FISH AND BOAT CODE (30 PA.C.S.) - CHEMICAL TESTING TO DETERMINE AMOUNTS
   OF ALCOHOL OR CONTROLLED SUBSTANCES, OPERATING WATERCRAFT UNDER THE
  INFLUENCE OF ALCOHOL OR CONTROLLED SUBSTANCE AND AGGRAVATED ASSAULT BY
                WATERCRAFT WHILE OPERATING UNDER INFLUENCE
                 Act of Nov. 9, 2006, P.L. 1375, No. 149              Cl. 30
                             Session of 2006
                               No. 2006-149

     SB 1262

                                  AN ACT

     Amending Title 30 (Fish) of the Pennsylvania Consolidated
        Statutes, further providing for chemical testing to determine
        amounts of alcohol or controlled substances and for operating
        a watercraft under the influence of alcohol or controlled
        substances; and providing for aggravated assault by
        watercraft while operating under influence.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Section 5125(a), (b), (c), (d), (h) and (k) of
     Title 30 of the Pennsylvania Consolidated Statutes are amended
     to read:
      § 5125.  Chemical testing to determine amount of alcohol or
                controlled substance.
        (a)  General rule.--Any person who operates or is in actual
     physical control of the movement of a watercraft, upon, in or
     through the waters of this Commonwealth, shall be deemed to have
     given consent to one or more chemical tests of breath, blood or
     urine for the purpose of determining the alcoholic content of
     blood or the presence of a controlled substance if a waterways
     [patrolman] conservation officer has reasonable grounds to
     believe the person has been operating or in actual physical
     control of the movement of a watercraft:
            (1)  [while under the influence of alcohol or a
        controlled substance or both] in violation of section 5502
        (relating to operating watercraft under influence of alcohol
        or controlled substance); or
            (2)  which was involved in an accident in which the
        operator, passenger or any other person [involved] required
        treatment at a medical facility or was killed.
        (b)  Suspension for refusal.--
            (1)  If any person placed under arrest for a violation of
        section 5502 [(relating to operating watercraft under
        influence of alcohol or controlled substance)] is requested
        to submit to chemical testing and refuses to do so, the
        testing shall not be conducted but, upon notice by the
        waterways [patrolman] conservation officer, the commission
        shall suspend the boating privileges of the person [for a
        period of 12 months.] as follows:
                (i)  Except as set forth in subparagraph (ii), for a
            period of 12 months.
                (ii)  For a period of 18 months if any of the
            following apply:
                    (A)  The person's boating privileges have
                previously been suspended under this subsection.
                    (B)  The person has, prior to the refusal under
                this paragraph, been sentenced for an offense under
                section 5502.
            (2)  It is the duty of the waterways [patrolman]
        conservation officer to inform the person that:
                (i)  the person's boating privileges will be
            suspended upon refusal to submit to chemical testing[.];
            and
                (ii)  if the person refuses to submit to chemical
            testing, upon conviction or plea for violating section
            5502(a)(1), the person will be subject to the penalties
            provided in section 5502(c)(3).
            (3)  Any person whose boating privileges are suspended
        under this section shall have the same right of appeal as
        provided for in cases of suspension for other reasons.
        (c)  Test results admissible in evidence.--In any summary
     proceeding or criminal proceeding in which the defendant is
     charged with a violation of section 5502 or any other violation
     of this title arising out of the same action, the amount of
     alcohol or controlled substance in the defendant's blood, as
     shown by chemical testing of the person's breath, blood or urine
     by tests conducted by qualified persons using approved
     equipment, shall be admissible in evidence.
            (1)  Chemical tests of breath shall be performed on
        devices approved by the Department of Health using procedures
        prescribed jointly by regulations of the Department of Health
        and the [commission] Department of Transportation. Devices
        shall have been tested for accuracy within a period of time
        and in a manner specified by regulations of the Department of
        Health and the [commission] Department of Transportation. For
        purposes of breath testing, a qualified person means a person
        who has fulfilled the training requirement in the use of the
        equipment in a training program approved by the Department of
        Health and the [commission] Department of Transportation. A
        certificate or log showing that a device was tested for
        accuracy and that the device was accurate shall be
        presumptive evidence of those facts in every proceeding in
        which a violation of this title is charged.
            (2)  (i)  Chemical tests of blood or urine shall be
            performed by a clinical laboratory licensed and approved
            by the Department of Health for this purpose using
            procedures and equipment prescribed by the Department of
            Health. For purposes of blood and urine testing, a
            qualified person means an individual who is authorized to
            perform those chemical tests under the act of September
            26, 1951 (P.L.1539, No.389), known as The Clinical
            Laboratory Act.
                (ii)  For purposes of blood and urine testing to
            determine blood alcohol or controlled substance content
            levels, the procedures and equipment prescribed by the
            Department of Health shall be reviewed within 120 days of
            the effective date of this subparagraph and at least
            every two years thereafter to ensure that consideration
            is given to scientific and technological advances so that
            testing conducted in accordance with the prescribed
            procedures utilizing the prescribed equipment will be as
            accurate and reliable as science and technology permit.
            (3)  Chemical test of blood or urine, if conducted by a
        facility located outside this Commonwealth, shall be
        performed:
                (i)  by a facility licensed and approved by the
            Department of Health for this purpose; or
                (ii)  by a facility licensed to conduct the tests by
            the state in which the facility is located and licensed
            pursuant to the Clinical Laboratory Improvement
            Amendments of 1988 (Public Law 100-578, 102 Stat. 2903).
            (4)  For purposes of blood testing to determine the
        amount of a Schedule I or nonprescribed Schedule II or III
        controlled substance or a metabolite of such a substance, the
        Department of Health shall prescribe minimum levels of these
        substances which must be present in a person's blood in order
        for the test results to be admissible in a prosecution for a
        violation of section 5502 or any other violation of this
        title arising out of the same action.
        [(d)  Presumptions from amount of alcohol.--If chemical
     testing of a person's breath, blood or urine shows:
            (1)  That the amount of alcohol by weight in the blood of
        the person tested is 0.05% or less, it shall be presumed that
        the person tested was not under influence of alcohol and the
        person shall not be charged with any violation under section
        5502(a)(1) or (4) or, if the person was so charged prior to
        the test, the charge shall be void ab initio. This fact shall
        not give rise to any presumption concerning a violation of
        section 5502(a)(2) or (3).
            (2)  That the amount of alcohol by weight in the blood of
        the person tested is in excess of 0.05% but less than 0.10%,
        this fact shall not give rise to any presumption that the
        person tested was or was not under the influence of alcohol,
        but this fact may be considered with other competent evidence
        in determining whether the person was or was not under the
        influence of alcohol.
            (3)  That the amount of alcohol by weight in the blood of
        the person tested is 0.10% or more, this fact may be
        introduced into evidence if the person is charged with
        violating section 5502.]
        * * *
        (h)  Test by personal physician.--The person tested shall be
     permitted to have a physician of his own choosing administer an
     additional breath, blood or urine chemical test and the results
     of the test shall also be admissible in evidence. The chemical
     testing given at the direction of the waterways [patrolman]
     conservation officer shall not be delayed by a person's attempt
     to obtain an additional test.
        * * *
        (k)  Prearrest breath test authorized.--A waterways
     [patrolman] conservation officer, having reasonable suspicion to
     believe a person is operating or in actual physical control of
     the movement of a watercraft while under the influence of
     alcohol, may require that person, prior to arrest, to submit to
     a preliminary breath test on a device approved by the Department
     of Health for this purpose. The sole purpose of this preliminary
     breath test is to assist the waterways [patrolman] conservation
     officer in determining whether or not the person should be
     placed under arrest. The preliminary breath test shall be in
     addition to any other requirements of this title. No person has
     any right to expect or demand a preliminary breath test. Refusal
     to submit to the test shall not be considered for purposes of
     subsections (b) and (e).
        Section 2.  Section 5502(a), (a.1) and (c) of Title 30 are
     amended and the section is amended by adding subsections to
     read:
      § 5502.  Operating watercraft under influence of alcohol or
                controlled substance.
        [(a)  General rule.--No person shall operate or be in actual
     physical control of the movement of a watercraft upon, in or
     through the waters of this Commonwealth:
            (1)  while under the influence of alcohol to a degree
        which renders the person incapable of safe operation of a
        watercraft;
            (2)  while under the influence of any controlled
        substance, as defined by the laws of this Commonwealth and
        rules and regulations promulgated thereunder, to a degree
        which renders the person incapable of safe operation of a
        watercraft;
            (3)  while under the combined influence of alcohol and a
        controlled substance to a degree which renders the person
        incapable of safe operation of a watercraft; or
            (4)  while the amount of alcohol by weight in the blood
        of:
                (i)  an adult is 0.10% or greater; or
                (ii)  a minor is 0.02% or greater.
        (a.1)  Prima facie evidence.--
            (1)  It is prima facie evidence that:
                (i)  an adult had 0.10% or more by weight of alcohol
            in his or her blood at the time of operating or being in
            actual physical control of the movement of a watercraft
            if the amount of alcohol by weight in the blood of the
            person is equal to or greater than 0.10% at the time a
            chemical test is performed on a sample of the person's
            breath, blood or urine; and
                (ii)  a minor had 0.02% or more by weight of alcohol
            in his or her blood at the time of operating or being in
            actual physical control of the movement of a watercraft
            if the amount of alcohol by weight in the blood of the
            minor is equal to or greater than 0.02% at the time a
            chemical test is performed on a sample of the person's
            breath, blood or urine.
            (2)  For the purposes of this section, the chemical test
        of the sample of the person's breath, blood or urine shall be
        from a sample obtained within three hours after the person
        drove, operated or was in actual physical control of the
        watercraft.]
        (a)  General impairment.--
            (1)  An individual may not operate or be in actual
        physical control of the movement of a watercraft after
        imbibing a sufficient amount of alcohol such that the
        individual is rendered incapable of safely operating or being
        in actual physical control of the movement of the watercraft.
            (2)  An individual may not operate or be in actual
        physical control of the movement of a watercraft after
        imbibing a sufficient amount of alcohol such that the alcohol
        concentration in the individual's blood or breath is at least
        0.08% but less than 0.10% within two hours after the
        individual has operated or been in actual physical control of
        the movement of the watercraft.
        (a.1)  High rate of alcohol.--An individual may not operate
     or be in actual physical control of the movement of a watercraft
     after imbibing a sufficient amount of alcohol such that the
     alcohol concentration in the individual's blood or breath is at
     least 0.10% but less than 0.16% within two hours after the
     individual has operated or been in actual physical control of
     the movement of the watercraft.
        (a.2)  Highest rate of alcohol.--An individual may not
     operate or be in actual physical control of the movement of a
     watercraft after imbibing a sufficient amount of alcohol such
     that the alcohol concentration in the individual's blood or
     breath is 0.16% or higher within two hours after the individual
     has operated or been in actual physical control of the movement
     of the watercraft.
        (a.3)  Controlled substances.--An individual may not operate
     or be in actual physical control of the movement of a watercraft
     under any of the following circumstances:
            (1)  There is in the individual's blood any amount of a:
                (i)  Schedule I controlled substance, as defined in
            the act of April 14, 1972 (P.L.233, No.64), known as The
            Controlled Substance, Drug, Device and Cosmetic Act;
                (ii)  Schedule II or III controlled substance, as
            defined in The Controlled Substance, Drug, Device and
            Cosmetic Act, which has not been medically prescribed for
            the individual; or
                (iii)  metabolite of a substance under subparagraph
            (i) or (ii).
            (2)  The individual is under the influence of a drug or
        combination of drugs to a degree which impairs the
        individual's ability to safely operate or be in actual
        physical control of the movement of the watercraft.
            (3)  The individual is under the combined influence of
        alcohol and a drug or combination of drugs to a degree which
        impairs the individual's ability to safely operate or be in
        actual physical control of the movement of the watercraft.
            (4)  The individual is under the influence of a solvent
        or noxious substance in violation of 18 Pa.C.S. § 7303
        (relating to sale or illegal use of certain solvents and
        noxious substances).
        (a.4)  Minors.--A minor may not operate or be in actual
     physical control of the movement of a watercraft after imbibing
     a sufficient amount of alcohol such that the alcohol
     concentration in the minor's blood or breath is 0.02% or higher
     within two hours after the minor has operated or been in actual
     physical control of the movement of the watercraft.
        (a.5)  Exception to two-hour rule.--Notwithstanding the
     provisions of subsection (a), (a.1), (a.2) or (a.4) where
     alcohol or controlled substance concentration in an individual's
     blood or breath is an element of the offense, evidence of such
     alcohol or controlled substance concentration more than two
     hours after the individual has operated or been in actual
     physical control of the movement of the watercraft is sufficient
     to establish that element of the offense under the following
     circumstances:
            (1)  where the Commonwealth shows good cause explaining
        why the chemical test could not be performed within two
        hours; and
            (2)  where the Commonwealth establishes that the
        individual did not imbibe any alcohol or utilize a controlled
        substance between the time the individual was arrested and
        the time the sample was obtained.
        * * *
        (c)  Grading and penalties.--
            [(1)  A person violating any of the provisions of this
        section commits a misdemeanor of the second degree except a
        person who meets the requirements of paragraph (2). The
        sentencing court shall order the person to pay a fine of not
        less than $500 and to serve a minimum term of imprisonment
        of:
                (i)  not less than 48 consecutive hours; or
                (ii)  not less than 30 days if the person had
            previously accepted Accelerated Rehabilitative
            Disposition or any other form of preliminary disposition
            or had been convicted of, adjudicated delinquent or
            granted a consent decree under 42 Pa.C.S. Ch. 63
            (relating to juvenile matters) based on an offense under
            this section or an equivalent offense in this or other
            jurisdictions within the previous seven years calculated
            from the date of acceptance, conviction, adjudication or
            grant.
            (2)  If the person has two or more times previously been
        convicted of, adjudicated delinquent or granted a consent
        decree under 42 Pa.C.S. Ch. 63 based on an offense under this
        section or an equivalent offense in this or other
        jurisdictions within the previous seven years, a person
        commits a misdemeanor of the first degree. The sentencing
        court shall order the person to pay a fine of not less than
        $2,500 nor more than $10,000 and to serve a minimum term of
        imprisonment of not less than 90 days.]
            (1)  Except as set forth in paragraph (2) or (3), an
        individual who violates subsection (a) shall be sentenced as
        follows:
                (i)  For a first offense, to undergo a mandatory
            minimum term of six months' probation and to pay a fine
            of $300 and successfully complete an approved boating
            safety course.
                (ii)  For a second offense, to undergo imprisonment
            for not less than five days and to pay a fine of not less
            than $300 nor more than $2,500 and successfully complete
            an approved boating safety course.
                (iii)  For a third or subsequent offense, to undergo
            imprisonment for not less than ten days and to pay a fine
            of not less than $500 nor more than $5,000 and
            successfully complete an approved boating safety course.
            (2)  Except as set forth in paragraph (3), an individual
        who violates subsection (a)(1) where there was an accident
        resulting in bodily injury, serious bodily injury or death of
        any person or damage to a watercraft or other property or who
        violates subsection (a.1) or (a.4) shall be sentenced as
        follows:
                (i)  For a first offense, to undergo imprisonment for
            not less than 48 consecutive hours and to pay a fine of
            not less than $500 nor more than $5,000 and successfully
            complete an approved boating safety course.
                (ii)  For a second offense, to undergo imprisonment
            for not less than 30 days and to pay a fine of not less
            than $750 nor more than $5,000 and successfully complete
            an approved boating safety course.
                (iii)  For a third offense, to undergo imprisonment
            for not less than 90 days and to pay a fine of not less
            than $1,500 nor more than $10,000 and successfully
            complete an approved boating safety course.
                (iv)  For a fourth or subsequent offense, to undergo
            imprisonment for not less than one year and to pay a fine
            of not less than $1,500 nor more than $10,000 and
            successfully complete an approved boating safety course.
            (3)  An individual who violates subsection (a)(1) and
        refused testing of blood or breath or an individual who
        violates subsection (a.2) or (a.3) shall be sentenced as
        follows:
                (i)  For a first offense, to undergo imprisonment for
            not less than 72 consecutive hours and to pay a fine of
            not less than $1,000 nor more than $5,000 and
            successfully complete an approved boating safety course.
                (ii)  For a second offense, to undergo imprisonment
            for not less than 90 days and to pay a fine of not less
            than $1,500 and successfully complete an approved boating
            safety course.
                (iii)  For a third or subsequent offense, to undergo
            imprisonment for not less than one year and to pay a fine
            of not less than $2,500 and successfully complete an
            approved boating safety course.
        * * *
        Section 3.  Title 30 is amended by adding a section to read:
      § 5502.3.  Aggravated assault by watercraft while operating
                under influence.
        (a)  Offense defined.--Any person who negligently causes
     serious bodily injury to another person as the result of a
     violation of section 5502 (relating to operating watercraft
     under influence of alcohol or controlled substance) and who is
     convicted of violating section 5502 commits a felony of the
     second degree when the violation is the cause of the injury.
        (b)  Definition.--As used in this section, the term "serious
     bodily injury" means any bodily injury that creates a
     substantial risk of death or that causes serious permanent
     disfigurement or protracted loss or impairment of the function
     of any bodily member or organ.
        Section 4.  This act shall take effect in 60 days.

     APPROVED--The 9th day of November, A. D. 2006.

     EDWARD G. RENDELL