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PAG LIN 1 1 Section 1. Section 462A.2, Code 1999, is amended by 1 2 striking the section and inserting in lieu thereof the 1 3 following: 1 4 462A.2 DEFINITIONS. 1 5 As used in this chapter, unless the context clearly 1 6 requires a different meaning: 1 7 1. "Alcohol concentration" means the number of grams of 1 8 alcohol per any of the following: 1 9 a. One hundred milliliters of blood. 1 10 b. Two hundred ten liters of breath. 1 11 c. Sixty-seven milliliters of urine. 1 12 2. "Alcoholic beverage" includes alcohol, wine, spirits, 1 13 beer, or any other beverage which contains ethyl alcohol and 1 14 is fit for human consumption. 1 15 3. "Authorized emergency vessel" means any vessel which is 1 16 designated or authorized by the commission for use in law 1 17 enforcement, search and rescue, and disaster work. 1 18 4. "Boat livery" means a person who holds a vessel for 1 19 hire, renting, leasing, or chartering including hotels, 1 20 motels, or resorts which furnish a vessel to guests as part of 1 21 the services of the business. 1 22 5. "Certificate" means a certificate of title. 1 23 6. "Chemical test" means an analysis of a person's blood, 1 24 breath, urine, or other bodily substance for the determination 1 25 of the presence of alcohol, a controlled substance, or a drug. 1 26 7. "Commission" means the natural resource commission. 1 27 8. "Controlled substance" means any drug, substance, or 1 28 compound that is regulated under chapter 124, including any 1 29 counterfeit substance or simulated controlled substance, as 1 30 well as any metabolite or derivative of the drug, substance or 1 31 compound. 1 32 9. "Dealer" means a person who engages in whole or in part 1 33 in the business of buying, selling, or exchanging vessels 1 34 either outright or on conditional sale, bailment, lease, 1 35 security interest, or otherwise, and who has an established 2 1 place of business for sale, trade, and display of vessels. A 2 2 yachtbroker is a dealer. 2 3 10. "Department" means the department of natural 2 4 resources. 2 5 11. "Director" means the director of the department or the 2 6 director's designee. 2 7 12. "Established place of business" means the place 2 8 actually occupied either continuously or at regular periods by 2 9 a dealer or manufacturer where the dealer's or manufacturer's 2 10 books and records are kept and a large share of the dealer's 2 11 or manufacturer's business is transacted. 2 12 13. "Farm pond" means a body of water wholly on the lands 2 13 of a single owner, or a group of joint owners, which does not 2 14 have any connection with any public waters and which is less 2 15 than ten surface acres. 2 16 14. "Inboard" means a vessel in which the engine is 2 17 located internally, the propulsion system is rigidly attached 2 18 to the engine, and the propulsion mechanism is within the 2 19 confines of the vessel's extreme length and beam. 2 20 15. "Inboard-outdrive" means a vessel in which the power 2 21 plant or engine is located inside of the vessel and the 2 22 propulsion mechanism is located outside of the transom. 2 23 16. "Inflatable vessel" means a vessel which achieves and 2 24 maintains its intended shape and buoyancy by inflation. 2 25 17. "Lienholder" means a person holding a security 2 26 interest. 2 27 18. "Manufacturer" means a person engaged in the business 2 28 of manufacturing or importing new and unused vessels, or new 2 29 and unused outboard motors, for the purpose of sale or trade. 2 30 19. "Motorboat" means any vessel propelled by machinery, 2 31 whether or not such machinery is the principal source of 2 32 propulsion, or vessel propelled attached to another craft 2 33 which is propelled by machinery. 2 34 20. "Navigable waters" means all lakes, rivers and 2 35 streams, which can support a vessel capable of carrying one or 3 1 more persons during a total of six months period in one out of 3 2 every ten years. 3 3 21. "Nonresident" means every person who is not a resident 3 4 of this state. 3 5 22. "Operate" means to navigate or otherwise use a vessel 3 6 or motorboat. 3 7 23. "Operator" means a person who operates or is in actual 3 8 physical control of a vessel. 3 9 24. "Owner" means a person, other than a lienholder, 3 10 having the property right in or title to a motorboat or 3 11 vessel. The term includes a person entitled to the use or 3 12 possession of a vessel or motorboat subject to an interest in 3 13 another person, reserved or created by agreement and securing 3 14 payment or performance of an obligation, but the term excludes 3 15 a lessee under a lease not intended as security. 3 16 25. "Passenger" means a person carried on board a vessel, 3 17 including the operator, and anyone towed by a vessel on water 3 18 skis, surfboards, inner tubes, or similar devices. 3 19 26. "Peace officer" means: 3 20 a. A member of the Iowa state patrol. 3 21 b. A police officer under civil service as provided in 3 22 chapter 400. 3 23 c. A sheriff. 3 24 d. A regular deputy sheriff who has had formal police 3 25 training. 3 26 e. Any other law enforcement officer who has 3 27 satisfactorily completed an approved course relating to 3 28 operating while intoxicated, either at the Iowa law 3 29 enforcement academy or in a law enforcement training program 3 30 approved by the department of public safety. 3 31 27. "Person" means an individual, partnership, firm, 3 32 corporation or association. 3 33 28. "Privately owned lake" means any lake, located within 3 34 the boundaries of this state and not subject to federal 3 35 control covering navigation owned by an individual, group of 4 1 individuals, or a nonprofit corporation and which is not open 4 2 to the use of the general public but is used exclusively by 4 3 the owners and their personal guests. 4 4 29. "Proceeds" includes whatever is received when 4 5 collateral or proceeds are sold, exchanged, collected, or 4 6 otherwise disposed of. The term also includes the account 4 7 arising when the right to payment is earned under a contract 4 8 right. Money, checks, and the like are cash "proceeds". All 4 9 other proceeds are "noncash proceeds". 4 10 30. "Sailboard" means a windsurfing vessel with a mount 4 11 for a sail, a daggerboard, and a small skeg. 4 12 31. "Security interest" means an interest which is 4 13 reserved or created by an agreement which secures payment or 4 14 performance of an obligation and is valid against third 4 15 parties generally. 4 16 32. "Serious injury" means a bodily injury which creates 4 17 a substantial risk of death, or which causes serious permanent 4 18 disfigurement, or which causes protracted loss or impairment 4 19 of the function of any bodily organ or major bodily member, or 4 20 which causes the loss of any bodily member. 4 21 33. "State of principal use" means the state on whose 4 22 waters a vessel is used or to be used most during a calendar 4 23 year. 4 24 34. "Undocumented vessel" means any vessel which is not 4 25 required to have, and does not have, a valid marine document 4 26 issued by the bureau of customs or a foreign government. 4 27 35. "Use" means to operate, navigate, or employ a vessel. 4 28 A vessel is in use whenever it is upon the water. 4 29 36. "Vessel" means every description of watercraft, other 4 30 than a seaplane, used or capable of being used as a means of 4 31 transportation on water or ice. Ice boats are watercraft. 4 32 37. "Vessel for hire or commercial vessel" means a vessel 4 33 for the use of which a fee of any nature is imposed including 4 34 vessels furnished as a part of lodge, hotel, or resort 4 35 services. 5 1 38. "Wake" means any movement of water created by a vessel 5 2 which adversely affects the activities of another person who 5 3 is involved in activities approved for that area or which may 5 4 adversely affect the natural features of the shoreline. 5 5 39. "Watercraft" means any vessel which through the 5 6 buoyance force of water floats upon the water and is capable 5 7 of carrying one or more persons. 5 8 40. "Waters of this state under the jurisdiction of the 5 9 commission" means any navigable waters within the territorial 5 10 limits of this state, and the marginal river areas adjacent to 5 11 this state, exempting only farm ponds and privately owned 5 12 lakes. 5 13 41. "Writing fee" means the amount paid by the boat owner 5 14 to the county recorder for handling the transaction. 5 15 Sec. 2. Section 462A.14, Code 1999, is amended by striking 5 16 the section and inserting in lieu thereof the following: 5 17 462A.14 OPERATING A VESSEL WHILE INTOXICATED. 5 18 1. A person commits the offense of operating while 5 19 intoxicated if the person operates a vessel on the navigable 5 20 waters of this state in any of the following conditions: 5 21 a. While under the influence of an alcoholic beverage or 5 22 other drug or a combination of such substances. 5 23 b. While having an alcohol concentration equal to or in 5 24 excess of the amount prohibited by section 321J.2, subsection 5 25 1, paragraph "b". 5 26 c. While any amount of a controlled substance is present 5 27 in the person, as measured in the person's blood or urine. 5 28 2. A person who violates subsection 1 commits: 5 29 a. A serious misdemeanor for the first offense, punishable 5 30 by all of the following: 5 31 (1) Imprisonment in the county jail for not less than 5 32 forty-eight hours, to be served as ordered by the court, less 5 33 credit for any time the person was confined in a jail or 5 34 detention facility following arrest. However, the court, in 5 35 ordering service of the sentence and in its discretion, may 6 1 accommodate the defendant's work schedule. 6 2 (2) Assessment of a fine of one thousand dollars. 6 3 However, in the discretion of the court, if no personal or 6 4 property injury has resulted from the defendant's actions, up 6 5 to five hundred dollars of the fine may be waived. As an 6 6 alternative to a portion or all of the fine, the court may 6 7 order the person to perform unpaid community service. 6 8 (3) Prohibition of operation of a vessel for a period of 6 9 time not to exceed one year, pursuant to court order. 6 10 (4) Revocation of the person's driver's license for a 6 11 period equivalent to the revocation that would be applicable 6 12 if the operating while intoxicated offense had been a first 6 13 offense committed in a motor vehicle, pursuant to section 6 14 321J.4, subsection 1, section 321J.9, or section 321J.12, 6 15 which includes a minimum revocation period of one hundred 6 16 eighty days, including a minimum period of ineligibility for a 6 17 temporary restricted license of thirty days, and may involve a 6 18 revocation period of one year. 6 19 (5) Assignment to substance abuse evaluation and 6 20 treatment, a course for drinking drivers or boaters, and, if 6 21 available and appropriate, a reality education substance abuse 6 22 prevention program pursuant to subsection 3. 6 23 b. An aggravated misdemeanor for a second offense, 6 24 punishable by all of the following: 6 25 (1) Imprisonment in the county jail or community-based 6 26 correctional facility for not less than seven days. 6 27 (2) Assessment of a fine of not less than one thousand 6 28 five hundred dollars nor more than five thousand dollars. 6 29 (3) Prohibition of operation of a vessel for a period of 6 30 time not to exceed one year, pursuant to court order. 6 31 (4) Revocation of the person's driver's license for a 6 32 period equivalent to the revocation that would be applicable 6 33 if the operating while intoxicated offense had been a second 6 34 offense committed in a motor vehicle, pursuant to section 6 35 321J.4, subsection 1, section 321J.9, or section 321J.12. 7 1 c. A class "D" felony for a third offense and each 7 2 subsequent offense, punishable by all of the following: 7 3 (1) Imprisonment in the county jail for a determinate 7 4 sentence of not more than one year but not less than thirty 7 5 days, or committed to the custody of the director of the 7 6 department of corrections. A person convicted of a third or 7 7 subsequent offense may be committed to the custody of the 7 8 director of the department of corrections, who shall assign 7 9 the person to a facility pursuant to section 904.513 or the 7 10 offender may be committed to treatment in the community under 7 11 the provisions of section 907.13. 7 12 (2) Assessment of a fine of not less than two thousand 7 13 five hundred dollars nor more than seven thousand five hundred 7 14 dollars. 7 15 (3) Prohibition of operation of a vessel for a period of 7 16 time not to exceed two years, pursuant to court order. 7 17 (4) Revocation of the person's driver's license for a 7 18 period equivalent to the revocation that would be applicable 7 19 if the operating while intoxicated offense had been a third 7 20 offense committed in a motor vehicle, pursuant to section 7 21 321J.4, subsection 1, section 321J.9, or section 321J.12. 7 22 3. a. Notwithstanding the provisions of sections 901.5 7 23 and 907.3, the court shall not defer judgment or sentencing, 7 24 or suspend execution of any mandatory minimum sentence of 7 25 incarceration applicable to the defendant under subsection 2, 7 26 and shall not suspend execution of any other part of a 7 27 sentence not involving incarceration imposed pursuant to 7 28 subsection 2, if any of the following apply: 7 29 (1) If the defendant's alcohol concentration established 7 30 by the results of an analysis of a specimen of the defendant's 7 31 blood, breath, or urine withdrawn in accordance with this 7 32 chapter exceeds .15, regardless of whether or not the alcohol 7 33 concentration indicated by the chemical test minus the 7 34 established margin of error inherent in the device or method 7 35 used to conduct the test equals an alcohol concentration of 8 1 .15 or more. 8 2 (2) If the defendant has previously been convicted of a 8 3 violation of subsection 1 or a statute in another state 8 4 substantially corresponding to subsection 1. 8 5 (3) If the defendant has previously received a deferred 8 6 judgment or sentence for a violation of subsection 1 or for a 8 7 violation of a statute in another state substantially 8 8 corresponding to subsection 1. 8 9 (4) If the defendant refused to consent to testing 8 10 requested in accordance with section 462A.14A. 8 11 (5) If the offense under this section results in bodily 8 12 injury to a person other than the defendant. 8 13 b. All persons convicted of an offense under subsection 2 8 14 shall be ordered, at the person's expense, to undergo, prior 8 15 to sentencing, a substance abuse evaluation. 8 16 c. Where a program is available and is appropriate for the 8 17 convicted person, a person convicted of an offense under 8 18 subsection 2 shall be ordered to participate in a reality 8 19 education substance abuse prevention program equivalent to 8 20 that provided in section 321J.24. 8 21 d. A minimum term of imprisonment in a county jail or 8 22 community-based correctional facility imposed on a person 8 23 convicted of a second or subsequent offense under subsection 2 8 24 shall be served on consecutive days. However, if the 8 25 sentencing court finds that service of the full minimum term 8 26 on consecutive days would work an undue hardship on the 8 27 person, or finds that sufficient jail space is not available 8 28 and is not reasonably expected to become available within four 8 29 months after sentencing to incarcerate the person serving the 8 30 minimum sentence on consecutive days, the court may order the 8 31 person to serve the minimum term in segments of at least 8 32 forty-eight hours and to perform a specified number of hours 8 33 of unpaid community service as deemed appropriate by the 8 34 sentencing court. 8 35 4. In determining if a violation charged is a second or 9 1 subsequent offense for purposes of criminal sentencing or 9 2 license or privilege revocation under this section: 9 3 a. Any conviction or revocation existing on motor vehicle 9 4 operating records pursuant to section 321.12 shall be 9 5 considered as a previous offense, as well as any previous 9 6 conviction under this section. 9 7 b. Deferred judgments entered pursuant to section 907.3 9 8 for violations of this section shall be counted as previous 9 9 offenses. 9 10 c. Convictions or the equivalent of deferred judgments for 9 11 violations in any other states under statutes substantially 9 12 corresponding to this section or section 321J.2 shall be 9 13 counted as previous offenses. The courts shall judicially 9 14 notice the statutes of other states which define offenses 9 15 substantially equivalent to an offense defined in this section 9 16 or section 321J.2 and can therefore, be considered 9 17 corresponding statutes. Each previous violation on which 9 18 conviction or deferral of judgment was entered prior to the 9 19 date of the violation charged shall be considered and counted 9 20 as a separate previous offense. 9 21 5. A person shall not be convicted and sentenced for more 9 22 than one violation of this section for actions arising out of 9 23 the same event or occurrence, even if the event or occurrence 9 24 involves more than one of the conditions specified in 9 25 subsection 1. 9 26 6. The clerk of the district court shall immediately 9 27 certify to the department a true copy of each order entered 9 28 with respect to deferral of judgment, deferral of sentence, or 9 29 pronouncement of judgment and sentence for a defendant under 9 30 this section. 9 31 7. a. This section does not apply to a person operating a 9 32 vessel while under the influence of a drug if the substance 9 33 was prescribed for the person and was taken under the 9 34 prescription and in accordance with the directions of a 9 35 medical practitioner as defined in chapter 155A or if the 10 1 substance was dispensed by a pharmacist without a prescription 10 2 pursuant to the rules of the board of pharmacy examiners, if 10 3 there is no evidence of the consumption of alcohol and the 10 4 medical practitioner or pharmacist had not directed the person 10 5 to refrain from operating a motor vehicle. 10 6 b. When charged with a violation of subsection 1, 10 7 paragraph "c", a person may assert, as an affirmative defense, 10 8 that the controlled substance present in the person's blood or 10 9 urine was prescribed or dispensed for the person and was taken 10 10 in accordance with the directions of a practitioner and the 10 11 labeling directions of the pharmacy, as that person and place 10 12 of business are defined in section 155A.3. 10 13 8. In any prosecution under this section, evidence of the 10 14 results of analysis of a specimen of the defendant's blood, 10 15 breath, or urine is admissible upon proof of a proper 10 16 foundation. 10 17 a. The alcohol concentration established by the results of 10 18 an analysis of a specimen of the defendant's blood, breath, or 10 19 urine withdrawn within two hours after the defendant was 10 20 operating or in physical control of a vessel is presumed to be 10 21 the alcohol concentration at the time of operating or being in 10 22 physical control of the vessel. 10 23 b. The presence of a controlled substance or other drug 10 24 established by the results of analysis of a specimen of the 10 25 defendant's blood or urine withdrawn within two hours after 10 26 the defendant was operating or in physical control of a vessel 10 27 is presumed to show the presence of such controlled substance 10 28 or other drug in the defendant at the time of operating or 10 29 being in physical control of the vessel. 10 30 c. The nationally accepted standards for determining 10 31 detectable levels of controlled substances in the division of 10 32 criminal investigation's initial laboratory screening test for 10 33 controlled substances adopted by the department of public 10 34 safety shall be utilized in prosecutions under this section. 10 35 9. a. In addition to any fine or penalty imposed under 11 1 this chapter, the court shall order a defendant convicted of 11 2 or receiving a deferred judgment for a violation of this 11 3 section to make restitution for damages resulting directly 11 4 from the violation, to the victim, pursuant to chapter 910. 11 5 An amount paid pursuant to this restitution order shall be 11 6 credited toward any adverse judgment in a subsequent civil 11 7 proceeding arising from the same occurrence. However, other 11 8 than establishing a credit, a restitution proceeding pursuant 11 9 to this section shall not be given evidentiary or preclusive 11 10 effect in a subsequent civil proceeding arising from the same 11 11 occurrence. 11 12 b. The court may order restitution paid to any public 11 13 agency for the costs of the emergency response resulting from 11 14 the actions constituting a violation of this section, not 11 15 exceeding five hundred dollars per public agency for each such 11 16 response. For the purposes of this paragraph, "emergency 11 17 response" means any incident requiring response by fire 11 18 fighting, law enforcement, ambulance, medical, or other 11 19 emergency services. A public agency seeking such restitution 11 20 shall consult with the county attorney regarding the expenses 11 21 incurred by the public agency, and the county attorney may 11 22 include the expenses in the statement of pecuniary damages 11 23 pursuant to section 910.3. 11 24 10. In any prosecution under this section, the results of 11 25 a chemical test shall not be used to prove a violation of 11 26 subsection 1, paragraph "b" or paragraph "c", if the alcohol, 11 27 controlled substance, or other drug concentration indicated by 11 28 the chemical test minus the established margin of error 11 29 inherent in the device or method used to conduct the chemical 11 30 test does not equal or exceed the level prohibited by 11 31 subsection 1. 11 32 11. This section does not limit the introduction of any 11 33 competent evidence bearing on the question of whether a person 11 34 was under the influence of an alcoholic beverage or a 11 35 controlled substance or other drug, including the results of 12 1 chemical tests of specimens of blood, breath, or urine 12 2 obtained more than two hours after the person was operating a 12 3 vessel. 12 4 Sec. 3. NEW SECTION. 462A.14A IMPLIED CONSENT TO TEST. 12 5 1. A person who operates a vessel on the navigable waters 12 6 in this state under circumstances which give reasonable 12 7 grounds to believe that the person has been operating a vessel 12 8 in violation of section 462A.14 is deemed to have given 12 9 consent to the withdrawal of specimens of the person's blood, 12 10 breath, or urine and to a chemical test or tests of the 12 11 specimens for the purpose of determining the alcohol 12 12 concentration or presence of drugs, subject to this section. 12 13 2. a. If a peace officer has reasonable grounds to 12 14 believe that any of the following has occurred, the peace 12 15 officer may request that the vessel operator provide a sample 12 16 of the operator's breath for a preliminary screening test 12 17 using a device approved by the commissioner of public safety 12 18 for that purpose: 12 19 (1) The vessel operator may be violating or has violated 12 20 section 462A.14. 12 21 (2) The vessel has been involved in an accident resulting 12 22 in injury or death. 12 23 (3) The vessel operator is or has been operating 12 24 carelessly or recklessly, in violation of section 462A.12. 12 25 b. The results of this preliminary screening test may be 12 26 used for the purpose of deciding whether an arrest should be 12 27 made or whether to request a chemical test authorized in this 12 28 chapter, but shall not be used in any court action except to 12 29 prove that a chemical test was properly requested of a person 12 30 pursuant to this section. 12 31 3. The withdrawal of the body substances and the test or 12 32 tests shall be administered at the written request of a peace 12 33 officer having reasonable grounds to believe that the person 12 34 was operating a vessel in violation of section 462A.14, and if 12 35 any of the following conditions exist: 13 1 a. A peace officer has lawfully placed the person under 13 2 arrest for violation of section 462A.14. 13 3 b. The vessel has been involved in an accident or 13 4 collision resulting in personal injury or death. 13 5 c. The person has refused to take a preliminary breath 13 6 screening test provided by this chapter. 13 7 d. The preliminary breath screening test was administered 13 8 and it indicated an alcohol concentration equal to or in 13 9 excess of the level prohibited by section 462A.14. 13 10 e. The preliminary breath screening test was administered 13 11 and it indicated an alcohol concentration of less than the 13 12 level prohibited under section 321J.2, subsection 1, paragraph 13 13 "b", and the peace officer has reasonable grounds to believe 13 14 that the person was under the influence of a drug other than 13 15 alcohol or a combination of alcohol and another drug. 13 16 4. a. The peace officer shall determine which of the 13 17 three substances, breath, blood, or urine, shall be tested. 13 18 b. If the peace officer fails to offer a test within two 13 19 hours after the preliminary screening test is administered or 13 20 refused, or the arrest is made, whichever occurs first, a test 13 21 is not required, and there shall be no suspension of vessel 13 22 operation privileges. 13 23 c. Refusal to submit to a chemical test of urine or breath 13 24 is deemed a refusal to submit, and the peace officer shall 13 25 inform the person that the person's refusal will result in the 13 26 suspension of the person's privilege to operate a vessel. 13 27 d. Refusal to submit to a chemical test of blood is not 13 28 deemed a refusal to submit, but in that case, the peace 13 29 officer shall then determine which one of the other two 13 30 substances shall be tested and shall offer the test. 13 31 e. Notwithstanding paragraphs "a" through "d", if the 13 32 peace officer has reasonable grounds to believe that the 13 33 person was under the influence of a drug other than alcohol, 13 34 or a combination of alcohol and another drug, a urine test may 13 35 be required even after a blood or breath test has been 14 1 administered. 14 2 f. A person who is dead, unconscious, or otherwise in a 14 3 condition rendering the person incapable of consent or refusal 14 4 is deemed not to have withdrawn the consent provided by this 14 5 section, and the test may be given if a licensed physician 14 6 certifies in advance of the test that the person is dead, 14 7 unconscious, or otherwise in a condition rendering that person 14 8 incapable of consent or refusal. 14 9 g. A person who has been requested to submit to a chemical 14 10 test shall be advised by a peace officer of the following: 14 11 (1) If the person refuses to submit to the test, the 14 12 person's vessel operating privileges will be suspended for up 14 13 to one year. 14 14 (2) If the person submits to the test and the results 14 15 indicate an alcohol concentration equal to or in excess of the 14 16 level prohibited under section 462A.14, the person's vessel 14 17 operating privileges will be suspended for up to one year. 14 18 5. Refusal to submit to a test under this section does not 14 19 prohibit the withdrawal of a specimen for chemical testing if 14 20 a vessel has been involved in an accident resulting in death 14 21 or serious bodily injury, if the peace officer has reasonable 14 22 grounds to believe that the operator of the vessel was 14 23 violating section 462A.14 at the time of the accident, and the 14 24 peace officer has obtained, in compliance with chapter 808 or 14 25 according to the procedure in section 321J.10, subsection 3, a 14 26 search warrant permitting the withdrawal of a specimen for 14 27 chemical testing. The act of any person knowingly resisting 14 28 or obstructing the withdrawal of a specimen pursuant to a 14 29 search warrant issued under this section constitutes a 14 30 contempt punishable by a fine not exceeding one thousand 14 31 dollars or imprisonment in a county jail not exceeding one 14 32 year or by both such fine and imprisonment, and further 14 33 constitutes a refusal to submit, punishable under this 14 34 section. 14 35 6. Only a licensed physician, licensed physician assistant 15 1 as defined in section 148C.1, medical technologist, or 15 2 registered nurse, acting at the request of a peace officer, 15 3 may withdraw a specimen of blood for the purpose of 15 4 determining the alcohol concentration or the presence of 15 5 drugs. However, any peace officer, using devices and methods 15 6 approved by the commissioner of public safety, may take a 15 7 specimen of a person's breath or urine for the purpose of 15 8 determining the alcohol concentration or the presence of 15 9 drugs. Only new equipment kept under strictly sanitary and 15 10 sterile conditions shall be used for drawing blood. Medical 15 11 personnel who use reasonable care and accepted medical 15 12 practices in withdrawing blood specimens are immune from 15 13 liability for their actions in complying with requests made of 15 14 them pursuant to this section. 15 15 7. The person may have an independent chemical test or 15 16 tests administered at the person's own expense in addition to 15 17 any administered at the direction of a peace officer. The 15 18 failure or inability of the person to obtain an independent 15 19 chemical test or tests does not preclude the admission of 15 20 evidence of the results of the test or tests administered at 15 21 the direction of the peace officer. Upon the request of the 15 22 person who is tested, the results of the test or tests 15 23 administered at the direction of the peace officer shall be 15 24 made available to the person. 15 25 8. In any prosecution under section 462A.14, evidence of 15 26 the results of analysis of a specimen of the defendant's 15 27 blood, breath, or urine is admissible upon proof of a proper 15 28 foundation. The alcohol concentration established by the 15 29 results of an analysis of a specimen of the defendant's blood, 15 30 breath, or urine withdrawn within two hours after the 15 31 defendant was operating or was otherwise in physical control 15 32 of a vessel is presumed to be the alcohol concentration at the 15 33 time of operation or being in physical control of the vessel. 15 34 If a person refuses to submit to a chemical test, proof of 15 35 refusal is admissible in any civil or criminal action or 16 1 proceeding arising out of acts alleged to have been committed 16 2 while the person was operating a vessel in violation of 16 3 section 462A.14. This section does not limit the introduction 16 4 of any competent evidence bearing on the question of whether a 16 5 person was under the influence of an alcoholic beverage or a 16 6 drug, including the results of chemical tests of specimens of 16 7 blood, breath, or urine obtained more than two hours after the 16 8 person was operating a vessel. 16 9 Sec. 4. NEW SECTION. 462A.14B REFUSAL TO SUBMIT – 16 10 REVOCATION. 16 11 1. If a person refuses to submit to the chemical testing, 16 12 a test shall not be given, but the department, upon the 16 13 receipt of the peace officer's certification, subject to 16 14 penalty for perjury, that the officer had reasonable grounds 16 15 to believe the person to have been operating a vessel in 16 16 violation of section 462A.14, that specified conditions 16 17 existed for chemical testing pursuant to section 462A.14A, and 16 18 that the person refused to submit to the chemical testing, 16 19 shall prohibit the person from operating a vessel, and shall 16 20 order that the department of transportation revoke the 16 21 person's driver's license and any nonresident operating 16 22 privilege for the following periods of time: 16 23 a. One year if the person has no previous revocation under 16 24 this chapter. 16 25 b. Two years if the person has had a previous operation 16 26 prohibition or license revocation under this chapter. 16 27 2. Temporary restricted licenses shall be granted 16 28 according to standards equivalent to those applicable for 16 29 equivalent violations under chapter 321J. 16 30 Sec. 5. NEW SECTION. 462A.14C STATEMENT OF OFFICER. 16 31 1. A person who has been requested to submit to a chemical 16 32 test shall be advised by a peace officer of the following: 16 33 a. If the person refuses to submit to the test, the 16 34 person's privilege to operate a vessel will be prohibited for 16 35 an appropriate period of time under this chapter. 17 1 b. If the person submits to the test and the results 17 2 indicate the presence of a controlled substance or other drug, 17 3 or an alcohol concentration equal to or in excess of the level 17 4 prohibited by section 321J.2, subsection 1, paragraph "b", the 17 5 following penalties will apply: 17 6 (1) The person's driver's license or nonresident operating 17 7 privilege will be revoked by the department for a period 17 8 equivalent to that applicable if the offense had been for 17 9 operating a motor vehicle while intoxicated under chapter 17 10 321J. 17 11 (2) The person's privilege to operate a vessel will be 17 12 prohibited for an appropriate period of time under this 17 13 chapter. 17 14 2. This section does not apply in any case involving a 17 15 person described in section 462A.14A, subsection 4, paragraph 17 16 "f". 17 17 3. If a person refuses to submit to a chemical test, proof 17 18 of refusal is admissible in any civil or criminal action or 17 19 proceeding arising out of acts alleged to have been committed 17 20 while the person was operating a vessel in violation of 17 21 section 462A.14. 17 22 Sec. 6. NEW SECTION. 462A.14D HEARING ON REVOCATION – 17 23 APPEAL. 17 24 Hearings on driver's license revocations shall be held 17 25 according to the procedures equivalent to those in section 17 26 321J.13 and related rules. 17 27 Sec. 7. NEW SECTION. 462A.14E JUDICIAL REVIEW. 17 28 Judicial review of an action of the department may be 17 29 sought in accordance with the terms of the Iowa administrative 17 30 procedure Act, chapter 17A. Notwithstanding the terms of that 17 31 chapter, a petition for judicial review may be filed in the 17 32 district court in the county where the alleged events occurred 17 33 or in the county in which the administrative hearing was held. 17 34 Sec. 8. NEW SECTION. 462A.14F VIOLATIONS OF ORDERS NOT 17 35 TO OPERATE A VESSEL. 18 1 1. A person who operates a vessel after the person has 18 2 been ordered, pursuant to section 462A.14 not to operate a 18 3 vessel, commits a serious misdemeanor, punishable with a jail 18 4 term and a mandatory fine of one thousand dollars. 18 5 2. In addition to the jail term and fine, the department, 18 6 upon receiving the record of the conviction of a person under 18 7 this section upon a charge of operating a vessel while the 18 8 person was under order of the court not to operate a vessel, 18 9 shall extend the period of prohibition of operating a vessel 18 10 for an additional like period. 18 11 Sec. 9. NEW SECTION. 462A.14G DEPARTMENT RECORDKEEPING. 18 12 1. The department shall collect and maintain statistics on 18 13 the number of arrests and convictions for violations of 18 14 section 462A.14 that occur each year. 18 15 Sec. 10. Section 462A.23, subsection 2, paragraph b, Code 18 16 1999, is amended by striking the paragraph and inserting in 18 17 lieu thereof the following: 18 18 b. Operating a vessel while intoxicated, or manipulating 18 19 water skis, a surfboard, or a similar device while in an 18 20 intoxicated condition or under the influence of a narcotic 18 21 drug. 18 22 Sec. 11. Section 907.3, subsection 1, Code Supplement 18 23 1999, is amended by adding the following new paragraph: 18 24 NEW PARAGRAPH. l. The offense is a violation of section 18 25 462A.14A, and a mandatory minimum sentence must be served by 18 26 the defendant, either for a primary offense or as a result of 18 27 a specified punishment for contempt under that section. 18 28 Sec. 12. Section 907.3, subsection 2, Code Supplement 18 29 1999, is amended by adding the following new paragraph: 18 30 NEW PARAGRAPH. f. The offense is a violation of section 18 31 462A.14A, to the extent that a mandatory minimum sentence must 18 32 be served by the defendant, for a primary offense or as a 18 33 result of a specified punishment for contempt under that 18 34 section. 18 35 Sec. 13. Section 907.3, subsection 3, Code Supplement 19 1 1999, is amended by adding the following new paragraph: 19 2 NEW PARAGRAPH. f. A mandatory minimum sentence imposed 19 3 for a violation of section 462A.14A, or as a result of 19 4 contempt proceedings specified under that section. 19 5 Sec. 14. Section 915.80, subsection 2, Code 1999, is 19 6 amended to read as follows: 19 7 2. "Crime" means conduct that occurs or is attempted in 19 8 this state, poses a substantial threat of personal injury or 19 9 death, and is punishable as a felony or misdemeanor, or would 19 10 be so punishable but for the fact that the person engaging in 19 11 the conduct lacked the capacity to commit the crime under the 19 12 laws of this state. "Crime" does not include conduct arising 19 13 out of the ownership, maintenance, or use of a motor vehicle, 19 14 motorcycle, motorized bicycle, train, boat, or aircraft except 19 15 for violations of section 321.261, 321.277, 321J.2,462A.1419 16 462A.14A, or 707.6A, or when the intention is to cause 19 17 personal injury or death. A license revocation under section 19 18 321J.9 or 321J.12 shall be considered by the department as 19 19 evidence of a violation of section 321J.2 for the purposes of 19 20 this subchapter. 19 21 Sec. 15. IMPLEMENTATION OF ACT. Section 25B.2, subsection 19 22 3, shall not apply to this Act. 19 23 EXPLANATION 19 24 This bill amends certain sections of Code chapter 462A to 19 25 prohibit the operation of a vessel while intoxicated (OVWI). 19 26 The new provisions substantially mirror the procedures and 19 27 criminal penalties for operating a motor vehicle while 19 28 intoxicated (OWI) under Code chapter 321J, including 19 29 revocation of the person's motor vehicle license for an 19 30 equivalent period of time. 19 31 The bill adds definitions to chapter 462A, such as are 19 32 contained in chapter 321J, for "alcohol concentration", 19 33 "alcoholic beverage", "chemical test", "controlled substance", 19 34 "peace officer", and "serious injury". 19 35 The bill adds the offense of operating a vessel while 20 1 intoxicated. A first offense is a serious misdemeanor, 20 2 punishable by 48 hours' imprisonment in the county jail, a 20 3 $1,000 fine ($500 of which may be waived if no personal or 20 4 property injury results), prohibition of operation of a vessel 20 5 for up to one year, revocation of the person's driver's 20 6 license for a period equivalent to the revocation period that 20 7 would be applicable if the offense had been committed while 20 8 operating a motor vehicle, and assignment to substance abuse 20 9 evaluation and treatment. 20 10 A second offense is an aggravated misdemeanor, punishable 20 11 by not less than seven days in the county jail or community- 20 12 based correctional facility, a fine of between $1,500 and 20 13 $5,000, prohibition of operation of a vessel for up to one 20 14 year, revocation of the person's driver's license for a period 20 15 equivalent to the revocation period that would be applicable 20 16 if the offense had been committed while operating a motor 20 17 vehicle, and assignment to substance abuse evaluation and 20 18 treatment. 20 19 A third or subsequent offense is a class "D" felony, 20 20 punishable by between 30 days and one year imprisonment, a 20 21 fine of between $2,500 and $7,500, prohibition of operation of 20 22 a vessel for up to two years, revocation of the person's 20 23 driver's license for a period equivalent to the revocation 20 24 period that would be applicable if the offense had been 20 25 committed while operating a motor vehicle, and assignment to 20 26 substance abuse evaluation and treatment. 20 27 Restrictions on deferred judgement and sentencing and 20 28 suspended sentences are imposed for specified circumstances. 20 29 Defendants are also responsible for restitution, including the 20 30 costs of emergency response. 20 31 The bill addresses standards and procedures for implied 20 32 consent to test, comparable to Code sections 321J.5 and 321J.6 20 33 for OWI violations. The section also includes testing 20 34 procedures comparable to Code section 321J.11, and a procedure 20 35 for obtaining test samples pursuant to warrant, based on the 21 1 procedures outlined in Code section 321J.10. 21 2 The bill addresses the penalties for refusing to submit to 21 3 testing. A person can be ordered not to operate a vessel, and 21 4 may also have a person's driver's license revoked for up to 21 5 two years, depending on the previous number of prohibitions or 21 6 revocations under the chapter. 21 7 The bill addresses the content of the statement of the 21 8 officer to the person suspected of OVWI, comparable to Code 21 9 section 321J.8. 21 10 The bill provides for hearings on driver's license 21 11 revocations. 21 12 The bill addresses judicial review procedures. 21 13 The bill provides a penalty for persons who violate court 21 14 orders not to operate a vessel. 21 15 The bill addresses recordkeeping of OVWI violations by the 21 16 department. 21 17 Other technical changes are made to other parts of the 21 18 Code, to conform to the changes made by this bill. 21 19 This bill may include a state mandate as defined in Code 21 20 section 25B.3. This bill makes inapplicable Code section 21 21 25B.2, subsection 3, which would relieve a political 21 22 subdivision from complying with a state mandate if funding for 21 23 the cost of the state mandate is not provided or specified. 21 24 Therefore, political subdivisions are required to comply with 21 25 any state mandate included in this bill. 21 26 LSB 5079XS 78 21 27 jj/gg/8.2
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