PRIOR PRINTER'S NOS. 1234, 1411, 1533 PRINTER'S NO. 1573
No. 994 Session of 1983
INTRODUCED BY ROMANELLI, O'PAKE, O'CONNELL, REIBMAN, ANDREZESKI,
HELFRICK, STOUT, MUSTO AND PECORA, SEPTEMBER 23, 1983
AS AMENDED ON SECOND CONSIDERATION, DECEMBER 6, 1983
AN ACT
1 Amending Title 30 (Fish) of the Pennsylvania Consolidated
2 Statutes, further providing for the operation of watercraft
3 while under the influence of alcohol or a controlled
4 substance; providing for testing apparatus, procedures and
5 personnel; and providing for the crime of homicide by
6 watercraft.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Sections 901, 923(a) and (c) and 928 of Title 30
10 of the Pennsylvania Consolidated Statutes are amended to read:
11 § 901. Powers and duties of waterways patrolmen and deputies.
12 (a) Waterways patrolmen.--Every waterways patrolman shall
13 have the power and duty to:
14 (1) Enforce all laws of this Commonwealth relating to
15 fish and watercraft and arrest with or without warrant any
16 person violating this title.
17 (2) Execute all warrants and search warrants for
18 violations of this title.
19 (3) Serve subpoenas issued for the examination,
1 investigation and trial of all offenses under this title.
2 (4) Carry firearms or other weapons in the performance
3 of their duties.
4 (5) Stop vehicles or boats and search or inspect, where
5 probable cause exists that a violation of this title has
6 occurred, any boat, basket, conveyance, vehicle, fish-box,
7 bag, coat, boot or other receptacle, when enforcing this
8 title. The waterways patrolman shall display his badge or
9 other insignia of identification and shall state to the
10 person in charge of the vehicle, conveyance or otherwise the
11 purpose of the search.
12 (6) Seize and take possession of any and all fish which
13 may have been caught, taken or killed at any time, in any
14 manner or for any purpose, or had in possession or under
15 control, or have been shipped or about to be shipped contrary
16 to the laws of this Commonwealth and the fish so seized shall
17 be disposed of in any manner as the executive director may
18 direct.
19 (7) Enter upon any land or water in the performance of
20 their duties.
21 (8) Demand and secure proper assistance in case of
22 emergency.
23 (9) Purchase fish for the purpose of securing evidence.
24 (10) Stop and board any boat subject to this title for
25 the purpose of inspection for compliance with Part III
26 (relating to boats and boating) and the rules and regulations
27 promulgated thereunder. Any boat lying at its regular mooring
28 or berth shall not be boarded without the consent of the
29 owner or a search warrant.
30 (11) When making an arrest or apprehension or when found
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1 in the execution of a search warrant, seize all rods, reels,
2 nets or other fishing devices of any description, fishing or
3 boating paraphernalia, bait, boats or any unlawful device,
4 implement or appliance used in violation of this title.
5 (12) When acting within the scope of their employment,
6 to pursue, apprehend or arrest any individual suspected of
7 violating any provision of Title 18 (relating to crimes and
8 offenses) or any other offense classified as a misdemeanor or
9 felony. They shall also have the power to serve and execute
10 warrants issued by the proper authorities for offenses
11 referred to in this paragraph and to serve subpoenas issued
12 for examination. All powers as provided for in this paragraph
13 will be limited by such administrative procedure as the
14 executive director, with the approval of the commission,
15 shall prescribe.
16 (13) Arrange for the administration of chemical tests of
17 breath, blood or urine to persons operating or in actual
18 physical control of watercraft for the purpose of determining
19 the alcoholic content of blood or the presence of a
20 controlled substance under section 5125 (relating to chemical
21 testing to determine amount of alcohol or controlled
22 substance), by qualified personnel of a State or local police
23 department or qualified personnel of a clinical laboratory
24 licensed and approved by the Department of Health.
25 (b) Deputy waterways patrolmen.--Except for the power
26 conferred by subsection (a)(12), deputy waterways patrolmen may
27 exercise all the powers and perform all the duties conferred by
28 this section on waterways patrolmen.
29 § 923. Classification of offenses and penalties.
30 (a) General rule.--The following penalties shall be imposed
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1 for violations of this title:
2 (1) For a summary offense of the first degree, a fine of
3 $100 or imprisonment not exceeding 90 days.
4 (2) For a summary offense of the second degree, a fine
5 of $25 or imprisonment not exceeding 20 days.
6 (3) For a summary offense of the third degree, a fine of
7 $10.
8 (4) For a misdemeanor of the third degree, a fine of not
9 less than $250 nor more than $2,500, or imprisonment not
10 exceeding 90 days, or both.
11 (5) For a felony of the third degree, a fine not
12 exceeding $15,000 or imprisonment not exceeding 7 years, or
13 both.
14 * * *
15 (c) Title 18 inapplicable.--Title 18 (relating to crimes and
16 offenses) is inapplicable to this title insofar as it relates to
17 fines and imprisonment for convictions of summary offenses
18 [and], misdemeanors and felonies.
19 § 928. Revocation, suspension or denial of license,
20 permit or registration.
21 (a) [General rule] Revocation or denial.--Any fishing
22 license, special license or permit or boat registration granted
23 under the authority of this title may be revoked by the
24 commission, in its discretion, when the holder of the license,
25 permit or registration is convicted of an offense under this
26 title. Further, the commission, in its discretion, may refuse to
27 grant to that person any new fishing license, special license or
28 permit or boat registration for a period not exceeding two
29 years.
30 (b) Suspension.--The commission shall for a period of one
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1 year suspend any boat registration and the privilege of
2 operating a watercraft on the waters of this Commonwealth of any
3 individual who is convicted of a violation of section 5502
4 (relating to operating watercraft under influence of alcohol or
5 controlled substance) or 5502.1 (relating to homicide by
6 watercraft while operating under influence) or an adjudication
7 of delinquency based on section 5502 or 5502.1. The commission
8 shall refuse to grant to that person any new boat registration
9 for a period of one year from the date of the offense.
10 [(b)] (c) Rules and regulations.--The commission may
11 promulgate regulations specifying the procedures to be followed
12 in revoking or suspending fishing licenses, special licenses and
13 permits and boat registrations under this section.
14 (d) Penalty.--A person commits a summary offense of the
15 first degree if he performs an act for which a fishing license,
16 special license, permit or boat registration is required or
17 exercises a privilege, including the privilege to operate a
18 watercraft on the waters of this Commonwealth, while the
19 license, permit registration or privilege is suspended or
20 revoked. A person commits a misdemeanor of the third degree if
21 he commits a second or subsequent violation of a suspension or
22 revocation during its term.
23 Section 2. Title 30 is amended by adding a section to read:
24 § 5125. Chemical testing to determine amount of alcohol or
25 controlled substance.
26 (a) General rule.--Any person who operates or is in actual
27 physical control of the movement of a watercraft, upon, in or
28 through the waters of this Commonwealth, shall be deemed to have
29 given consent to one or more chemical tests of breath, blood or
30 urine for the purpose of determining the alcoholic content of
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1 blood or the presence of a controlled substance if a waterways
2 patrolman has reasonable grounds to believe the person has been
3 operating or in actual physical control of the movement of a
4 watercraft:
5 (1) while under the influence of alcohol or a controlled
6 substance or both; or
7 (2) which was involved in an accident in which the
8 operator or passenger of any watercraft involved required
9 treatment at a medical facility or was killed.
10 (b) Suspension for refusal.--
11 (1) If any person placed under arrest for a violation of
12 section 5502 (relating to operating watercraft under
13 influence of alcohol or controlled substance) is requested to
14 submit to chemical testing and refuses to do so, the testing
15 shall not be conducted but, upon notice by the waterways
16 patrolman, the commission shall suspend the fishing and <--
17 boating privileges and boat registration of the person for a
18 period of 12 months.
19 (2) It is the duty of the waterways patrolman to inform
20 the person that the person's boating privileges and boat
21 registration will be suspended upon refusal to submit to
22 chemical testing.
23 (3) Any person whose boating privileges and boat
24 registration are suspended under this section shall have the
25 same right of appeal as provided for in cases of suspension
26 for other reasons.
27 (c) Test results admissible in evidence.--In any summary
28 proceeding or criminal proceeding in which the defendant is
29 charged with a violation of section 5502 or any other violation
30 of this title arising out of the same action, the amount of
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1 alcohol or controlled substance in the defendant's blood, as
2 shown by chemical testing of the person's breath, blood or urine
3 by tests conducted by qualified persons using approved
4 equipment, shall be admissible in evidence:
5 (1) Chemical tests of breath shall be performed on
6 devices approved by the Department of Health using procedures
7 prescribed jointly by regulations of the Department of Health
8 and the commission. Devices shall been calibrated and tested
9 for accuracy within a period of time and in a manner
10 specified by regulations of the Department of Health and the
11 commission. For purposes of breath testing, a qualified
12 person means a person who has fulfilled the training
13 requirement in the use of the equipment in a training program
14 approved by the Department of Health and the commission. A
15 certificate or log showing that a device was calibrated and
16 tested for accuracy and that the device was accurate shall be
17 presumptive evidence of those facts in every proceeding in
18 which a violation of this title is charged.
19 (2) Chemical tests of blood or urine shall be performed
20 by a clinical laboratory licensed and approved by the
21 Department of Health for this purpose using procedures and
22 equipment prescribed by the Department of Health. For
23 purposes of blood and urine testing, a qualified person means
24 an individual who is authorized to perform those chemical
25 tests under the act of September 26, 1951 (P.L.1539, No.389),
26 known as The Clinical Laboratory Act.
27 (d) Presumptions from amount of alcohol.--If chemical
28 testing of a person's breath, blood or urine shows:
29 (1) That the amount of alcohol by weight in the blood of
30 the person tested is 0.05% or less, it shall be presumed that
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1 the person tested was not under influence of alcohol and the
2 person shall not be charged with any violation under section
3 5502(a)(1) or (4) or, if the person was so charged prior to
4 the test, the charge shall be void ab initio. This fact shall
5 not give rise to any presumption concerning a violation of
6 section 5502(a)(2) or (3).
7 (2) That the amount of alcohol by weight in the blood of
8 the person tested is in excess of 0.05% but less than 0.10%,
9 this fact shall not give rise to any presumption that the
10 person tested was or was not under the influence of alcohol,
11 but this fact may be considered with other competent evidence
12 in determining whether the person was or was not under the
13 influence of alcohol.
14 (3) That the amount of alcohol by weight in the blood of
15 the person tested is 0.10% or more, this fact may be
16 introduced into evidence if the person is charged with
17 violating section 5502.
18 (e) Refusal admissible in evidence.--In any summary
19 proceeding or criminal proceeding in which the defendant is
20 charged with a violation of section 5502 or any other violation
21 of this title arising out of the same action, the fact that the
22 defendant refused to submit to chemical testing as required by
23 subsection (a) may be introduced in evidence, along with other
24 testimony concerning the circumstances of the refusal. No
25 presumptions shall arise from this evidence but it may be
26 considered along with other factors concerning the charge.
27 (f) Other evidence admissible.--Subsections (a) through (i)
28 shall not be construed as limiting the introduction of any other
29 competent evidence bearing upon the question of whether or not
30 the defendant was under the influence of alcohol or a controlled
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1 substance or both.
2 (g) Test results available to defendant.--Upon the request
3 of the person tested, the results of any chemical test shall be
4 made available to him or his attorney.
5 (h) Test by personal physician.--The person tested shall be
6 permitted to have a physician of his own choosing administer an
7 additional breath, blood or urine chemical test and the results
8 of the test shall also be admissible in evidence. The chemical
9 testing given at the direction of the waterways patrolman shall
10 not be delayed by a person's attempt to obtain an additional
11 test.
12 (i) Request by operator for test.--Any person involved in an
13 accident or placed under arrest for a violation of section 5502
14 may request a chemical test of his breath, blood or urine. These
15 requests shall be honored when it is reasonably practicable to
16 do so.
17 (j) Immunity from civil liability and reports.--No
18 physician, nurse or technician or hospital employing the
19 physician, nurse or technician and no other employer of the
20 physician, nurse or technician shall be civilly liable for
21 properly withdrawing blood or obtaining a urine sample and
22 reporting test results to the waterways patrolman at the request
23 of a waterways patrolman under this section. No physician, nurse
24 or technician or hospital employing the physician, nurse or
25 technician may administratively refuse to perform the tests and
26 provide the results to the waterways patrolman except as may be
27 reasonably expected from unusual circumstances that pertain at
28 the time the request is made.
29 (k) Prearrest breath test authorized.--A waterways
30 patrolman, having reasonable suspicion to believe a person is
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1 operating or in actual physical control of the movement of a
2 watercraft while under the influence of alcohol, may require
3 that person prior to arrest to submit to a preliminary breath
4 test on a device approved by the Department of Health for this
5 purpose. The sole purpose of this preliminary breath test is to
6 assist the waterways patrolman in determining whether or not the
7 person should be placed under arrest. The preliminary breath
8 test shall be in addition to any other requirements of this
9 title. No person has any right to expect or demand a preliminary
10 breath test. Refusal to submit to the test shall not be
11 considered for purposes of subsections (b) and (e).
12 Section 3. Section 5502 of Title 30 is amended to read:
13 § 5502. Operating watercraft under influence of alcohol or
14 controlled substance.
15 (a) General rule.--No person shall operate or be in actual
16 physical control of the movement of a watercraft upon, in or
17 through the waters of this Commonwealth while:
18 (1) under the influence of alcohol to a degree which
19 renders the person incapable of safe operation of the
20 watercraft;
21 (2) under the influence of any controlled substance, as
22 defined by the laws of this Commonwealth and rules and
23 regulations promulgated thereunder, to a degree which renders
24 the person incapable of safe operation of a watercraft; [or]
25 (3) under the combined influence of alcohol and a
26 controlled substance[.]; or
27 (4) the amount of alcohol by weight in the blood of the
28 person is 0.10% or greater.
29 (b) Legal use no defense.--The fact that any person charged
30 with violating this section is or has been legally entitled to
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1 use alcohol or controlled substances is not a defense to a
2 charge of violating this section.
3 (c) Penalty.--A person violating any of the provisions of
4 this section commits a [summary offense of the first degree]
5 misdemeanor of the second degree.
6 Section 4. Title 30 is amended by adding a section to read:
7 § 5502.1. Homicide by watercraft while operating under
8 influence.
9 (a) Offense defined.--Any person who unintentionally causes
10 the death of another person as the direct result of a violation
11 of section 5502 (relating to operating watercraft under
12 influence of alcohol or controlled substance) and who is
13 convicted of violating section 5502 commits a felony of the
14 third degree when the violation is the cause of death and the
15 sentencing court shall order the person to serve a minimum term
16 of imprisonment of not less than three years.
17 (b) Applicability of sentencing guidelines.--The sentencing
18 guidelines promulgated by the Pennsylvania Commission on
19 Sentencing shall not supersede the mandatory penalty of this
20 section.
21 Section 5. This act shall take effect in 60 days.
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