTED OF A VIOLATION OF SUBDIVISION THREE, FOUR
OR FIVE OF SECTION SEVENTY-NINE-D OF THIS ARTICLE AND WHO HAS BEEN
SENTENCED TO A PERIOD OF PROBATION OR CONDITIONAL DISCHARGE, PROVIDED
THE PERSON HAS SATISFIED THE MINIMUM PERIOD OF THE REVOCATION OF THE
PRIVILEGE TO OPERATE A VESSEL ESTABLISHED BY LAW AND THE COMMISSIONER
HAS BEEN NOTIFIED THAT SUCH PERSON MAY OPERATE ONLY A VESSEL EQUIPPED
WITH A FUNCTIONING IGNITION INTERLOCK DEVICE. IN EXERCISING DISCRETION
RELATING TO THE ISSUANCE OF A POST-REVOCATION CONDITIONAL PRIVILEGE TO
OPERATE A VESSEL PURSUANT TO THIS SUBDIVISION, THE COMMISSIONER SHALL
NOT DENY SUCH ISSUANCE BASED SOLELY UPON THE NUMBER OF CONVICTIONS FOR
VIOLATIONS OF ANY SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE
COMMITTED BY SUCH PERSON WITHIN THE TEN YEARS PRIOR TO APPLICATION FOR
SUCH PRIVILEGE TO OPERATE A VESSEL. UPON THE TERMINATION OF THE PERIOD
OF PROBATION OR CONDITIONAL DISCHARGE SET BY THE COURT, THE PERSON MAY
APPLY TO THE COMMISSIONER FOR RESTORATION OF A PRIVILEGE TO OPERATE A
VESSEL IN ACCORDANCE WITH THIS CHAPTER.
(B) NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THIS CHAPTER, A
POST-REVOCATION CONDITIONAL PRIVILEGE TO OPERATE A VESSEL GRANTED PURSU-
ANT TO PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE VALID ONLY FOR USE BY
THE HOLDER THEREOF: (1) ENROUTE TO AND FROM THE HOLDER'S PLACE OF
EMPLOYMENT; (2) IF THE HOLDER'S EMPLOYMENT REQUIRES THE OPERATION OF A
VESSEL THEN DURING THE HOURS THEREOF; (3) ENROUTE TO AND FROM A CLASS OR
COURSE AT AN ACCREDITED SCHOOL, COLLEGE OR UNIVERSITY OR AT A STATE
APPROVED INSTITUTION OF VOCATIONAL OR TECHNICAL TRAINING; (4) TO AND
FROM COURT ORDERED PROBATION ACTIVITIES; (5) TO AND FROM AN OFFICE FOR
THE TRANSACTION OF BUSINESS RELATING TO SUCH PRIVILEGE TO OPERATE A
VESSEL; (6) FOR A THREE HOUR CONSECUTIVE DAYTIME PERIOD, CHOSEN BY THE
OFFICE, ON A DAY DURING WHICH THE PARTICIPANT IS NOT ENGAGED IN USUAL
EMPLOYMENT OR VOCATION; (7) ENROUTE TO AND FROM A MEDICAL EXAMINATION OR
TREATMENT AS PART OF A NECESSARY MEDICAL TREATMENT FOR SUCH PARTICIPANT
OR MEMBER OF THE PARTICIPANT'S HOUSEHOLD, AS EVIDENCED BY A WRITTEN
STATEMENT TO THAT EFFECT FROM A LICENSED MEDICAL PRACTITIONER; (8)
ENROUTE TO AND FROM A CLASS OR AN ACTIVITY WHICH IS AN AUTHORIZED PART
OF THE ALCOHOL AND DRUG REHABILITATION PROGRAM AND AT WHICH PARTIC-
IPANT'S ATTENDANCE IS REQUIRED; AND (9) ENROUTE TO AND FROM A PLACE,
INCLUDING A SCHOOL, AT WHICH A CHILD OR CHILDREN OF THE PARTICIPANT ARE
CARED FOR ON A REGULAR BASIS AND WHICH IS NECESSARY FOR THE PARTICIPANT
TO MAINTAIN SUCH PARTICIPANT'S EMPLOYMENT OR ENROLLMENT AT AN ACCREDITED
SCHOOL, COLLEGE OR UNIVERSITY OR AT A STATE APPROVED INSTITUTION OF
VOCATIONAL OR TECHNICAL TRAINING.
(C) THE POST-REVOCATION CONDITIONAL PRIVILEGE TO OPERATE A VESSEL
DESCRIBED IN THIS SUBDIVISION MAY BE REVOKED BY THE COMMISSIONER FOR
SUFFICIENT CAUSE INCLUDING BUT NOT LIMITED TO, FAILURE TO COMPLY WITH
THE TERMS OF THE CONDITION OF PROBATION OR CONDITIONAL DISCHARGE SET
FORTH BY THE COURT, CONVICTION OF ANY OPERATION OF A VESSEL OFFENSE
OTHER THAN ONE INVOLVING A CONVICTION OF ANY ALCOHOL OR DRUG-RELATED
OFFENSE, MISDEMEANOR OR FELONY OR FAILURE TO INSTALL OR MAINTAIN A COURT
ORDERED IGNITION INTERLOCK DEVICE.
(D) NOTHING CONTAINED HEREIN SHALL PROHIBIT THE COURT FROM REQUIRING,
AS A CONDITION OF PROBATION OR CONDITIONAL DISCHARGE, THE INSTALLATION
OF A FUNCTIONING IGNITION INTERLOCK DEVICE IN ANY VESSEL OWNED OR OPER-
ATED BY A PERSON SENTENCED FOR A VIOLATION OF SUBDIVISION THREE, FOUR,
OR FIVE OF SECTION SEVENTY-NINE-D OF THIS ARTICLE, OR ANY CRIME DEFINED
BY THIS CHAPTER OR THE PENAL LAW OF WHICH AN ALCOHOL-RELATED VIOLATION
OF ANY PROVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE IS AN ESSEN-
TIAL ELEMENT, IF THE COURT IN ITS DISCRETION, DETERMINES THAT SUCH A
A. 9867 35
CONDITION IS NECESSARY TO ENSURE THE PUBLIC SAFETY. IMPOSITION OF AN
IGNITION INTERLOCK CONDITION SHALL IN NO WAY LIMIT THE EFFECT OF ANY
PERIOD OF SUSPENSION OR REVOCATION OF A PRIVILEGE TO OPERATE A VESSEL
SET FORTH BY THE COMMISSIONER OR THE COURT.
(E) NOTHING CONTAINED HEREIN SHALL PREVENT THE COURT FROM APPLYING ANY
OTHER CONDITIONS OF PROBATION OR CONDITIONAL DISCHARGE ALLOWED BY LAW,
INCLUDING TREATMENT FOR ALCOHOL OR DRUG ABUSE, RESTITUTION AND COMMUNITY
SERVICE.
(F) THE COMMISSIONER SHALL NOTE ON THE OPERATOR'S RECORD OF ANY PERSON
RESTRICTED PURSUANT TO THIS SECTION THAT, IN ADDITION TO ANY OTHER
RESTRICTIONS, CONDITIONS OR LIMITATIONS, SUCH PERSON MAY OPERATE ONLY A
VESSEL EQUIPPED WITH AN IGNITION INTERLOCK DEVICE.
4. PROOF OF COMPLIANCE AND RECORDING OF CONDITION. (A) FOLLOWING IMPO-
SITION BY THE COURT OF THE USE OF AN IGNITION INTERLOCK DEVICE AS A
CONDITION OF PROBATION OR CONDITIONAL DISCHARGE IT SHALL REQUIRE THE
PERSON TO PROVIDE PROOF OF COMPLIANCE WITH THIS SECTION TO THE COURT AND
THE PROBATION DEPARTMENT OR OTHER MONITOR WHERE SUCH PERSON IS UNDER
PROBATION OR CONDITIONAL DISCHARGE SUPERVISION. IF THE PERSON FAILS TO
PROVIDE FOR SUCH PROOF OF INSTALLATION, ABSENT A FINDING BY THE COURT OF
GOOD CAUSE FOR THAT FAILURE WHICH IS ENTERED IN THE RECORD, THE COURT
MAY REVOKE, MODIFY, OR TERMINATE THE PERSON'S SENTENCE OF PROBATION OR
CONDITIONAL DISCHARGE AS PROVIDED UNDER LAW. GOOD CAUSE MAY INCLUDE A
FINDING THAT THE PERSON IS NOT THE OWNER OF A VESSEL IF SUCH PERSON
ASSERTS UNDER OATH THAT SUCH PERSON IS NOT THE OWNER OF ANY VESSEL AND
THAT HE OR SHE WILL NOT OPERATE ANY VESSEL DURING THE PERIOD OF INTER-
LOCK RESTRICTION EXCEPT AS MAY BE OTHERWISE AUTHORIZED PURSUANT TO LAW.
"OWNER" SHALL HAVE THE SAME MEANING AS PROVIDED IN SECTION ONE HUNDRED
TWENTY-EIGHT OF THE VEHICLE AND TRAFFIC LAW.
(B) WHEN A COURT IMPOSES THE CONDITION SPECIFIED IN SUBDIVISION ONE OF
THIS SECTION, THE COURT SHALL NOTIFY THE COMMISSIONER IN SUCH MANNER AS
THE COMMISSIONER MAY PRESCRIBE, AND THE COMMISSIONER SHALL NOTE SUCH
CONDITION ON THE OPERATING RECORD OF THE PERSON SUBJECT TO SUCH CONDI-
TIONS.
5. COST, INSTALLATION AND MAINTENANCE. (A) THE COST OF INSTALLING AND
MAINTAINING THE IGNITION INTERLOCK DEVICE SHALL BE BORNE BY THE PERSON
SUBJECT TO SUCH CONDITION UNLESS THE COURT DETERMINES SUCH PERSON IS
FINANCIALLY UNABLE TO AFFORD SUCH COST WHEREUPON SUCH COST MAY BE
IMPOSED PURSUANT TO A PAYMENT PLAN OR WAIVED. IN THE EVENT OF SUCH WAIV-
ER, THE COST OF THE DEVICE SHALL BE BORNE IN ACCORDANCE WITH REGULATIONS
ISSUED UNDER PARAGRAPH (G) OF SUBDIVISION ONE OF SECTION SEVENTY-NINE-F
OF THIS ARTICLE OR PURSUANT TO SUCH OTHER AGREEMENT AS MAY BE ENTERED
INTO FOR PROVISION OF THE DEVICE. SUCH COST SHALL BE CONSIDERED A FINE
FOR THE PURPOSES OF SUBDIVISION FIVE OF SECTION 420.10 OF THE CRIMINAL
PROCEDURE LAW. SUCH COST SHALL NOT REPLACE, BUT SHALL INSTEAD BE IN
ADDITION TO, ANY FINES, SURCHARGES, OR OTHER COSTS IMPOSED PURSUANT TO
THIS CHAPTER OR OTHER APPLICABLE LAWS.
(B) THE INSTALLATION AND SERVICE PROVIDER OF THE DEVICE SHALL BE
RESPONSIBLE FOR THE INSTALLATION, CALIBRATION, AND MAINTENANCE OF SUCH
DEVICE.
6. CERTIFICATION. (A) THE COMMISSIONER OF THE DEPARTMENT OF HEALTH
SHALL APPROVE IGNITION INTERLOCK DEVICES FOR INSTALLATION PURSUANT TO
SUBDIVISION ONE OF THIS SECTION AND SHALL PUBLISH A LIST OF APPROVED
DEVICES.
(B) AFTER CONSULTATION WITH MANUFACTURERS OF IGNITION INTERLOCK
DEVICES AND THE COMMISSIONER, THE COMMISSIONER OF THE DEPARTMENT OF
HEALTH, IN CONSULTATION WITH THE OFFICE OF PROBATION AND CORRECTIONAL
A. 9867 36
ALTERNATIVES, SHALL PROMULGATE REGULATIONS REGARDING STANDARDS FOR, AND
USE OF, IGNITION INTERLOCK DEVICES. SUCH STANDARDS SHALL INCLUDE
PROVISIONS FOR SETTING A MINIMUM AND MAXIMUM CALIBRATION RANGE AND SHALL
INCLUDE, BUT NOT BE LIMITED TO, REQUIREMENTS THAT THE DEVICES:
(1) HAVE FEATURES THAT MAKE CIRCUMVENTING DIFFICULT AND THAT DO NOT
INTERFERE WITH THE NORMAL OR SAFE OPERATION OF THE VESSEL;
(2) WORK ACCURATELY AND RELIABLY IN AN UNSUPERVISED ENVIRONMENT;
(3) RESIST TAMPERING AND GIVE EVIDENCE IF TAMPERING IS ATTEMPTED;
(4) MINIMIZE INCONVENIENCE TO A SOBER USER;
(5) REQUIRE A PROPER, DEEP, LUNG BREATH SAMPLE OR OTHER ACCURATE MEAS-
URE OF BLOOD ALCOHOL CONTENT EQUIVALENCE;
(6) OPERATE RELIABLY OVER THE RANGE OF VESSEL ENVIRONMENTS;
(7) CORRELATE WELL WITH PERMISSIBLE LEVELS OF ALCOHOL CONSUMPTION AS
MAY BE ESTABLISHED BY THE SENTENCING COURT OR BY ANY PROVISION OF LAW;
AND
(8) ARE MANUFACTURED BY A PARTY COVERED BY PRODUCT LIABILITY INSUR-
ANCE.
(C) THE COMMISSIONER OF THE DEPARTMENT OF HEALTH MAY, IN HIS OR HER
DISCRETION, ADOPT IN WHOLE OR RELEVANT PART, THE GUIDELINES, RULES,
REGULATIONS, STUDIES, OR INDEPENDENT LABORATORY TESTS PERFORMED ON AND
RELIED UPON FOR THE CERTIFICATION OR APPROVAL OF IGNITION INTERLOCK
DEVICES BY OTHER STATES, THEIR AGENCIES OR COMMISSIONS.
7. USE OF OTHER VESSELS. (A) ANY REQUIREMENT OF THIS ARTICLE OR THE
PENAL LAW THAT A PERSON OPERATE A VESSEL ONLY IF IT IS EQUIPPED WITH AN
IGNITION INTERLOCK DEVICE SHALL APPLY TO EVERY VESSEL OPERATED BY THAT
PERSON INCLUDING, BUT NOT LIMITED TO, VESSELS THAT ARE LEASED, RENTED OR
LOANED.
(B) NO PERSON SHALL KNOWINGLY RENT, LEASE, OR LEND A VESSEL TO A
PERSON KNOWN TO HAVE HAD HIS OR HER PRIVILEGE TO OPERATE A VESSEL
RESTRICTED TO VESSELS EQUIPPED WITH AN IGNITION INTERLOCK DEVICE UNLESS
THE VESSEL IS SO EQUIPPED. ANY PERSON WHOSE PRIVILEGE TO OPERATE A
VESSEL IS SO RESTRICTED SHALL NOTIFY ANY OTHER PERSON WHO RENTS, LEASES,
OR LOANS A VESSEL TO HIM OR HER OF SUCH OPERATING RESTRICTION.
(C) ANY VIOLATION OF PARAGRAPH (A) OR (B) OF THIS SUBDIVISION SHALL BE
A MISDEMEANOR.
8. EMPLOYER VESSEL. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE
AND PARAGRAPH (D) OF SUBDIVISION NINE OF THIS SECTION, IF A PERSON IS
REQUIRED TO OPERATE A VESSEL OWNED BY SAID PERSON'S EMPLOYER IN THE
COURSE AND SCOPE OF HIS OR HER EMPLOYMENT, THE PERSON MAY OPERATE THAT
VESSEL WITHOUT INSTALLATION OF AN APPROVED IGNITION INTERLOCK DEVICE
ONLY IN THE COURSE AND SCOPE OF SUCH EMPLOYMENT AND ONLY IF THE EMPLOYER
HAS BEEN NOTIFIED THAT THE PERSON'S PRIVILEGE TO OPERATE A VESSEL HAS
BEEN RESTRICTED UNDER THE PROVISIONS OF THIS ARTICLE OR THE PENAL LAW
AND THE PERSON WHOSE PRIVILEGE TO OPERATE A VESSEL HAS BEEN SO
RESTRICTED HAS PROVIDED THE COURT AND PROBATION DEPARTMENT WITH WRITTEN
DOCUMENTATION INDICATING THE EMPLOYER HAS KNOWLEDGE OF THE RESTRICTION
IMPOSED AND HAS GRANTED PERMISSION FOR THE PERSON TO OPERATE THE EMPLOY-
ER'S VESSEL WITHOUT THE DEVICE ONLY FOR BUSINESS PURPOSES. THE PERSON
SHALL NOTIFY THE COURT AND THE PROBATION DEPARTMENT OF HIS OR HER INTEN-
TION TO SO OPERATE THE EMPLOYER'S VESSEL. A VESSEL OWNED BY A BUSINESS
ENTITY WHEN SUCH BUSINESS ENTITY IS ALL OR PARTLY OWNED OR CONTROLLED BY
A PERSON OTHERWISE SUBJECT TO THE PROVISIONS OF THIS ARTICLE OR THE
PENAL LAW IS NOT A VESSEL OWNED BY THE EMPLOYER FOR PURPOSES OF THE
EXEMPTION PROVIDED IN THIS SUBDIVISION. THE PROVISIONS OF THIS SUBDIVI-
SION SHALL APPLY ONLY TO THE OPERATION OF SUCH VESSEL IN THE SCOPE OF
SUCH EMPLOYMENT.
A. 9867 37
9. CIRCUMVENTION OF INTERLOCK DEVICE. (A) NO PERSON WHOSE PRIVILEGE TO
OPERATE A VESSEL IS RESTRICTED PURSUANT TO THIS ARTICLE SHALL REQUEST,
SOLICIT OR ALLOW ANY OTHER PERSON TO BLOW INTO AN IGNITION INTERLOCK
DEVICE, OR TO START A VESSEL EQUIPPED WITH THE DEVICE, FOR THE PURPOSE
OF PROVIDING THE PERSON SO RESTRICTED WITH AN OPERABLE VESSEL.
(B) NO PERSON SHALL BLOW INTO AN IGNITION INTERLOCK DEVICE OR START A
VESSEL EQUIPPED WITH THE DEVICE FOR THE PURPOSE OF PROVIDING AN OPERABLE
VESSEL TO A PERSON WHOSE PRIVILEGE TO OPERATE A VESSEL IS SO RESTRICTED.
(C) NO PERSON SHALL TAMPER WITH OR CIRCUMVENT AN OTHERWISE OPERABLE
IGNITION INTERLOCK DEVICE.
(D) NO PERSON SUBJECT TO A COURT ORDERED IGNITION INTERLOCK DEVICE
SHALL OPERATE A VESSEL WITHOUT SUCH DEVICE.
(E) IN ADDITION TO ANY OTHER PROVISIONS OF LAW, ANY PERSON CONVICTED
OF A VIOLATION OF PARAGRAPH (A), (B), (C), OR (D) OF THIS SUBDIVISION
SHALL BE GUILTY OF A CLASS A MISDEMEANOR.
10. WARNING LABEL. THE DEPARTMENT OF HEALTH SHALL DESIGN A WARNING
LABEL WHICH THE MANUFACTURER SHALL AFFIX TO EACH IGNITION INTERLOCK
DEVICE UPON INSTALLATION IN THE STATE. THE LABEL SHALL CONTAIN A WARNING
THAT ANY PERSON TAMPERING, CIRCUMVENTING, OR OTHERWISE MISUSING THE
DEVICE IS GUILTY OF A MISDEMEANOR AND MAY BE SUBJECT TO CIVIL LIABILITY.
§ 79-M. SPECIAL PROCEDURES AND DISPOSITION INVOLVING ALCOHOL AND
SUBSTANCE ABUSE ASSESSMENT AND TREATMENT. 1. DEFINITIONS. FOR PURPOSES
OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(A) "ALCOHOL AND SUBSTANCE ABUSE PROFESSIONAL" SHALL MEAN PERSONS
CREDENTIALED BY THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES TO
PROVIDE ALCOHOL AND SUBSTANCE ABUSE SERVICES PURSUANT TO THE MENTAL
HYGIENE LAW AND PERSONS LICENSED BY THE STATE EDUCATION DEPARTMENT IN AN
APPROPRIATE HEALTH FIELD, INCLUDING LICENSED CLINICAL SOCIAL WORKER,
LICENSED MASTER SOCIAL WORKER, LICENSED MENTAL HEALTH COUNSELOR, NURSE
PRACTITIONER, PHYSICIAN, PHYSICIAN'S ASSISTANT, PSYCHIATRIST, PSYCHOL-
OGIST, AND REGISTERED NURSE.
(B) "LICENSED AGENCY" SHALL MEAN AN AGENCY LICENSED BY THE OFFICE OF
ALCOHOLISM AND SUBSTANCE ABUSE SERVICES TO PROVIDE ALCOHOL AND SUBSTANCE
ABUSE SERVICES PURSUANT TO THE MENTAL HYGIENE LAW.
2. PROCEDURE. (A) MANDATORY SCREENING; WHEN AUTHORIZED. UPON THE
ARRAIGNMENT OF, OR AT THE DISCRETION OF THE COURT, PRIOR TO THE SENTENC-
ING OF ANY PERSON WHO (I) AT ARRAIGNMENT IS CHARGED WITH OR PRIOR TO
SENTENCING CONVICTED OF A FIRST VIOLATION OF OPERATING A VESSEL IN
VIOLATION OF SUBDIVISION TWO, THREE OR FIVE OR PARAGRAPH (B) OF SUBDIVI-
SION FOUR OF SECTION SEVENTY-NINE-D OF THIS ARTICLE WHILE SUCH PERSON
HAS LESS THAN .15 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 PURSUANT TO THE PROVISIONS OF SECTION
SEVENTY-NINE-G OF THIS ARTICLE, OR IN VIOLATION OF SUBDIVISION SIX OF
SECTION SEVENTY-NINE-D OF THIS ARTICLE, OR (II) HAS REFUSED TO SUBMIT TO
A CHEMICAL TEST PURSUANT TO SECTION SEVENTY-NINE-G OF THIS ARTICLE, THE
COURT SHALL ORDER SUCH PERSON TO SUBMIT TO SCREENING FOR ALCOHOL OR
SUBSTANCE ABUSE AND DEPENDENCY USING A STANDARDIZED WRITTEN SCREENING
INSTRUMENT DEVELOPED BY THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE
SERVICES, TO BE ADMINISTERED BY AN ALCOHOL OR SUBSTANCE ABUSE PROFES-
SIONAL.
(B) MANDATORY ASSESSMENT; WHEN AUTHORIZED. THE COURT SHALL ORDER A
DEFENDANT TO UNDERGO A FORMAL ALCOHOL OR SUBSTANCE ABUSE AND DEPENDENCY
ASSESSMENT BY AN ALCOHOL OR SUBSTANCE ABUSE PROFESSIONAL OR A LICENSED
AGENCY: (I) WHEN THE SCREENING REQUIRED BY PARAGRAPH (A) OF THIS SUBDI-
VISION INDICATES THAT A DEFENDANT IS ABUSING OR DEPENDENT UPON ALCOHOL
A. 9867 38
OR DRUGS; (II) FOLLOWING THE ARRAIGNMENT OF ANY PERSON CHARGED WITH OR,
AT THE DISCRETION OF THE COURT, PRIOR TO THE SENTENCING OF ANY PERSON
CONVICTED OF A VIOLATION OF SUBDIVISION TWO, THREE, FIVE, SIX OR SEVEN
OF SECTION SEVENTY-NINE-D OF THIS ARTICLE AFTER HAVING BEEN CONVICTED OF
A VIOLATION OF ANY SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE
OR OF VEHICULAR ASSAULT IN THE SECOND OR FIRST DEGREE, AS DEFINED,
RESPECTIVELY, IN SECTIONS 120.03 AND 120.04 OF THE PENAL LAW OR OF
AGGRAVATED VEHICULAR ASSAULT, AS DEFINED IN SECTION 120.04-A OF SUCH LAW
OR OF VEHICULAR MANSLAUGHTER IN THE SECOND OR FIRST DEGREE, AS DEFINED,
RESPECTIVELY, IN SECTIONS 125.12 AND 125.13 OF SUCH LAW OR OF AGGRAVATED
VEHICULAR HOMICIDE, AS DEFINED IN SECTION 125.14 OF SUCH LAW WITHIN THE
PRECEDING FIVE YEARS OR AFTER HAVING BEEN CONVICTED OF A VIOLATION OF
ANY SUBDIVISION OF SECTION SEVENTY-NINE-D OF THIS ARTICLE OR OF VEHICU-
LAR ASSAULT IN THE SECOND OR FIRST DEGREE, AS DEFINED, RESPECTIVELY, IN
SECTIONS 120.03 AND 120.04 OF THE PENAL LAW OR OF AGGRAVATED VEHICULAR
ASSAULT, AS DEFINED IN SECTION 120.04-A OF THE PENAL LAW OR OF VEHICULAR
MANSLAUGHTER IN THE SECOND OR FIRST DEGREE, AS DEFINED, RESPECTIVELY, IN
SECTIONS 125.12 AND 125.13 OF THE PENAL LAW OR OF AGGRAVATED VEHICULAR
HOMICIDE, AS DEFINED IN SECTION 125.14 OF SUCH LAW, TWO OR MORE TIMES
WITHIN THE PRECEDING TEN YEARS; OR (III) FOLLOWING THE ARRAIGNMENT OF
ANY PERSON CHARGED WITH OR, AT THE DISCRETION OF THE COURT, PRIOR TO THE
SENTENCING OF ANY PERSON CONVICTED OF OPERATING A VESSEL IN VIOLATION OF
SUBDIVISION THREE OR FIVE OR PARAGRAPH (B) OF SUBDIVISION FOUR OF
SECTION SEVENTY-NINE-D OF THIS ARTICLE WHILE SUCH PERSON HAS .15 OF ONE
PER CENTUM OR MORE BY WEIGHT OF ALCOHOL IN THE PERSON'S BLOOD AS SHOWN
BY A CHEMICAL ANALYSIS OF SUCH PERSON'S BLOOD, BREATH, URINE OR SALIVA
MADE PURSUANT TO THE PROVISIONS OF SECTION SEVENTY-NINE-G OF THIS ARTI-
CLE OR IN VIOLATION OF PARAGRAPH (A) OF SUBDIVISION FOUR OF SECTION
SEVENTY-NINE-D OF THIS ARTICLE.
(C) MANDATORY ASSESSMENT; PROCEDURE. THE ASSESSMENT ORDERED BY A COURT
PURSUANT TO THIS SECTION SHALL BE PERFORMED BY AN ALCOHOL OR SUBSTANCE
ABUSE PROFESSIONAL OR A LICENSED AGENCY WHICH SHALL FORWARD THE RESULTS,
IN WRITING, TO THE COURT AND TO THE DEFENDANT OR HIS OR HER COUNSEL
WITHIN THIRTY DAYS OF THE DATE OF SUCH ORDER.
3. AUTHORIZED DISPOSITION. WHEN A SENTENCE OF PROBATION OR A CONDI-
TIONAL DISCHARGE IS IMPOSED UPON A PERSON WHO HAS BEEN REQUIRED TO
UNDERGO AN ALCOHOL OR SUBSTANCE ABUSE AND DEPENDENCY ASSESSMENT PURSUANT
TO SUBDIVISION TWO OF THIS SECTION AND WHERE SUCH ASSESSMENT INDICATES
THAT SUCH PERSON IS IN NEED OF TREATMENT FOR ALCOHOL OR SUBSTANCE ABUSE
OR DEPENDENCY, THE COURT SHALL REQUIRE, AS A CONDITION OF SUCH SENTENCE,
THAT SUCH PERSON PARTICIPATE IN AND SUCCESSFULLY COMPLETE SUCH TREAT-
MENT. SUCH TREATMENT SHALL BE PROVIDED BY AN ALCOHOL OR SUBSTANCE ABUSE
PROFESSIONAL OR A LICENSED AGENCY.
4. ANY CASE WHEREIN A COURT HAS ACCEPTED A PLEA PURSUANT TO THE
PROVISIONS OF SUBPARAGRAPH (II) OF PARAGRAPH (A) OF SUBDIVISION THIRTEEN
OF SECTION SEVENTY-NINE-D OF THIS ARTICLE AND SUCH PLEA INCLUDES AS A
CONDITION THEREOF THAT THE DEFENDANT ATTEND AND COMPLETE THE ALCOHOL AND
DRUG REHABILITATION PROGRAM ESTABLISHED PURSUANT TO SECTION SEVENTY-
NINE-J OF THIS ARTICLE, INCLUDING ANY ASSESSMENT AND TREATMENT REQUIRED
THEREBY, SHALL BE DEEMED TO BE IN COMPLIANCE WITH THE PROVISIONS OF THIS
SECTION.
5. THE CHIEF ADMINISTRATOR OF THE OFFICE OF COURT ADMINISTRATION SHALL
MAKE AVAILABLE TO ALL COURTS IN THIS STATE WITH JURISDICTION IN CRIMINAL
CASES A LIST OF ALCOHOL AND SUBSTANCE ABUSE PROFESSIONALS AND LICENSED
AGENCIES AS PROVIDED BY THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE
A. 9867 39
SERVICES PURSUANT TO SUBDIVISION (G) OF SECTION 19.07 OF THE MENTAL
HYGIENE LAW.
6. CONFIDENTIALITY OF RECORDS. (A) THE RECORDS AND CONTENT OF ALL
SCREENINGS, ASSESSMENTS AND TREATMENT CONDUCTED PURSUANT TO THIS
SECTION, INCLUDING THE IDENTITY, DIAGNOSIS AND PROGNOSIS OF EACH INDI-
VIDUAL WHO IS THE SUBJECT OF SUCH RECORDS, AND INCLUDING ANY STATEMENTS
OR ADMISSIONS OF SUCH INDIVIDUAL MADE DURING THE COURSE OF SUCH SCREEN-
INGS, ASSESSMENTS AND TREATMENT, SHALL BE CONFIDENTIAL, SHALL NOT BE
DISCLOSED EXCEPT AS AUTHORIZED BY THIS SUBDIVISION, AND SHALL NOT BE
ENTERED OR RECEIVED AS EVIDENCE AT ANY CIVIL, CRIMINAL OR ADMINISTRATIVE
TRIAL, HEARING OR PROCEEDING. NO PERSON, OTHER THAN A DEFENDANT TO WHOM
SUCH RECORDS ARE DISCLOSED, MAY REDISCLOSE SUCH RECORDS.
(B) CONSISTENT WITH SECTION 290 DD-2 OF TITLE 42 OF THE UNITED STATES
CODE, AS SUCH LAW MAY, FROM TIME TO TIME, BE AMENDED, SUCH RECORDS AND
CONTENT MAY ONLY BE DISCLOSED AS FOLLOWS:
(I) TO A COURT FOR THE SOLE PURPOSE OF REQUIRING A DEFENDANT CHARGED
WITH OR CONVICTED OF A VIOLATION OF SUBDIVISION TWO, THREE, FOUR, FIVE,
SIX, OR SEVEN OF SECTION SEVENTY-NINE-D OF THIS ARTICLE TO UNDERGO ALCO-
HOL OR SUBSTANCE ABUSE OR DEPENDENCY ASSESSMENT OR TREATMENT;
(II) TO THE DEFENDANT OR HIS OR HER AUTHORIZED REPRESENTATIVE; AND
(III) TO MEDICAL PERSONNEL TO THE EXTENT NECESSARY TO MEET A BONA FIDE
MEDICAL EMERGENCY.
7. EFFECT OF COMPLETION OF TREATMENT. EXCEPT AS PROVIDED IN SUBPARA-
GRAPH (IX) OF PARAGRAPH (B) OF SUBDIVISION THREE OF SECTION SEVENTY-
NINE-F OR IN SUBPARAGRAPH THREE OF PARAGRAPH (D) OF SUBDIVISION TWO OF
SECTION SEVENTY-NINE-G OF THIS ARTICLE, UPON SUCCESSFUL COMPLETION OF
TREATMENT ORDERED PURSUANT TO THIS SECTION AS CERTIFIED BY THE ALCOHOL
OR SUBSTANCE ABUSE PROFESSIONAL OR LICENSED AGENCY WHICH PROVIDED SUCH
TREATMENT, THE DEFENDANT MAY APPLY TO THE COMMISSIONER ON A FORM
PROVIDED FOR THAT PURPOSE, FOR THE TERMINATION OF THE SUSPENSION OR
REVOCATION ORDER ISSUED AS A RESULT OF THE DEFENDANT'S CONVICTION. IN
THE EXERCISE OF DISCRETION, UPON RECEIPT OF SUCH APPLICATION, AND UPON
PAYMENT OF ANY CIVIL PENALTIES FOR WHICH THE DEFENDANT MAY BE LIABLE,
THE COMMISSIONER IS AUTHORIZED TO TERMINATE SUCH ORDER OR ORDERS AND
RETURN THE DEFENDANT'S PRIVILEGE TO OPERATE A VESSEL IN THIS STATE.
HOWEVER, THE COMMISSIONER SHALL NOT ISSUE ANY NEW PRIVILEGE TO OPERATE A
VESSEL NOR RESTORE ANY SUCH PRIVILEGE WHERE SAID ISSUANCE OR RESTORATION
IS PROHIBITED BY SUBDIVISION THREE OF SECTION SEVENTY-NINE-F OF THIS
ARTICLE.
§ 79-N. DRIVER AND BOATER RESPONSIBILITY ASSESSMENT. THE COMMISSIONER
SHALL WORK WITH THE COMMISSIONER OF MOTOR VEHICLES TO PROVIDE ACCESS TO
THE DRIVER AND BOATER RESPONSIBILITY ASSESSMENT AS PROVIDED IN SECTION
ELEVEN HUNDRED NINETY-NINE OF THE VEHICLE AND TRAFFIC LAW.
§ 2. Section 1196 of the vehicle and traffic law is amended by adding
a new subdivision 8 to read as follows:
8. THE PROVISIONS OF THIS SECTION SHALL ALSO BE APPLICABLE TO ANY
PERSON CONVICTED OF ANY VIOLATION OF SECTION SEVENTY-NINE-D OF THE NAVI-
GATION LAW, OR ANY PERSON FOUND TO HAVE REFUSED A CHEMICAL TEST IN
ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE NAVIGATION LAW.
§ 3. Section 1197 of the vehicle and traffic law is amended by adding
a new subdivision 11 to read as follows:
11. THE PROVISIONS OF THIS SECTION SHALL ALSO BE APPLICABLE TO PERTI-
NENT PROVISIONS OF ARTICLE FOUR-B OF THE NAVIGATION LAW.
§ 4. Section 1199 of the vehicle and traffic law, as added by section
1 of part E of chapter 59 of the laws of 2004, is amended to read as
follows:
A. 9867 40
§ 1199. Driver AND BOATER responsibility assessment. 1. In addition to
any fines, fees, penalties and surcharges authorized by law, any person
convicted of a violation of any subdivision of section eleven hundred
ninety-two of this article OR SECTION SEVENTY-NINE-D OF THE NAVIGATION
LAW, or any person found to have refused a chemical test in accordance
with section eleven hundred ninety-four of this article OR SECTION
SEVENTY-NINE-G OF THE NAVIGATION LAW not arising out of the same inci-
dent as a conviction for a violation of any of the provisions of section
eleven hundred ninety-two of this article OR SECTION SEVENTY-NINE-D OF
THE NAVIGATION LAW, shall become liable to the department for payment of
a driver AND BOATER responsibility assessment as provided in this
section.
2. The amount of the driver AND BOATER responsibility assessment under
this section shall be two hundred fifty dollars per year for a three-
year period.
3. Upon receipt of evidence that a person is liable for the driver AND
BOATER responsibility assessment required by this section, the commis-
sioner shall notify such person by first class mail to the address of
such person on file with the department or at the current address
provided by the United States postal service of the amount of such
assessment, the time and manner of making required payments, and that
failure to make payment shall result in the suspension of his or her
driver's license or privilege of obtaining a driver's license OR PRIVI-
LEGE TO OPERATE A VESSEL.
4. If a person shall fail to pay any driver AND BOATER responsibility
assessment as provided in this section, the commissioner shall suspend
such person's driver's license or privilege of obtaining a license OR
PRIVILEGE TO OPERATE A VESSEL. Such suspension shall remain in effect
until any and all outstanding driver AND BOATER responsibility assess-
ments have been paid in full.
5. The provisions of this section shall also be applicable to any
person convicted of any violation of [section forty-nine-a] ARTICLE
FOUR-B of the navigation law, any person convicted of a violation of
section 25.24 of the parks, recreation and historic preservation law, or
any person found to have refused a chemical test in accordance with the
applicable provisions of either the navigation law or the parks, recre-
ation and historic preservation law not arising out of the same incident
as such conviction.
§ 5. Subdivision 5 of section 710.20 of the criminal procedure law, as
amended by chapter 629 of the laws of 1998, is amended to read as
follows:
5. Consists of a chemical test of the defendant's blood administered
in violation of the provisions of subdivision three of section eleven
hundred ninety-four of the vehicle and traffic law, subdivision [eight]
THREE of section [forty-nine-a] SEVENTY-NINE-G of the navigation law,
subdivision seven of section 25.24 of the parks, recreation and historic
preservation law, or any other applicable law; or
§ 6. Subdivision 4 of section 49 of the navigation law, as added by
chapter 805 of the laws of 1992, is amended to read as follows:
4. Whenever any police officer or peace officer authorized to enforce
the provisions of this chapter having reasonable cause to believe that a
person is operating a vessel in violation of section [forty-nine-a]
SEVENTY-NINE-D of this [article] CHAPTER, or any other provision of this
article OR ARTICLE FOUR-B OF THIS CHAPTER for which a suspension may be
imposed, such officer may demand of such person his or her name, address
and an explanation of his or her conduct.
A. 9867 41
§ 7. Subdivision 1 of section 120.03 of the penal law, as amended by
chapter 732 of the laws of 2006, is amended to read as follows:
(1) operates a motor vehicle in violation of subdivision two, three,
four or four-a of section eleven hundred ninety-two of the vehicle and
traffic law or operates a vessel or public vessel in violation of [para-
graph (b), (c), (d) or (e) of] subdivision [two] THREE, FIVE, SIX, OR
SEVEN of section [forty-nine-a] SEVENTY-NINE-D of the navigation law,
and as a result of such intoxication or impairment by the use of a drug,
or by the combined influence of drugs or of alcohol and any drug or
drugs, operates such motor vehicle, vessel or public vessel in a manner
that causes such serious physical injury to such other person, or
§ 8. Subdivision 1 of section 125.12 of the penal law, as amended by
chapter 732 of the laws of 2006, is amended to read as follows:
(1) operates a motor vehicle in violation of subdivision two, three,
four or four-a of section eleven hundred ninety-two of the vehicle and
traffic law or operates a vessel or public vessel in violation of [para-
graph (b), (c), (d) or (e) of] subdivision [two] THREE, FIVE, SIX, OR
SEVEN of section [forty-nine-a] SEVENTY-NINE-D of the navigation law,
and as a result of such intoxication or impairment by the use of a drug,
or by the combined influence of drugs or of alcohol and any drug or
drugs, operates such motor vehicle, vessel or public vessel in a manner
that causes the death of such other person, or
§ 9. Subdivision 5 of section 160.55 of the criminal procedure law, as
amended by chapter 391 of the laws of 1998, is amended to read as
follows:
5. (a) When a criminal action or proceeding is terminated against a
person by the entry of a waiver of a hearing pursuant to paragraph (c)
of subdivision ten of section eleven hundred ninety-two of the vehicle
and traffic law or PARAGRAPH (C) OF SUBDIVISION THIRTEEN OF section
[forty-nine-b] SEVENTY-NINE-D of the navigation law, the record of the
criminal action shall be sealed in accordance with this subdivision.
Upon the entry of such waiver, the court or the clerk of the court shall
immediately notify the commissioner of the division of criminal justice
services and the heads of all appropriate police departments and other
law enforcement agencies that a waiver has been entered and that the
record of the action shall be sealed when the person reaches the age of
twenty-one or three years from the date of commission of the offense,
whichever is the greater period of time. At the expiration of such peri-
od, the commissioner of the division of criminal justice services and
the heads of all appropriate police departments and other law enforce-
ment agencies shall take the actions required by paragraphs (a), (b) and
(c) of subdivision one of section 160.50 of this article.
(b) Where a person under the age of twenty-one is referred by the
police to the department of motor vehicles for action pursuant to
section eleven hundred ninety-two-a or eleven hundred ninety-four-a of
the vehicle and traffic law, or section [forty-nine-b] SEVENTY-NINE-E OR
SEVENTY-NINE-H of the navigation law and a finding in favor of the
motorist or operator is rendered, the commissioner of the department of
motor vehicles shall, as soon as practicable, but not later than three
years from the date of commission of the offense or when such person
reaches the age of twenty-one, whichever is the greater period of time,
notify the commissioner of the division of criminal justice services and
the heads of all appropriate police departments and other law enforce-
ment agencies that such finding in favor of the motorist or operator was
rendered. Upon receipt of such notification, the commissioner of the
division of criminal justice services and the heads of such police
A. 9867 42
departments and other law enforcement agencies shall take the actions
required by paragraphs (a), (b) and (c) of subdivision one of section
160.50 of this article.
(c) Where a person under the age of twenty-one is referred by the
police to the department of motor vehicles for action pursuant to
section eleven hundred ninety-two-a or eleven hundred ninety-four-a of
the vehicle and traffic law, or section [forty-nine-b] SEVENTY-NINE-E OR
SEVENTY-NINE-H of the navigation law, and no notification is received by
the commissioner of the division of criminal justice services and the
heads of all appropriate police departments and other law enforcement
agencies pursuant to paragraph (b) of this subdivision, such commission-
er of the division of criminal justice services and such heads of police
departments and other law enforcement agencies shall, after three years
from the date of commission of the offense or when the person reaches
the age of twenty-one, whichever is the greater period of time, take the
actions required by paragraphs (a), (b) and (c) of subdivision one of
section 160.50 of this article.
§ 10. Paragraph (k) of subdivision 1 of section 201 of the vehicle and
traffic law, as amended by chapter 391 of the laws of 1998, is amended
to read as follows:
(k) any records, including any reproductions or electronically created
images of such records and including any records received by the commis-
sioner from a court pursuant to paragraph (c) of subdivision ten of
section eleven hundred ninety-two of this chapter or PARAGRAPH (C) OF
PARAGRAPH THIRTEEN OF section [forty-nine-b] SEVENTY-NINE-D of the navi-
gation law, relating to a finding of a violation of section eleven
hundred ninety-two-a of this chapter or a waiver of the right to a hear-
ing under section eleven hundred ninety-four-a of this chapter or a
finding of a refusal following a hearing conducted pursuant to subdivi-
sion three of section eleven hundred ninety-four-a of this chapter or a
finding of a violation of SUBDIVISION FOUR OF section [forty-nine-b]
SEVENTY-NINE-G of the navigation law or a waiver of the right to a hear-
ing or a finding of refusal following a hearing conducted pursuant to
such section, after remaining on file for three years after such finding
or entry of such waiver or refusal or until the person that is found to
have violated such section reaches the age of twenty-one, whichever is
the greater period of time. Upon the expiration of the period for
destruction of records pursuant to this paragraph, the entirety of the
proceedings concerning the violation or alleged violation of such
section eleven hundred ninety-two-a of this chapter or such section
[forty-nine-b] SEVENTY-NINE-E of the navigation law, from the initial
stop and detention of the operator to the entering of a finding and
imposition of sanctions pursuant to any subdivision of section eleven
hundred ninety-four-a of this chapter or of section [forty-nine-b]
SEVENTY-NINE-H of the navigation law shall be deemed a nullity, and the
operator shall be restored, in contemplation of law, to the status he OR
SHE occupied before the initial stop and prosecution.
§ 11. This act shall take effect on the one hundred twentieth day
after it shall have become a law.
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