§ 49-b. Operating a vessel after having consumed alcohol; under the
age of twenty-one; per se. 1. Prohibition. No person under the age of
twenty-one shall operate a vessel upon the waters of this state after
having consumed alcohol as defined in this section. For purposes of this
section, a person under the age of twenty-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 in accordance with the provisions of subdivision
four of section eleven hundred ninety-four of the vehicle and traffic
law. Any person who operates a vessel in violation of this section, and
who is not charged with a violation of subdivision two of section
forty-nine-a of this article arising out of the same incident shall be
referred to the department of motor vehicles for action in accordance
with the provisions of this section. 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.

2. Breath test for operators of vessel. Every person under the age of
twenty-one 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 or section forty-nine-a of this article 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
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.

3. Chemical tests. (a) Any person under the age of twenty-one 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 grounds to
believe such person to have been operating in violation of this section
or paragraph (a), (b), (c), (d) or (e) of subdivision two of section
forty-nine-a of this article and within two hours after such person has
been placed under arrest, or detained pursuant to paragraph (c) of this
subdivision, for any such violation or (2) within two hours after a
breath test as provided in subdivision two 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.

(a-1) If such person having been detained pursuant to paragraph (c) of
this subdivision, 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 operating privilege shall be
suspended for refusal to submit to such chemical test or any portion
thereof, whether or not there is a finding of operating a vessel after
having consumed alcohol, refuses to submit to such chemical test or any
portion thereof, unless a court order has been granted pursuant to
subdivision eight of section forty-nine-a of this article, 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
person to have been operating a vessel in violation of this section, and
that said person had refused to submit to such chemical test. The report
shall be forwarded to the commissioner of motor vehicles within
forty-eight hours in a manner to be prescribed by such commissioner of
motor vehicles, and all subsequent proceedings with regard to refusal to
submit to such chemical test by such person shall be as set forth in
subdivision six of this section. The police officer 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.

(b) For the purposes of this subdivision, "reasonable grounds" to
believe that a person has been operating a vessel after having consumed
alcohol in violation of this section 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 this section. 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 being operated, 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.

(c) 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 this section. However, a person under the age of twenty-one
for whom a chemical test is authorized pursuant to this subdivision 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 authorized in accordance with the
provisions of section 140.10 of the criminal procedure law.

4. 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 this section, and such person is not charged with violating
any subdivision of section forty-nine-a 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 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 hearing notice as provided in
subdivision five 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 established 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 vehicles determines, based upon
the availability of hearing officers and the anticipated volume of
hearings at a particular location, that the scheduling of such hearing
within thirty days would impair the timely scheduling or conducting of
other hearings, 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 materials: 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 together 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 this
section, and who is not charged with violating any subdivision of
section forty-nine-a 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
chemical test made by the police officer in accordance with the
provisions of this section; (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
this section; (5) did the test find that such person had operated a
vessel after having consumed alcohol as defined in this section; 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
subdivision 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 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 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
regulations of the state of New York: paragraph (b) of section 124.1
regarding 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 refusal; 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
exercising 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
the operating privilege or non-resident operating privilege of such
person in accordance with the time periods set forth in this section.
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.

(vi) A person who has had a privilege to operate a vessel or
non-resident operating privilege suspended pursuant to the provisions of
this section may appeal the finding of the hearing officer in accordance
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
commissioner shall suspend the privilege to operate a vessel or
non-resident operating privilege until the operator petitions the
commissioner of motor vehicles and a rescheduled hearing is conducted,
provided, however, the commissioner shall restore such person's
operating privilege 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 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 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 this section. Such admission of guilt shall have
the same force and effect as a finding of guilt entered following a
hearing conducted pursuant to this subdivision.

5. Hearing notice. The hearing notice issued to an operator pursuant
to subdivision four of this section shall be in a form as prescribed by
the commissioner. In addition to containing information concerning the
time, date and location of the hearing, and such other information as
the commissioner deems appropriate, 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.

6. Refusal report and hearing. (a) Any person under the age of
twenty-one who is suspected of operating a vessel after having consumed
alcohol in violation of this section, and who is not charged with
violating any subdivision of section forty-nine-a of this article
arising out of the same incident, and who has been requested to submit
to a chemical test pursuant to subdivision three of this section and
after having been informed that his privilege to operate a vessel and
any non-resident operating privilege shall be suspended for refusal to
submit to such chemical test or any portion thereof, whether or not
there is a finding of operating a vessel after having consumed alcohol,
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
particular location, that the scheduling of such hearing within thirty
days would impair the timely scheduling or conducting of other hearings,
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
commissioner of motor vehicles shall suspend the operating privilege or
non-resident operating privilege until the operator petitions the
commissioner of motor vehicles and a rescheduled hearing is conducted,
provided, however, the commissioner shall restore such person's
operator's privilege 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 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.

(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 subdivision three of this section; (2)
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 suspension of
such person's privilege to operate a vessel or nonresident 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; (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 one
said issue in the negative, the hearing officer shall not suspend the
operator's privilege to operate a vessel or non-resident operating
privilege and shall immediately terminate any outstanding suspension of
the operator's privilege to operate a vessel or non-resident operating
privilege 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
immediately suspend the privilege to operate a vessel or any
non-resident operating privilege in accordance with the provisions of
this section. A person who has had a privilege to operate a vessel or
non-resident operating privilege suspended 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.

(d) Any privilege which has been suspended pursuant to paragraph (c)
of this subdivision shall not be restored for one year after such
suspension. Where such person under the age of twenty-one years has a
prior finding, conviction or youthful offender adjudication resulting
from a violation of this section or section forty-nine-a of this
article, not arising from the same incident, such privilege 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.

7. Effect of prior finding of having consumed alcohol. A prior finding
that a person under the age of twenty-one has operated a vessel after
having consumed alcohol pursuant to this section shall have the same
effect as a prior conviction of a violation of paragraph (a) of
subdivision two of section forty-nine-a of this article 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 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.

8. Plea bargain limitations. (a) In any case wherein the charge laid
before a court alleges a violation of paragraph (a) of subdivision two
of section forty-nine-a of this article 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,
however, such charge may instead be satisfied as provided in paragraph
(b) of this subdivision, and, provided further that, if the district
attorney, upon reviewing the available evidence, determines that the
charge of a violation of paragraph (a) of subdivision two of section
forty-nine-a of this article 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 a court alleges a
violation of paragraph (a) of subdivision two of section forty-nine-a of
this article 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 of motor vehicles
pursuant to this section. In any such case, the defendant shall waive
the right to a hearing under this section and such waiver shall have the
same force and effect as a finding of a violation of this section
entered after a hearing conducted pursuant to this section. The
defendant shall execute such waiver in open court, and, if represented
by counsel, in the presence of his attorney, on a form to be provided by
the commissioner of motor vehicles, which shall be forwarded by the
court to the commissioner of motor vehicles 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 this section; (ii) shall subject the defendant to the imposition of
sanctions pursuant to this section; and (iii) may subject the defendant
to increased sanctions upon a subsequent violation of this section or
section forty-nine-a of this article. Upon receipt of a duly executed
waiver pursuant to this paragraph, the commissioner of motor vehicles
shall take such administrative action and impose such sanctions as may
be required by this section.

9. Sanctions. (a) Except as otherwise provided in this subdivision, a
person's privilege to operate a vessel upon the waters of the state
shall be suspended for six months, where such person has been found to
have operated a vessel after having consumed alcohol in violation of
this section.

(b) The suspension of operating privileges pursuant to this
subdivision shall be for one year or until such person reaches the age
of twenty-one, whichever is the greater period of time, where such
person has been found to have operated a vessel after having consumed
alcohol in violation of this section, and has previously been found to
have operated a vessel after having consumed alcohol in violation of
this section or has previously been convicted of, or adjudicated a
youthful offender for any violation of section forty-nine-a of this
article not arising out of the same incident.

(c) Where the commissioner of motor vehicles determines that the
period of suspension imposed pursuant to this section would extend
beyond the current boating season, such commissioner may direct that any
portion of such suspension period take effect during the following
boating season.

10. Civil penalty. (a) Unless otherwise provided, any person whose
privilege to operate a vessel has been suspended pursuant to the
provisions of this section shall also be liable for a civil penalty in
the amount of one hundred twenty-five dollars.

(b) The first one hundred dollars of each civil penalty collected
pursuant to the provisions of this section shall be paid to the
commissioner of motor vehicles for deposit into the general fund and the
remainder of all such civil penalties shall be paid to the commissioner
of parks, recreation, and historic preservation for deposit into the "I
Love NY Waterways" boating safety fund established pursuant to section
ninety-seven-nn of state finance law.

11. Nothing contained in this section shall be deemed to exempt
persons under the age of twenty-one from arrest and prosecution under
section forty-nine-a of this article for an alleged violation of such
section.