§ 5-76-102 - Unlawful acts.
5-76-102. Unlawful acts.
(a) No person shall operate any motorboat on the waters of this state while:
(1) Intoxicated; or
(2) There is an alcohol concentration in the person's breath or blood of eight hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in 5-65-204.
(b) (1) In the case of a motorboat or device, only if the certified law enforcement officer has probable cause to believe that the operator of the motorboat is operating while intoxicated or operating while there is an alcohol concentration of eight hundredths (0.08) in the person's breath or blood, the certified law enforcement officer may administer and may test the operator at the scene by using a portable breathtesting instrument or other approved method to determine if the operator may be operating a motorboat or device in violation of this section.
(2) The consumption of alcohol or the possession of an open container aboard a vessel does not in and of itself constitute probable cause.
(c) (1) (A) For a first offense, a person violating this section shall be punished by imprisonment in the county or municipal jail for not more than one (1) year or by a fine of not less than two hundred fifty dollars ($250) nor more than one thousand dollars ($1,000) or by both fine and imprisonment.
(B) In addition, the court shall order the person not to operate a motorboat for a period of ninety (90) days.
(2) (A) (i) For a second offense within a three-year period, a person violating this section shall be punished by a fine of not less than five hundred dollars ($500) nor more than two thousand five hundred dollars ($2,500) and by imprisonment in the county or municipal jail for not more than one (1) year.
(ii) The sentence shall include a mandatory sentence that is not subject to suspension or probation of imprisonment in the county or municipal jail for not less than forty-eight (48) consecutive hours or community service for not less than twenty (20) days.
(B) In addition, the court shall order the person not to operate a motorboat for a period of one (1) year.
(3) (A) For a third or subsequent offense within a three-year period, a person violating this section shall be punished by a fine of not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) and by imprisonment in the county or municipal jail for not less than sixty (60) days nor more than one (1) year, to include a minimum of sixty (60) days which shall be served in the county or municipal jail and that shall not be probated or suspended.
(B) In addition, the court shall order the person not to operate a motorboat for a period of three (3) years.
(4) Any person who operates a motorboat on the waters of this state in violation of a court order issued pursuant to this section shall be imprisoned for ten (10) days.
(d) A person who has been arrested for violating this section shall not be released from jail, under bond or otherwise, until the alcohol concentration is less than eight hundredths (0.08) in the person's breath or blood and the person is no longer intoxicated.
(e) (1) In any criminal prosecution of a person charged with violating subsection (a) of this section, the amount of alcohol in the defendant's blood at the time of or within four (4) hours of the alleged offense, as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance, gives rise to the following:
(A) If there was at that time an alcohol concentration of four hundredths (0.04) or less in the defendant's blood, urine, breath, or other bodily substance, it is presumed that the defendant was not under the influence of intoxicating liquor; and
(B) If there was at that time an alcohol concentration in excess of four hundredths (0.04) but less than eight hundredths (0.08) in the defendant's blood, urine, breath, or other bodily substance, this fact does not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
(2) The provisions of subdivision (e)(1) of this section shall not be construed as limiting the introduction of any other relevant evidence bearing upon the question of whether or not the defendant was intoxicated.
(3) (A) A record or report of a certification, rule, evidence analysis, or other document pertaining to work performed by the Office of Alcohol Testing of the Department of Health under the authority of this chapter shall be received as competent evidence as to the matters contained in the record or report in a court of this state, subject to the applicable rules of criminal procedure, when duly attested to by the Director of the Department of Health or his or her assistant, in the form of an original signature or by certification of a copy.
(B) A document described in subdivision (e)(3)(A) of this section is self-authenticating.
(f) The fact that any person charged with violating subsection (a) of this section is or has been legally entitled to use alcohol or a controlled substance does not constitute a defense against any charge of violating subsection (a) of this section.
(g) Any fine for a violation of this chapter shall be remitted to the issuing law enforcement office to be used by the law enforcement office for the administration and enforcement of this chapter.
(h) Neither reckless operation of a motorboat nor any other boating or water safety infraction is a lesser included offense under a charge in violation of this section.