[HISTORY: Adopted by the Town Board of the Town of Martinsburg 11-19-2003 by L.L. No.
4-2003. Amendments noted where applicable.]
The purpose of this chapter is to protect the public health,
safety, and welfare by regulating the operation of snowmobiles on
public highways and on public lands, which includes designated trails
open to the public in the Town of Martinsburg so that all snowmobiles
are operated in a manner which will be compatible with the use of
such highways and public lands for vehicular and pedestrian travel
and other uses, and which will promote the safe and proper use of
snowmobiles for recreation and commerce and minimize detrimental effects
of such use on the environment.
As used in this chapter, unless the context requires otherwise,
the following terms shall have the meanings indicated:
A snowmobile designated as such in writing and filed with
the Commissioner by the Chief Executive Officer of any duly organized
volunteer ambulance company, fire department, or paid fire department,
operated by a member thereof and equipped with emergency lights as
provided in Subdivision 4 of § 25.17 of the Parks, Recreation
and Historic Preservation Law.
A snowmobile designated as such in writing and filed with
the Commissioner by the Chief Executive Officer of a municipality
and operated by a member of a civil defense organization of the municipality
and equipped with emergency lights.
A snowmobile operated by a police or other peace officer
while engaged in the performance of his official duties within the
area of his territorial jurisdiction and equipped with emergency lights.
A mound, pile or ridge of snow on the edge of a highway accumulated
from natural snowfall or by snowplowing operations.
The State Commissioner of Parks, Recreation and Historic
Preservation.[2]
In the case of a county, the County Executive unless there is
none, in which case it shall mean the County Manager if there is one,
or the Chairman of the County Legislative body if there is nether
a County Executive nor County Manager.
In the case of cities, the Mayor, except in those cities having
a City Manager it shall mean such City Manager.
In the case of towns, the Supervisor or presiding Supervisor.
In the case of villages, the Mayor, except in those villages
having a President or manager it shall mean such President or manager.
Any agency of the State of New York and all municipalities
within the state.
The entire width between the boundary or right-of-way lines
of any way or place when any part thereof is open to the use of the
public, as a matter of right, for the purpose of vehicular traffic,
including all highways designated as seasonal limited use highways
and minimum maintenance roads.
To ride in or on, other than as a passenger, or use or control
the operation of a snowmobile in any manner, whether or not said snowmobile
is under way.
The operation or parking of an authorized ambulance, police
or civil defense snowmobile, including attendant equipment, displaying
one or more lighted, red or combination red or white lights which
is revolving, rotating, flashing, oscillating, or constantly moving
light and which snowmobile is engaged in transporting a sick or injured
person, pursuing an actual or suspected violator of the law or responding
to or working or assisting at the scene of an accident, disaster,
police call, alarm or other emergency but shall not include returning
from such service.
Every person who operates or is in actual physical control
of a snowmobile.
The portion of a snowbank outside the crest thereof and farthest
removed from the roadway.
Any person having title to a snowmobile. If a snowmobile
is sold under a contract of conditional sale whereby the title remains
in the vendor, such vendor or his assignee shall not, after delivery
of such snowmobile, be deemed an owner within the provisions of this
chapter, but the vendee or his assignee, upon receipt of possession
thereof, shall be deemed such owner notwithstanding the terms of such
contract, until the vendor or his assignee shall retake possession.
A person holding only a security interest in a snowmobile shall not
be deemed an owner unless such person also has possession of such
snowmobile.
That portion of a highway improved, designed, or ordinarily
used for vehicular travel, exclusive of the shoulder.
That portion of a highway which lies outside the paved or
unpaved roadway immediately adjacent to the portion of the roadway
which may be used by motor vehicles.
A portion of a street between the curblines or the lateral
lines of a roadway and adjacent property lines, intended for the use
of pedestrians.
A self-propelled vehicle designed for travel on snow or ice,
steered by skis or runners and supported in whole or in part by one
or more skis, belts or cleats.
A certificate issued by the Commissioner evidencing that
the holder hereof has successfully completed an approved course of
instruction in snowmobile operation and safety as herein provided.
A way designated as open to the public for snowmobiling.
An organized rally, race, exhibition or demonstration of
limited duration which is conducted according to a prearranged schedule
and in which general public interest is manifested.
A.
It shall be unlawful for any person to drive or operate any snowmobile
in the following unsafe or harassing ways:
(1)
Speed restrictions.
(a)
No person shall operate a snowmobile at a speed or in a fashion
that is not reasonable and prudent for the conditions then and there
existing;
(b)
The operator of every snowmobile shall proceed at an appropriately
reduced speed when approaching and crossing an intersection, highway,
roadway, trail, mogul, or railroad crossing, or when approaching or
rounding a curve, or approaching a hill crest, or when approaching
any other obstacle or debris in or upon the highway, roadway, shoulder
of roadway, trail public lands or water, or private lands;[1]
(c)
(d)
No person shall operate a snowmobile in excess of the posted
maximum speed limits at any time on public roadways, trails or private
lands.
(2)
Reckless operation. In a careless, reckless or negligent manner so
as to unreasonably endanger the person or property of another or to
cause injury or damage thereto.
(3)
Lights.
(a)
Between sunset and sunrise, or when lights are required for
safety, without displaying at least one lighted head light and tail
light.
(b)
Operating other than as an emergency vehicle and displaying
one or more lighted red or combination red or white lights which are
revolving, rotating, flashing, oscillating, or constantly moving.
(4)
Railroad tracks. On the tracks or right-of-way of an operating railroad
or right-of-way.
(5)
Plantings. In any tree nursery or planting in a manner which damages
or destroys growing stock, or creates a substantial risk thereto.
(6)
On the lands of another. On private property, except for operation
as an emergency vehicle, without the consent of the owner or lessee
thereof. Any person operating a snowmobile upon lands of another in
violation of this section shall stop and identify himself upon the
request of the landowner, his duly authorized representative or lessee,
and, if requested to do so by said landowner, representative or lessee,
shall promptly remove said snowmobile from the premises.
(7)
Towing a sleigh, sled, or toboggan. Towing a sleigh, sled, or toboggan
by a snowmobile, unless attached by a rigid support, connection or
towbar.
(8)
Failure to stop and yield. In any place at any time, failing to stop
and yield to an authorized ambulance, civil defense or police snowmobile
or police vehicle being operated as an emergency vehicle and approaching
from any direction.
(9)
Failure and refusal to comply. In any place at any time, failing
or refusing to comply with any lawful order or direction of any police
officer or other person duly empowered to enforce all laws of the
state relating to snowmobiles.
B.
Obedience to vehicular traffic controls. Each person operating a
snowmobile on any Town highway shall observe all vehicular traffic
signs and signals and all other rules and regulations applicable to
vehicular traffic, and shall obey the orders and directions of any
state or local police or other law enforcement officer authorized
to direct or regulate traffic.[4]
C.
Helmets. No person shall operate a snowmobile or ride as a passenger
on a snowmobile unless he or she is wearing a protective helmet of
a type approved by the Commissioner, except when operating a snowmobile
or riding as a passenger on private lands owned by the operator or
passenger, or to which the operator or passenger has a contractual
right, other than as a member of a club or association, and for which
no compensation is paid to the owner with respect to such operation.
D.
Single lane. No person shall drive or operate any snowmobile on any
highway, when otherwise permitted, unless in a single file, and such
persons shall not ride tandem or abreast of each other except in overtaking
another snowmobile, and such persons shall travel on the right side
of the road in the same direction as the flow of vehicular traffic.
E.
Overtaking vehicles or snowmobiles on the left. The following rules
shall govern the overtaking and passing of vehicles and/or snowmobiles
proceeding in the same direction, subject to those limitations, exceptions
and special rules hereinafter stated:
(1)
The driver of a snowmobile overtaking another snowmobile and/or motor
vehicle proceeding in the same direction shall pass to the left thereof
at a safe distance and shall not again drive to the right side of
the roadway until safely clear of the overtaken vehicle.
(2)
The driver of an overtaken snowmobile shall give way to the right
in favor of the overtaking snowmobile and shall not increase the speed
of his snowmobile until completely passed by the overtaking snowmobile.
(3)
No snowmobile shall be driven to the left side of the center of the
roadway or trail in overtaking and passing another snowmobile or other
vehicle proceeding in the same direction unless such left side is
clearly visible and is free of oncoming traffic for a sufficient distance
ahead to permit such overtaking and passing to be completely made
without interfering with the operation of any vehicle or snowmobile
approaching from the opposite direction or any vehicle overtaken.
In every event, the overtaking vehicle must return to an authorized
lane of travel as soon as practicable and in the event the passing
movement involves the use of a lane authorized for snowmobiles or
other vehicles approaching from the opposite direction, before coming
within 200 feet of any approaching snowmobile or vehicle.
A snowmobile may be operated on the public highways and public
lands in the Town of Martinsburg only under the following conditions:
A.
Snowmobile trails. Snowmobiles may be operated on all snowmobile
trails open to the public as so designated under the Parks, Recreation
and Historic Preservation Law of the State of New York, or as designated
by the Town Board from time to time in a manner consistent with provisions
of this chapter and all other county or state laws relating to the
operation of snowmobiles.[1]
C.
Emergencies.
(1)
Snowmobiles
may be operated for the purpose of emergency travel only on all highways
in the Town of Martinsburg, during the period of time when and at
locations where snow upon the highways renders travel by motor vehicles
impractical as so declared and permitted by the chief executive officer
of the Town of Martinsburg.
(2)
A snowmobile
may also be operated on a highway otherwise closed to snowmobile travel
in emergency situations when the specific travel for a specific purpose
is authorized or directed by a peace or police officer or other duly
recognized emergency personnel.
D.
Highway crossings. Snowmobiles may be operated so as to take a direct
crossing of a highway at any time of the day, provided that the crossing
is made at an angle approximately 90° to the direction of the
highway, at a place where no obstruction prevents a quick and safe
crossing, the snowmobile is brought to a complete stop before crossing
the main traveled way of the highway, and the driver yields the right-of-way
to all oncoming traffic.
E.
Sidewalk crossings. No operator of a snowmobile shall operate on
a sidewalk as defined as above, except to gain access to a public
highway, private way, or lands or buildings adjacent to highways.
All crossings shall be made at a ninety-degree angle, and shall not
interfere with the safety and passage of pedestrians thereon, who
shall have the right-of-way.
F.
Culverts and bridges. Snowmobiles may be operated on highways when
necessary to cross a bridge or a culvert.
G.
Unplowed highways. Snowmobiles may be operated on county, Town, city
or village highways, or portions thereof, during the periods when
and at the locations where the highway is customarily unplowed and
unused during the winter months for vehicle travel. The Town Board
shall designate those highways or portions thereof which are so customarily
unplowed.[2]
H.
Outside banks. On highways snowmobiles may be operated on the outside
banks.
I.
Designated Town highways.[3]
(1)
The
following highways are set forth as "highways designated by governmental
agencies" upon which snowmobiles may be operated as permitted by Parks,
Recreation and Historic Preservation Law § 25.09: See Exhibit
A.[4]
[4]
Editor's Note: Exhibit A is included at the end of this chapter.
(2)
Signage. All roads open to snowmobiles must be posted as open to
snowmobiles at either terminus of such road. The Highway Superintendent
of the Town of Martinsburg is hereby directed to post all such signs.
[Added 2-14-2007 by L.L. No. 1-2007]
J.
Limitation on highway operation.
(1)
No person shall so operate a snowmobile on any highway, when otherwise
permitted, between sunset and sunrise except on the right side of
such right-of-way and in the same direction as the highway traffic
or the nearest lane of the roadway adjacent thereto.
(2)
When operation on a roadway is permitted by any provision of this
chapter, snowmobiles shall travel in single file, shall not ride tandem
or abreast each other except in overtaking another snowmobile, and
shall travel on the right side of the road in the same direction as
the flow of vehicular traffic.
(3)
No person shall operate a snowmobile on or across a highway while
pulling a person on skis or drawing or towing a sleigh, sled or toboggan
which carries or transports any person. No person on skis shall be
pulled by, and no person shall ride on or in, a sleigh, sled or toboggan
which is being towed or trailed by a snowmobile on a highway.
(4)
No person shall operate a snowmobile on the frozen surface of public
waters within 100 feet of a person, including but not limited to a
skater, nor in or upon a snowmobile or within 100 feet of a fishing
shanty or shelter except at the minimum speed required to maintain
forward movement of the snowmobile or on an area which has been cleared
of snow for skating purposes unless the area is necessary for access
to the public water.
(5)
Access areas. On such highways, for a distance of not to exceed 500
yards when in the determination of the governmental agency concerned
it is otherwise impossible for snowmobiles to gain access to areas
or trails adjacent to the highway, for the purpose only of gaining
access to and from the areas of operation.
K.
Emergency vehicles. The provisions of this section shall not apply
to operation as emergency vehicle.
L.
Special events. Snowmobiles may be operated at special events in
a manner consistent with this chapter, or in a manner as defined in
Parks, Recreation, and Historic Preservation Law and upon authorization
by the New York State Commissioner of Parks, Recreation, and Historic
Preservation.
A.
All snowmobiles operated on public lands, roadways, waters or private
lands not owned and/or leased by the owner or operator of the snowmobile
shall be covered by liability insurance as per § 25.13 of
the New York State Parks, Recreation and Historic Preservation Law.
B.
No owner of a snowmobile shall operate or permit the same to be operated
upon the roadways, shoulders of roadways, public lands, waters or
private lands not owned and/or leased by the owner or operator of
the snowmobile without having in full force and effect the liability
insurance coverage required by § 25.13 of the New York State
Parks, Recreation and Historic Preservation Law, and no person shall
operate a snowmobile upon the highways, roadways, shoulders of roadways,
public waters or lands or private lands not owned and/or leased by
the owner of said snowmobile with the knowledge that such insurance
is not in full force and effect.
C.
Proof of insurance as required by this section shall be produced
and displayed by the owner or operator of such snowmobile upon the
request of any magistrate or any person having authority to enforce
the provisions of this chapter. The failure to produce such proof
upon the request of any such person shall not be an offense but shall
be presumptive evidence that the snowmobile is being operated without
having such insurance in force and effect.
D.
Proof of insurance as required by this section shall be produced
and displayed by the owner or operator of such snowmobile to any person
who has suffered or claims to have suffered either personal injury
or property damage as a result of the operation of such snowmobile
by the owner or operator, if such insurance coverage was required
under the circumstances of such operation. It shall be an affirmative
defense to any prosecution for a violation of this subsection that
such proof was so produced or displayed within 24 hours of receiving
notice of such injury or damage, or the claim of such injury or damage.
E.
No owner of a snowmobile shall operate or permit the same to be operated
upon the shoulders or roadways of highways without having in full
force and effect the liability insurance coverage required by this
section, and no person shall operate a snowmobile upon the shoulders
or roadways of highways with knowledge that such insurance is not
in full force and effect.
No person shall drive or operate a snowmobile on a highway within
the Town or Village unless it is equipped with the required headlight,
taillight, brakes, reflector material, and muffler as defined by and
in accordance with the minimum standards of § 25.17 of Parks,
Recreation and Historic Preservation Law of the State of New York.
A.
Any combination of equipment used to maintain the snow surface of
snowmobile trails shall be equipped with:
(1)
A headlight and taillight as required of snowmobiles in this chapter
as well as a revolving, rotating, flashing, oscillating or constantly
moving amber lamp with a minimum candlepower of sufficient intensity
to be plainly visible from a distance of 500 feet from the front and
rear during hours of darkness under normal atmospheric conditions.
(2)
Reflector material as required for snowmobiles.
B.
Failing to yield to trail grooming equipment. Failure by the operator
of a snowmobile upon any snowmobile trail to yield the right-of-way
to the operator of trail grooming equipment upon such trail, whether
such snowmobile operator is approaching or overtaking, shall be considered
unlawful.
A.
Age of operator.[1]
(1)
No person under the age of 14 years shall operate a snowmobile except
upon lands owned or leased by his/her parent or guardian. "Leased
lands" as herein used shall not include lands leased by an organization
of which said operator or his/her parent or guardian is a member.
(2)
A person 10 years of ago or older but less than 14 years of age who
holds a valid snowmobile safety certificate issued by the Commissioner
may operate a snowmobile on any lands upon which snowmobiling is allowed
if accompanied by a person over 18 years of age. For the purpose of
this subsection, "accompanied" shall mean within 500 feet of the person
over 18 years of age.
B.
Snowmobile safety certificate. A person 14 years of age but less
than 18 years of age who either holds a valid snowmobile safety certificate
issued by the Commissioner or is accompanied by a person over 18 years
of age may operate a snowmobile in the same manner as a person who
is 18 years of age or older.[2]
C.
Exhibition of certificate. The failure of such a youthful operator
to exhibit a snowmobile safety certificate upon demand to any magistrate
or any other officer having authority to enforce the provisions of
this chapter shall not be an offense, but shall be presumptive evidence
that such person is not the holder of such certificate.
D.
Snowmobile owner responsibility. No owner of a snowmobile shall authorize
or permit the operation thereof within the state by any person in
violation of the provisions of this section.
E.
Owner or possessor responsibility. No owner or other person in possession
of any snowmobile shall authorize or knowingly permit any person under
18 years of age to operate such a snowmobile in violation of Article
25 of the New York State Parks, Recreation and Historic Preservation
Law, the Rules or Regulations of the Commissioner, or the provisions
of this chapter.
F.
Parent or guardian responsibility. No parent or guardian shall authorize
or knowingly permit his or her child or ward, if under 18 years of
age, to operate a snowmobile in violation of any provision of Article
25 of the New York State Parks, Recreation and Historic Preservation
Law, the Rules or Regulations of the Commissioner, or the provisions
of this chapter.
A.
The operator of any snowmobile involved in any accident resulting
in injuries to or death of any person or in which property damage
in the estimated amount of $1,000 or more is sustained shall, within
seven days after such accident, report the matter in writing to the
Office of Parks, Recreation and Historic Preservation, with a copy
thereof to the law enforcement agency who investigated the accident.
If such operator is physically incapable of making such report and
there is another participant in the accident not so incapacitated,
such participant shall make the report within the allotted time after
such accident. In the event that there is no other participant and
the operator is other than the owner, then the owner shall, within
the prescribed period of time, after learning of the facts of such
accident, report the matter to the office, together with such information
as may have come to his knowledge relating to such accident. Every
such operator of a snowmobile, or participant of any such accident,
or the owner of the snowmobile involved in any such accident, shall
make such other and additional reports as the Commissioner shall require.[1]
B.
Whenever any snowmobile meets with an accident involving a loss of
life, personal injury or damage to property and the operator thereof
has knowledge of such accident, he shall stop and give his name and
address, the name and address of the owner thereof, and the registration
number assigned to said snowmobile to the injured person or the person
sustaining the damage, or to a peace or police officer. In the event
the person sustaining the damage is not present at the place where
the damage occurred, the operator shall, as soon as physically able,
report the same to the nearest law enforcement agency.
C.
A peace, police or judicial officer who investigates or receives
information of an accident involving a snowmobile shall make a written
report of the investigation or information received, and such additional
facts relating to the accident as may come to his knowledge and mail
the same within 48 hours to the Office of Parks, Recreation and Historical
Preservation and keep a record thereof in his office.[2]
D.
Failure of such persons to give notice of any accident requiring
notice shall be prima facie evidence that such accident was not reported.
A.
Offenses; criminal penalties.
(1)
Offenses.[1]
(a)
No person shall operate a snowmobile upon a street, highway,
public trails, lands, bodies of water, or private property of another
while his or her ability to operate such snowmobile is impaired by
the consumption of alcohol. A violation of this subsection shall be
an offense and shall be punishable by a fine of not less than $250,
nor more than $350, or by imprisonment in a penitentiary or county
jail for not more than 15 days, or by both such fine and imprisonment.
A person who operates a snowmobile in violation of this subsection
after being convicted of a violation of any subsection of this section
within the preceding five years shall be punished by a fine of not
less than $500, nor more than $1,500, or by imprisonment of not more
than 30 days in a penitentiary or county jail or by both such fine
and imprisonment.
(b)
No such person shall operate a snowmobile upon a street, highway, public trails, lands, bodies of water, or private property of another while he or she has 0.08 of 1% or more by weight of alcohol in his or her blood, breath, urine, or saliva, as determined by the chemical test made pursuant to the provisions of Subsection F of this section.
(c)
No person shall operate a snowmobile upon a street, highway,
public trails, lands, bodies of water, or private property of another
while he or she is in an intoxicated condition.
(d)
No person shall operate a snowmobile upon a street, highway,
public trails, lands, bodies of water, or private property of another
while his or her ability to operate such snowmobile is impaired by
the use of a drug as defined by § 114-a of the Vehicle and
Traffic Law.
(2)
Criminal penalties. A violation of Subsection A(2), (3) or (4) of this section shall be a misdemeanor and shall be punishable by imprisonment in a penitentiary or county jail for not more than 90 days, or by a fine of not less than $350 nor more than $500, or by both such fine and imprisonment. A person who operates a snowmobile in violation of Subsection A(1)(b), (c) or (d) of this section after having been convicted of a violation of Subsection A(1)(b), (c) or (d) of this section, or of operating a snowmobile while intoxicated or while under the influence of drugs, within the preceding 10 years, shall be guilty of a misdemeanor and shall be punished by imprisonment for not more than one year, or by a fine of not less than $500 nor more than $1,500, or by both such fine and imprisonment. A person who operates a snowmobile in violation of Subsection A(1)(b), (c) or (d) of this section after having been twice convicted of a violation of Subsection A(1)(b), (c) or (d) of this section, or of operating a snowmobile while intoxicated or under the influence of drugs, within the preceding 10 years, shall be guilty of a Class E felony and shall be punished by a fine of not less than $500 nor more than $5,000, or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment.
B.
Privilege to operate a snowmobile; suspensions.
(1)
The court shall suspend a person's privilege to operate a snowmobile
and may suspend a snowmobile registration for:
(a)
A period of six months where an operator is convicted of a violation of Subsection A(1)(a) of this section;
(c)
A period of 24 months where a person is convicted of a violation of Subsection A(1)(b), (c) or (d) of this section after having been convicted of a violation of Subsection A(1)(b), (c) or (d) of this section or of operating a snowmobile while intoxicated or under the influence of drugs within the preceding 10 years.
(2)
The court shall report each conviction recorded pursuant to this
section to the Commissioner of Motor Vehicles and the Commissioner
on forms provided by the Department of Motor Vehicles. Such reports
shall include the length of any suspension imposed on the privilege
to operate a snowmobile and any suspension imposed against a snowmobile
registration. The Department of Motor Vehicles shall maintain a record
of all convictions and suspensions in order to effectuate the provisions
of this section.
C.
Operation of a snowmobile while operating privileges have been suspended.
(1)
No person shall operate a snowmobile on a street or highway or upon
public trails or lands while operating privileges have been suspended
pursuant to this section. A violation of the provisions of this subsection
shall be a violation and shall be punishable by a fine of not less
than $350 nor more than $750, or by imprisonment for a period of not
more than 90 days, or by both such fine and imprisonment.
(2)
A person who is in violation of the provisions of Subsection C(1), and in addition is in violation of the provisions of any paragraph of Subsection A of this section arising out of the same incident, shall be guilty of a misdemeanor punishable by a fine of not less than $500, nor more than $5,000 or by a period of imprisonment for a period of not more than one year or by both such fine and imprisonment.
D.
Sentencing limitations. Notwithstanding any provision of the Penal Law, no judge or magistrate shall impose a sentence of unconditional discharge for a violation of Subsection A(1)(b), (c) or (d) of this section, nor shall he or she impose a sentence of conditional discharge unless such conditional discharge is accompanied by a sentence of a fine as provided in this section.
E.
Arrest and testing.
(1)
Arrest. Notwithstanding the provisions of § 140.10 of the Criminal Procedure Law, a police officer may, without a warrant, arrest a person, in case of a violation of any paragraph of Subsection A of this section, if such violation is coupled with an accident or collision in which such person is involved, which in fact had been committed, though not in the police officer's presence, when he or she has reasonable case to believe that the violation was committed by such person. For the purposes of this subsection, "police officer" shall also include a peace officer authorized to enforce the provisions of this section when the alleged violation constitutes a crime.
(2)
Breath test for operations of a snowmobile. Every person operating a snowmobile on a street or highway or upon public trails or lands, which has been involved in an accident or which is operated in violation of any of the provisions of this section, which regulate the manner in which a snowmobile is to be properly operated 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 Subsection F of this section.
F.
Chemical tests.
(1)
Any person who operates a snowmobile on a street or highway or upon
public trails or lands 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
or her blood, provided that such a test is administered at the direction
of a police officer:
(2)
If such person having been placed under arrest or after a breath test indicates the presence of alcohol in the person's system and having thereafter been requested to submit to such chemical test and having been informed that the person's privilege to operate a snowmobile shall be immediately suspended for refusal to submit to such chemical test or any portion thereof, whether or not the person is found guilty of the charge for which such person is arrested, refuses to submit to such chemical test or any portion thereof, unless a court order has been granted pursuant to Subsection G of this section, 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 § 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 arrested person to have been operating a snowmobile in violation of any paragraph of Subsection A of this section, that such person had refused to submit to such chemical test, and that no chemical test was administered pursuant to the requirements of Subsection G of this section. The report shall be presented to the court upon the arraignment of the arrested person. The privilege to operate a snowmobile shall, upon the basis of such written report, be temporarily suspended by the court without notice pending the determination of a hearing as provided herein. Copies of such report must be transmitted by the Court to the Commissioner and the Commissioner of Motor Vehicles and such transmittal may not be waived even with the consent of all the parties. Such report shall be forwarded to the Commissioner and the Commissioner of Motor Vehicles within 48 hours of such arraignment. The court 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. If a hearing, as provided for in Subsection F(3), is waived by such person, the Commissioner of Motor Vehicles shall immediately suspend the privilege to operate a snowmobile, as of the date of receipt of such waiver in accordance with the provisions of Subsection F(4).
(3)
Any person whose privilege to operate a snowmobile has been suspended pursuant to Subsection F(2) is entitled to a hearing in accordance with a hearing schedule to be promulgated by the Commissioner of Motor Vehicles. If the Department of Motor Vehicles fails to provide for such hearing 15 days after the date of the arraignment of the arrested person, the privilege to operate a snowmobile of such person shall be reinstated pending a hearing pursuant to this section. The hearing shall be limited to the following issues: (1) Did the police officer have reasonable cause to believe that such person had been operating a snowmobile in violation of any paragraph of Subsection A of this section; (2) Did the police officer make a lawful arrest of such person; (3) Was such person given sufficient warning, in clear and unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof would result in the immediate suspension of such person's privilege to operate a snowmobile whether or not such person is found guilty of the charge for which the arrest was made; and (4) Did such person refuse to submit to such chemical test or any portion thereof. If, after such hearing, the hearing officer, acting on behalf of the Commissioner of Motor Vehicles, finds on any one of said issues in the negative, the hearing officer shall immediately terminate any suspension 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 officer shall immediately suspend the privilege to operate a snowmobile in accordance with the provisions of Subsection F(4). A person who has had the privilege to operate a snowmobile suspended pursuant to this subsection may appeal the findings of the hearing officer in accordance with the provisions of Article 3-A of the Vehicle and Traffic Law. Any person may waive the right to a hearing under this section. Failure by such person to appear for the scheduled hearing shall constitute a waiver of such hearing; provided, however, that such person may petition the Commissioner of Motor Vehicles for a new hearing which shall be held as soon as practicable.
(4)
Restoration of privileges; civil penalty.
(a)
Any privilege to operate a snowmobile which has been suspended pursuant to Subsection F(3) shall not be restored for six months after such suspension. However, no such privilege shall be restored for at least one year after such suspension in any case where the person has had a prior suspension resulting from refusal to submit to a chemical test pursuant to this subsection, or has been convicted of a violation of any paragraph of Subsection A of this section not arising out of the same incident, within the five years immediately preceding the date of such suspension.
(b)
Any person whose privilege to operate a snowmobile is suspended pursuant to the provisions of this subsection shall also be liable for a civil penalty in the amount of $200 except that if such suspension is a second or subsequent suspension pursuant to this subsection issued within a five-year period, or such person has been convicted of a violation of any paragraph of Subsection A within the past five years not arising out of the same incident, the civil penalty shall be in the amount of $500. The privilege to operate a snowmobile shall not be restored to such person unless such penalty has been paid. The first $100 of each penalty collected by the Department of Motor Vehicles pursuant to the provisions of this subsection shall be paid to the Commissioner of Motor Vehicles for deposit to the general fund and the remainder of all such penalties shall be paid to the Commissioner for deposit in the snowmobile trail development and maintenance fund established pursuant to § 92-n of the State Finance Law.
(5)
The Commissioner of Motor Vehicles in consultation with the Commissioner
shall promulgate such rules and regulations as may be necessary to
effectuate the provisions of this subsection.
(6)
Evidence of a refusal to submit to such chemical test shall be admissible
in any trial, proceeding or hearing based upon a violation of the
provisions of this section, 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.
(7)
Upon the request of the person tested, the results of such test shall
be made available to him or her.
G.
Compulsory chemical tests.
(1)
Notwithstanding the provisions of Subsection F of this section, no person who operates a snowmobile on a street or highway or upon public trails or lands may refuse to submit to a chemical test of one or more of the following: breath, blood, urine or saliva, for the purpose of determining the alcoholic and/or drug content of the blood when a court order for such chemical test has been issued in accordance with the provisions of this subsection.
(2)
Upon refusal by any person to submit to a chemical test or any portion thereof as described in Subsection G(1), the test shall not be given unless a police officer or a district attorney, as defined in Subdivision 32 of § 1.20 of the Criminal Procedure Law, requests and obtains a court order to compel a person to submit to a chemical test to determine the alcoholic or drug content of the person's blood upon a finding of reasonable cause to believe that:
(3)
For the purpose of this subsection, "reasonable cause" shall be determined by viewing to totality of circumstances surrounding the incident which, when taken together, indicate that the operator was operating a snowmobile in violation of any paragraph of Subsection A of this section. Such circumstances may include, but are not limited to: evidence that the operator was operating a snowmobile in violation of any provision of this chapter which regulates the manner in which a snowmobile is to be properly operated at the time of the incident; any visible indication of alcohol or drug consumption or impairment by the operator; any other evidence surrounding the circumstances of the incident which indicates that the operator has been operating a snowmobile while impaired by the consumption of alcohol or drugs or was intoxicated at the time of the accident.
(4)
Application for court order.
(a)
An application for a court order to compel submission to a chemical
test or any portion thereof, may be made to any Supreme Court Justice,
County Court Judge or District Court Judge in the Judicial District
in which the incident occurred. Such application may be communicated
by telephone, radio or other means of electronic communication, or
in person.
(b)
The applicant must provide identification by name and title and must state the purpose of the communication. Upon being advised that an application for a court order to compel submission to a chemical test is being made, the court shall place under oath the applicant and any other person providing information in support of the application as provided in Subsection G(4)(c) of this section. After being sworn, the applicant must state that the person from whom the chemical test was requested was the operator of a snowmobile and in the course of such operation a person, other than the operator, has been killed or seriously injured and, based upon the totality of circumstances, there is reasonable cause to believe that such person was operating a snowmobile in violation of any paragraph of Subsection A of this section and, after being placed under lawful arrest such person refused to submit to a chemical test or any portion thereof, in accordance with the provisions of this section or is unable to give consent to such a test or any portion thereof. The applicant must make specific allegations of fact to support such statement. Any other person properly identified may present sworn allegations of fact in support of the applicant's statement.
(c)
Upon being advised that an oral application for a court order
to compel a person to submit to a chemical test is being made, a judge
or justice shall place under oath the applicant and any other person
providing information in support of the application. Such oath or
oaths and all of the remaining communication must be recorded, either
by means of a voice recording device or verbatim stenographic or verbatim
longhand notes. If a voice recording device is used or a stenographic
record made, the judge must have the record transcribed, certify to
the accuracy of the transcription and file the original record and
transcription with the court within 72 hours of the issuance of the
court order. If the longhand notes are taken, the judge shall subscribe
a copy and file it with the court within 24 hours of the issuance
of the order.
(d)
If the court is satisfied that the requirements for the issuance of a court order pursuant to the provisions of Subsection G(2) have been met, it may grant the application and issue an order requiring the accused to submit to a chemical test to determine the alcoholic and/or drug content of his or her blood and ordering the withdrawal of a blood sample in accordance with the provisions of Subsection H of this section. When a judge or justice determines to issue an order to compel submission to a chemical test based on an oral application, the applicant therefor shall prepare the order in accordance with the instructions of the judge or justice. In all cases the order shall include the name of the issuing judge or justice, the name of the applicant and the date and time it was issued. It must be signed by the judge or justice if issued in person, or by the applicant if issued orally.
(e)
Any false statement by an applicant or any other person in support
of an application for a court order shall subject such person to the
offenses for perjury set forth in Article 210 of the Penal Law.
(5)
An order issued pursuant to the provisions of this subsection shall require that a chemical test to determine the alcoholic and/or drug content of the operator's blood must be administered. The provisions of Subsection H(1), (2) and (3) of this section shall be applicable to any chemical test administered pursuant to this section.
(6)
A defendant who has been compelled to submit to a chemical test pursuant
to the provisions of this subsection may move for the suppression
of such evidence in accordance with Article 710 of the Criminal Procedure
Law on the grounds that the order was obtained and the test administered
in violation of the provisions of this subsection or any other applicable
law.
H.
Testing procedures.
(1)
At the request of a police officer, the following persons may withdraw
blood for the purpose of determining the alcohol or drug content therein:
(1) a physician, a registered professional nurse or a registered physician's
assistant; or (2) under the supervision and at the direction of a
physician, a medical laboratory technician or medical technologist
as classified by civil service; a phlebotomist; an advanced emergency
technician as certified by the Department of Health, or a medical
laboratory technician or medical technologist employed by a clinical
laboratory approved under Title 5 of Article 5 of the Public Health
Law. This limitation shall not apply to the taking of a urine, saliva
or breath specimen.
(2)
No person entitled to withdraw blood pursuant to Subsection H(1) or hospital employing such person and no other employer of such person shall be sued or held liable for any act done or omitted in the course of withdrawing blood at the request of a police officer or peace officer acting pursuant to his or her special duties pursuant to this subsection.
(3)
Any person who may have a cause of action arising from the withdrawal of blood as aforesaid, for which no personal liability exists under Subsection H(2), may maintain such action against the state if the person entitled to withdraw blood pursuant to Subsection H(1) acted at the request of a police officer or peace officer acting pursuant to his or her special duties, employed by the state, or against the appropriate political subdivision of the state if the person acted at the request of a police officer or peace officer acting pursuant to his or her special duties, employed by a political subdivision of the state. No action shall be maintained pursuant to this subsection unless notice of claim is duly filed or served in compliance with law.
(4)
Notwithstanding the foregoing provisions of this subsection, an action may be maintained by the state or a political subdivision thereof against a person entitled to withdraw blood pursuant to Subsection H(1) or hospital employing such person for whose act or omission the state or the political subdivision has been held liable under this subsection to recover damages, not exceeding the amount awarded to the claimant, that may be have been sustained by the state or the political subdivision by reason of gross negligence on the part of such person entitled to withdraw blood.
(5)
The testimony of any person, other than a physician, entitled to draw blood pursuant to Subsection H(1) in respect to any such withdrawal of blood made by him or her may be received in evidence with the same weight, force, and effect as if such withdrawal of blood were made by a physician.
(7)
The person tested shall be permitted to choose a physician to administer
a chemical test in addition to the one administered at the direction
of the police officer.
I.
Chemical test evidence.
(1)
Upon the trial of any such action or proceeding arising out of actions alleged to have been committed by any person arrested for a violation of any paragraph of Subsection A of this section, the Court shall admit evidence of the amount of alcohol or drugs in the defendant's blood as shown by a test administered pursuant to the provisions of Subsection F or G of this section.
(2)
The following effect shall be given to evidence of blood alcohol content, as determined by such tests, of a person arrested for a violation of any paragraph of Subsection A of this section and who was operating a snowmobile:
(a)
Evidence that there was 0.05 of 1% or less by weight of alcohol
in such person's blood shall be prima facie evidence that the
ability of such person to operate a snowmobile was not impaired by
the consumption of alcohol, and that such person was not in an intoxicated
condition.
(b)
Evidence that there was more than 0.05 of 1% but not more than
0.07 of 1% of weight in such person's blood shall be prima facie
evidence that such person was not in an intoxicated condition, but
such evidence shall be relevant evidence but not be given prima facie
effect, in determining whether the ability of such person to operate
a snowmobile was impaired by the consumption of alcohol.
(c)
Evidence that there was more than 0.07 of 1% but less than 0.08
of 1% by weight of alcohol in such person's blood shall be prima
facie evidence that such person was not in an intoxicated condition,
but such evidence shall be given prima facie effect in determining
whether the ability of such person to operate a snowmobile was impaired
by the consumption of alcohol.
J.
Limitations.
(1)
A snowmobile operator may be convicted of a violation of Subsection A(1), (2), (3) or (4) of this section, notwithstanding that the charge laid before the court alleged a violation of Subsection A(2), (3) or (4) of this section, and regardless of whether or not such conviction is based on a plea of guilty.
(2)
In any case wherein the charge laid before the court alleges a violation of Subsection A(2), (3) or (4) of this section, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of the provisions of one of the paragraphs of such Subsection A and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized; provided, however, if the district attorney upon reviewing the available evidence determines that the charge of a violation of Subsection A of this section is not warranted, he or she may consent, and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge.
K.
Suspension pending prosecution.
(1)
Without notice, pending any prosecution, the court may suspend the
right to operate a snowmobile where the snowmobile operator has been
charged with vehicular assault in the second degree or vehicular manslaughter
in the second degree as defined, respectfully, in §§ 120.03
and 125.12 of the Penal Law.
(2)
A suspension under this subsection shall occur no later than 20 days
after the snowmobile operator's first appearance before the court
on the charges or at the conclusion of all proceedings required for
the arraignment, whichever comes first. In order for the court to
impose such suspension it must find that the accusatory instrument
conforms to the requirements of § 100.40 of the Criminal
Procedure Law and there exists reasonable cause to believe that the
accused operated a snowmobile in violation of § 120.03 or
125.12 of the Penal Law. At such time, the operator shall be entitled
to an opportunity to make a statement regarding the enumerated issues
and to present evidence tending to rebut the court's findings.
Where such suspension is imposed upon such pending charge and the
operator has requested a hearing pursuant to Article 180 of the Criminal
Procedure Law, the court shall conduct such hearing. If upon completion
of the hearing, the court fails to find that there is reasonable cause
to believe that the operator committed a felony under § 120.03
or 125.12 of the Penal Law, the court shall promptly direct restoration
of such operating privileges to the operator unless such operating
privileges are suspended or revoked pursuant to any other provision
of this chapter.
A.
With respect to injuries arising from the operation of snowmobiles,
no civil action shall be maintained against the Town of Martinsburg
or an officer thereof in charge of highway supervision and maintenance
for damages or injuries to person or property sustained by reason
of any highway, bridge, street, sidewalk, crosswalk or culvert being
defective, out of repair, unsafe, dangerous, or obstructed, unless
prior written notice of such defective, unsafe, dangerous, or obstructed
condition on such highway, bridge, or culvert was actually given to
the municipal agent, officer, or employee authorized by § 311
of the Civil Practice Law and Rules to receive service or to the chief
municipal officer in charge of highway supervision and maintenance,
and there was a failure or neglect within a reasonable time thereafter
to repair or remove the defect, danger, or obstruction complained
of. No such action shall be maintained for damages or injuries to
person or property sustained solely due to conditions caused by snow
and/or ice removal, or the nonremoval thereof, from highways designated
as open to snowmobiles in the Town of Martinsburg.
B.
The municipal officer in charge of highway supervision and maintenance
and any other municipal agent, officer, or employee designated to
receive service of process shall transmit in writing to the Clerk
of the municipal body involved, within 24 hours or as soon as practical
after the receipt thereof, all written notices received by him pursuant
to this section.
C.
This section is included to clarify the application of § 71-b
of General Municipal Law in the Town of Martinsburg.
A notice of violation may be issued by any state police officer,
county sheriff, Town police officer or constable, conservation officer,
parks and recreation officer, or by any other law enforcement official
or other person so designated by the Town Board of Martinsburg. Such
authorized individual may initiate a violation by service of an appearance
ticket.
Any person who violates any provision of this chapter shall be guilty of a violation. For a first conviction thereof, such person shall be punished by a fine of not more than $100. For a conviction of a second violation within a period of 18 months, such person shall be punished by a fine of not more than $200 or by imprisonment for not more than 15 days, or by both such fine and imprisonment. Upon conviction of a third or subsequent violation, all of which were committed within a period of 36 months, such person shall be punished by a fine of not more than $300, or by imprisonment for not more than 45 days, or by both such fine and imprisonment. Notwithstanding the foregoing, however, a violation of § 180-10A of this chapter shall be subject to the penalties as set forth in § 180-10A of this chapter. Notwithstanding the foregoing penalties, the court which renders the conviction of any person for violation of this chapter, may, in its discretion, impose such other penalty or penalties as it deems appropriate, which may be provided for in case of a violation of any of the provisions of the Parks, Recreation and Historic Preservation Law of the state. In the event of such other penalty, the fees and penalties imposed by such court shall be disposed of as provided for by § 27.13 of the Parks, Recreation and Historic Preservation Law.
Upon the conviction of any section of this chapter, the court
shall, in addition to any other penalties invoked under this chapter,
require the convicted person, as a condition of the sentence, to complete
a snowmobile safety course approved by the Commissioner and show proof
of successful completion of such course to the court or its designee.
Negligence in the use or operation of a snowmobile shall be
attributable to the owner. Every owner of a snowmobile used or operated
in the Town of Martinsburg or in this state shall be liable and responsible
for death or injury to a person or damage to property resulting from
negligence in the use or operation of such snowmobile by any person
using or operating the same with the permission, express or implied,
of such owner, provided, however, that such operator's negligence
shall not be attributed to the owner as to any claim or cause of action
accruing to the operator or his legal representative for such injuries
or death.
