S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  947--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sens.  GAUGHRAN, COMRIE, KAMINSKY, KAPLAN, REICHLIN-MEL-
   NICK, STAVISKY -- read twice and ordered printed, and when printed  to
   be  committed to the Committee on Transportation -- recommitted to the
   Committee on Transportation in accordance with Senate Rule 6,  sec.  8
   -- reported favorably from said committee and committed to the Commit-
   tee  on Codes -- committee discharged, bill amended, ordered reprinted
   as amended and recommitted to said committee
 
 AN ACT to amend the navigation law and the penal  law,  in  relation  to
   operating a vessel while intoxicated when a child who is fifteen years
   of age or less is a passenger in such vessel
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 2 of section 49-a  of  the  navigation  law  is
 amended by adding a new paragraph (e-1) to read as follows:
   (E-1)  NO  PERSON SIXTEEN YEARS OF AGE OR OLDER SHALL OPERATE A VESSEL
 IN VIOLATION OF PARAGRAPH (B), (D) OR (E) OF THIS  SUBDIVISION  WHILE  A
 CHILD WHO IS FIFTEEN YEARS OF AGE OR LESS IS A PASSENGER IN SUCH VESSEL.
   §  2.  Subparagraphs  2  and  3  of paragraph (f) of subdivision 2 and
 subdivision 5-a of section 49-a of the navigation law,  subparagraphs  2
 and  3  of paragraph (f) of subdivision 2 as amended and subdivision 5-a
 as added by chapter 239 of the laws of 2016,  are  amended  to  read  as
 follows:
   (2)  A person who operates a vessel (I) in violation of paragraph (b),
 (c), (d) [or], (e) OR  (E-1)  of  this  subdivision  after  having  been
 convicted  of  a violation of paragraph (b), (c), (d) [or], (e) OR (E-1)
 of this subdivision, or of operating a vessel  or  public  vessel  while
 intoxicated  or while under the influence of drugs, within the preceding
 ten years, OR (II) IN VIOLATION OF PARAGRAPH (E-1) OF THIS  SUBDIVISION,
 shall be guilty of a class E felony and shall be punished by a period of
 imprisonment as provided in the penal law, or by a fine of not less than
 one  thousand  dollars  nor  more than five thousand dollars, or by both
 such fine and imprisonment.
 
              

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03782-05-2
 S. 947--A                           2
 
   (3) A person who operates a vessel in violation of paragraph (b), (c),
 (d) [or], (e) OR (E-1) of  this  subdivision  after  having  been  twice
 convicted  of  a  violation of any of such paragraph (b), (c), (d) [or],
 (e) OR (E-1) of this subdivision or of  operating  a  vessel  or  public
 vessel  while  intoxicated  or  under the influence of drugs, within the
 preceding ten years, shall be guilty of a class D felony  and  shall  be
 punished  by  a fine of not less than two thousand dollars nor more than
 ten thousand dollars or by a period of imprisonment as provided  in  the
 penal law, or by both such fine and imprisonment.
   5-a.  Sentencing; previous convictions. When sentencing a person for a
 violation of paragraph (b), (c), (d) [or], (e) OR (E-1)  of  subdivision
 two  of  this  section  pursuant to subparagraph two of paragraph (f) of
 subdivision two of this section, the  court  shall  consider  any  prior
 convictions  the  person  may  have  for a violation of subdivision two,
 two-a, three, four, or four-a of section eleven  hundred  ninety-two  of
 the  vehicle  and  traffic  law  within  the  preceding  ten years. When
 sentencing a person for a violation of paragraph (b), (c), (d) [or], (e)
 OR (E-1) of subdivision two of this  section  pursuant  to  subparagraph
 three  of  paragraph  (f)  of subdivision two of this section, the court
 shall consider any prior convictions the person may have for a violation
 of subdivision two, two-a, three, four,  or  four-a  of  section  eleven
 hundred  ninety-two  of the vehicle and traffic law within the preceding
 ten years. When sentencing a person for a violation of subparagraph  two
 of  paragraph  (a)  of  subdivision two of this section, the court shall
 consider any prior convictions the person may have for  a  violation  of
 any  subdivision of section eleven hundred ninety-two of the vehicle and
 traffic law within the preceding five years. When  sentencing  a  person
 for  a  violation  of subparagraph three of paragraph (a) of subdivision
 two of this section, the court shall consider any prior convictions  the
 person  may  have  for  a violation of any subdivision of section eleven
 hundred ninety-two of the vehicle and traffic law within  the  preceding
 ten years.
   §  3.  Subparagraph 3 of paragraph (a) of subdivision 3, subdivision 5
 and paragraph (a) of subdivision 7 of section  49-a  of  the  navigation
 law, as added by chapter 805 of the laws of 1992, are amended to read as
 follows:
   (3)  a period of twenty-four months where a person is convicted of (I)
 a violation of paragraph (b), (c), (d) [or], (e) OR (E-1) of subdivision
 two of this section after having been convicted of a violation of  para-
 graph  (b),  (c),  (d)  [or],  (e)  OR  (E-1) of subdivision two of this
 section or of operating a vessel or public vessel while  intoxicated  or
 under  the  influence of drugs within the preceding ten years, OR (II) A
 VIOLATION OF PARAGRAPH (E-1) OF SUBDIVISION TWO OF THIS SECTION.
   5. Sentencing limitations. Notwithstanding any provision of the  penal
 law,  no  judge  or  magistrate shall impose a sentence of unconditional
 discharge for a violation of paragraph (b), (c), (d) [or], (e) OR  (E-1)
 of subdivision two of this section nor shall he or she impose a sentence
 of  conditional  discharge unless such conditional discharge is accompa-
 nied by a sentence of a fine as provided in this section.
   (a) Any person who operates a vessel on the waters of the state  shall
 be requested to consent to a chemical test of one or more of the follow-
 ing:  breath, blood, urine, or saliva for the purpose of determining the
 alcoholic or drug content of his  blood,  provided  that  such  test  is
 administered at the direction of a police officer: (1) having reasonable
 cause to believe such person to have been operating in violation of this
 subdivision or paragraph (a), (b), (c), (d) [or], (e) OR (E-1) of subdi-
 S. 947--A                           3
 
 vision  two  of  this section and within two hours after such person has
 been placed under arrest for any such violation or (2) within two  hours
 after  a  breath test as provided in paragraph (b) of subdivision six of
 this section indicates that alcohol has been consumed by such person and
 in  accordance  with the rules and regulations established by the police
 force of which the officer is a member.
   § 4. Section 49-a of the navigation law is amended  by  adding  a  new
 subdivision 14 to read as follows:
   14.  REPORT.  WHERE  A  LAW ENFORCEMENT OFFICER ALLEGES A VIOLATION OF
 PARAGRAPH (E-1) OF SUBDIVISION TWO OF THIS SECTION AND THE  OPERATOR  OF
 THE  VESSEL  IS SIXTEEN YEARS OF AGE OR OLDER AND IS A PARENT, GUARDIAN,
 CUSTODIAN OF, OR OTHER PERSON LEGALLY RESPONSIBLE FOR, A  CHILD  WHO  IS
 FIFTEEN  YEARS  OF  AGE  OR LESS WHO IS A PASSENGER IN SUCH VESSEL, SUCH
 OFFICER SHALL REPORT OR CAUSE A REPORT TO BE  MADE  IN  ACCORDANCE  WITH
 TITLE SIX OF ARTICLE SIX OF THE SOCIAL SERVICES LAW, IF APPLICABLE.
   § 5. Subdivisions 5 and 6 of section 120.04 of the penal law, subdivi-
 sion  5 as amended and subdivision 6 as added by chapter 496 of the laws
 of 2009, are amended and a  new  subdivision  7  is  added  to  read  as
 follows:
   (5)  has  previously been convicted of violating any provision of this
 article or article one hundred twenty-five of this title  involving  the
 operation  of  a  motor  vehicle, or was convicted in any other state or
 jurisdiction of an offense involving the operation of  a  motor  vehicle
 which,  if committed in this state, would constitute a violation of this
 article or article one hundred twenty-five of this title; [or]
   (6) commits such crime while operating a motor vehicle while  a  child
 who is fifteen years of age or less is a passenger in such motor vehicle
 and causes serious physical injury to such child[.]; OR
   (7)  COMMITS SUCH CRIME WHILE OPERATING A VESSEL IN VIOLATION OF PARA-
 GRAPH (E-1) OF SUBDIVISION TWO OF SECTION FORTY-NINE-A OF THE NAVIGATION
 LAW WHILE A CHILD WHO IS FIFTEEN YEARS OF AGE OR LESS IS A PASSENGER  IN
 SUCH VESSEL AND CAUSES SERIOUS PHYSICAL INJURY TO SUCH CHILD.
   §  6.  Subdivisions 5 and 6 of section 125.13 of the penal law, subdi-
 vision 5 as amended and subdivision 6 as added by  chapter  496  of  the
 laws  of  2009,  are amended and a new subdivision 7 is added to read as
 follows:
   (5) has previously been convicted of violating any provision  of  this
 article or article one hundred twenty of this title involving the opera-
 tion  of  a motor vehicle, or was convicted in any other state or juris-
 diction of an offense involving the operation of a motor vehicle  which,
 if committed in this state, would constitute a violation of this article
 or article one hundred twenty of this title; [or]
   (6)  commits  such crime while operating a motor vehicle while a child
 who is fifteen years of age or less is a passenger in such motor vehicle
 and causes the death of such child[.]; OR
   (7) COMMITS SUCH CRIME WHILE OPERATING A VESSEL IN VIOLATION OF  PARA-
 GRAPH (E-1) OF SUBDIVISION TWO OF SECTION FORTY-NINE-A OF THE NAVIGATION
 LAW  WHILE A CHILD WHO IS FIFTEEN YEARS OF AGE OR LESS IS A PASSENGER IN
 SUCH VESSEL AND CAUSES THE DEATH OF SUCH CHILD.
   § 7. This act shall take effect on the one hundred eightieth day after
 it shall have become a law; provided that this act shall  not  apply  to
 any offense committed before the date of enactment. Effective immediate-
 ly,  the  addition,  amendment  and/or  repeal of any rule or regulation
 necessary for the implementation of this act on its effective  date  are
 authorized to be made and completed on or before such effective date.