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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