Boating While Intoxicated
February 13, 2008
While we'd never stake our reputation on a field as unreliable as meteorology, our calendar exclaims that we are firmly within the bounds of spring. Although to some this astronomical occurrence spells drudgery as the increasingly warmer and longer days provide the ideal forum for projects around the house, to others this long awaited release from home confinement means boating.
Navigation Law '49-a is the toughest piece of legislation ever enacted for combatting the problem of BWI in New York.
Inasmuch as the defense of these charges will undoubtedly fall on you, the practitioner experienced in representing those charged with alcohol influenced motor vehicle operating offenses, a review of this enactment seemed appropriate, if not mandated.
Outwardly, Navigation Law '49-a bears a strong familial relationship with Vehicle and Traffic Law Article 31. It includes, for instance, a per se and "common-law" offense. It also provides for suspension upon refusal and contains a procedure for an oral application in the event of an accident. There are, of course, differences. Under '49-a, for instance, the second occurance within a ten year period will still be a misdemeanor.
Perhaps the most unique feature of this 1992 enactment is the means in which the legislature has chosen to compress the time tested Vehicle and Traffic Law provisions into one all encompassing section. Therefore, the best way to gain a working knowledge of Navigation Law '49-a is to recognize that it consists of 13 component parts, definitions ('49-a), offenses ('49-a), suspensions ('49-a), offenses relating to operation in the face of an existing suspension ('49-a), sentencing ('49-a), arrest and testing ('49-a), chemical tests and compulsory chemical tests ('49-a and '49-a), testing procedures ('49-a), chemical test evidence '49-a), plea bargaining ('49-a), suspension pending prosecution ('49-a), and creation of a boating safety course (('49-a).
Despite the outward similarity, care must be taken in attempting to transfer the wealth of case law available through the auspices of the Vehicle and Traffic Law. As we are about to see, a close reading of the statute is mandated and, in some instances, legislative action will be required.
As set out above, the act opens with a definition of essential terms. Of interest is the definition of the term "vessel." Although "vessel" is defined by Navigation Law '2, in specifing the type of water craft falling within the grasp of '49-a, the legislature spurned that broad provision and chose instead to define a "vessel" as "every description of watercraft or other artificial contrivance propelled in whole or in part by mechanical power . . . 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." Paramount in this demarcation is the complete exclusion of sailboats unless such craft are completely or partially under "mechanical power." The legislature, therefore, appears to have adopted the holding of People v. Briggs, (1990, Dist Ct) 148 Misc 2d 935, 562 NYS2d 8, which refused to find a violation under Navigation Law '49 when the proof at trial was that the craft was adrift and mechanically inoperable.
In the context of automobiles, the term "operation" has gathered a rather impressive body of case law. Although under '49-a the term is similarly undefined, the term "is underway," which is used in conjunction with the phrase "propelled in whole or in part by mechanical power," clearly expresses a legislative direction that the motor must be running and the craft must not be idling but must be moving in a directed fashion. Applicability is similarly broad, the statute governs operation on "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 . . . including Nassau and Suffolk counties."
The schedule of offenses, set out in subparagraph (2) bear little surprise. In enacting '49-a the legislature adopted the tried and true grouping of impairment (subd. 2[a]), .10% per se (subd. 2[b]), drug impairment (subd. 2[e]) and intoxication (subd. 2[c]).
Like its' four wheeled cousin, impairment is a violation, although the fine and predicate possibilities are somewhat different. The initial conviction permits imposition of a fine of not less than two hundred fifty dollars nor more than three hundred fifty dollars, or by imprisonment in a penitentiary or county jail for not more than fifteen days, or by both such fine and imprisonment. A second conviction after a prior conviction within the preceding five years can result in a fine of not less than five hundred dollars nor more than fifteen hundred dollars, or both.
The initial criminal offense, that which attempts to create a per se offense, contains an inexcusable drafting error which warrants immediate correction. As presently provided, Navigation Law '49-a(2)[b] proscribes "operating with more than .10 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." What the legislature undoubtedly meant to say was ".10 of one per centum or more by weight of alcohol in the blood as determined by a chemical test of the breath, urine, or saliva." Read as written, this section permits a conviction upon an absurdly low, perhaps even androgenous quantity of alcohol.
In a section roughly analogous to Driving While Intoxicated Per Se; Commercial Vehicles-level I, operation of mechanically propelled "public vessels," those used or operated for commercial purposes and which are carrying passengers, freight, are engaged in towing or any other use for which a compensation is received, or where provided "as an accommodation, advantage, facility or privilege at any place of public accommodation, resort or amusement" by an individual at a level of .04% or greater is also a misdemeanor ('49-a(2)[c]). Of note is that this section similarly suffers from the deficiency which plagues '49-a(2)[b].
Common-law intoxication is proscribed by Navigation Law '49-a(2)[d]). The most obvious feature of this provision is its marked similarity with Vehicle and Traffic Law '192(3). Intoxication, it would seem, could be proven by evidence that the operator has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vessel as a reasonable and prudent driver (see, People v. Cruz, 49 NY2d 419, 423 NYS2d 625).
Adopting word for word the provisions of Vehicle and Traffic Law '1192(4), Navigation Law '49-a(2)[d], prohibits operation of a vessel while one's 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.
The major distinction between Navigation Law '49-a and its landlubbing cousin lies in the grade and sentence for the offense. Under '49-a(2)[f], a violation of subdivisions [b], [c], [d], or [e] is a misdemeanor punishable by no more than ninety days in the county jail or a fine of three hundred fifty to five hundred dollars or both. Of crucial importance, the second conviction under such subdivisions within a ten year period remains a misdemeanor although it is punishable by a term of imprisonment not to exceed one year or a fine of five hundred to fifteen hundred dollars or both. If, however, the defendant is convicted of three such offenses within a ten year period, the last shall be a class E felony punishable by a fine of not less than five hundred dollars nor more than five thousand dollars or by both such fine and imprisonment. An unconditional discharge is unavailable for any subdivision (2) criminal violation and any conditional discharge must be accompanied by a fine and suspension as previously provided ('49-a(5). All convictions also carry the requirement that the boater, as a condition of the sentence, complete a boating safety course of the state, U.S. Power Squadron or U.S. Coast Guard Auxiliary and show proof of successful completion of such course to the court or its designee.
Like the Vehicle and Traffic Law, '49-a mandates that the court suspend the operators privilege to operate a "vessel" and further provides the sentencing court with discretionary power to suspend the registration of "a vessel." Unfortunately, the statute is once again deficient in that the term "vessel," as used in this context, is undefined. While it would seem clear that the intent of the legislature was to suspend the registration of the craft involved in commission of the '49-a offense, it seems equally clear that the power extends beyond suspending the registration of that particular craft and also includes the power to suspend the registration of any "vessel" which the defendant may own. An additional difficulty with this section is the rather restrictive means in which "vessel" is defined. The term "vessel" is described as "watercraft or other artificial contrivance propelled in whole or in part by mechanical power." Is "in whole or in part" intended to mean temporally, that is to say some times and not others? Or was it intended physically in the sense that a portion of the motive power is mechanically provided in conjunction with some other source such as sail. The resolution is critical in terms of what craft may have their registrations suspended.
"Aggravated operation" is similarly disapproved, although the grading and punishment differs. Should the boater choose to operate a "vessel" after his or her privileges to do so have been suspended pursuant to this section, such operation is a violation punishable by a fine of not less than three hundred fifty or more than seven hundred dollars and a period of imprisonment of up to ninety days. A conviction based upon a violation occurring in conjunction with a subdivision (2) offense will result in a misdemeanor for which the court is free to impose a fine 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.
Like Vehicle and Traffic Law '1194(1) a police officer is authorized to effect a warrantless arrest for any subdivision two violation although a peace officer possesses such powers where the alleged offense constitutes a crime.
Worthy of little comment, '49-a(6) subds (a) and (b) empower a police officer to administer a preliminary breath test when the operator of the vehicle has been involved in an accident or when the vessel is operated in violation of any of the provisions of the navigation law.
Although perhaps intended to create the implied consent which is well known to those who practice in the area of alcohol influenced operating offenses, subdivision (7) is so poorly drawn that even the most liberal reading cannot support such an interpretation. Subdivision 7, in part, provides: "[a]ny 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 . . . ." (Compare, Vehicle and Traffic Law '1194(2) "shall be deemed to have given consent"). Requested to consent, of course, does absolutely nothing to create implied consent on the part of the boater. While in the "routine" situation where the boater is conscious, this difference will prove to be of little consequence, when an accident has occurred and the boater is unable to consent as a result of injury or the loss of consciousness, there exists no basis upon which to Constitutionally withdraw a sample of the operator's blood. Such an oversight (giving the legislature the benefit of the doubt) could prove devastating.
Requested or deemed, when the boater says no, the result is the same. Navigation Law '49-a(7) subdivisions (a) through (e) adopt virtually line by line the more familiar Vehicle and Traffic Law provisions relating to refusals. In brief, '7 provides for the issuance of warnings, a fifteen day period during which the operator can be summarily suspended pending a hearing, a six-month suspension which is extended to one year in the event that the boater has previously refused to submit to a Navigation Law '49-a chemical test or has been previously convicted of a '49-a offense. Likewise there exists a civil penalty which must be paid prior to restoration. Two-hundred dollars upon the first occurrence and five hundred dollars if there has been a prior suspension or conviction, which funds are to be paid into the "I Ì NY Waterways" boating safety fund." Further parallelling the Vehicle and Traffic Law, subdivision 7(f) provides that evidence of a refusal shall be admissible in any trial, proceeding or hearing based upon a violation of '49-a, 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" (see, vol. 1, no.3 for the importance showing "persistence.").
In the event that the boater has been involved in an accident in which a person other than the operator was killed or suffered serious physical injury (see, Penal Law ' 10.00) and a subdivision two violation is alleged or a preliminary breathtest discloses evidence that alcohol has been consumed and the boater refused to submit to a chemical test or is unable to give consent to such a test, compulsory test provisions virtually synonymous to those found at Vehicle and Traffic Law '1194(3) are available. Of true interest is inclusion of "inability" as a basis for requesting a compulsory test. When read with the "request to consent" language of subdivision 7, it is strongly supportive of the argument that a sample taken in the absence of actual consent or a warrant must be suppressed. Such unfortunate drafting precludes admission of a sample taken in the manner found acceptable by the Court of Appeals in People v Goodell, (1992) 79 NY2d 869, 581 NYS2d 157. Of minor import, and for obvious reasons, the presence of an open container was omitted from '49-a's listing of factors which may be considered.
Testing procedures ('49-a) and the prima facie effect of the test results ('49-a) are identical to those found within the Vehicle and Traffic Law. Likewise carried over is liberality in pleading ('49-a[a]) and stringent limitations upon plea bargaining ('49-a[b]). Also carried over is the right of the arrestee to an independent test ('49-a[g]) in addition to that administered at the direction of the arresting officer.
Suspensions pending prosecution are similar to those found in the Vehicle and Traffic Law with one minor wrinkle. Whereas under the Vehicle and Traffic Law such a suspension must be imposed when the motorist has previously been convicted of a '1192 offense within the preceding five years, no such mandate exists in '49-a. The extent of the court's power to impose a suspension pending prosecution rests with those situations when the boater has been charged with vehicular assault in the second degree or vehicular manslaughter in the second degree (Penal Law ''120.03 and 125.12, respectively).
Despite their outward similarities, Navigation Law '49-a and Vehicle and Traffic Law '1192 are not identical. While we have pointed out areas where legislative correction is definitely needed, it must be understood that these are only a start. Problems are envisioned in the failure to integrate vehicular manslaughter and vehicular assault. Moreover, CPL '60.75, which permits a chemical test which has been administered for the purpose of a Vehicle and Traffic Law prosecution to be admitted upon the prosecution of any Penal Law count of an indictment with which it has been properly joined, has not been amended to accommodate tests administered under '49-a. The situation is further complicated by the apparent lack of an implied consent provision. No rationale exists for such limited scope and further integration of these provisions is definitely needed.
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