§ 49-a. Operation of a vessel while under the influence of alcohol or
drugs. 1. Definitions. As used in this section, unless the context
clearly indicates otherwise:

(a) The term "vessel" shall be every description of watercraft or
other artificial contrivance propelled in whole or in part by mechanical
power and, which is used or capable of being used as a means of
transportation over water, and which is underway and not at anchor or
made fast to the shore or ground. The term "vessel" shall include a
"public vessel" as defined herein unless otherwise specified.

(b) The term "public vessel" shall mean and include every vessel which
is propelled in whole or in part by mechanical power and is used or
operated for commercial purposes on the navigable waters of the state;
that is either carrying passengers, carrying freight, towing, or for any
other use, for which a compensation is received, either directly or
where provided as an accommodation, advantage, facility or privilege at
any place of public accommodation, resort or amusement.

(c) The term "waters of the state" means all of the waterways or
bodies of water located within New York state or that part of any body
of water which is adjacent to New York state over which the state has
territorial jurisdiction, on which a vessel or public vessel may be used
or operated, including Nassau and Suffolk counties.

2. Offenses: criminal penalties. (a) No person shall operate a vessel
upon the waters of the state while his or her ability to operate such
vessel is impaired by the consumption of alcohol. (1) A violation of
this subdivision shall be an offense and shall be punishable by a fine
of not less than three hundred dollars nor more than five hundred
dollars, or by imprisonment in a penitentiary or county jail for not
more than fifteen days, or by both such fine and imprisonment. (2) A
person who operates a vessel in violation of this subdivision after
being convicted of a violation of any subdivision of this section within
the preceding five years shall be punished by a fine of not less than
five hundred dollars nor more than seven hundred fifty dollars, or by
imprisonment of not more than thirty days in a penitentiary or county
jail or by both such fine and imprisonment. (3) A person who operates a
vessel in violation of this subdivision after being convicted two or
more times of a violation of any subdivision of this section within the
preceding ten years shall be guilty of a misdemeanor, and shall be
punished by a fine of not less than seven hundred fifty dollars nor more
than fifteen hundred dollars, or by imprisonment of not more than one
hundred eighty days in a penitentiary or county jail or by both such
fine and imprisonment.

(b) No such person shall operate a vessel other than a public vessel
while he has .08 of one per centum or more by weight of alcohol in his
blood, breath, urine, or saliva, as determined by the chemical test made
pursuant to the provisions of subdivision seven of this section.

(c) No such person shall operate a public vessel while he has .04 of
one per centum or more by weight of alcohol in his blood, breath, urine,
or saliva, as determined by the chemical test made pursuant to the
provisions of subdivision seven of this section.

(d) No person shall operate a vessel while he is in an intoxicated
condition.

(e) No person shall operate a vessel while his ability to operate such
vessel is impaired by the use of a drug as defined by section one
hundred fourteen-a of the vehicle and traffic law.

(e-1) No person sixteen years of age or older shall operate a vessel
in violation of paragraph (b), (d) or (e) of this subdivision while a
child who is fifteen years of age or less is a passenger in such vessel.

(f)(1) A violation of paragraph (b), (c), (d) or (e) of this
subdivision shall be a misdemeanor and shall be punishable by
imprisonment in a penitentiary or county jail for not more than one
year, or by a fine of not less than five hundred dollars nor more than
one thousand dollars, or by both such fine and imprisonment. (2) A
person who operates a vessel (i) in violation of paragraph (b), (c),
(d), (e) or (e-1) of this subdivision after having been convicted of a
violation of paragraph (b), (c), (d), (e) or (e-1) of this subdivision,
or of operating a vessel or public vessel while intoxicated or while
under the influence of drugs, within the preceding ten years, or (ii) in
violation of paragraph (e-1) of this subdivision, shall be guilty of a
class E felony and shall be punished by a period of imprisonment as
provided in the penal law, or by a fine of not less than one thousand
dollars nor more than five thousand dollars, or by both such fine and
imprisonment. (3) A person who operates a vessel in violation of
paragraph (b), (c), (d), (e) or (e-1) of this subdivision after having
been twice convicted of a violation of any of such paragraph (b), (c),
(d), (e) or (e-1) of this subdivision or of operating a vessel or public
vessel while intoxicated or under the influence of drugs, within the
preceding ten years, shall be guilty of a class D felony and shall be
punished by a fine of not less than two thousand dollars nor more than
ten thousand dollars or by a period of imprisonment as provided in the
penal law, or by both such fine and imprisonment.

3. Privilege to operate a vessel; suspensions. (a) The court shall
suspend a person's privilege to operate a vessel and may suspend a
vessel registration for:

(1) a period of at least six but less than twelve months where an
operator is convicted of a violation of paragraph (a) of subdivision two
of this section. In determining the length of such suspension or
suspensions, the court may take into consideration the seriousness of
the offense and may impose a period of suspension whereby such
suspension may be in effect during a portion of the current or
subsequent boating season;

(2) a period of twelve months where an operator is convicted of a
violation of paragraph (b), (c), (d) or (e) of subdivision two of this
section;

(3) a period of twenty-four months where a person is convicted of (i)
a violation of paragraph (b), (c), (d), (e) or (e-1) of subdivision two
of this section after having been convicted of a violation of paragraph
(b), (c), (d), (e) or (e-1) of subdivision two of this section or of
operating a vessel or public vessel while intoxicated or under the
influence of drugs within the preceding ten years, or (ii) a violation
of paragraph (e-1) of subdivision two of this section.

(b) The court shall report each conviction recorded pursuant to this
section to the commissioner of motor vehicles and the commissioner of
parks, recreation and historic preservation on forms provided by the
department of motor vehicles. Such reports shall include the length of
any suspension imposed on the privilege to operate a vessel and any
suspension imposed against a vessel registration. The department of
motor vehicles shall maintain a record of all convictions and
suspensions in order to effectuate the provisions of this section.

4. (a) Operation of vessel while operating privileges have been
suspended. No person shall operate a vessel upon the waters of the state
while operating privileges have been suspended pursuant to this section
or section forty-nine-b of this article. A violation of the provisions
of this paragraph shall be a violation and shall be punishable by a fine
of not less than three hundred fifty dollars nor more than seven hundred
fifty dollars or by imprisonment for a period of not more than ninety
days, or by both such fine and imprisonment.

(b) A person who is in violation of the provisions of paragraph (a) of
this subdivision, and in addition is in violation of the provisions of
any paragraph of subdivision two of this section arising out of the same
incident, shall be guilty of a misdemeanor punishable by a fine of not
less than five hundred dollars nor more than five thousand dollars or by
a period of imprisonment for a period of not more than one year or by
both such fine and imprisonment.

5. Sentencing limitations. Notwithstanding any provision of the penal
law, no judge or magistrate shall impose a sentence of unconditional
discharge for a violation of paragraph (b), (c), (d), (e) or (e-1) of
subdivision two of this section nor shall he or she impose a sentence of
conditional discharge unless such conditional discharge is accompanied
by a sentence of a fine as provided in this section.

5-a. Sentencing; previous convictions. When sentencing a person for a
violation of paragraph (b), (c), (d), (e) or (e-1) of subdivision two of
this section pursuant to subparagraph two of paragraph (f) of
subdivision two of this section, the court shall consider any prior
convictions the person may have for a violation of subdivision two,
two-a, three, four, or four-a of section eleven hundred ninety-two of
the vehicle and traffic law within the preceding ten years. When
sentencing a person for a violation of paragraph (b), (c), (d), (e) or
(e-1) of subdivision two of this section pursuant to subparagraph three
of paragraph (f) of subdivision two of this section, the court shall
consider any prior convictions the person may have for a violation of
subdivision two, two-a, three, four, or four-a of section eleven hundred
ninety-two of the vehicle and traffic law within the preceding ten
years. When sentencing a person for a violation of subparagraph two of
paragraph (a) of subdivision two of this section, the court shall
consider any prior convictions the person may have for a violation of
any subdivision of section eleven hundred ninety-two of the vehicle and
traffic law within the preceding five years. When sentencing a person
for a violation of subparagraph three of paragraph (a) of subdivision
two of this section, the court shall consider any prior convictions the
person may have for a violation of any subdivision of section eleven
hundred ninety-two of the vehicle and traffic law within the preceding
ten years.

6. Arrest and testing. (a) Notwithstanding the provisions of section
140.10 of the criminal procedure law, a police officer may, without a
warrant, arrest a person, in case of a violation of any paragraph of
subdivision two of this section, if such violation is coupled with an
accident or collision in which such person is involved, which in fact
had been committed, though not in the police officer's presence, when he
has reasonable cause to believe that the violation was committed by such
person. For the purposes of this subdivision police officer shall also
include a peace officer authorized to enforce this chapter when the
alleged violation constitutes a crime.

(b) Breath test for operators of vessel. Every person operating a
vessel on the waters of the state which has been involved in an accident
or which is operated in violation of any of the provisions of this
section which regulate the manner in which a vessel is to be properly
operated while underway shall, at the request of a police officer,
submit to a breath test to be administered by the police officer. If
such test indicates that such operator has consumed alcohol, the police
officer may request such operator to submit to a chemical test in the
manner set forth in subdivision seven of this section. For the purposes
of this section, a vessel is being "operated" only when such vessel is
underway and is being propelled in whole or in part by mechanical power.

7. Chemical tests. (a) Any person who operates a vessel on the waters
of the state shall be requested to consent to a chemical test of one or
more of the following: breath, blood, urine, or saliva for the purpose
of determining the alcoholic or drug content of his blood, provided that
such test is administered at the direction of a police officer: (1)
having reasonable cause to believe such person to have been operating in
violation of this subdivision or paragraph (a), (b), (c), (d), (e) or
(e-1) of subdivision two of this section and within two hours after such
person has been placed under arrest for any such violation or (2) within
two hours after a breath test as provided in paragraph (b) of
subdivision six of this section indicates that alcohol has been consumed
by such person and in accordance with the rules and regulations
established by the police force of which the officer is a member.

(b) If such person having been placed under arrest or after a breath
test indicates the presence of alcohol in the person's system and having
thereafter been requested to submit to such chemical test and having
been informed that the person's privilege to operate a vessel shall be
immediately suspended for refusal to submit to such chemical test or any
portion thereof, whether or not the person is found guilty of the charge
for which such person is arrested, refuses to submit to such chemical
test or any portion thereof, unless a court order has been granted
pursuant to subdivision eight of this section, the test shall not be
given and a written report of such refusal shall be immediately made by
the police officer before whom such refusal was made. Such report may be
verified by having the report sworn to, or by affixing to such report a
form notice that false statements made therein are punishable as a class
A misdemeanor pursuant to section 210.45 of the penal law and such form
notice together with the subscription of the deponent shall constitute a
verification of the report. The report of the police officer shall set
forth reasonable grounds to believe such arrested person to have been
operating a vessel in violation of any paragraph of subdivision two of
this section, that said person had refused to submit to such chemical
test, and that no chemical test was administered pursuant to the
requirements of subdivision eight of this section. The report shall be
presented to the court upon the arraignment of the arrested person. The
privilege to operate a vessel shall, upon the basis of such written
report, be temporarily suspended by the court without notice pending the
determination of a hearing as provided herein. Copies of such report
must be transmitted by the court to the commissioner of parks,
recreation and historic preservation and the commissioner of motor
vehicles and such transmittal may not be waived even with the consent of
all the parties. Such report shall be forwarded to each commissioner
within forty-eight hours of such arraignment. The court shall provide
such person with a hearing date schedule, a waiver form, and such other
information as may be required by the commissioner of motor vehicles. If
a hearing, as provided for in paragraph (c) of this subdivision, is
waived by such person, the commissioner of motor vehicles shall
immediately suspend the privilege to operate a vessel, as of the date of
receipt of such waiver in accordance with the provisions of paragraph
(d) of this subdivision.

(c) Any person whose privilege to operate a vessel has been suspended
pursuant to paragraph (b) of this subdivision is entitled to a hearing
in accordance with a hearing schedule to be promulgated by the
commissioner of motor vehicles. If the department fails to provide for
such hearing fifteen days after the date of the arraignment of the
arrested person, the privilege to operate a vessel of such person shall
be reinstated pending a hearing pursuant to this section. The hearing
shall be limited to the following issues: (1) did the police officer
have reasonable cause to believe that such person had been operating a
vessel in violation of any paragraph of subdivision two of this section;
(2) did the police officer make a lawful arrest of such person; (3) was
such person given sufficient warning, in clear or unequivocal language,
prior to such refusal that such refusal to submit to such chemical test
or any portion thereof, would result in the immediate suspension of such
person's privilege to operate a vessel whether or not such person is
found guilty of the charge for which the arrest was made; and (4) did
such person refuse to submit to such chemical test or any portion
thereof. If, after such hearing, the hearing officer, acting on behalf
of the commissioner of motor vehicles, finds on any one of said issues
in the negative, the hearing officer shall immediately terminate any
suspension arising from such refusal. If, after such hearing, the
hearing officer, acting on behalf of the commissioner of motor vehicles
finds all of the issues in the affirmative, such officer shall
immediately suspend the privilege to operate a vessel in accordance with
the provisions of paragraph (d) of this subdivision. A person who has
had the privilege to operate a vessel suspended pursuant to this
subdivision may appeal the findings of the hearing officer in accordance
with the provisions of article three-A of the vehicle and traffic law.
Any person may waive the right to a hearing under this section. Failure
by such person to appear for the scheduled hearing shall constitute a
waiver of such hearing, provided, however, that such person may petition
the commissioner of motor vehicles for a new hearing which shall be held
as soon as practicable.

(d) (1) Any privilege to operate a vessel which has been suspended
pursuant to paragraph (c) of this subdivision shall not be restored for
six months after such suspension. However, no such privilege shall be
restored for at least one year after such suspension in any case where
the person was under the age of twenty-one at the time of the offense,
has had a prior suspension resulting from refusal to submit to a
chemical test pursuant to this subdivision or subdivision six of section
forty-nine-b of this article, or has been convicted of a violation of
any paragraph of subdivision two of this section not arising out of the
same incident, within the five years immediately preceding the date of
such suspension; provided, however, a prior finding that a person under
the age of twenty-one has refused to submit to a chemical test pursuant
to such subdivision six of section forty-nine-b of this article shall
have the same effect as a prior finding of a refusal pursuant to this
subdivision solely for the purpose of determining the length of any
suspension required to be imposed under any provision of this article,
provided that the subsequent offense or refusal is committed or occurred
prior to the expiration of the retention period for such prior refusal
as set forth in paragraph (k) of subdivision one of section two hundred
one of the vehicle and traffic law. Notwithstanding any provision of
this paragraph to the contrary, any privilege to operate a vessel which
has been suspended pursuant to paragraph (c) of this subdivision, where
the person was under the age of twenty-one at the time of the refusal,
and such person under the age of twenty-one has a prior finding,
conviction or youthful offender adjudication resulting from a violation
of this section or section forty-nine-b of this article, not arising
from the same incident, shall not be restored for at least one year or
until such person reaches the age of twenty-one years, whichever is the
greater period of time.

(2) Any person whose privilege to operate a vessel is suspended
pursuant to the provisions of this subdivision shall also be liable for
a civil penalty in the amount of two hundred dollars except that if such
suspension is a second or subsequent suspension pursuant to this
subdivision issued within a five year period, or such person has been
convicted of a violation of any paragraph of subdivision two of this
section within the past five years not arising out of the same incident,
the civil penalty shall be in the amount of five hundred dollars. The
privilege to operate a vessel shall not be restored to such person
unless such penalty has been paid. The first one hundred dollars of each
penalty collected by the department of motor vehicles pursuant to the
provisions of this subdivision shall be paid to the commissioner of
motor vehicles for deposit to the general fund and the remainder of all
such penalties shall be paid to the commissioner of parks, recreation
and historic preservation for deposit in the "I Love NY Waterways"
boating safety fund established pursuant to section ninety-seven-nn of
the state finance law.

(e) The commissioner of motor vehicles in consultation with the
commissioner of parks, recreation and historic preservation shall
promulgate such rules and regulations as may be necessary to effectuate
the provisions of this subdivision.

(f) Evidence of a refusal to submit to such chemical test shall be
admissible in any trial, proceeding or hearing based upon a violation of
the provisions of this section, but only upon a showing that the person
was given sufficient warning, in clear and unequivocal language, of the
effect of such refusal and that the person persisted in his or her
refusal.

(g) Upon the request of the person tested, the results of such test
shall be made available to him or her.

8. Compulsory chemical tests. (a) Notwithstanding the provisions of
subdivision seven of this section, no person who operates a vessel in
the waters of this state may refuse to submit to a chemical test of one
or more of the following: breath, blood, urine or saliva, for the
purpose of determining the alcoholic and/or drug content of the blood
when a court order for such chemical test has been issued in accordance
with the provisions of this subdivision.

(b) Upon refusal by any person to submit to a chemical test or any
portion thereof as described in paragraph (a) of this subdivision, the
test shall not be given unless a police officer or a district attorney,
as defined in subdivision thirty-two of section 1.20 of the criminal
procedure law, requests and obtains a court order to compel a person to
submit to a chemical test to determine the alcoholic or drug content of
the person's blood upon a finding of reasonable cause to believe that:

(1) such person was the operator of a vessel and in the course of such
operation a person other than the operator was killed or suffered
serious physical injury as defined in section 10.00 of the penal law;
and

(2) (i) either such person operated the vessel in violation of any
paragraph of subdivision two of this section, or

(ii) a breath test administered by a police officer in accordance with
subdivision six of this section indicates that alcohol has been consumed
by such person; and

(3) such person has been placed under lawful arrest; and

(4) such person has refused to submit to a chemical test or any
portion thereof, requested in accordance with the provisions of
subdivision seven of this section or is unable to give consent to such a
test.

(c) For the purpose of this subdivision "reasonable cause" shall be
determined by viewing the totality of circumstances surrounding the
incident which, when taken together, indicate that the operator was
operating a vessel in violation of any paragraph of subdivision two of
this section. Such circumstances may include, but are not limited to:
evidence that the operator was operating a vessel in violation of any
provision of this chapter which regulates the manner in which a vessel
is to be properly operated while underway at the time of the incident;
any visible indication of alcohol or drug consumption or impairment by
the operator; any other evidence surrounding the circumstances of the
incident which indicates that the operator has been operating a vessel
while impaired by the consumption of alcohol or drugs or was intoxicated
at the time of the incident.

(d) (1) An application for a court order to compel submission to a
chemical test or any portion thereof, may be made to any supreme court
justice, county court judge or district court judge in the judicial
district in which the incident occurred, or if the incident occurred in
the city of New York before any supreme court justice or judge of the
criminal court of the city of New York. Such application may be
communicated by telephone, radio or other means of electronic
communication, or in person.

(2) The applicant must provide identification by name and title and
must state the purpose of the communication. Upon being advised that an
application for a court order to compel submission to a chemical test is
being made, the court shall place under oath the applicant and any other
person providing information in support of the application as provided
in subparagraph three of this paragraph. After being sworn the applicant
must state that the person from whom the chemical test was requested was
the operator of a vessel and in the course of such operation a person,
other than the operator, has been killed or seriously injured and, based
upon the totality of circumstances, there is reasonable cause to believe
that such person was operating a vessel in violation of any paragraph of
subdivision two of this section and, after being placed under lawful
arrest such person refused to submit to a chemical test or any portion
thereof, in accordance with the provisions of this section or is unable
to give consent to such a test or any portion thereof. The applicant
must make specific allegations of fact to support such statement. Any
other person properly identified, may present sworn allegations of fact
in support of the applicant's statement.

(3) Upon being advised that an oral application for a court order to
compel a person to submit to a chemical test is being made, a judge or
justice shall place under oath the applicant and any other person
providing information in support of the application. Such oath or oaths
and all of the remaining communication must be recorded, either by means
of a voice recording device or verbatim stenographic or verbatim
longhand notes. If a voice recording device is used or a stenographic
record made, the judge must have the record transcribed, certify to the
accuracy of the transcription and file the original record and
transcription with the court within seventy-two hours of the issuance of
the court order. If the longhand notes are taken, the judge shall
subscribe a copy and file it with the court within twenty-four hours of
the issuance of the order.

(4) If the court is satisfied that the requirements for the issuance
of a court order pursuant to the provisions of paragraph (b) of this
subdivision have been met, it may grant the application and issue an
order requiring the accused to submit to a chemical test to determine
the alcoholic and/or drug content of his blood and ordering the
withdrawal of a blood sample in accordance with the provisions of
subdivision nine of this section. When a judge or justice determines to
issue an order to compel submission to a chemical test based on an oral
application, the applicant therefor shall prepare the order in
accordance with the instructions of the judge or justice. In all cases
the order shall include the name of the issuing judge or justice, the
name of the applicant, and the date and time it was issued. It must be
signed by the judge or justice if issued in person, or by the applicant
if issued orally.

(5) Any false statement by an applicant or any other person in support
of an application for a court order shall subject such person to the
offenses for perjury set forth in article two hundred ten of the penal
law.

(e) An order issued pursuant to the provisions of this subdivision
shall require that a chemical test to determine the alcoholic and/or
drug content of the operator's blood must be administered. The
provisions of paragraphs (a), (b) and (c) of subdivision nine of this
section shall be applicable to any chemical test administered pursuant
to this section.

(f) A defendant who has been compelled to submit to a chemical test
pursuant to the provisions of this subdivision may move for the
suppression of such evidence in accordance with article seven hundred
ten of the criminal procedure law on the grounds that the order was
obtained and the test administered in violation of the provisions of
this subdivision or any other applicable law.

9. Testing procedures. (a) At the request of a police officer, the
following persons may withdraw blood for the purpose of determining the
alcohol or drug content therein: (1) a physician, a registered
professional nurse or a registered physician's assistant; or (2) under
the supervision and at the direction of a physician: a medical
laboratory technician or medical technologist as classified by civil
service; a phlebotomist; an advanced emergency medical technician as
certified by the department of health, or a medical laboratory
technician or medical technologist employed by a clinical laboratory
approved under title five of article five of the public health law. This
limitation shall not apply to the taking of a urine, saliva or breath
specimen.

(b) No person entitled to withdraw blood pursuant to paragraph (a) of
this subdivision or hospital employing such person and no other employer
of such person shall be sued or held liable for any act done or omitted
in the course of withdrawing blood at the request of a police officer or
peace officer acting pursuant to his special duties pursuant to this
subdivision.

(c) Any person who may have a cause of action arising from the
withdrawal of blood as aforesaid, for which no personal liability exists
under paragraph (b) of this subdivision, may maintain such action
against the state if the person entitled to withdraw blood pursuant to
paragraph (a) of this subdivision acted at the request of a police
officer or peace officer acting pursuant to his special duties, employed
by the state, or against the appropriate political subdivision of the
state if the person acted at the request of a police officer or peace
officer acting pursuant to his special duties, employed by a political
subdivision of the state. No action shall be maintained pursuant to this
paragraph unless notice of claim is duly filed or served in compliance
with law.

(d) Notwithstanding the foregoing provisions of this subdivision, an
action may be maintained by the state or a political subdivision thereof
against a person entitled to withdraw blood pursuant to paragraph (a) of
this subdivision or hospital employing such person for whose act or
omission the state or the political subdivision has been held liable
under this subdivision to recover damages, not exceeding the amount
awarded to the claimant, that may have been sustained by the state or
the political subdivision by reason of gross negligence on the part of
such person entitled to withdraw blood.

(e) The testimony of any person, other than a physician, entitled to
draw blood pursuant to paragraph (a) of this subdivision in respect to
any such withdrawal of blood made by him may be received in evidence
with the same weight, force and effect as if such withdrawal of blood
were made by a physician.

(f) The provisions of paragraphs (b), (c) and (d) of this subdivision
shall also apply with regard to any person employed by a hospital as
security personnel for any act done or omitted in the course of
withdrawing blood at the request of a police officer pursuant to a court
order in accordance with this subdivision.

(g) The person tested shall be permitted to choose a physician to
administer a chemical test in addition to the one administered at the
direction of the police officer.

10. Chemical test evidence. (a) Upon the trial of any such action or
proceeding arising out of actions alleged to have been committed by any
person arrested for a violation of any paragraph of subdivision two of
this section, the court shall admit evidence of the amount of alcohol or
drugs in the defendant's blood as shown by a test administered pursuant
to the provisions of subdivision seven or eight of this section.

(b) The following effect shall be given to evidence of blood alcohol
content, as determined by such tests, of a person arrested for a
violation of any paragraph of subdivision two of this section and who
was operating a vessel other than a public vessel:

(1) evidence that there was .05 of one per centum or less by weight of
alcohol in such person's blood shall be prima facie evidence that the
ability of such person to operate a vessel was not impaired by the
consumption of alcohol, and that such person was not in an intoxicated
condition.

(2) evidence that there was more than .05 of one per centum but less
than .07 of one per centum of weight in such person's blood shall be
prima facie evidence that such person was not in an intoxicated
condition, but such evidence shall be relevant evidence but not be given
prima facie effect, in determining whether the ability of such person to
operate a vessel was impaired by the consumption of alcohol.

(3) evidence that there was .07 of one per centum or more but less
than .08 of one per centum by weight of alcohol in his blood shall be
prima facie evidence that such person was not in an intoxicated
condition, but such evidence shall be given prima facie effect in
determining whether the ability of such person to operate a vessel was
impaired by the consumption of alcohol.

(c) Evidence of a refusal to submit to a chemical test or any portion
thereof shall be admissible in any trial or hearing provided the request
to submit to such a test was made in accordance with the provisions of
subdivision seven of this section.

11. Limitations. (a) A vessel operator may be convicted of a violation
of paragraphs (a), (b), (d) and (e) of subdivision two of this section,
notwithstanding that the charge laid before the court alleged a
violation of paragraph (b), (d) or (e) of subdivision two of this
section, and regardless of whether or not such condition is based on a
plea of guilty.

(b) In any case wherein the charge laid before the court alleges a
violation of paragraph (b), (c), (d) or (e) of subdivision two of this
section, any plea of guilty thereafter entered in satisfaction of such
charge must include at least a plea of guilty to the violation of the
provisions of one of the paragraphs of such subdivision two and no other
disposition by plea of guilty to any other charge in satisfaction of
such charge shall be authorized; provided, however, if the district
attorney upon reviewing the available evidence determines that the
charge of a violation of subdivision two of this section is not
warranted, he may consent, and the court may allow a disposition by plea
of guilty to another charge in satisfaction of such charge.

12. Suspension pending prosecution. (a) Without notice, pending any
prosecution, the court may suspend the right to operate a vessel where
the vessel operator has been charged with vehicular assault in the
second degree or vehicular manslaughter in the second degree as defined,
respectively, in sections 120.03 and 125.12 of the penal law.

(b) A suspension under this subdivision shall occur no later than
twenty days after the vessel operator's first appearance before the
court on the charges or at the conclusion of all proceedings required
for the arraignment, whichever comes first. In order for the court to
impose such suspension it must find that the accusatory instrument
conforms to the requirements of section 100.40 of the criminal procedure
law and there exists reasonable cause to believe that the accused
operated a vessel in violation of section 120.03 or 125.12 of the penal
law. At such time the operator shall be entitled to an opportunity to
make a statement regarding the enumerated issues and to present evidence
tending to rebut the court's findings. Where such suspension is imposed
upon such pending charge and the operator has requested a hearing
pursuant to article one hundred eighty of the criminal procedure law,
the court shall conduct such hearing. If upon completion of the hearing,
the court fails to find that there is reasonable cause to believe that
the operator committed a felony under section 120.03 or 125.12 of the
penal law the court shall promptly direct restoration of such operating
privileges to the operator unless such operating privileges are
suspended or revoked pursuant to any other provision of this chapter.

13. Boating safety course. Upon the conviction of any subdivision of
this section, the court shall, in addition to any other penalties
invoked under this section, require the convicted person, as a condition
of the sentence, to complete a boating safety course of the state, U.S.
Power Squadrons, U.S. Coast Guard Auxiliary or a powerboating course or
courses offered by the United States sailing association which are
approved by the commissioner and show proof of successful completion of
such course to the court or its designee.

14. Report. Where a law enforcement officer alleges a violation of
paragraph (e-1) of subdivision two of this section and the operator of
the vessel is sixteen years of age or older and is a parent, guardian,
custodian of, or other person legally responsible for, a child who is
fifteen years of age or less who is a passenger in such vessel, such
officer shall report or cause a report to be made in accordance with
title six of article six of the social services law, if applicable.