§ 5-76-104 - Implied consent.
5-76-104. Implied consent.
(a) (1) Any person who operates a motorboat or is in actual physical control of a motorboat in this state is deemed to have given consent, subject to the provisions of subsection (c) of this section, to a chemical test of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her breath or blood if:
(A) The person is arrested for any offense arising out of an act alleged to have been committed while the person was operating a motorboat while intoxicated or operating a motorboat while there was an alcohol concentration of at least eight-hundredths (0.08) in the person's breath or blood;
(B) The person is involved in an accident while operating a motorboat; or
(C) At the time the person is arrested for operating a motorboat while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating a motorboat, is intoxicated or has an alcohol concentration of eight-hundredths (0.08) or more in his or her breath or blood.
(2) Any person who is dead, unconscious, or otherwise in a condition rendering the person incapable of refusal, is deemed not to have withdrawn the consent provided by subdivision (a)(1) of this section, and a chemical test may be administered subject to the provisions of subsection (c) of this section.
(3) (A) When a person operating a motorboat is involved in an accident resulting in loss of human life or when there is reason to believe that death may result, a law enforcement officer shall request and the person shall submit to a chemical test of the person's blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her breath or blood.
(B) The law enforcement officer shall cause the chemical test to be administered to the person, including a person fatally injured.
(b) (1) If a court determines that a law enforcement officer had reasonable cause to believe an arrested person had been operating a motorboat in violation of 5-76-102(a) and the person refused to submit to a chemical test upon request of the law enforcement officer, the court shall levy a fine of not less than one thousand dollars ($1,000) and not to exceed two thousand five hundred dollars ($2,500) and suspend the operating privileges of the person for a period of six (6) months, in addition to any other suspension imposed for violating 5-76-102(a).
(2) If a person operating a motorboat is involved in an accident resulting in loss of human life and the person refuses to submit to a chemical test upon the request of the law enforcement officer, the court shall levy a fine of not less than two thousand five hundred dollars ($2,500) and not to exceed five thousand dollars ($5,000) and suspend the operating privileges of the person for a period of two (2) years, in addition to any other suspension imposed for violating 5-76-102(a).
(c) (1) A chemical test shall be administered at the direction of a law enforcement officer having reasonable cause to believe the person to have been operating a motorboat while intoxicated or while there is an alcohol concentration of eight-hundredths (0.08) or more in the person's breath or blood.
(2) (A) The law enforcement agency employing the law enforcement officer shall designate which chemical test is administered, and the law enforcement agency is responsible for paying any expense incurred in conducting the chemical test.
(B) If a person tested requests that an additional chemical test be made, as authorized in subsection (g) of this section, the cost of the additional chemical test shall be borne by the person tested.
(3) If any person objects to the taking of his or her blood for a chemical test, as authorized in this section, the breath or urine of the person may be used to make the chemical analysis.
(d) (1) To be considered valid under the provisions of this chapter, a chemical analysis of a person's blood, urine, or breath shall be performed according to a method approved by the State Board of Health or by an individual possessing a valid permit issued by the Division of Health of the Department of Health and Human Services for that purpose.
(2) The division may:
(A) Approve a satisfactory technique or method for the chemical analysis;
(B) Ascertain the qualifications and competence of an individual to conduct the chemical analysis; and
(C) Issue a permit to conduct the chemical analysis that is subject to termination or revocation at the discretion of the division.
(e) (1) When a person submits to a blood test at the request of a law enforcement officer, blood may be drawn by a physician or by a person acting under the direction and supervision of a physician.
(2) The limitation provided in subdivision (e)(1) of this section does not apply to the taking of a breath or urine specimen.
(3) (A) No person, institution, or office in this state that withdraws blood for the purpose of determining alcohol or controlled substance content of the blood at the request of a law enforcement officer under a provision of this chapter shall be held liable for violating any criminal law of this state in connection with the withdrawing of the blood.
(B) No physician, institution, or person acting under the direction or supervision of a physician shall be held liable in tort for the withdrawal of the blood unless the person is negligent in connection with the withdrawal of the blood or the blood is taken over the objections of the subject.
(f) Upon the request of a person who submits to a chemical test at the request of a law enforcement officer, full information concerning the chemical test shall be made available to the person or his or her attorney.
(g) (1) A person tested may have a physician, qualified technician, registered nurse, or other qualified person of his or her own choice administer a complete chemical test in addition to any chemical test administered at the direction of a law enforcement officer.
(2) The law enforcement officer shall advise the person of the right provided in subdivision (g)(1) of this section.
(3) The refusal or failure of a law enforcement officer to advise the person of the right provided in subdivision (g)(1) of this section and to permit and assist the person to obtain the chemical test precludes the admission of evidence relating to a chemical test taken at the direction of a law enforcement officer.