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PAG LIN
1 1 HOUSE FILE 2331
1 2
1 3 AN ACT
1 4 RELATING TO OPERATING A MOTORBOAT OR SAILBOAT WHILE
1 5 INTOXICATED AND PROVIDING PENALTIES.
1 6
1 7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 8
1 9 Section 1. Section 462A.2, Code 1999, is amended by
1 10 striking the section and inserting in lieu thereof the
1 11 following:
1 12 462A.2 DEFINITIONS.
1 13 As used in this chapter, unless the context clearly
1 14 requires a different meaning:
1 15 1. "Alcohol concentration" means the number of grams of
1 16 alcohol per any of the following:
1 17 a. One hundred milliliters of blood.
1 18 b. Two hundred ten liters of breath.
1 19 c. Sixty-seven milliliters of urine.
1 20 2. "Alcoholic beverage" includes alcohol, wine, spirits,
1 21 beer, or any other beverage which contains ethyl alcohol and
1 22 is fit for human consumption.
1 23 3. "Authorized emergency vessel" means any vessel which is
1 24 designated or authorized by the commission for use in law
1 25 enforcement, search and rescue, and disaster work.
1 26 4. "Boat livery" means a person who holds a vessel for
1 27 hire, renting, leasing, or chartering including hotels,
1 28 motels, or resorts which furnish a vessel to guests as part of
1 29 the services of the business.
1 30 5. "Certificate" means a certificate of title.
1 31 6. "Chemical test" means an analysis of a person's blood,
1 32 breath, urine, or other bodily substance for the determination
1 33 of the presence of alcohol, a controlled substance, or a drug.
1 34 7. "Commission" means the natural resource commission.
1 35 8. "Controlled substance" means any drug, substance, or
2 1 compound that is regulated under chapter 124, including any
2 2 counterfeit substance or simulated controlled substance, as
2 3 well as any metabolite or derivative of the drug, substance or
2 4 compound.
2 5 9. "Dealer" means a person who engages in whole or in part
2 6 in the business of buying, selling, or exchanging vessels
2 7 either outright or on conditional sale, bailment, lease,
2 8 security interest, or otherwise, and who has an established
2 9 place of business for sale, trade, and display of vessels. A
2 10 yachtbroker is a dealer.
2 11 10. "Department" means the department of natural
2 12 resources.
2 13 11. "Director" means the director of the department or the
2 14 director's designee.
2 15 12. "Established place of business" means the place
2 16 actually occupied either continuously or at regular periods by
2 17 a dealer or manufacturer where the dealer's or manufacturer's
2 18 books and records are kept and a large share of the dealer's
2 19 or manufacturer's business is transacted.
2 20 13. "Farm pond" means a body of water wholly on the lands
2 21 of a single owner, or a group of joint owners, which does not
2 22 have any connection with any public waters and which is less
2 23 than ten surface acres.
2 24 14. "Inboard" means a vessel in which the engine is
2 25 located internally, the propulsion system is rigidly attached
2 26 to the engine, and the propulsion mechanism is within the
2 27 confines of the vessel's extreme length and beam.
2 28 15. "Inboard-outdrive" means a vessel in which the power
2 29 plant or engine is located inside of the vessel and the
2 30 propulsion mechanism is located outside of the transom.
2 31 16. "Inflatable vessel" means a vessel which achieves and
2 32 maintains its intended shape and buoyancy by inflation.
2 33 17. "Lienholder" means a person holding a security
2 34 interest.
2 35 18. "Manufacturer" means a person engaged in the business
3 1 of manufacturing or importing new and unused vessels, or new
3 2 and unused outboard motors, for the purpose of sale or trade.
3 3 19. "Motorboat" means any vessel propelled by an inboard,
3 4 inboard outdrive, or outboard engine, whether or not such
3 5 engine is the principal source of propulsion.
3 6 20. "Navigable waters" means all lakes, rivers and
3 7 streams, which can support a vessel capable of carrying one or
3 8 more persons during a total of six months period in one out of
3 9 every ten years.
3 10 21. "Nonresident" means every person who is not a resident
3 11 of this state.
3 12 22. "Operate" means to navigate or otherwise use a vessel
3 13 or motorboat.
3 14 23. "Operator" means a person who operates or is in actual
3 15 physical control of a vessel.
3 16 24. "Owner" means a person, other than a lienholder,
3 17 having the property right in or title to a motorboat or
3 18 vessel. The term includes a person entitled to the use or
3 19 possession of a vessel or motorboat subject to an interest in
3 20 another person, reserved or created by agreement and securing
3 21 payment or performance of an obligation, but the term excludes
3 22 a lessee under a lease not intended as security.
3 23 25. "Passenger" means a person carried on board a vessel,
3 24 including the operator, and anyone towed by a vessel on water
3 25 skis, surfboards, inner tubes, or similar devices.
3 26 26. "Peace officer" means:
3 27 a. A member of the Iowa state patrol.
3 28 b. A police officer under civil service as provided in
3 29 chapter 400.
3 30 c. A sheriff.
3 31 d. A regular deputy sheriff who has had formal police
3 32 training.
3 33 e. Any other certified law enforcement officer as defined
3 34 in section 80B.3, who has satisfactorily completed an approved
3 35 course relating to operating while intoxicated, either at the
4 1 Iowa law enforcement academy or in a law enforcement training
4 2 program approved by the department of public safety.
4 3 27. "Person" means an individual, partnership, firm,
4 4 corporation or association.
4 5 28. "Privately owned lake" means any lake, located within
4 6 the boundaries of this state and not subject to federal
4 7 control covering navigation owned by an individual, group of
4 8 individuals, or a nonprofit corporation and which is not open
4 9 to the use of the general public but is used exclusively by
4 10 the owners and their personal guests.
4 11 29. "Proceeds" includes whatever is received when
4 12 collateral or proceeds are sold, exchanged, collected, or
4 13 otherwise disposed of. The term also includes the account
4 14 arising when the right to payment is earned under a contract
4 15 right. Money, checks, and the like are cash "proceeds". All
4 16 other proceeds are "noncash proceeds".
4 17 30. "Sailboard" means a windsurfing vessel with a mount
4 18 for a sail, a daggerboard, and a small skeg.
4 19 31. "Sailboat" means any watercraft operated with a sail.
4 20 32. "Security interest" means an interest which is
4 21 reserved or created by an agreement which secures payment or
4 22 performance of an obligation and is valid against third
4 23 parties generally.
4 24 33. "Serious injury" means a bodily injury which creates
4 25 a substantial risk of death, or which causes serious permanent
4 26 disfigurement, or which causes protracted loss or impairment
4 27 of the function of any bodily organ or major bodily member, or
4 28 which causes the loss of any bodily member.
4 29 34. "State of principal use" means the state on whose
4 30 waters a vessel is used or to be used most during a calendar
4 31 year.
4 32 35. "Undocumented vessel" means any vessel which is not
4 33 required to have, and does not have, a valid marine document
4 34 issued by the bureau of customs or a foreign government.
4 35 36. "Use" means to operate, navigate, or employ a vessel.
5 1 A vessel is in use whenever it is upon the water.
5 2 37. "Vessel" means every description of watercraft, other
5 3 than a seaplane, used or capable of being used as a means of
5 4 transportation on water or ice. Ice boats are watercraft.
5 5 38. "Vessel for hire or commercial vessel" means a vessel
5 6 for the use of which a fee of any nature is imposed including
5 7 vessels furnished as a part of lodge, hotel, or resort
5 8 services.
5 9 39. "Wake" means any movement of water created by a vessel
5 10 which adversely affects the activities of another person who
5 11 is involved in activities approved for that area or which may
5 12 adversely affect the natural features of the shoreline.
5 13 40. "Watercraft" means any vessel which through the
5 14 buoyance force of water floats upon the water and is capable
5 15 of carrying one or more persons.
5 16 41. "Waters of this state under the jurisdiction of the
5 17 commission" means any navigable waters within the territorial
5 18 limits of this state, and the marginal river areas adjacent to
5 19 this state, exempting only farm ponds and privately owned
5 20 lakes.
5 21 42. "Writing fee" means the amount paid by the boat owner
5 22 to the county recorder for handling the transaction.
5 23 Sec. 2. Section 462A.14, Code 1999, is amended by striking
5 24 the section and inserting in lieu thereof the following:
5 25 462A.14 OPERATING A MOTORBOAT OR SAILBOAT WHILE
5 26 INTOXICATED.
5 27 1. A person commits the offense of operating a motorboat
5 28 or sailboat while intoxicated if the person operates a
5 29 motorboat or sailboat on the navigable waters of this state in
5 30 any of the following conditions:
5 31 a. While under the influence of an alcoholic beverage or
5 32 other drug or a combination of such substances.
5 33 b. While having an alcohol concentration of .10 or more.
5 34 c. While any amount of a controlled substance is present
5 35 in the person, as measured in the person's blood or urine.
6 1 2. A person who violates subsection 1 commits:
6 2 a. A serious misdemeanor for the first offense, punishable
6 3 by all of the following:
6 4 (1) Imprisonment in the county jail for not less than
6 5 forty-eight hours, to be served as ordered by the court, less
6 6 credit for any time the person was confined in a jail or
6 7 detention facility following arrest. However, the court, in
6 8 ordering service of the sentence and in its discretion, may
6 9 accommodate the defendant's work schedule.
6 10 (2) Assessment of a fine of one thousand dollars.
6 11 However, in the discretion of the court, if no personal or
6 12 property injury has resulted from the defendant's actions, up
6 13 to five hundred dollars of the fine may be waived. As an
6 14 alternative to a portion or all of the fine, the court may
6 15 order the person to perform unpaid community service.
6 16 (3) Prohibition of operation of a motorboat or sailboat
6 17 for one year, pursuant to court order.
6 18 (4) Assignment to substance abuse evaluation and
6 19 treatment, pursuant to subsection 12, and a course for
6 20 drinking drivers.
6 21 b. An aggravated misdemeanor for a second offense,
6 22 punishable by all of the following:
6 23 (1) Imprisonment in the county jail or community-based
6 24 correctional facility for not less than seven days.
6 25 (2) Assessment of a fine of not less than one thousand
6 26 five hundred dollars nor more than five thousand dollars.
6 27 (3) Prohibition of operation of a motorboat or sailboat
6 28 for two years, pursuant to court order.
6 29 (4) Assignment to substance abuse evaluation and
6 30 treatment, pursuant to subsections 12 and 13, and a course for
6 31 drinking drivers.
6 32 c. A class "D" felony for a third offense and each
6 33 subsequent offense, punishable by all of the following:
6 34 (1) Imprisonment in the county jail for a determinate
6 35 sentence of not more than one year but not less than thirty
7 1 days, or committed to the custody of the director of the
7 2 department of corrections. A person convicted of a third or
7 3 subsequent offense may be committed to the custody of the
7 4 director of the department of corrections, who shall assign
7 5 the person to a facility pursuant to section 904.513 or the
7 6 offender may be committed to treatment in the community under
7 7 the provisions of section 907.13.
7 8 (2) Assessment of a fine of not less than two thousand
7 9 five hundred dollars nor more than seven thousand five hundred
7 10 dollars.
7 11 (3) Prohibition of operation of a motorboat or sailboat
7 12 for six years, pursuant to court order.
7 13 (4) Assignment to substance abuse evaluation and
7 14 treatment, pursuant to subsections 12 and 13, and a course for
7 15 drinking drivers.
7 16 d. A class "D" felony for any offense under this section
7 17 resulting in serious injury to persons other than the
7 18 defendant, if the court determines that the person who
7 19 committed the offense caused the serious injury, and shall be
7 20 imprisoned for a determinate sentence of not more than five
7 21 years but not less than thirty days, or committed to the
7 22 custody of the director of the department of corrections, and
7 23 assessed a fine of not less than two thousand five hundred
7 24 dollars nor more than seven thousand five hundred dollars. A
7 25 person convicted of a felony offense may be committed to the
7 26 custody of the director of the department of corrections, who
7 27 shall assign the person to a facility pursuant to section
7 28 904.513. The court shall also order that the person not
7 29 operate a motorboat or sailboat for one year in addition to
7 30 any other period of time the defendant would have been ordered
7 31 not to operate if no injury had occurred in connection with
7 32 the violation. The court shall also assign the defendant to
7 33 substance abuse evaluation and treatment pursuant to
7 34 subsections 12 and 13, and a course for drinking drivers.
7 35 e. A class "B" felony for any offense under this section
8 1 resulting in the death of persons other than the defendant, if
8 2 the court determines that the person who committed the offense
8 3 caused the death, and shall be imprisoned for a determinate
8 4 sentence of not more than twenty-five years, or committed to
8 5 the custody of the director of the department of corrections.
8 6 A person convicted of a felony offense may be committed to the
8 7 custody of the director of the department of corrections, who
8 8 shall assign the person to a facility pursuant to section
8 9 904.513. The court shall also order that the person not
8 10 operate a motorboat or sailboat for six years. The court
8 11 shall also assign the defendant to substance abuse evaluation
8 12 and treatment pursuant to subsections 12 and 13, and a course
8 13 for drinking drivers.
8 14 3. a. Notwithstanding the provisions of sections 901.5
8 15 and 907.3, the court shall not defer judgment or sentencing,
8 16 or suspend execution of any mandatory minimum sentence of
8 17 incarceration applicable to the defendant under subsection 2,
8 18 and shall not suspend execution of any other part of a
8 19 sentence not involving incarceration imposed pursuant to
8 20 subsection 2, if any of the following apply:
8 21 (1) If the defendant's alcohol concentration established
8 22 by the results of an analysis of a specimen of the defendant's
8 23 blood, breath, or urine withdrawn in accordance with this
8 24 chapter exceeds .15, regardless of whether or not the alcohol
8 25 concentration indicated by the chemical test minus the
8 26 established margin of error inherent in the device or method
8 27 used to conduct the test equals an alcohol concentration of
8 28 .15 or more.
8 29 (2) If the defendant has previously been convicted of a
8 30 violation of subsection 1 or a statute in another state
8 31 substantially corresponding to subsection 1.
8 32 (3) If the defendant has previously received a deferred
8 33 judgment or sentence for a violation of subsection 1 or for a
8 34 violation of a statute in another state substantially
8 35 corresponding to subsection 1.
9 1 (4) If the defendant refused to consent to testing
9 2 requested in accordance with section 462A.14A.
9 3 (5) If the offense under this section results in bodily
9 4 injury to a person other than the defendant.
9 5 b. A minimum term of imprisonment in a county jail or
9 6 community-based correctional facility imposed on a person
9 7 convicted of a second or subsequent offense under subsection 2
9 8 shall be served on consecutive days. However, if the
9 9 sentencing court finds that service of the full minimum term
9 10 on consecutive days would work an undue hardship on the
9 11 person, or finds that sufficient jail space is not available
9 12 and is not reasonably expected to become available within four
9 13 months after sentencing to incarcerate the person serving the
9 14 minimum sentence on consecutive days, the court may order the
9 15 person to serve the minimum term in segments of at least
9 16 forty-eight hours and to perform a specified number of hours
9 17 of unpaid community service as deemed appropriate by the
9 18 sentencing court.
9 19 4. In determining if a violation charged is a second or
9 20 subsequent offense for purposes of criminal sentencing or
9 21 license or privilege revocation under this section:
9 22 a. Any conviction under this section within the previous
9 23 twelve years shall be counted as a previous offense.
9 24 b. Deferred judgments entered pursuant to section 907.3
9 25 for violations of this section shall be counted as previous
9 26 offenses.
9 27 c. Convictions or the equivalent of deferred judgments for
9 28 violations in any other states under statutes substantially
9 29 corresponding to this section shall be counted as previous
9 30 offenses. The courts shall judicially notice the statutes of
9 31 other states which define offenses substantially equivalent to
9 32 an offense defined in this section and can therefore be
9 33 considered corresponding statutes. Each previous violation on
9 34 which conviction or deferral of judgment was entered prior to
9 35 the date of the violation charged shall be considered and
10 1 counted as a separate previous offense.
10 2 5. A person shall not be convicted and sentenced for more
10 3 than one violation of this section for actions arising out of
10 4 the same event or occurrence, even if the event or occurrence
10 5 involves more than one of the conditions specified in
10 6 subsection 1. However, a person who refuses a test pursuant
10 7 to section 462A.14B may be subject to imposition of the
10 8 penalties under that section in addition to the penalties
10 9 under this section if the person violates both sections, even
10 10 though the actions arise out of the same event or occurrence.
10 11 6. The clerk of the district court shall immediately
10 12 certify to the department a true copy of each order entered
10 13 with respect to deferral of judgment, deferral of sentence, or
10 14 pronouncement of judgment and sentence for a defendant under
10 15 this section.
10 16 7. a. This section does not apply to a person operating a
10 17 motorboat or sailboat while under the influence of a drug if
10 18 the substance was prescribed for the person and was taken
10 19 under the prescription and in accordance with the directions
10 20 of a medical practitioner as defined in chapter 155A or if the
10 21 substance was dispensed by a pharmacist without a prescription
10 22 pursuant to the rules of the board of pharmacy examiners, if
10 23 there is no evidence of the consumption of alcohol and the
10 24 medical practitioner or pharmacist had not directed the person
10 25 to refrain from operating a motor vehicle, or motorboat or
10 26 sailboat.
10 27 b. When charged with a violation of subsection 1,
10 28 paragraph "c", a person may assert, as an affirmative defense,
10 29 that the controlled substance present in the person's blood or
10 30 urine was prescribed or dispensed for the person and was taken
10 31 in accordance with the directions of a practitioner and the
10 32 labeling directions of the pharmacy, as that person and place
10 33 of business are defined in section 155A.3.
10 34 8. In any prosecution under this section, evidence of the
10 35 results of analysis of a specimen of the defendant's blood,
11 1 breath, or urine is admissible upon proof of a proper
11 2 foundation.
11 3 a. The alcohol concentration established by the results of
11 4 an analysis of a specimen of the defendant's blood, breath, or
11 5 urine withdrawn within two hours after the defendant was
11 6 operating or in physical control of a motorboat or sailboat is
11 7 presumed to be the alcohol concentration at the time of
11 8 operating or being in physical control of the motorboat or
11 9 sailboat.
11 10 b. The presence of a controlled substance or other drug
11 11 established by the results of analysis of a specimen of the
11 12 defendant's blood or urine withdrawn within two hours after
11 13 the defendant was operating or in physical control of a
11 14 motorboat or sailboat is presumed to show the presence of such
11 15 controlled substance or other drug in the defendant at the
11 16 time of operating or being in physical control of the
11 17 motorboat or sailboat.
11 18 c. The nationally accepted standards for determining
11 19 detectable levels of controlled substances in the division of
11 20 criminal investigation's initial laboratory screening test for
11 21 controlled substances adopted by the department of public
11 22 safety shall be utilized in prosecutions under this section.
11 23 9. a. In addition to any fine or penalty imposed under
11 24 this chapter, the court shall order a defendant convicted of
11 25 or receiving a deferred judgment for a violation of this
11 26 section to make restitution for damages resulting directly
11 27 from the violation, to the victim, pursuant to chapter 910.
11 28 An amount paid pursuant to this restitution order shall be
11 29 credited toward any adverse judgment in a subsequent civil
11 30 proceeding arising from the same occurrence. However, other
11 31 than establishing a credit, a restitution proceeding pursuant
11 32 to this section shall not be given evidentiary or preclusive
11 33 effect in a subsequent civil proceeding arising from the same
11 34 occurrence.
11 35 b. The court may order restitution paid to any public
12 1 agency for the costs of the emergency response resulting from
12 2 the actions constituting a violation of this section, not
12 3 exceeding five hundred dollars per public agency for each such
12 4 response. For the purposes of this paragraph, "emergency
12 5 response" means any incident requiring response by fire
12 6 fighting, law enforcement, ambulance, medical, or other
12 7 emergency services. A public agency seeking such restitution
12 8 shall consult with the county attorney regarding the expenses
12 9 incurred by the public agency, and the county attorney may
12 10 include the expenses in the statement of pecuniary damages
12 11 pursuant to section 910.3.
12 12 10. In any prosecution under this section, the results of
12 13 a chemical test shall not be used to prove a violation of
12 14 subsection 1, paragraph "b" or paragraph "c", if the alcohol,
12 15 controlled substance, or other drug concentration indicated by
12 16 the chemical test minus the established margin of error
12 17 inherent in the device or method used to conduct the chemical
12 18 test does not equal or exceed the level prohibited by
12 19 subsection 1.
12 20 11. This section does not limit the introduction of any
12 21 competent evidence bearing on the question of whether a person
12 22 was under the influence of an alcoholic beverage or a
12 23 controlled substance or other drug, including the results of
12 24 chemical tests of specimens of blood, breath, or urine
12 25 obtained more than two hours after the person was operating a
12 26 motorboat or sailboat.
12 27 12. a. All substance abuse evaluations required under
12 28 this section shall be completed at the defendant's expense.
12 29 b. In addition to assignment to substance abuse evaluation
12 30 and treatment under this section, the court shall order any
12 31 defendant convicted under this section to follow the
12 32 recommendations proposed in the substance abuse evaluation for
12 33 appropriate substance abuse treatment for the defendant.
12 34 Court-ordered substance abuse treatment is subject to the
12 35 periodic reporting requirements of section 125.86.
13 1 c. If a defendant is committed by the court to a substance
13 2 abuse treatment facility, the administrator of the facility
13 3 shall report to the court when it is determined that the
13 4 defendant has received the maximum benefit of treatment at the
13 5 facility and the defendant shall be released from the
13 6 facility. The time for which the defendant is committed for
13 7 treatment shall be credited against the defendant's sentence.
13 8 d. The court may prescribe the length of time for the
13 9 evaluation and treatment or the court may request that the
13 10 community college conducting the course for drinking drivers
13 11 which the defendant is ordered to attend or the treatment
13 12 program to which the defendant is committed immediately report
13 13 to the court when the defendant has received maximum benefit
13 14 from the course for drinking drivers or treatment program or
13 15 has recovered from the defendant's addiction, dependency, or
13 16 tendency to chronically abuse alcohol or drugs.
13 17 e. Upon successfully completing a course for drinking
13 18 drivers or an ordered substance abuse treatment program, a
13 19 court may place the defendant on probation for six months and
13 20 as a condition of probation, the defendant shall attend a
13 21 program providing posttreatment services relating to substance
13 22 abuse as approved by the court.
13 23 f. A defendant committed under this section who does not
13 24 possess sufficient income or estate to make payment of the
13 25 costs of the treatment in whole or in part shall be considered
13 26 a state patient and the costs of treatment shall be paid as
13 27 provided in section 125.44.
13 28 g. A defendant who fails to carry out the order of the
13 29 court shall be confined in the county jail for twenty days in
13 30 addition to any other imprisonment ordered by the court or may
13 31 be ordered to perform unpaid community service work, and shall
13 32 be placed on probation for one year with a violation of this
13 33 probation punishable as contempt of court.
13 34 h. In addition to any other condition of probation, the
13 35 defendant shall attend a program providing substance abuse
14 1 prevention services or posttreatment services related to
14 2 substance abuse as ordered by the court. The defendant shall
14 3 report to the defendant's probation officer as ordered
14 4 concerning proof of attendance at the treatment program or
14 5 posttreatment program ordered by the court. Failure to attend
14 6 or complete the program shall be considered a violation of
14 7 probation and is punishable as contempt of court.
14 8 13. a. Upon a second or subsequent offense in violation
14 9 of section 462A.14, the court upon hearing may commit the
14 10 defendant for inpatient treatment of alcoholism or drug
14 11 addiction or dependency to any hospital, institution, or
14 12 community correctional facility in this state providing such
14 13 treatment. The time for which the defendant is committed for
14 14 treatment shall be credited against the defendant's sentence.
14 15 b. The court may prescribe the length of time for the
14 16 evaluation and treatment or the court may request that the
14 17 hospital to which the defendant is committed immediately
14 18 report to the court when the defendant has received maximum
14 19 benefit from the program of the hospital or institution or has
14 20 recovered from the defendant's addiction, dependency, or
14 21 tendency to chronically abuse alcohol or drugs.
14 22 c. A defendant committed under this section who does not
14 23 possess sufficient income or estate to make payment of the
14 24 costs of the treatment in whole or in part shall be considered
14 25 a state patient and the costs of treatment shall be paid as
14 26 provided in section 125.44.
14 27 Sec. 3. NEW SECTION. 462A.14A IMPLIED CONSENT TO TEST.
14 28 1. A person who operates a motorboat or sailboat on the
14 29 navigable waters in this state under circumstances which give
14 30 reasonable grounds to believe that the person has been
14 31 operating a motorboat or sailboat in violation of section
14 32 462A.14 is deemed to have given consent to the withdrawal of
14 33 specimens of the person's blood, breath, or urine and to a
14 34 chemical test or tests of the specimens for the purpose of
14 35 determining the alcohol concentration or presence of
15 1 controlled substances or other drugs, subject to this section.
15 2 2. a. If a peace officer has reasonable grounds to
15 3 believe that any of the following has occurred, the peace
15 4 officer may request that the motorboat or sailboat operator
15 5 provide a sample of the operator's breath for a preliminary
15 6 screening test using a device approved by the commissioner of
15 7 public safety for that purpose:
15 8 (1) The motorboat or sailboat operator may be violating or
15 9 has violated section 462A.14.
15 10 (2) The motorboat or sailboat has been involved in an
15 11 accident resulting in injury or death.
15 12 (3) The motorboat or sailboat operator is or has been
15 13 operating carelessly or recklessly, in violation of section
15 14 462A.12.
15 15 b. The results of this preliminary screening test may be
15 16 used for the purpose of deciding whether an arrest should be
15 17 made or whether to request a chemical test authorized in this
15 18 chapter, but shall not be used in any court action except to
15 19 prove that a chemical test was properly requested of a person
15 20 pursuant to this section.
15 21 3. The withdrawal of the body substances and the test or
15 22 tests shall be administered at the written request of a peace
15 23 officer having reasonable grounds to believe that the person
15 24 was operating a motorboat or sailboat in violation of section
15 25 462A.14, and if any of the following conditions exist:
15 26 a. A peace officer has lawfully placed the person under
15 27 arrest for violation of section 462A.14.
15 28 b. The motorboat or sailboat has been involved in an
15 29 accident or collision resulting in personal injury or death.
15 30 c. The person has refused to take a preliminary breath
15 31 screening test provided by this chapter.
15 32 d. The preliminary breath screening test was administered
15 33 and it indicated an alcohol concentration equal to or in
15 34 excess of the level prohibited by section 462A.14.
15 35 e. The preliminary breath screening test was administered
16 1 and it indicated an alcohol concentration of less than the
16 2 level prohibited under section 462A.14, and the peace officer
16 3 has reasonable grounds to believe that the person was under
16 4 the influence of a controlled substance, a drug other than
16 5 alcohol or a combination of alcohol and another drug.
16 6 4. a. The peace officer shall determine which of the
16 7 three substances, breath, blood, or urine, shall be tested.
16 8 b. If the peace officer fails to offer a test within two
16 9 hours after the preliminary screening test is administered or
16 10 refused, or the arrest is made, whichever occurs first, a test
16 11 is not required, and there shall be no suspension of motorboat
16 12 or sailboat operation privileges.
16 13 c. Refusal to submit to a chemical test of urine or breath
16 14 is deemed a refusal to submit, and the peace officer shall
16 15 inform the person that the person's refusal will result in the
16 16 suspension of the person's privilege to operate a motorboat or
16 17 sailboat.
16 18 d. Refusal to submit to a chemical test of blood is not
16 19 deemed a refusal to submit, but in that case, the peace
16 20 officer shall then determine which one of the other two
16 21 substances shall be tested and shall offer the test.
16 22 e. Notwithstanding paragraphs "a" through "d", if the
16 23 peace officer has reasonable grounds to believe that the
16 24 person was under the influence of a drug other than alcohol,
16 25 or a combination of alcohol and another drug, a urine test may
16 26 be required even after a blood or breath test has been
16 27 administered.
16 28 f. A person who is dead, unconscious, or otherwise in a
16 29 condition rendering the person incapable of consent or refusal
16 30 is deemed not to have withdrawn the consent provided by this
16 31 section, and the test may be given if a licensed physician
16 32 certifies in advance of the test that the person is dead,
16 33 unconscious, or otherwise in a condition rendering that person
16 34 incapable of consent or refusal.
16 35 g. A person who has been requested to submit to a chemical
17 1 test shall be advised by a peace officer of the following:
17 2 (1) A refusal to submit to the test is punishable by a
17 3 mandatory civil penalty of five hundred to two thousand
17 4 dollars, and suspension of motorboat or sailboat operating
17 5 privileges for at least a year. In addition, if the person is
17 6 also convicted of operating a motorboat or sailboat while
17 7 intoxicated, the person shall be subject to additional
17 8 penalties.
17 9 (2) If the person submits to the test and the results
17 10 indicate an alcohol concentration equal to or in excess of the
17 11 level prohibited under section 462A.14 and the person is
17 12 convicted, the person's motorboat or sailboat operating
17 13 privileges will be suspended for at least one year and up to
17 14 six years, depending upon how many previous convictions the
17 15 person has under this chapter, and whether or not the person
17 16 has caused serious injury or death, in addition to any
17 17 sentence and fine imposed for a violation of section 462A.14.
17 18 5. Refusal to submit to a test under this section does not
17 19 prohibit the withdrawal of a specimen for chemical testing if
17 20 a motorboat or sailboat has been involved in an accident
17 21 resulting in death or serious bodily injury, if the peace
17 22 officer has reasonable grounds to believe that the operator of
17 23 the motorboat or sailboat was violating section 462A.14 at the
17 24 time of the accident, and the peace officer has obtained, in
17 25 compliance with chapter 808 or according to the procedure in
17 26 section 462A.14D, a search warrant permitting the withdrawal
17 27 of a specimen for chemical testing. The act of any person
17 28 knowingly resisting or obstructing the withdrawal of a
17 29 specimen pursuant to a search warrant issued under this
17 30 section constitutes a contempt punishable by a fine not
17 31 exceeding one thousand dollars or imprisonment in a county
17 32 jail not exceeding one year or by both such fine and
17 33 imprisonment, and further constitutes a refusal to submit,
17 34 punishable under this section.
17 35 6. Only a licensed physician, licensed physician assistant
18 1 as defined in section 148C.1, medical technologist, or
18 2 registered nurse, acting at the request of a peace officer,
18 3 may withdraw a specimen of blood for the purpose of
18 4 determining the alcohol concentration or the presence of a
18 5 controlled substance or other drugs. However, any peace
18 6 officer, using devices and methods approved by the
18 7 commissioner of public safety, may take a specimen of a
18 8 person's breath or urine for the purpose of determining the
18 9 alcohol concentration or the presence of drugs. Only new
18 10 equipment kept under strictly sanitary and sterile conditions
18 11 shall be used for drawing blood. Medical personnel who use
18 12 reasonable care and accepted medical practices in withdrawing
18 13 blood specimens are immune from liability for their actions in
18 14 complying with requests made of them pursuant to this section.
18 15 7. The person may have an independent chemical test or
18 16 tests administered at the person's own expense in addition to
18 17 any administered at the direction of a peace officer. The
18 18 failure or inability of the person to obtain an independent
18 19 chemical test or tests does not preclude the admission of
18 20 evidence of the results of the test or tests administered at
18 21 the direction of the peace officer. Upon the request of the
18 22 person who is tested, the results of the test or tests
18 23 administered at the direction of the peace officer shall be
18 24 made available to the person.
18 25 8. In any prosecution under section 462A.14, evidence of
18 26 the results of analysis of a specimen of the defendant's
18 27 blood, breath, or urine is admissible upon proof of a proper
18 28 foundation. The alcohol concentration established by the
18 29 results of an analysis of a specimen of the defendant's blood,
18 30 breath, or urine withdrawn within two hours after the
18 31 defendant was operating or was otherwise in physical control
18 32 of a motorboat or sailboat is presumed to be the alcohol
18 33 concentration at the time of operation or being in physical
18 34 control of the motorboat or sailboat. If a person refuses to
18 35 submit to a chemical test, proof of refusal is admissible in
19 1 any civil or criminal action or proceeding arising out of acts
19 2 alleged to have been committed while the person was operating
19 3 a motorboat or sailboat in violation of section 462A.14. This
19 4 section does not limit the introduction of any competent
19 5 evidence bearing on the question of whether a person was under
19 6 the influence of an alcoholic beverage or a controlled
19 7 substance or other drug, including the results of chemical
19 8 tests of specimens of blood, breath, or urine obtained more
19 9 than two hours after the person was operating a motorboat or
19 10 sailboat.
19 11 Sec. 4. NEW SECTION. 462A.14B REFUSAL TO SUBMIT –
19 12 PENALTY.
19 13 1. If a person refuses to submit to the chemical testing,
19 14 a test shall not be given unless the procedure in section
19 15 462A.14D is invoked. However, if the person refuses the test,
19 16 the person shall be punishable by the court according to this
19 17 section.
19 18 2. The court, upon finding that the officer had reasonable
19 19 ground to believe the person to have been operating a
19 20 motorboat or sailboat in violation of section 462A.14, that
19 21 specified conditions existed for chemical testing pursuant to
19 22 section 462A.14A, and that the person refused to submit to the
19 23 chemical testing, shall:
19 24 a. Order that the person shall not operate a motorboat or
19 25 sailboat for one year.
19 26 b. Impose a mandatory civil penalty as follows:
19 27 (1) For a first refusal under this section, five hundred
19 28 dollars.
19 29 (2) For a second refusal under this section, one thousand
19 30 dollars.
19 31 (3) For a third or subsequent refusal under this section,
19 32 two thousand dollars.
19 33 3. If the person does not pay the civil penalty by the
19 34 time the one-year order not to operate expires, the court
19 35 shall extend the order not to operate a motorboat or sailboat
20 1 for an additional year, and may also impose penalties for
20 2 contempt.
20 3 4. The court shall not defer judgment or sentencing, or
20 4 suspend execution of any order or fine applicable under this
20 5 section.
20 6 5. The penalties imposed by this section shall apply in
20 7 addition to any penalties imposed under section 462A.14,
20 8 except that the one-year period under the order not to operate
20 9 a motorboat or sailboat under this section shall be imposed
20 10 and run concurrently with any period of time a defendant is
20 11 ordered not to operate a motorboat or sailboat under section
20 12 462A.14.
20 13 Sec. 5. NEW SECTION. 462A.14C STATEMENT OF OFFICER.
20 14 1. A person who has been requested to submit to a chemical
20 15 test shall be advised by a peace officer of the following:
20 16 a. A refusal to submit to the test is punishable by a
20 17 mandatory civil penalty of five hundred to two thousand
20 18 dollars, and suspension of motorboat or sailboat operating
20 19 privileges for at least a year. In addition, if the person is
20 20 also convicted of operating a motorboat or sailboat while
20 21 intoxicated, the person shall be subject to additional
20 22 penalties.
20 23 b. If the person submits to the test and the results
20 24 indicate the presence of a controlled substance or other drug,
20 25 or an alcohol concentration equal to or in excess of the level
20 26 prohibited by section 462A.14, the person's privilege to
20 27 operate a motorboat or sailboat will be prohibited for at
20 28 least one year, and up to six years.
20 29 2. This section does not apply in any case involving a
20 30 person described in section 462A.14A, subsection 4, paragraph
20 31 "f".
20 32 3. If a person refuses to submit to a chemical test, proof
20 33 of refusal is admissible in any civil or criminal action or
20 34 proceeding arising out of acts alleged to have been committed
20 35 while the person was operating a motorboat or sailboat in
21 1 violation of section 462A.14.
21 2 Sec. 6. NEW SECTION. 462A.14D TESTS PURSUANT TO
21 3 WARRANTS.
21 4 1. Refusal to consent to a test under section 462A.14A
21 5 does not prohibit the withdrawal of a specimen for chemical
21 6 testing pursuant to a search warrant issued in the
21 7 investigation of a suspected violation of section 462A.14 if
21 8 all of the following grounds exist:
21 9 a. An accident has resulted in a death or personal injury
21 10 reasonably likely to cause death.
21 11 b. There are reasonable grounds to believe that one or
21 12 more of the persons whose operation of a motorboat or sailboat
21 13 may have been the proximate cause of the accident was
21 14 violating section 462A.14 at the time of the accident.
21 15 2. Search warrants may be issued under this section in
21 16 full compliance with chapter 808 or search warrants may be
21 17 issued under subsection 3.
21 18 3. Notwithstanding section 808.3, the issuance of a search
21 19 warrant under this section may be based upon sworn oral
21 20 testimony communicated by telephone if the magistrate who is
21 21 asked to issue the warrant is satisfied that the circumstances
21 22 make it reasonable to dispense with a written affidavit. The
21 23 following shall then apply:
21 24 a. When a caller applies for the issuance of a warrant
21 25 under this section and the magistrate becomes aware of the
21 26 purpose of the call, the magistrate shall place under oath the
21 27 person applying for the warrant.
21 28 b. The person applying for the warrant shall prepare a
21 29 duplicate warrant and read the duplicate warrant, verbatim, to
21 30 the magistrate who shall enter, verbatim, what is read to the
21 31 magistrate on a form that will be considered the original
21 32 warrant. The magistrate may direct that the warrant be
21 33 modified.
21 34 c. The oral application testimony shall set forth facts
21 35 and information tending to establish the existence of the
22 1 grounds for the warrant and shall describe with a reasonable
22 2 degree of specificity the person or persons whose operation of
22 3 a motorboat or sailboat is believed to have been the proximate
22 4 cause of the accident and from whom a specimen is to be
22 5 withdrawn and the location where the withdrawal of the
22 6 specimen or specimens is to take place.
22 7 d. If a voice recording device is available, the
22 8 magistrate may record by means of that device all of the call
22 9 after the magistrate becomes aware of the purpose of the call.
22 10 Otherwise, the magistrate shall cause a stenographic or
22 11 longhand memorandum to be made of the oral testimony of the
22 12 person applying for the warrant.
22 13 e. If the magistrate is satisfied from the oral testimony
22 14 that the grounds for the warrant exist or that there is
22 15 probable cause to believe that they exist, the magistrate
22 16 shall order the issuance of the warrant by directing the
22 17 person applying for the warrant to sign the magistrate's name
22 18 on the duplicate warrant. The magistrate shall immediately
22 19 sign the original warrant and enter on its face the exact time
22 20 when the issuance was ordered.
22 21 f. The person who executes the warrant shall enter the
22 22 time of execution on the face of the duplicate warrant.
22 23 g. The magistrate shall cause any record of the call made
22 24 by means of a voice recording device to be transcribed, shall
22 25 certify the accuracy of the transcript, and shall file the
22 26 transcript and the original record with the clerk. If a
22 27 stenographic or longhand memorandum was made of the oral
22 28 testimony of the person who applied for the warrant, the
22 29 magistrate shall file a signed copy with the clerk.
22 30 h. The clerk of court shall maintain the original and
22 31 duplicate warrants along with the record of the telephone call
22 32 and any transcript or memorandum made of the call in a
22 33 confidential file until a charge, if any, is filed.
22 34 4. a. Search warrants issued under this section shall
22 35 authorize and direct peace officers to secure the withdrawal
23 1 of blood specimens by medical personnel under section
23 2 462A.14A. Reasonable care shall be exercised to ensure the
23 3 health and safety of the persons from whom specimens are
23 4 withdrawn in execution of the warrants.
23 5 b. If a person from whom a specimen is to be withdrawn
23 6 objects to the withdrawal of blood, the warrant may be
23 7 executed as follows:
23 8 (1) If the person is capable of giving a specimen of
23 9 breath, and a direct breath testing instrument is readily
23 10 available, the warrant may be executed by the withdrawal of a
23 11 specimen of breath for chemical testing, unless the peace
23 12 officer has reasonable grounds to believe that the person was
23 13 under the influence of a controlled substance, a drug other
23 14 than alcohol, or a combination of alcohol and another drug.
23 15 (2) If the testimony in support of the warrant sets forth
23 16 facts and information that the peace officer has reasonable
23 17 grounds to believe that the person was under the influence of
23 18 a controlled substance, a drug other than alcohol, or a
23 19 combination of alcohol and another drug, a urine sample shall
23 20 be collected in lieu of a blood sample, if the person is
23 21 capable of giving a urine sample and the sample can be
23 22 collected without the need to physically compel the execution
23 23 of the warrant.
23 24 5. The act of any person knowingly resisting or
23 25 obstructing the withdrawal of a specimen pursuant to a search
23 26 warrant issued under section 462A.14D constitutes contempt
23 27 punishable as provided in that section and further constitutes
23 28 a refusal to submit. Also, if the withdrawal of a specimen is
23 29 so resisted or obstructed, section 462A.14A applies.
23 30 6. Nonsubstantive variances between the contents of the
23 31 original and duplicate warrants shall not cause a warrant
23 32 issued under subsection 3 to be considered invalid.
23 33 7. Specimens obtained pursuant to warrants issued under
23 34 this section are not subject to disposition under section
23 35 808.9 or chapter 809 or 809A.
24 1 8. Subsections 3 to 7 of this section do not apply where a
24 2 test may be administered under section 462A.14A, subsection 4,
24 3 paragraph "f".
24 4 9. Medical personnel who use reasonable care and accepted
24 5 medical practices in withdrawing blood specimens are immune
24 6 from liability for their actions in complying with requests
24 7 made of them pursuant to search warrants or pursuant to
24 8 section 462A.14A.
24 9 Sec. 7. NEW SECTION. 462A.14E VIOLATIONS OF ORDERS NOT
24 10 TO OPERATE A MOTORBOAT OR SAILBOAT.
24 11 1. A person who operates a motorboat or sailboat after the
24 12 person has been ordered, pursuant to section 462A.14 or
24 13 462A.14B not to operate a motorboat or sailboat, commits a
24 14 serious misdemeanor, punishable with a jail term and a
24 15 mandatory fine of one thousand dollars.
24 16 2. In addition to the jail term and fine, the court shall
24 17 extend the period of prohibition of operating a motorboat or
24 18 sailboat for an additional like period.
24 19 Sec. 8. NEW SECTION. 462A.14F DEPARTMENT RECORDKEEPING.
24 20 The department shall collect and maintain statistics on the
24 21 number of arrests and convictions for violations of section
24 22 462A.14 that occur each year.
24 23 Sec. 9. Section 462A.23, subsection 2, paragraph b, Code
24 24 1999, is amended by striking the paragraph and inserting in
24 25 lieu thereof the following:
24 26 b. Operating a motorboat or sailboat while intoxicated, or
24 27 manipulating water skis, a surfboard, or a similar device
24 28 while in an intoxicated condition or under the influence of a
24 29 narcotic drug.
24 30 Sec. 10. Section 811.1, subsections 1 and 2, Code
24 31 Supplement 1999, are amended to read as follows:
24 32 1. A defendant awaiting judgment of conviction and
24 33 sentencing following either a plea or verdict of guilty of a
24 34 class "A" felony, murder, any class "B" felony included in
24 35 section 462A.14 or 707.6A; felonious assault; felonious child
25 1 endangerment; sexual abuse in the second degree; sexual abuse
25 2 in the third degree; kidnapping; robbery in the first degree;
25 3 arson in the first degree; burglary in the first degree; any
25 4 felony included in section 124.401, subsection 1, paragraph
25 5 "a" or "b"; or a second or subsequent offense under section
25 6 124.401, subsection 1, paragraph "c"; or any felony punishable
25 7 under section 902.9, subsection 1.
25 8 2. A defendant appealing a conviction of a class "A"
25 9 felony; murder; any class "B" or "C" felony included in
25 10 section 462A.14 or 707.6A; felonious assault; felonious child
25 11 endangerment; sexual abuse in the second degree; sexual abuse
25 12 in the third degree; kidnapping; robbery in the first degree;
25 13 arson in the first degree; burglary in the first degree; any
25 14 felony included in section 124.401, subsection 1, paragraph
25 15 "a" or "b"; or a second or subsequent conviction under section
25 16 124.401, subsection 1, paragraph "c"; or any felony punishable
25 17 under section 902.9, subsection 1.
25 18 Sec. 11. Section 907.3, subsection 1, Code Supplement
25 19 1999, is amended by adding the following new paragraph:
25 20 NEW PARAGRAPH. l. The offense is a violation of section
25 21 462A.14, and a mandatory minimum sentence must be served or
25 22 mandatory minimum fine must be paid by the defendant.
25 23 Sec. 12. Section 907.3, subsection 2, Code Supplement
25 24 1999, is amended by adding the following new paragraph:
25 25 NEW PARAGRAPH. f. The offense is a violation of section
25 26 462A.14, and a mandatory minimum sentence must be served or
25 27 mandatory minimum fine must be paid by the defendant.
25 28 Sec. 13. Section 907.3, subsection 3, Code Supplement
25 29 1999, is amended by adding the following new paragraph:
25 30 NEW PARAGRAPH. f. A mandatory minimum sentence or fine
25 31 imposed for a violation of section 462A.14.
25 32 Sec. 14. IMPLEMENTATION OF ACT. Section 25B.2, subsection
25 33 3, shall not apply to this Act.
25 34
25 35
26 1
26 2 BRENT SIEGRIST
26 3 Speaker of the House
26 4
26 5
26 6
26 7 MARY E. KRAMER
26 8 President of the Senate
26 9
26 10 I hereby certify that this bill originated in the House and
26 11 is known as House File 2331, Seventy-eighth General Assembly.
26 12
26 13
26 14
26 15 ELIZABETH ISAACSON
26 16 Chief Clerk of the House
26 17 Approved , 2000
26 18
26 19
26 20
26 21 THOMAS J. VILSACK
26 22 Governor
Text: HF02330 Text: HF02332 Text: HF02300 - HF02399 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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