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Fiandach & Fiandach (Rochester NY)


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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[1]), of­fenses ('49-a[2]), suspensions ('49-a[3]), of­fenses relat­ing to opera­tion in the face of an ex­ist­ing suspension ('49-a[4]), sen­tencing ('49-a[5]), arrest and testing ('49-a[6]), chemical tests and compulso­ry chemical tests ('49-a[7] and '49-a[8]), testing pro­cedures ('49-a[9]), chemical test evidence '49-a[10]), plea bar­gaining ('49-a[11]), suspension pend­ing pros­ecu­tion ('49-a[12]), and creation of a boat­ing safety course (('49-a[13]).

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[9]) and the pri­ma facie effect of the test results ('49-a[10]) are identi­cal to those found with­in the Ve­hicle and Traffic Law.  Likewise carried over is liberality in pleading ('49-a[11][a]) and stringent limitations upon plea bargaining ('49-a[11][b]).  Also car­ried over is the right of the arrestee to an independent test ('49-a[9][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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