Amd S49-a, Nav L; amd S25.24, Pks & Rec L; amd SS1193 & 510, V & T L
 
Relates to operating a vessel while under the influence of alcohol or drugs; provides that no person shall operate a vessel 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; provided, further, that no person shall operate a vessel in violation of paragraph (b) of this section while a child who is fifteen years of age or less is a passenger in such vessel; relates to the effect of prior convictions for operation of certain vehicles while intoxicated upon imposition of penalties for boating while intoxicated; requires all persons who operate a mechanically propelled vessel to hold a boating safety certificate.
STATE OF NEW YORK
________________________________________________________________________
7827
IN SENATE
July 27, 2012
___________
Introduced by Sens. FUSCHILLO, DeFRANCISCO -- read twice and ordered
printed, and when printed to be committed to the Committee on Rules
AN ACT to amend the navigation law, the parks, recreation and historic
preservation law and the vehicle and traffic law, in relation to oper-
ating a vessel while under the influence of alcohol or drugs
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 2, 3, 5, paragraph (a) of subdivision 7 and
2 subdivision 11 of section 49-a of the navigation law, as added by chap-
3 ter 805 of the laws of 1992, subdivision 2 as amended by chapter 151 of
4 the laws of 2006, subparagraph 1 of paragraph (a) of subdivision 3 as
5 amended by chapter 599 of the laws of 2008, are amended and two new
6 subdivisions 3-a and 14 are added to read as follows:
7 2. Offenses: criminal penalties. (a) No person shall operate a vessel
8 upon the waters of the state while his or her ability to operate such
9 vessel is impaired by the consumption of alcohol. A violation of this
10 [subdivision] paragraph shall be an offense and shall be punishable by a
11 fine of not less than three hundred dollars nor more than five hundred
12 dollars, or by imprisonment in a penitentiary or county jail for not
13 more than fifteen days, or by both such fine and imprisonment. A person
14 who operates a vessel in violation of this [subdivision] paragraph after
15 being convicted of a violation of any [subdivision] paragraph of this
16 [section] subdivision within the preceding five years shall be punished
17 by a fine of not less than five hundred dollars nor more than seven
18 hundred fifty dollars, or by imprisonment of not more than thirty days
19 in a penitentiary or county jail or by both such fine and imprisonment.
20 A person who operates a vessel in violation of this [subdivision] para-
21 graph after being convicted two or more times of a violation of any
22 [subdivision] paragraph of this [section] subdivision within the preced-
23 ing ten years shall be guilty of a misdemeanor, and shall be punished by
24 a fine of not less than seven hundred fifty dollars nor more than
25 fifteen hundred dollars, or by imprisonment of not more than one hundred
26 eighty days in a penitentiary or county jail or by both such fine and
27 imprisonment.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD16369-08-2
S. 7827 2
1 (b) No such person shall operate a vessel other than a public vessel
2 while he or she has .08 of one per centum or more by weight of alcohol
3 in his or her blood, breath, urine, or saliva, as determined by the
4 chemical test made pursuant to the provisions of subdivision seven of
5 this section.
6 (b-1) No person shall operate a vessel while such person has a .18 of
7 one per centum or more by weight of alcohol in such person's blood as
8 shown by chemical analysis of such person's blood, breath, urine or
9 saliva made pursuant to the provisions of subdivision seven of this
10 section.
11 (b-2) No person shall operate a vessel in violation of paragraph (b)
12 of this subdivision while a child who is fifteen years of age or less is
13 a passenger in such vessel.
14 (c) No such person shall operate a public vessel while he or she has
15 .04 of one per centum or more by weight of alcohol in his or her blood,
16 breath, urine, or saliva, as determined by the chemical test made pursu-
17 ant to the provisions of subdivision seven of this section.
18 (d) No person shall operate a vessel while he or she is in an intoxi-
19 cated condition.
20 (e) No person shall operate a vessel while his or her ability to oper-
21 ate such vessel is impaired by the use of a drug as defined by section
22 one hundred fourteen-a of the vehicle and traffic law.
23 (e-1) No person shall operate a vessel while the person's ability to
24 operate such vessel is impaired by the combined influence of drugs or of
25 alcohol and any drug or drugs. For the purposes of this paragraph, drug
26 shall have the same meaning as in section one hundred fourteen-a of the
27 vehicle and traffic law.
28 (f) A violation of paragraph (b), (c), (d) [or], (e) or (e-1) of this
29 subdivision shall be a misdemeanor and shall be punishable by imprison-
30 ment in a penitentiary or county jail for not more than one year, or by
31 a fine of not less than five hundred dollars nor more than one thousand
32 dollars, or by both such fine and imprisonment. A violation of para-
33 graph (b-1) of this subdivision shall be a misdemeanor and shall be
34 punishable by imprisonment in a penitentiary or county jail for not more
35 than one year, or by a fine of not less than one thousand dollars nor
36 more than two thousand dollars, or by both such fine and imprisonment. A
37 violation of paragraph (b-2) of this subdivision shall be a class E
38 felony. A person who operates a vessel in violation of paragraph (b),
39 (b-1), (c), (d) [or], (e) or (e-1) of this subdivision after having been
40 convicted of a violation of paragraph (b), (b-1), (b-2), (c), (d) [or],
41 (e) or (e-1) of this subdivision, or of operating a vessel or public
42 vessel while intoxicated or while under the influence of drugs, within
43 the preceding ten years, shall be guilty of a class E felony and shall
44 be punished by a period of imprisonment as provided in the penal law, or
45 by a fine of not less than one thousand dollars nor more than five thou-
46 sand dollars, or by both such fine and imprisonment. A person who oper-
47 ates a vessel in violation of paragraph (b-2) of this subdivision after
48 having been convicted of a violation of paragraph (b), (b-1), (b-2),
49 (c), (d), (e) or (e-1) of this subdivision, or of operating a vessel or
50 public vessel while intoxicated or while under the influence of drugs,
51 within the preceding ten years, shall be guilty of a class D felony. A
52 person who operates a vessel in violation of paragraph (b), (b-1), (c),
53 (d) [or], (e) or (e-1) of this subdivision after having been twice
54 convicted of a violation of any of such paragraph (b), (b-1), (b-2),
55 (c), (d) [or], (e) (e-1) of this subdivision or of operating a vessel or
56 public vessel while intoxicated or under the influence of drugs, within
S. 7827 3
1 the preceding ten years, shall be guilty of a class D felony and shall
2 be punished by a fine of not less than two thousand dollars nor more
3 than ten thousand dollars or by a period of imprisonment as provided in
4 the penal law, or by both such fine and imprisonment. A person who
5 operates a vessel in violation of paragraph (b-2) of this subdivision
6 after having been twice convicted of a violation of paragraph (b),
7 (b-1), (b-2), (c), (d), (e) or (e-1) of this subdivision, or of operat-
8 ing a vessel or public vessel while intoxicated or while under the
9 influence of drugs, within the preceding ten years, shall be guilty of a
10 class C felony.
11 3. Privilege to operate a vessel; suspensions. (a) The court shall
12 suspend a person's privilege to operate a vessel and may suspend a
13 vessel registration for:
14 (1) a period of at least six but less than twelve months where an
15 operator is convicted of a violation of paragraph (a) of subdivision two
16 of this section. In determining the length of such suspension or suspen-
17 sions, the court may take into consideration the seriousness of the
18 offense and may impose a period of suspension whereby such suspension
19 may be in effect during a portion of the current or subsequent boating
20 season;
21 (2) a period of twelve months where an operator is convicted of a
22 violation of paragraph (b), (b-1), (c), (d) [or], (e) (e-1) of subdivi-
23 sion two of this section;
24 (3) a period of twenty-four months where a person is convicted of a
25 violation of paragraph (b-2) of subdivision two of this section, or
26 where a person is convicted of a violation of paragraph (b), (b-1), (c),
27 (d) [or], (e) or (e-1) of subdivision two of this section after having
28 been convicted of a violation of paragraph (b), (b-1), (b-2), (c), (d)
29 [or], (e) or (e-1) of subdivision two of this section or of operating a
30 vessel or public vessel while intoxicated or under the influence of
31 drugs within the preceding ten years[.];
32 (4) A period of thirty months where a person is convicted of a
33 violation of paragraph (b-2) of subdivision two of this section after
34 having been convicted of a violation of paragraph (b), (b-1), (b-2),
35 (c), (d), (e) or (e-1) of subdivision two of this section or of operat-
36 ing a vessel or public vessel while intoxicated or under the influence
37 of drugs within the preceding ten years;
38 (5) a period of at least six but less than twelve months, where such
39 person is convicted of a violation of subdivision one of section eleven
40 hundred ninety-two of the vehicle and traffic law. Where the court
41 determines that the period of suspension imposed pursuant to this
42 subparagraph would extend beyond the current boating season, the court
43 may direct that any portion of such suspension period take effect during
44 the following boating season;
45 (6) a period of twelve months, where such person is convicted of a
46 violation of subdivision two, three, four or four-a of section eleven
47 hundred ninety-two of the vehicle and traffic law. Where the court
48 determines that the period of suspension imposed pursuant to this
49 subparagraph would extend beyond the current boating season, the court
50 may direct that any portion of such suspension period take effect during
51 the following boating season;
52 (7) a period of twenty-four months where such person is convicted of a
53 violation of subdivision two-a of section eleven hundred ninety-two of
54 the vehicle and traffic law or a violation of subdivision two, three,
55 four or four-a of section eleven hundred ninety-two of the vehicle and
56 traffic law committed within ten years of a conviction for a violation
S. 7827 4
1 of subdivision two, two-a, three, four or four-a of section eleven
2 hundred ninety-two of the vehicle and traffic law. Where the court
3 determines that the period of suspension imposed pursuant to this
4 subparagraph would extend beyond the current boating season, the court
5 may direct that any portion of such suspension period take effect during
6 the following boating season; or
7 (8) A period of thirty months, where such person is convicted of a
8 violation of subdivision two-a of section eleven hundred ninety-two of
9 the vehicle and traffic law committed within ten years of a conviction
10 for a violation of subdivision two, two-a, three, four or four-a of
11 section eleven hundred ninety-two of the vehicle and traffic law. Where
12 the court determines that the period of suspension imposed pursuant to
13 this subparagraph would extend beyond the current boating season, the
14 court may direct that any portion of such suspension take effect during
15 subsequent boating seasons.
16 (b) The court shall report each conviction recorded pursuant to this
17 section to the commissioner of motor vehicles and the commissioner of
18 parks, recreation and historic preservation on forms provided by the
19 department of motor vehicles. Such reports shall include the length of
20 any suspension imposed on the privilege to operate a vessel and any
21 suspension imposed against a vessel registration. The department of
22 motor vehicles shall maintain a record of all convictions and suspen-
23 sions in order to effectuate the provisions of this section.
24 3-a. Additional sanctions; suspension of motor vehicle driver's
25 license and motor vehicle registration. In addition to any other sanc-
26 tion imposed pursuant to this section, a court shall suspend a license
27 to drive a motor vehicle, and a motor vehicle registration may also be
28 suspended pursuant to paragraphs l, m and n of subdivision three of
29 section five hundred ten of the vehicle and traffic law.
30 5. Sentencing limitations. Notwithstanding any provision of the penal
31 law, no judge or magistrate shall impose a sentence of unconditional
32 discharge for a violation of paragraph (b), (b-1), (b-2), (c), (d) [or],
33 (e) or (e-1) of subdivision two of this section nor shall he or she
34 impose a sentence of conditional discharge unless such conditional
35 discharge is accompanied by a sentence of a fine as provided in this
36 section.
37 (a) Any person who operates a vessel on the waters of the state shall
38 be requested to consent to a chemical test of one or more of the follow-
39 ing: breath, blood, urine, or saliva for the purpose of determining the
40 alcoholic or drug content of his or her blood, provided that such test
41 is administered at the direction of a police officer: (1) having reason-
42 able cause to believe such person to have been operating in violation of
43 this subdivision or paragraph (a), (b), (b-1), (b-2), (c), (d) [or], (e)
44 or (e-1) of subdivision two of this section and within two hours after
45 such person has been placed under arrest for any such violation or (2)
46 within two hours after a breath test as provided in paragraph (b) of
47 subdivision six of this section indicates that alcohol has been consumed
48 by such person and in accordance with the rules and regulations estab-
49 lished by the police force of which the officer is a member.
50 11. Limitations. (a) A vessel operator may be convicted of a violation
51 of [paragraphs] paragraph (a), (b), (b-1), (b-2), (d) [and], (e) or
52 (e-1) of subdivision two of this section, notwithstanding that the
53 charge laid before the court alleged a violation of paragraph (b),
54 (b-1), (b-2), (d) [or], (e) or (e-1) of subdivision two of this section,
55 and regardless of whether or not such condition is based on a plea of
56 guilty.
S. 7827 5
1 (b) In any case wherein the charge laid before the court alleges a
2 violation of paragraph (b), (b-1), (b-2), (c), (d) [or], (e) or (e-1) of
3 subdivision two of this section, any plea of guilty thereafter entered
4 in satisfaction of such charge must include at least a plea of guilty to
5 the violation of the provisions of one of the paragraphs of such subdi-
6 vision two and no other disposition by plea of guilty to any other
7 charge in satisfaction of such charge shall be authorized; provided,
8 however, if the district attorney upon reviewing the available evidence
9 determines that the charge of a violation of subdivision two of this
10 section is not warranted, he or she may consent, and the court may allow
11 a disposition by plea of guilty to another charge in satisfaction of
12 such charge.
13 14. Effect of prior conviction for operation of a motor vehicle, snow-
14 mobile, or all terrain vehicle while under the influence of alcohol or
15 drugs. A prior conviction for operation of a motor vehicle while under
16 the influence of alcohol or drugs pursuant to subdivision one, two,
17 two-a, three, four, four-a, five or six of section eleven hundred nine-
18 ty-two of the vehicle and traffic law, a prior conviction for operation
19 of a snowmobile on a street or highway while under the influence of
20 alcohol or drugs pursuant to subdivision one of section 25.24 of the
21 parks, recreation and historic preservation law, or a prior conviction
22 for operation of an all terrain vehicle while in an intoxicated condi-
23 tion or under the influence of narcotics or drugs pursuant to paragraph
24 (h) of subdivision one of section twenty-four hundred four of the vehi-
25 cle and traffic law shall be deemed to be a prior conviction of a
26 violation of any paragraph of subdivision two of this section for
27 purposes of determining penalties imposed pursuant to paragraph (a) of
28 subdivision two of this section, and shall be deemed to be a prior
29 conviction of a violation of paragraph (b), (b-1), (c), (d), (e) or
30 (e-1) of subdivision two of this section for purposes of determining
31 penalties imposed pursuant to paragraph (f) of such subdivision, and
32 shall be deemed to be a prior conviction of a violation of paragraph
33 (b), (b-1), (b-2), (c), (d), (e) or (e-1) of subdivision two of this
34 section for purposes of determining penalties imposed pursuant to
35 subparagraph three or four of paragraph (a) of subdivision three of this
36 section.
37 § 2. Section 25.24 of the parks, recreation and historic preservation
38 law is amended by adding a new subdivision 4-a to read as follows:
39 4-a. Prior convictions. A prior conviction for operation of a vessel
40 while under the influence of alcohol or drugs pursuant to subdivision
41 two of section forty-nine-a of the navigation law, a prior conviction
42 for operation of a motor vehicle while under the influence of alcohol or
43 drugs pursuant to subdivision one, two, two-a, three, four, four-a, five
44 or six of section eleven hundred ninety-two of the vehicle and traffic
45 law, or a prior conviction for operation of an all terrain vehicle while
46 in an intoxicated condition or under the influence of narcotics or drugs
47 pursuant to paragraph (h) of subdivision one of section twenty-four
48 hundred four of the vehicle and traffic law shall be deemed to be a
49 prior conviction of paragraph (b), (c), or (d) of subdivision one of
50 this section or of operating a snowmobile while intoxicated or under the
51 influence of drugs for purposes of determining penalties imposed pursu-
52 ant to paragraph (e) of subdivision one of this section and subparagraph
53 three of paragraph (a) of subdivision two of this section, and shall be
54 deemed to be a prior conviction of any paragraph of subdivision one of
55 this section for purposes of determining penalties imposed pursuant to
S. 7827 6
1 subparagraph one and subparagraph two of paragraph (d) of subdivision
2 six of this section.
3 § 3. Section 1193 of the vehicle and traffic law is amended by adding
4 a new subdivision 1-b to read as follows:
5 1-b. Effect of prior conviction for operation of a vessel, snowmobile,
6 or all terrain vehicle while under the influence of alcohol or drugs. A
7 prior conviction for operation of a vessel while under the influence of
8 alcohol or drugs pursuant to subdivision two of section forty-nine-a of
9 the navigation law, a prior conviction for operation of a snowmobile on
10 a street or highway while under the influence of alcohol or drugs pursu-
11 ant to subdivision one of section 25.24 of the parks, recreation and
12 historic preservation law, or a prior conviction for operation of an all
13 terrain vehicle while in an intoxicated condition or under the influence
14 of narcotics or drugs pursuant to paragraph (h) of subdivision one of
15 section twenty-four hundred four of this chapter shall be deemed to be a
16 prior conviction of a violation of subdivision two of section eleven
17 hundred ninety-two of this article for purposes of determining penalties
18 imposed pursuant to paragraph (c) of subdivision one of this section or
19 for purposes of any administrative action required to be taken pursuant
20 to subdivision two of section eleven hundred ninety-three of this arti-
21 cle.
22 § 4. Paragraph k of subdivision 3 of section 510 of the vehicle and
23 traffic law, as amended by chapter 124 of the laws of 1992, is amended,
24 and three new paragraphs l, m and n are added to read as follows:
25 k. for a period of up to ninety days because of the conviction of the
26 holder of the offenses of menacing as defined in section 120.15 of the
27 penal law, where such offense was committed against a traffic enforce-
28 ment agent employed by the city of New York or the city of Buffalo while
29 such agent was enforcing or attempting to enforce the traffic regu-
30 lations of such city[.];
31 1. for a period of forty-five days where the holder is convicted of a
32 violation of paragraph (a) of subdivision two of section forty-nine-a
33 of the navigation law and such suspension is ordered pursuant to subdi-
34 vision three-a of section forty-nine-a of the navigation law;
35 m. for a period of ninety days where the holder is convicted of a
36 violation of paragraph (b), (b-1), (c), (d), (e) or (e-1) of subdivision
37 two of section forty-nine-a of the navigation law and such suspension is
38 ordered pursuant to subdivision three-a of section forty-nine-a of the
39 navigation law;
40 n. for a period of one hundred and eighty days where the holder is
41 convicted of a violation of paragraph (b-2) of subdivision two of
42 section forty-nine-a of the navigation law and such suspension is
43 ordered pursuant to subdivision three-a of section forty-nine-a of the
44 navigation law.
45 § 5. Section 1193 of the vehicle and traffic law is amended by adding
46 a new subdivision 3 to read as follows:
47 3. Suspension of privilege to operate a vessel. In addition to any
48 other sanction imposed pursuant to this section, a person's privilege to
49 operate a vessel shall be suspended, and a vessel registration may be
50 suspended, following a conviction under section eleven hundred ninety-
51 two of this article in accordance with the provisions of subparagraphs
52 five, six, seven and eight of paragraph (a) of subdivision three of
53 section forty-nine-a of the navigation law.
54 § 6. This act shall take effect on the one hundred eightieth day after
55 it shall have become a law and shall apply to convictions occurring on
56 and after such date.