S07827 Summary:

BILL NOS07827
 
SAME ASSAME AS A10804
 
SPONSORFUSCHILLO
 
COSPNSRDEFRANCISCO, LAVALLE, OPPENHEIMER, RANZENHOFER, VALESKY
 
MLTSPNSR
 
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.
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S07827 Actions:

BILL NOS07827
 
07/27/2012REFERRED TO RULES
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S07827 Floor Votes:

There are no votes for this bill in this legislative session.
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S07827 Text:



 
                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.
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