Chapter
103
2008 -- S 2745 AS AMENDED
Enacted 06/27/08
A N A C T
RELATING TO WATERS
AND NAVIGATION -- ALCOHOL BOATING SAFETY
Introduced By: Senators Algiere, and Bates
Date
Introduced: February 26, 2008
It is
enacted by the General Assembly as follows:
SECTION
1. Sections 46-22.2-2, 46-22.2-3, 46-22.2-5 and 46-22.2-6 of the General
Laws in
Chapter 46-22.2 entitled "Alcohol Boating Safety Act" are hereby
amended to read as
follows:
46-22.2-2.
Definitions. -- The For the purposes of this chapter, the
following words and
phrases
shall have the following meanings ascribed to them in this section,
unless the context
shall
indicate another or different meaning or intent:
(1) "Chemical test" means an analysis of a person's blood, breath,
urine, or other bodily
substance
for the determination of the presence of alcohol or a controlled substance.
(2) "Controlled substance" means a drug, substance, or immediate
precursor in schedules
I-V of
chapter 28 of title 21. The term shall not include distilled spirits, wine, or
malt beverages,
as those
terms are defined or used in chapter 1 of title 3, nor tobacco.
(3) "Intoxicated" means under the influence of alcohol, a controlled
substance, any drug
other
than alcohol or a controlled substance, or any combination of alcohol,
controlled substance,
or
drugs, so that there is impaired thought and action and loss of normal control
of a person's
faculties
to such an extent as to endanger any person.
(4) "Law enforcement officer" means an employee, the duties of whose
position include
investigation,
apprehension, or detention of individuals suspected or convicted of offenses
against
the
criminal laws of the state and includes conservation environmental
police officers employed
by the
department of environmental management.
(5) "Prima facie evidence of intoxication" includes evidence that at
the time of an alleged
violation
there was eight hundredths of one percent (.08%), or more, by weight of
alcohol in the
person's
blood.
(6) "Relevant evidence" includes evidence that at the time of the
alleged violation there
was at
least five hundredths of one percent (.05%) but less than eight
hundredths of one percent
(.08%)
by weight of alcohol in the person's blood.
(7)
"Watercraft" means a device for transportation by water.
(8)
"Serious bodily injury" means physical injury that creates a
substantial risk of death
or
causes serious permanent disfigurement or protracted loss or impairment of the
function of any
bodily
member or organ.
(9)
"Blood alcohol level" means the percent by weight of alcohol in a
person's blood,
based
upon milligrams of alcohol per one hundred (100) cubic centimeters of blood.
(10)
“Operator” means the person who is steering a watercraft as it is underway.
(11)
“Underway” means that a watercraft is not at anchor or made fast to shore or
ground.
46-22.2-3.
Violations by intoxicated watercraft operators. -- (a) Whoever Any
person
who operates a or otherwise drives any
watercraft in waters over which this state has jurisdiction
while
intoxicated as defined in section 46-22.2-2(3) or after he or she has
been ordered not to
operate
a watercraft under the provisions of this chapter, shall be guilty of a civil
violation, a
misdemeanor
or a felony and punished as set forth in this section.
(b) Any person who operates a any watercraft in waters over
which this state has
jurisdiction while intoxicated as defined in section
46-22.2-2(3) and while so operating causes the
death or
serious bodily injury to another person or has been convicted of a second
and subsequent
offense
under this chapter shall be guilty of
a felony punishable by a fine of up to five thousand
($5,000)
dollars and or up to five (5) years in jail or both and shall be punished in accordance
with
subdivision (f)(2) of this section.
(c) (1) Any person charged under subsection (a) whose blood alcohol concentration
level
is eight
one-hundredths of one percent (.08%) or more by weight as shown by a chemical analysis
test of a blood, breath, or urine sample shall be guilty
of violating subsection (a) of this section.
This
provision shall not preclude a conviction based on other admissible evidence.
Proof of guilt
under
this section may also be based on evidence that the person charged was under
the influence
of
intoxicating liquor, drugs, toluene, or any controlled substance defined in
chapter 28 of title 21,
or any
combination thereof, to a degree which rendered such person incapable of safely
operating
a
watercraft. The fact that any person charged with violating this section is or
has been legally
entitled
to use alcohol or a drug shall not constitute a defense against any charge of
violating this
section.
(2) Whoever Any person who operates or otherwise drives
any watercraft in waters over
which
this state has jurisdiction with a blood presence of any scheduled
controlled substance as
defined
within chapter 28 of title 21, as
shown by analysis a chemical test of a blood or urine
sample,
shall be guilty of a misdemeanor and shall be punished as provided in subsection
(d)
subdivisions
(d)(2) and (e)(1) of this section, or, for a third or subsequent violation of
this
subsection,
shall be guilty of a felony and shall be punished as provided in subdivision
(f)(1) of
this
section.
(3)
Whoever operates or otherwise drives any watercraft in the state while under
the
influence
of any intoxicating liquor shall be found to have committed a civil violation
for a first
offense
if his or her blood alcohol concentration is eight one-hundredths of one
percent (.08%) or
more
by weight but less than one-tenth of one percent (.1%) and shall be guilty of a
misdemeanor
for a
second offense, within a five (5) year period if his or her blood alcohol
concentration is
eight
one-hundredths of one percent (.08%) or more by weight but less than one-tenth
of one
percent
(.1%) by weight or of his or her blood alcohol concentration is one-tenth of
one percent
(.1%)
or greater and shall be punished as provided in subsection (d) of this section.
(d)(1)(i) Every person found to have violated subdivision (c)(1) for
a first violation
convicted
of a first violation of subdivision (c)(1) of this section whose blood alcohol level is
eight
one-hundredths of one percent (.08%) but less than one-tenth of one percent
(.1%) by
weight shall
be found to have committed a civil violation and may be subject to a fine
of not less
than one
hundred dollars ($100) nor more than two hundred fifty dollars ($250), may be
required
to
perform ten (10) to sixty (60) hours of public community restitution, may be
required to attend
a special
course on operating a watercraft while intoxicated or under the influence of a
controlled
substance
that meets the standards as set forth by the National Association of State
Boating Law
Administrators
and/or any other department of
environmental management endorsed boating
safety
course, and his or her right to operate a watercraft shall be suspended for up
to forty-five
(45)
days.
(ii) (2) Every person convicted of a first violation of
subdivision (c)(1) of this section
whose
blood alcohol level is one-tenth of one percent (.1%) by weight or greater
but less than
fifteen
hundredths of one percent (.15%) by weight, or whose blood alcohol level is
unknown, or
who
has been convicted of a first violation of subdivision (c)(2) of this section
shall be guilty of a
misdemeanor
and shall be subject to a mandatory
fine of not less than one hundred dollars ($100)
nor more
than three hundred dollars ($300) and shall be required to perform ten (10) to
sixty (60)
hours of
public community restitution and/or shall be imprisoned for up to one year. The
sentence
may be
served in any unit of the adult correctional institutions in the discretion of
the sentencing
judge.
The person's right to operate a watercraft shall be suspended for a period of
three (3)
months
to six (6) months. The sentencing judge shall require attendance at a special
course on
operating
a watercraft while intoxicated or under the influence of a controlled substance
that
meets
the standards as set forth by the National Association of State Boating Law
Administrators
and/or
any other department of environmental
management endorsed boating safety course,
and/or
alcoholic or drug treatment for the individual.
(iii) (3) Every person convicted of a first offense violation
of subdivision (c)(1) of this
section whose blood alcohol concentration level
is fifteen hundredths of one percent (.15%) or
more by
weight, or who is under the influence of a drug, toluene or any controlled
substance,
shall
be guilty of a misdemeanor and shall
be subject to a mandatory fine of five hundred dollars
($500)
and shall be required to perform twenty (20) to sixty (60) hours of public
community
restitution
and/or shall be imprisoned for up to one year. The sentence may be served in
any unit
of the
adult correctional institutions in the discretion of the sentencing judge. The person's
right to
operate
a watercraft shall be suspended for a period of three (3) months to six (6)
months. The
sentencing
judge shall require attendance at a special course on operating a watercraft
while
intoxicated
or under the influence of a controlled substance that meets the standards as
set forth
by
the National Association of State Boating Law Administrators and/or any other department of
environmental
management endorsed boating safety course, and/or alcohol or drug treatment for
the
individual.
(2)(i) (e)(1) Every person convicted of a second violation of
subdivision (c)(1) of this
section within a five (5) year period with a whose
blood alcohol level of is eight one-hundredths
of one
percent (.08%) but less than one-tenth of one percent (.1%) and every person
convicted of
a
second violation within a five (5) year period fifteen hundredths of one percent (.15%) by
weight,
or whose blood alcohol level is unknown, or who is convicted of a second
violation of
subdivision
(c)(2) of this section regardless of
whether the prior violation and subsequent
conviction
was a violation and subsequent conviction under this statute or under the
boating
under
the influence of liquor or drugs statute of any other state, shall be guilty
of a misdemeanor
and shall be subject to a mandatory fine of four hundred
dollars ($400). The person's right to
operate
a watercraft shall be suspended for a period of one year to two (2) years, and
the
individual
shall be sentenced to not less than ten (10) days nor more than one year in
jail. The
sentence
may be served in any unit of the adult correctional institutions in the
discretion of the
sentencing
judge; however, not less than forty-eight (48) hours of imprisonment shall be
served
consecutively.
The sentencing judge may require alcohol or drug treatment for the individual.
(ii) (2) Every person convicted of a second violation of
subdivision (c)(1) of this section
within a
five (5) year period and his or her whose blood alcohol concentration
level is fifteen
hundredths
of one percent (.15%) or more by weight, as shown by a chemical
analysis of a blood,
breath,
or urine sample or who is under
the influence of a drug, toluene, or any controlled
substance,
regardless of whether the prior violation and subsequent conviction was a
violation
and
subsequent conviction under this statute or under the boating under the
influence of liquor or
drugs
statute of any other state, shall be guilty of a misdemeanor and shall be subject to
mandatory
imprisonment of not less than six (6) months nor more than one year, a
mandatory fine
of not
less than one thousand dollars ($1,000), and a mandatory suspension of
that person's right
to
operate a watercraft for a period of two (2) years from the date of completion
of the sentence
imposed
under this subsection. The sentence may be served in any unit of the adult
correctional
institution
in the discretion of the sentencing judge; however, not less than forty-eight
(48) hours
of
imprisonment shall be served consecutively. The sentencing judge may require
alcohol or
drug
treatment for the individual.
(3)(i) (f)(1) Every person convicted of a third or subsequent
violation of subdivision
(c)(1)
of this section within a five (5)
year period whose blood alcohol level is eight one
hundredths
of one percent (.08%) but less than fifteen hundredths of one percent (.15%) by
weight,
or whose blood alcohol level is unknown, or who is convicted of a third or
subsequent
violation
of subdivision (c)(2) of this section,
regardless of whether any prior violation and
subsequent
conviction was a violation and subsequent conviction under this statute or
under the
boating
under the influence of liquor or drugs statute of any other state shall be
guilty of a felony
and be
subject to a mandatory fine of four hundred dollars ($400). The person's right
to operate a
watercraft
shall be suspended for a period of two (2) years to three (3) years, and the
individual
shall be
sentenced to not less than one year and not more than three (3) years in jail.
The sentence
may be
served in any unit of the adult correctional institutions in the discretion of
the sentencing
judge;
however, not less than forty-eight (48) hours of imprisonment shall be served
consecutively.
The sentencing judge shall require alcohol or drug treatment for the
individual.
(ii) (2) Every person convicted of a third or subsequent
violation of subdivision (c)(1) of
this
section within a five (5) year period
whereby his or her whose blood alcohol concentration
level is fifteen hundredths of one percent (.15%) or more
by weight as shown by a chemical
analysis
of a blood, breath, or urine sample or
who is under the influence of a drug, toluene, or
any
controlled substance, regardless of whether any prior violation and subsequent
conviction
was a
violation and subsequent conviction under this statute or under the boating
under the
influence
of liquor or drugs statute of any other state, or who is convicted of a
violation of
subsection
(b) of this section, shall be guilty of a felony and shall be subject to mandatory
imprisonment
of not less than three (3) years nor more than five (5) years, a mandatory fine
of not
less than
one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) and
a
mandatory
suspension of that person's right to operate a watercraft for a period of three
(3) years
from the
date of completion of the sentence imposed under this subsection. The
sentence may be
served
in any unit of the adult correctional institution in the discretion of the
sentencing judge;
however,
not less than forty-eight (48) hours of imprisonment shall be served
consecutively. The
sentencing
judge shall require alcohol or drug treatment for the individual.
(iii) (3) In addition to the foregoing penalties, every person
convicted of a third or
subsequent
violation of subdivision (c)(1) of this section within a five (5) year
period regardless
of
whether any prior violation and subsequent conviction was a violation and
subsequent
conviction
under this statute or under the boating under the influence of liquor or drugs
statute of
any
other state shall be subject, in the discretion of the sentencing judge, to
having the watercraft
owned
and operated by a violator seized and sold by the state of Rhode Island, with
all funds
obtained
thereby to be transferred to the general fund.
(g)
Any person over the age of eighteen (18) who is convicted under this section
for
operating
or otherwise driving any watercraft in waters over which the state has
jurisdiction while
under
the influence of alcohol, a drug, toluene or any controlled substance, while a
child under
the
age of thirteen (13) was present as a passenger in the watercraft when the
offense was
committed,
may be sentenced to a term of imprisonment of not more than one year and
further
shall
not be entitled to the benefit of suspension or deferment of this sentence. The
sentence
imposed
under this subsection may be served in any unit of the adult correctional
institutions in
the
discretion of the sentencing judge.
(h)
In addition to any other fines, any person convicted of a violation under this
section
shall
pay a boating safety assessment fine of five hundred dollars ($500), which
shall be
deposited
into the general fund. The assessment fine provided for by this subsection
shall be
collected
from a violator before any other fines authorized by this section.
(i)
Any person who operates or otherwise drives any watercraft in waters over which
this
state
has jurisdiction after he or she has been ordered not to operate a watercraft
under the
provisions
of this chapter shall be guilty of a misdemeanor and shall be subject to a fine
of at least
four
hundred dollars ($400), shall be required to perform thirty (30) to sixty (60)
hours of public
community
restitution, and/or shall be imprisoned for up to one year. The person's right
to
operate
a watercraft shall be suspended for an additional period of one to two (2)
years.
(j)(1)
If the person convicted of violating this section is under the age of eighteen
(18)
years,
for the first violation he or she shall be required to perform ten (10) to
sixty (60) hours of
public
community restitution, and the juvenile's right to operate a watercraft shall
be suspended
for a
period of forty-five (45) days, and may be suspended for a period of up to six
(6) months.
The
sentencing judge shall also require attendance at a department of environmental
management
endorsed
boating safety course, and substance and alcohol or drug education and/or
treatment for
the
juvenile.
(2)
If the person convicted of violating this section is under the age of eighteen
(18)
years,
for a second or subsequent violation, regardless of whether any prior violation
and
subsequent
conviction was a violation and subsequent under this statute or under the
boating
under
the influence of liquor or drugs statute of any other state, he or she shall be
subject to a
mandatory
suspension of his or her right to operate a watercraft until such time as he or
she is
twenty-one
(21) years of age and may, in the discretion of the sentencing judge, also be
sentenced
to
the Rhode Island training school for a period of not more than one year and/or
a fine of not
more
than five hundred dollars ($500).
(k)
Jurisdiction for violations of this section shall be with the district court
for persons
eighteen
(18) years of age or older and to the family court for persons under the age of
eighteen
(18)
years. The courts shall have full authority to impose any sentence authorized
and to order
the
suspension of the right to operate watercraft for violations of this section.
All trials in the
district
court and family court of violations of the section shall be scheduled within
thirty (30)
days
of the arraignment date. No continuance or postponement shall be granted except
for good
cause
shown. Any continuances that are necessary shall be granted for the shortest
practicable
time.
Trials in superior court are not required to be scheduled within thirty (30)
days of the
arraignment
date.
(l)
No fines, suspensions, assessments, alcohol or drug treatment programs, boating
safety
course, public community restitution or jail provided for under this section
can be
suspended.
46-22.2-5.
Chemical tests for intoxication. -- (a) Any person who operates a
watercraft
in
waters over which this state has jurisdiction impliedly consents to submit to
the chemical test
provisions
of this chapter as a condition of operating a watercraft in this state. If a
person refuses
to
submit to a chemical test under this chapter, the district court shall order
the person not to
operate
a watercraft for at least one year and shall impose a monetary fine of not less
than three
hundred
dollars ($300).
(b) A law enforcement officer having probable cause to believe that a person
has
committed
an offense under this chapter shall offer the person the opportunity to submit
to a
chemical
test. It is not necessary for the law enforcement officer to offer a chemical
test to an
unconscious
person. A law enforcement officer may offer a person more than one chemical
test
under
this chapter. However, all tests must be administered within three (3) hours
after the officer
had
probable cause to believe the person violated this chapter. A person must
submit to each
chemical
test offered by a law enforcement officer in order to comply with the implied
consent
provisions
of this chapter.
(c) If the chemical test results in relevant evidence, as defined in 46-22.2-2(6)(7)
that the
person
is intoxicated, he or she may be arrested for an offense under this chapter. If
the chemical
test
results in prima facie evidence as defined in 46-22.2-2(5)(6)
that the person is intoxicated, he
or she
shall be arrested for an offense under this chapter.
(d) Any person who refuses to submit to a chemical test may be arrested for an
offense
under
this chapter.
(e) At any proceeding under this chapter, a person's refusal to submit to a
chemical test is
inadmissible
into evidence as to intoxication, but may be used as evidence of refusal.
(f) The provisions of section 31-27-2 concerning the certification and use of
chemical
breath
tests apply to the use of such tests in a prosecution under this chapter.
(g) If a person refuses to submit to a chemical test under this chapter, the
law
enforcement
officer shall inform the person that his or her refusal will result in the
suspension of
his
or her watercraft operation privileges for one year and shall be subject to a
monetary fine of
not
less than three hundred dollars ($300).
For the purposes of this section, any test of a sample of
blood,
breath or urine for the presence of alcohol, which relies in whole or in part
upon the
principal
of infrared light absorption, is considered a chemical test.
(h)
If a person for religious or medical reasons cannot be subjected to blood
tests, and the
person
has filed an affidavit with the division of motor vehicles stating the reasons
why he or she
cannot
be required to take blood tests, and a notation to that effect has been made on
his or her
license,
and the license is presented to the law enforcement officer, the person, if
asked to submit
to
chemical tests as provided under this chapter, shall only be required to submit
to chemical tests
of
his or her urine. When a person is requested to submit to blood tests, only a
physician or
registered
nurse or a medical technician certified under regulations promulgated by the
director of
the
department of health may withdraw blood for the purpose of determining the
alcoholic
content
in it. This limitation shall not apply to the taking of breath or urine
specimens. The
person
tested shall be permitted to have a physician of his or her choosing and at his
or her own
expense
administer chemical tests of his or her breath, blood and/or urine in addition
to the tests
administered
at the discretion of a law enforcement officer.
(i)
If a person having been placed under arrest pursuant to this chapter refuses
upon the
request
of a law enforcement officer to submit to a chemical test under this chapter,
none shall be
given,
but a sentencing judge, upon receipt of a report of a law enforcement officer:
that he or she
had
reasonable grounds to believe the arrested person had been operating or
otherwise driving a
watercraft
in waters over which this state has jurisdiction while under the influence of
intoxicating
liquor, toluene, or any controlled substance, or any combination of these; that
the
person
had been informed of his or her rights; that the person had been informed of
the penalties
incurred
as a result of noncompliance with this section; and that the person had refused
to submit
to
the test upon the request of a law enforcement officer; shall order as follows:
(1)
Impose for the first violation a fine of not less than three hundred dollars
($300) and
order
the person to perform ten (10) to sixty (60) hours of public community
restitution. In
addition,
the person's right to operate a watercraft shall be suspended for a period of
one year. In
addition,
the sentencing judge may require the person to attend a department of
environmental
management
endorsed boating safety course, and/or receive alcohol or drug treatment.
(2)
Every person convicted of a second violation within a five (5) year period
shall be
guilty
of a misdemeanor, shall be imprisoned for not more than six (6) months, and
shall pay a
fine
of not less than six hundred dollars ($600). In addition, the person's right to
operate a
watercraft
shall be suspended for a period of two (2) years. In addition, the sentencing
judge may
require
the person to receive alcohol or drug treatment.
(3)
Every person convicted of a third or subsequent violation within a five (5) year
period
shall
be guilty of a misdemeanor, shall be imprisoned for not more than one year, and
shall pay a
fine
of not less than one thousand dollars ($1,000). In addition, the person's right
to operate a
watercraft
shall be suspended for a period of three (3) years. In addition, the sentencing
judge
may
require the person to receive alcohol or drug treatment.
(j)
Jurisdiction for violations of this section shall be with the district court
for persons
eighteen
(18) years of age or older and to the family court for persons under the age of
eighteen
(18)
years. The court shall have full authority to impose any sentence authorized
and to order the
suspension
of the right to operate watercraft for violations of this section. All trials
in the district
court
and family court of violations of the section shall be scheduled within thirty
(30) days of the
arraignment
date. No continuance or postponement shall be granted except for good cause
shown.
Any continuances that are necessary shall be granted for the shortest
practicable time.
Trials
in superior court are not required to be scheduled within thirty (30) days of
the arraignment
date.
(k)
In addition to any other fines, any person convicted of a violation under this
section
shall
pay a boating safety assessment fine of five hundred dollars ($500), which
shall be
deposited
into the general fund. The assessment fine provided for by this subsection
shall be
collected
from a violator before any other fines authorized by this section.
(l)
In addition to any other fines and boating safety assessment fine, a two
hundred
dollars
($200) assessment shall be paid by any person found in violation of this
section to support
the
department of health's chemical testing programs outlined in subsection
31-27-2(4), which
shall
be deposited as general revenues, not restricted receipts.
(m)
No fines, suspensions, assessments, alcohol or drug treatment programs, boating
safety
course, public community restitution, or jail provided for under this section
can be
suspended.
46-22.2-6.
Admissibility of evidence. -- At any proceeding concerning an offense
under
this
chapter, evidence of the amount by weight of alcohol that was of intoxicating
liquor, toluene,
or
any controlled substance, or any combination of these in the blood of the person charged with
the
offense at the time of the alleged violation, as shown by an a
chemical analysis of his or her
breath,
blood, urine, or other bodily substance, shall be admissible. and
competent, provided that
evidence
is presented and the following conditions have been complied with:
(a)
The defendant has consented to the taking of the test upon which the analysis
is made.
Evidence
that the defendant had refused to submit to the test shall not be admissible
unless the
defendant
elects to testify.
(b)
A true copy of the report of the test result was mailed within seventy-two (72)
hours
of
the taking of the test to the person submitting to a breath test.
(c)
Any person submitting to a chemical test of blood, urine or other body fluids
shall
have
a true copy of the report of the test result mailed to him or her within thirty
(30) days
following
the taking of the test.
(d)
The test was performed according to methods and with equipment approved by the
director
of the department of health of the state of Rhode Island and by an authorized
individual.
(e)
Equipment used for the conduct of the tests by means of breath analysis had
been
tested
for accuracy within thirty (30) days preceding the test by personnel qualified
as
hereinbefore
provided, and breathalyzer operators shall be qualified and certified by the
department
of health within three hundred sixty-five (365) days of the test.
(f)
The person arrested and charged with operating a watercraft while under the
influence
of
intoxicating liquor, toluene or any controlled substance, or any combination of
these in
violation
of subsection (a) of this section was afforded the opportunity to have an
additional
chemical
test. The officer arresting or so charging the person shall have informed the
person of
this
right and afforded him or her a reasonable opportunity to exercise this right,
and a notation to
this
effect is made in the official records of the case in the applicable law
enforcement
department.
Refusal to permit an additional chemical test shall render incompetent and
inadmissible
in evidence the original report.
SECTION
2. This act shall take effect upon passage.
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LC01915
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