SF 2177 (LSB 5318SV (1) 89)

SENATE FILE 2177

BY  COMMITTEE ON NATURAL RESOURCES AND ENVIRONMENT

(SUCCESSOR TO SSB 3040)

A BILL FOR

An Act relating to matters under the purview of the department of natural resources, including administration, dams and spillways, personal flotation devices, and operating a motorboat or sailboat while intoxicated, providing penalties, and making penalties applicable.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

DIVISION I
MISCELLANEOUS ADMINISTRATIVE CHANGES

    Section 1.  Section 455A.11, Code 2022, is amended to read as follows:
   455A.11  Preferences in temporary employment.
   In its employment of persons in temporary positions in conservation and outdoor recreation, the department of natural resources shall give preference to persons meeting eligibility requirements for the green thumb program and to persons working toward an advanced education in natural resources and conservation.
    Sec. 2.  Section 455A.14, subsections 1 and 2, Code 2022, are amended to read as follows:
   1.  Notwithstanding any provision of law to the contrary, the department is authorized to establish fees for camping and use of rental facilities and other special privileges at state parks, forests, and recreation areas under the jurisdiction of the department.
   2.  The fees established by the department pursuant to this section shall be in such amounts as may be determined by the department to be reasonably competitive with fees established in other public parks, forests, or recreation areas that provide the same or similar privileges and are located within sixty miles of the perimeter of the state park, forest, or recreation area for which the department is establishing fees. Such fees may be increased, reduced, or waived by the department on a statewide basis or on the basis of an individual state park, forest, or recreation area for special promotional events or efforts or on the basis of special seasonal or holiday rates. 
    Sec. 3.  Section 462A.12A, Code 2022, is amended to read as follows:
   462A.12A  Online watercraft education courses.
   1.  The department shall develop requirements and standards for online watercraft education courses. Only vendors who have entered into a memorandum of understanding written agreement with the department shall be approved by the department to offer an online watercraft education course that upon successful completion is sufficient to result in the issuance of a watercraft education certificate to the person who completes the course.
   2.  A vendor approved to offer an online watercraft education course as provided in subsection 1 may charge a fee for the course as agreed to in the memorandum of understanding agreement with the department and may also collect the watercraft education certificate fee on behalf of the department as agreed to in the memorandum of understanding agreement.
DIVISION II
DAMS AND SPILLWAYS —— REPEAL

    Sec. 4.  Section 455A.4, subsection 1, paragraph b, Code 2022, is amended to read as follows:
   b.  Provide overall supervision, direction, and coordination of functions to be administered by the administrators under chapters 321G, 321I, 455B, 455C, 456A, 456B, 457A, 458A, 459, 459A, 459B, 461A, 462A, 462B, 464A, 465C, 473, 481A, 481B, 483A, 484A, and 484B.
    Sec. 5.  Section 455A.5, subsection 6, paragraphs a, b, and d, Code 2022, are amended to read as follows:
   a.  Establish policy and adopt rules, pursuant to chapter 17A, necessary to provide for the effective administration of chapter 321G, 321I, 456A, 456B, 457A, 461A, 462A, 462B, 464A, 465C, 481A, 481B, 483A, 484A, or 484B.
   b.  Hear appeals in contested cases pursuant to chapter 17A on matters relating to actions taken by the director under chapter 321G, 321I, 456A, 456B, 457A, 461A, 462A, 462B, 464A, 465C, 481A, 481B, 483A, 484A, or 484B.
   d.  Approve the budget request prepared by the director for the programs authorized by chapters 321G, 321I, 456A, 456B, 457A, 461A, 462A, 462B, 464A, 481A, 481B, 483A, 484A, and 484B. The commission may increase, decrease, or strike any item within the department budget request for the specified programs before granting approval.
    Sec. 6.  Section 455A.6, subsection 6, paragraph b, Code 2022, is amended to read as follows:
   b.  Hear appeals in contested cases pursuant to chapter 17A on matters relating to actions taken by the director under chapter 455C, 458A, 464B, or 473.
    Sec. 7.  Section 456A.24, subsection 12, Code 2022, is amended to read as follows:
   12.  Adopt rules authorizing officers and employees of the department who are peace officers to issue warning citations for violations of this chapter and chapters 321G, 321I, 350, 456B, 457A, 461A, 461B, 461C, 462A, 462B, 464A, 465A, 465B, 465C, 481A, 481B, 482, 483A, 484A, and 484B.
    Sec. 8.  Section 481A.1, unnumbered paragraph 1, Code 2022, is amended to read as follows:
   Words and phrases as used in this chapter and chapters 350, 456A, 456B, 457A, 461A, 461B, 461C, 462A, 462B, 464A, 465A, 465B, 465C, 481B, 482, 483A, 484A, and 484B and such other chapters as relate to the subject matter of these chapters shall be construed as follows:
    Sec. 9.  Section 602.8102, subsection 26, Code 2022, is amended by striking the subsection.
    Sec. 10.  REPEAL.  Sections 464A.1, 464A.1A, 464A.2, 464A.3, 464A.4, 464A.5, 464A.6, 464A.7, 464A.8, 464A.9, and 464A.10, Code 2022, are repealed.
    Sec. 11.  REPEAL.  Chapter 464B, Code 2022, is repealed.
    Sec. 12.  CODE EDITOR DIRECTIVE.
   1.  The Code editor is directed to transfer section 464A.11 to section 456A.11.
   2.  The Code editor shall correct internal references in the Code and in any enacted legislation as necessary due to the enactment of this section.
DIVISION III
PERSONAL FLOTATION DEVICES

    Sec. 13.  Section 462A.2, Code 2022, is amended by adding the following new subsections:
   NEW SUBSECTION.  37A.  “Throwable personal flotation device” means a personal flotation device that is intended to be thrown to a person in the water. A personal flotation device marked as type IV or type V, with type IV performance, is considered throwable. Unless specifically marked otherwise, a throwable personal flotation device is not a wearable personal flotation device.
   NEW SUBSECTION.  45A.  “Wearable personal flotation device” means a personal flotation device that is intended to be worn or otherwise attached to the body. A personal flotation device marked as type I, type II, type III, or type V, with type I, II, or III performance, is considered wearable. Unless specifically marked otherwise, a wearable personal flotation device is not a throwable personal flotation device.
    Sec. 14.  Section 462A.9, subsection 6, Code 2022, is amended to read as follows:
   6.  Every vessel shall carry at least one life preserver, life belt, ring buoy or other device, of the sort prescribed by the rules of the commission, wearable personal flotation device for each passenger, which device must be of a sort prescribed by the commission by rule and so placed as to be readily accessible. This subsection does not apply to a vessel which is a racing shell used in the sport of sculling or to a sailboard while used for windsurfing.
    Sec. 15.  Section 462A.9, subsection 8, paragraph b, Code 2022, is amended to read as follows:
   b.  The operator of a motorboat, while engaged in such race, must wear a crash helmet and life preserver wearable personal flotation device of a sort prescribed by the commission by rule.
    Sec. 16.  Section 462A.12, subsection 15, Code 2022, is amended to read as follows:
   15.  A person shall not operate a vessel on the waters of this state under the jurisdiction of the commission unless every person on board the vessel who is under thirteen years of age is wearing a type I, II, III, or V personal flotation device, including “float coats” that meet this definition, that is approved as a wearable personal flotation device by the United States coast guard, while the vessel is under way. This subsection does not apply when the person under thirteen years of age is in an enclosed cabin or below deck, or is a passenger on a commercial vessel with a passenger capacity of twenty-five persons or more.
    Sec. 17.  Section 462A.12, Code 2022, is amended by adding the following new subsection:
   NEW SUBSECTION.  16.  A person shall not operate a vessel that is sixteen feet or more in length, except a canoe or kayak, on the waters of this state under the jurisdiction of the commission unless at least one throwable personal flotation device is readily accessible on board the vessel.
DIVISION IV
BOATING WHILE INTOXICATED

    Sec. 18.  Section 321J.24, subsection 1, paragraph a, Code 2022, is amended to read as follows:
   a.  “Appropriate victim” means a victim whose condition demonstrates the results of a motor vehicle or boating accident involving intoxicated drivers operators, as applicable to the participant, without being excessively traumatic to the participant, as determined by the tour supervisor.
    Sec. 19.  Section 321J.24, subsection 2, Code 2022, is amended to read as follows:
   2.  A reality education substance abuse prevention program is established in those judicial districts where the chief judge of the judicial district authorizes participation in the program. Upon a conviction or adjudication for a violation of section 321J.2 or 462A.14, or the entry of a deferred judgment concerning a violation of section 321J.2 or 462A.14, the court or juvenile court may order participation in the reality education substance abuse prevention program as a term and condition of probation or disposition in addition to any other term or condition of probation or disposition required or authorized by law. The court or juvenile court shall require the defendant or delinquent child to abstain from consuming any controlled substance, alcoholic liquor, wine, or beer while participating in the program.
    Sec. 20.  Section 321J.24, subsection 5, paragraph a, subparagraph (1), Code 2022, is amended to read as follows:
   (1)  A hospital or other emergency medical care facility which regularly receives appropriate victims of motor vehicle accidents, to observe treatment of appropriate victims of motor vehicle accidents involving intoxicated drivers, under the supervision of a registered nurse, physician, paramedic, or emergency medical technician.
    Sec. 21.  Section 462A.14, subsection 2, Code 2022, is amended to read as follows:
   2.  A person who violates subsection 1 commits:
   a.  A serious misdemeanor for the first offense, punishable by all of the following:
   (1)  Imprisonment A minimum period of imprisonment in the county jail for not less than of forty-eight hours, but not to exceed one year, to be served as ordered by the court, less credit for any time the person was confined in a jail or detention facility following arrest, or for any time the person spent in a court-ordered operating-while-intoxicated program that provides law enforcement security. However, the court, in ordering service of the sentence and in its discretion, may accommodate the defendant’s work schedule.
   (2)  Assessment of a fine of one thousand two hundred fifty dollars. However, in the discretion of the court, if no personal or property injury has resulted from the defendant’s actions, up to five six hundred twenty-five dollars of the fine may be waived. As an alternative to a portion or all of the fine, the court may order the person to perform unpaid community service.  However, the court shall not order the person to perform unpaid community service in lieu of a civil penalty assessed pursuant to subparagraph (5) or victim restitution ordered pursuant to subsection 9 or any other applicable law. Surcharges and fees shall also be assessed pursuant to chapter 911.
   (3)  Prohibition of operation of a motorboat or sailboat for one year, pursuant to court order.
   (4)  Assignment to substance abuse evaluation and treatment, pursuant to subsection 12, and a course for drinking drivers if available and appropriate, a reality education substance abuse prevention program pursuant to section 321J.24.
   (5)  (a)  With the consent of the defendant, the court may defer judgment pursuant to section 907.3 and may place the defendant on probation upon conditions as it may require. Upon a showing that the defendant is not fulfilling the conditions of probation, the court may revoke probation and impose any sentence authorized by law. Before taking such action, the court shall give the defendant an opportunity to be heard on any matter relevant to the proposed action. Upon violation of the conditions of probation, the court may proceed as provided in chapter 908. Upon fulfillment of the conditions of probation and the payment of fees imposed and not waived by the judicial district department of correctional services under section 905.14, the defendant shall be discharged without entry of judgment.
   (b)  Upon the entry of a deferred judgment, a civil penalty shall be assessed as provided in section 907.14 in an amount not less than the amount of the criminal fine authorized pursuant to subparagraph (2).
   b.  An aggravated misdemeanor for a second offense, punishable by all of the following:
   (1)  Imprisonment A minimum period of imprisonment in the county jail or community-based correctional facility for not less than of seven days but not to exceed two years.
   (2)  Assessment of a fine of not less than one thousand five hundred at least one thousand eight hundred seventy-five dollars nor more than five thousand but not to exceed six thousand two hundred fifty dollars.  Surcharges and fees shall be assessed pursuant to chapter 911.
   (3)  Prohibition of operation of a motorboat or sailboat for two years, pursuant to court order.
   (4)  Assignment to substance abuse evaluation and treatment, pursuant to subsections 12 and 13, and a course for drinking drivers if available and appropriate, a reality education substance abuse prevention program pursuant to section 321J.24.
   c.  A class “D” felony for a third offense and each subsequent offense, punishable by all of the following:
   (1)  Imprisonment in the county jail for a determinate sentence of not more than one year but not less than thirty days, or committed to the custody of the director of the department of corrections. A person convicted of a third or subsequent offense may be committed to the custody of the director of the department of corrections, who shall assign the person to a facility pursuant to section 904.513 or the offender may be committed to treatment in the community under the provisions of section 907.13.  Commitment to the custody of the director of the department of corrections for an indeterminate term not to exceed five years, with a mandatory minimum term of thirty days.
   (a)  If the court does not suspend a person's sentence of commitment to the custody of the director of the department of corrections under this subparagraph (1), the person shall be assigned to a facility pursuant to section 904.513.
   (b)  If the court suspends a person’s sentence of commitment to the custody of the director of the department of corrections under this subparagraph (1), the court shall order the person to serve not less than thirty days nor more than one year in the county jail, and the person may be committed to treatment in the community under section 907.6.
   (2)  Assessment of a fine of not less than two thousand five hundred at least three thousand one hundred twenty-five dollars nor more than seven thousand five hundred but not to exceed nine thousand three hundred seventy-five dollars.  Surcharges and fees shall be assessed pursuant to chapter 911.
   (3)  Prohibition of operation of a motorboat or sailboat for six years, pursuant to court order.
   (4)  Assignment to substance abuse evaluation and treatment, pursuant to subsections 12 and 13, and a course for drinking drivers if available and appropriate, a reality education substance abuse prevention program pursuant to section 321J.24.
   d.  A class “D” felony for any offense under this section resulting in serious injury to persons other than the defendant, if the court determines that the person who committed the offense caused the serious injury, and shall be imprisoned for a determinate sentence of not more than five years but not less than thirty days, or committed to the custody of the director of the department of corrections, and assessed a fine of not less than two thousand five hundred dollars nor more than seven thousand five hundred dollars. A person convicted of a felony offense may be committed to the custody of the director of the department of corrections, who shall assign the person to a facility pursuant to section 904.513. The court shall also order that the person not operate a motorboat or sailboat for one year in addition to any other period of time the defendant would have been ordered not to operate if no injury had occurred in connection with the violation. The court shall also assign the defendant to substance abuse evaluation and treatment pursuant to subsections 12 and 13, and a course for drinking drivers.
   e.  A class “B” felony for any offense under this section resulting in the death of persons other than the defendant, if the court determines that the person who committed the offense caused the death, and shall be imprisoned for a determinate sentence of not more than twenty-five years, or committed to the custody of the director of the department of corrections. A person convicted of a felony offense may be committed to the custody of the director of the department of corrections, who shall assign the person to a facility pursuant to section 904.513. The court shall also order that the person not operate a motorboat or sailboat for six years. The court shall also assign the defendant to substance abuse evaluation and treatment pursuant to subsections 12 and 13, and a course for drinking drivers.
    Sec. 22.  Section 462A.14, subsection 3, Code 2022, is amended by striking the subsection and inserting in lieu thereof the following:
   3.  The court shall not do any of the following for a violation of this section:
   a.  Defer judgment if prohibited under section 907.3, subsection 1.
   b.  Defer the sentence if prohibited under section 907.3, subsection 2.
   c.  Suspend the sentence if prohibited under section 907.3, subsection 3.
    Sec. 23.  Section 462A.14, subsection 4, unnumbered paragraph 1, Code 2022, is amended to read as follows:
   In determining if a violation charged is a second or subsequent offense for purposes of criminal sentencing or license or privilege revocation prohibition on the operation of a motorboat or sailboat under this section, all of the following apply:
    Sec. 24.  Section 462A.14, subsection 7, Code 2022, is amended to read as follows:
   7.  a.  This section does not apply to a person operating a motorboat or sailboat while under the influence of a drug if the person submitted to chemical testing of the person’s blood or urine as required under section 462A.14A or under the authority of a valid search warrant, and if the substance was prescribed for the person and was taken under the prescription and in accordance with the directions of a medical practitioner as defined in chapter 155A or if the substance was dispensed by a pharmacist without a prescription pursuant to the rules of the board of pharmacy, if there is no evidence of the consumption of alcohol and the medical practitioner or pharmacist had not directed the person to refrain from operating a motor vehicle, or motorboat or sailboat.
   b.  When charged with a violation of subsection 1, paragraph “c”, or in a hearing under section 462A.14B, subsection 2, involving a person whose blood or urine was tested despite the person’s refusal to submit, in accordance with section 462A.14D, a person may assert, as an affirmative defense, that the controlled substance present in the person’s blood or urine was prescribed or dispensed for the person and was taken in accordance with the directions of a practitioner and the labeling directions of the pharmacy, as that person and place of business are defined in section 155A.3.
    Sec. 25.  Section 462A.14, subsection 8, paragraph c, Code 2022, is amended by striking the paragraph and inserting in lieu thereof the following:
   c.  The department of public safety shall adopt nationally accepted standards for determining detectable levels of controlled substances in the division of criminal investigation’s initial laboratory screening test for controlled substances.
    Sec. 26.  Section 462A.14, subsection 12, paragraphs d and e, Code 2022, are amended to read as follows:
   d.  The court may prescribe the length of time for the evaluation and treatment or the court may request that the community college or licensed substance abuse program conducting the course for drinking drivers which the defendant is ordered to attend or the treatment program to which the defendant is committed immediately report to the court when the defendant has received maximum benefit from the course for drinking drivers or treatment program or has recovered from the defendant’s addiction, dependency, or tendency to chronically abuse alcohol or drugs.
   e.  Upon successfully completing a course for drinking drivers or an ordered substance abuse treatment program, a court may place the defendant on probation for six months and as a condition of probation, the defendant shall attend a program providing posttreatment services relating to substance abuse as approved by the court.
    Sec. 27.  Section 462A.14A, subsection 4, paragraphs b, c, f, and g, Code 2022, are amended to read as follows:
   b.  If the peace officer fails to offer a test within two hours after the preliminary screening test is administered or refused, or the arrest is made, whichever occurs first, a test is not required under this section, and there shall be no suspension prohibition of motorboat or sailboat operation privileges.
   c.  Refusal to submit to a chemical test of urine or breath is deemed a refusal to submit, and the peace officer shall inform the person that the person’s refusal will result in the suspension prohibition of the person’s privilege to operate a motorboat or sailboat.
   f.  A person who is dead, unconscious, or otherwise in a condition rendering the person incapable of consent or refusal is deemed not to have withdrawn the consent provided by this section, and the test may be given if a licensed physician, physician assistant, or advanced registered nurse practitioner certifies in advance of the test that the person is dead, unconscious, or otherwise in a condition rendering that person incapable of consent or refusal.  If the certification is oral, a written certification shall be completed by the physician, physician assistant, or advanced registered nurse practitioner within a reasonable time of the test.
   g.  A Except in a case involving a person described in paragraph “f” or in a case where the chemical test is sought pursuant to a valid search warrant, a person who has been requested to submit to a chemical test shall be advised by a peace officer of the following: pursuant to section 462A.14C.
   (1)  A refusal to submit to the test is punishable by a mandatory civil penalty of five hundred to two thousand dollars, and suspension of motorboat or sailboat operating privileges for at least a year. In addition, if the person is also convicted of operating a motorboat or sailboat while intoxicated, the person shall be subject to additional penalties.
   (2)  If the person submits to the test and the results indicate an alcohol concentration equal to or in excess of the level prohibited under section 462A.14 and the person is convicted, the person’s motorboat or sailboat operating privileges will be suspended for at least one year and up to six years, depending upon how many previous convictions the person has under this chapter, and whether or not the person has caused serious injury or death, in addition to any sentence and fine imposed for a violation of section 462A.14.
    Sec. 28.  Section 462A.14A, subsection 6, Code 2022, is amended to read as follows:
   6.  Only a licensed physician, licensed physician assistant as defined in section 148C.1, medical technologist, or registered nurse, acting at the request of a peace officer, may withdraw a specimen of blood for the purpose of determining the alcohol concentration or the presence of a controlled substance or other drugs. However, any peace officer, using devices and methods approved by the commissioner of public safety, may take a specimen of a person’s breath or urine for the purpose of determining the alcohol concentration or the presence of drugs. Only new equipment kept under strictly sanitary and sterile conditions shall be used for drawing blood. Medical personnel who use reasonable care and accepted medical practices in withdrawing blood specimens are immune from liability for their actions in complying with requests made of them pursuant to this section.
    Sec. 29.  Section 462A.14A, subsection 8, Code 2022, is amended to read as follows:
   8.  In any prosecution under section 462A.14, evidence of the results of analysis of a specimen of the defendant’s blood, breath, or urine is admissible upon proof of a proper foundation. The alcohol concentration established by the results of an analysis of a specimen of the defendant’s blood, breath, or urine withdrawn within two hours after the defendant was operating or was otherwise in physical control of a motorboat or sailboat is presumed to be the alcohol concentration at the time of operation or being in physical control of the motorboat or sailboat. If a person refuses to submit to a chemical test, proof of refusal is admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was operating a motorboat or sailboat in violation of section 462A.14. This section does not limit the introduction of any competent evidence bearing on the question of whether a person was under the influence of an alcoholic beverage or a controlled substance or other drug, including the results of chemical tests of specimens of blood, breath, or urine obtained more than two hours after the person was operating a motorboat or sailboat.
    Sec. 30.  Section 462A.14A, Code 2022, is amended by adding the following new subsections:
   NEW SUBSECTION.  9.  If a person refuses to submit to a chemical test, proof of refusal is admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was operating a motorboat or sailboat in violation of section 462A.14.
   NEW SUBSECTION.  10.  This section does not limit the introduction of any competent evidence bearing on the question of whether a person was under the influence of an alcoholic beverage or a controlled substance or other drug, including the results of chemical tests of specimens of blood, breath, or urine obtained more than two hours after the person was operating a motorboat or sailboat.
    Sec. 31.  Section 462A.14B, Code 2022, is amended to read as follows:
   462A.14B  Refusal to submit —— penalty.
   1.  If a person refuses to submit to the chemical testing under section 462A.14A, a test shall not be given unless the procedure in a warrant is obtained pursuant to section 462A.14D is invoked or chapter 808. However, if the person refuses the test, the person shall may be punishable punished by the court according to this section.
   2.  The court, upon petition of the state in a criminal action or proceeding arising out the acts alleged to have been committed while the person was operating a motorboat or sailboat in violation of section 462A.14, shall order a hearing be scheduled. The court, for cause and upon its own motion or upon application by an indigent person or a public defender, shall appoint the state public defender’s designee pursuant to section 13B.4 to represent the person in proceedings under this section. Upon a finding that the officer had reasonable ground grounds to believe the person to have been operating a motorboat or sailboat in violation of section 462A.14, that specified conditions existed for chemical testing pursuant to section 462A.14A, and that the person refused to submit to the chemical testing, the court shall:
   a.  Order order that the person shall not operate a motorboat or sailboat for one year.
   b.  Impose a mandatory civil penalty as follows:
   (1)  For a first refusal under this section, five hundred dollars.
   (2)  For a second refusal under this section, one thousand dollars.
   (3)  For a third or subsequent refusal under this section, two thousand dollars.
   3.  If the person does not pay the civil penalty by the time the one-year order not to operate expires, the court shall extend the order not to operate a motorboat or sailboat for an additional year, and may also impose penalties for contempt.

In a proceeding regarding a prohibition of operating privileges under this section, evidence of the results of analysis of a specimen of the defendant’s blood, breath, or urine is admissible upon proof of a proper foundation. The alcohol concentration established by the results of an analysis of a specimen of the defendant’s blood, breath, or urine withdrawn within two hours after the defendant was operating a motorboat or sailboat is presumed to be the alcohol concentration at the time of such operation.
   4.  The court shall not defer judgment or sentencing, or suspend execution of any order or fine applicable under this section.  Costs of any proceeding under this section may be assessed to the defendant upon issuance of an order prohibiting operation of a motorboat or sailboat entered pursuant to subsection 2. Such costs shall be considered category “B” restitution as defined in section 910.1 and upon request of the defendant, the court shall determine the defendant’s reasonable ability to pay pursuant to section 910.2A and shall enter orders consistent with that determination. Where the court has found, pursuant to subsection 2, that an order prohibiting operation of a motorboat or sailboat is not warranted, costs shall be assessed to the state.
   5.  The penalties imposed by this section shall apply in addition to any penalties imposed under section 462A.14, except that the one-year period under the order not to operate a motorboat or sailboat under this section shall be imposed and run concurrently with any period of time a defendant is ordered not to operate a motorboat or sailboat under section 462A.14.
    Sec. 32.  Section 462A.14C, subsection 1, Code 2022, is amended to read as follows:
   1.  A person who has been requested to submit to a chemical test shall be advised by a peace officer of the following:
   a.  A refusal to submit to the test is punishable by a mandatory civil penalty of five hundred to two thousand dollars, and suspension prohibition of motorboat or sailboat operating privileges for at least a one year. In addition, if the person is also convicted of operating a motorboat or sailboat while intoxicated a crime under this chapter, the person shall be subject to additional penalties as specified in this chapter at a criminal sentencing.
   b.  If the person submits to the test and the results indicate the presence of a controlled substance or other drug, or an alcohol concentration equal to or in excess of the level prohibited by section 462A.14 person is convicted of a crime under this chapter, the person’s privilege to operate a motorboat or sailboat will be prohibited for at least one year, and up to six years person shall be subject to prohibitions and additional penalties as specified in this chapter at a criminal sentencing.
    Sec. 33.  Section 462A.14D, subsections 1, 2, and 5, Code 2022, are amended to read as follows:
   1.  Refusal to consent to a test under section 462A.14A does not prohibit the withdrawal of a specimen for chemical testing pursuant to a search warrant issued in the investigation of a suspected violation of section 462A.14 if all of the following grounds exist:
   a.  An accident has resulted in a death or personal injury reasonably likely to cause death.
   b.  There are reasonable grounds to believe that one or more of the persons whose operation of a motorboat or sailboat may have been the proximate cause of the accident was violating section 462A.14 at the time of the accident.  Search warrants may be issued in full compliance with chapter 808 or search warrants may be issued under this section. A search warrant obtained pursuant to chapter 808 is not invalidated by the nonexistence of a condition set forth in subsection 2.
   2.  Search warrants may be issued under this section in full compliance with chapter 808 or search warrants may be issued under subsection 3. the investigation of a suspected violation of section 462A.14 if all of the following grounds exist:
   a.  An accident has resulted in a death or bodily injury reasonably likely to cause death.
   b.  There are reasonable grounds to believe that one or more of the persons whose operation of a motorboat or sailboat may have been the proximate cause of the accident was violating section 462A.14 at the time of the accident.
   5.  The act of any person knowingly resisting or obstructing the withdrawal of a specimen pursuant to a valid search warrant issued under this section 462A.14D or chapter 808 constitutes contempt punishable as provided in that section and further constitutes a refusal to submit by a fine not exceeding one thousand dollars or by imprisonment in a county jail not exceeding one year or by both. Also, if the withdrawal of a specimen is so resisted or obstructed, section 462A.14A applies.
    Sec. 34.  NEW SECTION.  462A.14G  Persons under the age of twenty-one.
   A person who is under the age of twenty-one shall not operate a motorboat or sailboat while having an alcohol concentration of .02 or more. If a person operates a motorboat or sailboat while having an alcohol concentration in violation of this section and less than .08, the person is guilty of a simple misdemeanor.
    Sec. 35.  NEW SECTION.  462A.14H  Homicide or serious injury by sailboat or motorboat.
   1.  A person commits a class “B” felony when the person unintentionally causes an accident that results in the death of another while operating a motorboat or sailboat in violation of section 462A.14.
   2.  A person commits a class “D” felony when the person unintentionally causes an accident that results in a serious injury while operating a motorboat or sailboat in violation of section 462A.14.
   3.  Pursuant to section 907.3, the court shall not defer judgment or sentencing, or suspend execution of any part of the sentence applicable to the defendant, for a violation of this section.
    Sec. 36.  Section 811.1, subsections 1 and 2, Code 2022, are amended to read as follows:
   1.  A defendant awaiting judgment of conviction and sentencing following either a plea or verdict of guilty of a class “A” felony; forcible felony as defined in section 702.11; any class “B” felony included in section 462A.14 462A.14H or 707.6A; any felony included in section 124.401, subsection 1, paragraph “a” or “b”; a second or subsequent offense under section 124.401, subsection 1, paragraph “c”; any felony punishable under section 902.9, subsection 1, paragraph “a”; any public offense committed while detained pursuant to section 229A.5; or any public offense committed while subject to an order of commitment pursuant to chapter 229A.
   2.  A defendant appealing a conviction of a class “A” felony; forcible felony as defined in section 702.11; any class “B” or “C” felony included in section 462A.14 462A.14H or 707.6A; any felony included in section 124.401, subsection 1, paragraph “a” or “b”; or a second or subsequent conviction under section 124.401, subsection 1, paragraph “c”; any felony punishable under section 902.9, subsection 1, paragraph “a”; any public offense committed while detained pursuant to section 229A.5; or any public offense committed while subject to an order of commitment pursuant to chapter 229A.
    Sec. 37.  Section 904.513, subsection 1, paragraph a, Code 2022, is amended to read as follows:
   a.  The department of corrections, in cooperation with the judicial district departments of correctional services, shall establish in each judicial district a continuum of programming for the supervision and treatment of offenders convicted of violating chapter 321J or section 462A.14 who are sentenced to the custody of the director. The continuum shall include a range of sanctioning options that include but are not limited to prisons and residential facilities.
    Sec. 38.  Section 904.513, subsection 1, paragraph b, subparagraph (2), Code 2022, is amended to read as follows:
   (2)  Offenders convicted of violating chapter 321J or section 462A.14, sentenced to the custody of the director, and awaiting placement in a community residential substance abuse treatment program for such offenders shall be placed in an institutional substance abuse program for such offenders within sixty days of admission to the institution or as soon as practical. When placing offenders convicted of violating chapter 321J or section 462A.14 in community residential substance abuse treatment programs for such offenders, the department shall give priority as appropriate to the placement of those offenders currently in institutional substance abuse programs for such offenders. The department shall work with each judicial district to enable such offenders to enter community residential substance abuse treatment programs at a level comparable to their prior institutional program participation.
    Sec. 39.  Section 904.909, Code 2022, is amended to read as follows:
   904.909  Work release and OWI violators —— reimbursement to department for transportation costs.
   The department of corrections shall arrange for the return of a work release client, or offender convicted of violating chapter 321J or section 462A.14, who escapes from the facility to which the client is assigned or violates the conditions of supervision. The client or offender shall reimburse the department of corrections for the cost of transportation incurred because of the escape or violation. The amount of reimbursement shall be the actual cost incurred by the department and shall be credited to the support account from which the billing occurred. The director of the department of corrections shall recommend rules pursuant to chapter 17A, subject to approval by the board of corrections pursuant to section 904.105, subsection 7, to implement this section.
    Sec. 40.  Section 907.3, subsection 1, paragraph a, subparagraph (7), Code 2022, is amended to read as follows:
   (7)  The offense is a violation of section 462A.14, and a mandatory minimum sentence must be served or mandatory minimum fine must be paid by the defendant. the person has been convicted of a violation of that section or the person is prohibited from operating a vessel under section 462A.14B, and any of the following apply:
   (a)  The defendant’s alcohol concentration established by the results of an analysis of a specimen of the defendant’s blood, breath, or urine withdrawn in accordance with section 462A.14 exceeds .15, regardless of whether or not the alcohol concentration indicated by the chemical test minus the established margin of error inherent in the device or method used to conduct the test equals an alcohol concentration of .15 or more.
   (b)  The defendant has previously been convicted of a violation of section 462A.14, subsection 1, or a violation of a statute in another state substantially corresponding to section 462A.14, subsection 1.
   (c)  The defendant has previously received a deferred judgment or sentence for a violation of section 462A.14, subsection 1, or for a violation of a statute in another state substantially corresponding to section 462A.14, subsection 1.
   (d)  The defendant refused to consent to testing requested in accordance with section 462A.14A.
   (e)  The offense under section 462A.14 results in bodily injury to a person other than the defendant.
    Sec. 41.  Section 907.3, subsection 1, paragraph a, Code 2022, is amended by adding the following new subparagraph:
   NEW SUBPARAGRAPH.  (08)  The offense is a violation of section 462A.14H.
    Sec. 42.  Section 907.3, subsection 2, paragraph a, subparagraph (3), Code 2022, is amended to read as follows:
   (3)  The offense is a violation of section Section 462A.14, and a mandatory minimum sentence must be served or mandatory minimum fine must be paid by the defendant. if any of the following apply:
   (a)  The defendant’s alcohol concentration established by the results of an analysis of a specimen of the defendant’s blood, breath, or urine withdrawn in accordance with section 462A.14 exceeds .15, regardless of whether or not the alcohol concentration indicated by the chemical test minus the established margin of error inherent in the device or method used to conduct the test equals an alcohol concentration of .15 or more.
   (b)  The defendant has previously been convicted of a violation of section 462A.14, subsection 1, or a violation of a statute in another state substantially corresponding to section 462A.14, subsection 1.
   (c)  The defendant has previously received a deferred judgment or sentence for a violation of section 462A.14, subsection 1, or for a violation of a statute in another state substantially corresponding to section 462A.14, subsection 1.
   (d)  The defendant refused to consent to testing requested in accordance with section 462A.14A.
   (e)  The offense under section 462A.14 results in bodily injury to a person other than the defendant.
    Sec. 43.  Section 907.3, subsection 2, paragraph a, Code 2022, is amended by adding the following new subparagraph:
   NEW SUBPARAGRAPH.  (04)  Section 462A.14H.
    Sec. 44.  Section 907.3, subsection 3, paragraph f, Code 2022, is amended to read as follows:
   f.  A mandatory minimum sentence or fine imposed for a violation of section 462A.14. of incarceration imposed pursuant to a violation of section 462A.14, subsection 1, and the court shall not suspend any part of a sentence not involving incarceration beyond the mandatory minimum imposed pursuant to section 462A.14, subsection 2, if any of the following apply:
   (1)  The defendant’s alcohol concentration established by the results of an analysis of a specimen of the defendant’s blood, breath, or urine withdrawn in accordance with section 462A.14 exceeds .15, regardless of whether or not the alcohol concentration indicated by the chemical test minus the established margin of error inherent in the device or method used to conduct the test equals an alcohol concentration of .15 or more.
   (2)  The defendant has previously been convicted of a violation of section 462A.14, subsection 1, or a violation of a statute in another state substantially corresponding to section 462A.14, subsection 1.
   (3)  The defendant has previously received a deferred judgment or sentence for a violation of section 462A.14, subsection 1, or for a violation of a statute in another state substantially corresponding to section 462A.14, subsection 1.
   (4)  The defendant refused to consent to testing requested in accordance with section 462A.14A.
   (5)  The offense under section 462A.14 results in bodily injury to a person other than the defendant.
    Sec. 45.  Section 907.3, subsection 3, Code 2022, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  0g.  A sentence imposed for a violation of section 462A.14H.
    Sec. 46.  Section 915.80, subsection 2, Code 2022, is amended to read as follows:
   2.  “Crime” means conduct that occurs or is attempted in this state, poses a substantial threat of personal injury or death, and is punishable as a felony or misdemeanor, or would be so punishable but for the fact that the person engaging in the conduct lacked the capacity to commit the crime under the laws of this state. “Crime” does not include conduct arising out of the ownership, maintenance, or use of a motor vehicle, motorcycle, motorized bicycle, train, boat, or aircraft except for violations of section 321.261, 321.277, 321J.2, 462A.7, 462A.12, 462A.14, 462A.14H, or 707.6A, or when the intention is to cause personal injury or death. A license revocation under section 321J.9 or 321J.12 shall be considered by the department as evidence of a violation of section 321J.2 for the purposes of this subchapter. A license suspension or revocation under section 462A.14, 462A.14B, or 462A.23 shall be considered by the department as evidence of a violation of section 462A.14 for the purposes of this subchapter.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to matters under the purview of the department of natural resources (DNR).
   MISCELLANEOUS ADMINISTRATIVE CHANGES. The bill removes persons meeting eligibility requirements for the green thumb program from receiving preference in employment for temporary positions in conservation and outdoor recreation with the DNR.
   Under current law, the DNR is authorized to establish fees for camping and use of rental facilities and other special privileges at state parks and recreation areas under DNR jurisdiction. The bill expands this authorization to include state forests.
   The bill requires vendors that offer online watercraft education courses to enter into a written agreement with the DNR rather than a memorandum of understanding.
   DAMS AND SPILLWAYS —— REPEAL. Code chapter 464A authorizes the natural resource commission (NRC) to erect a dam or spillway across a stream or at the outlet of a lake, or to alter or reconstruct an existing dam or spillway, so as to increase or decrease its permanent height, or to permanently affect the water level above the structure. The Code chapter governs the use of an expert plan, the process for setting a hearing and filing claims for damages, the factors to be considered prior to adopting a dam or spillway plan, the process for appraising damages, the process for judicial review, and the process to adopt a tentative plan as final. The bill repeals these provisions.
   The bill transfers the remaining provision of Code chapter 464A, Code section 464A.11, which requires the DNR to establish a water trails and low head dam public hazard program, to Code section 456A.11.
   Code chapter 464B regulates dams and provides for the protection of banks along any part of a stream or raceway, provides that an owner or occupier of a mill or machinery may recover damages caused by a person who injures, destroys, or removes an embankment or other works, and provides that a person owning and using water power for the purpose of propelling machinery has the right to acquire, maintain, and utilize the fall below such power for the purpose of making improvements. The bill repeals Code chapter 464B.
   PERSONAL FLOTATION DEVICES. Under current law, every watercraft vessel is required to carry at least one life preserver, life belt, ring buoy, or other device for each passenger, so placed as to be readily accessible. A violation of this provision is punishable by a scheduled fine of $30. The bill reclassifies such devices as wearable personal flotation devices. A personal flotation device marked as type I, type II, type III, or type V with type I, II, or III performance, is considered wearable. The bill makes corresponding changes to references to life preservers and personal flotation devices in Code chapter 462A.
   The bill requires a person who operates a vessel 16 feet or more in length, except a canoe or kayak, on the waters of this state under the jurisdiction of the NRC to carry at least one throwable personal flotation device that is readily accessible on board the vessel. A personal flotation device marked as type IV or type V, with type IV performance, is considered throwable. A violation of this provision is punishable by a scheduled fine of $35.
   BOATING WHILE INTOXICATED. The bill amends the laws relating to operating a motorboat or sailboat while intoxicated (BWI) under Code sections 462A.14 through 462A.14F to generally mirror the laws relating to operating a motor vehicle while intoxicated (OWI) under Code chapter 321J, with certain exceptions.
   Similar to OWI offenses, the bill allows a court to give credit for time served to a person who is guilty of BWI for any time the person spent in a court-ordered operating-while-intoxicated program that provides law enforcement security. A court may assign a person to substance abuse evaluation and treatment, and if available and appropriate, a reality education substance abuse prevention program pursuant to Code section 321J.24. A court may defer judgment, impose a civil penalty equal to the criminal fine that would otherwise apply, defer a sentence, suspend a sentence, and place a defendant on probation in the same manner as for OWI offenses.
   Under current law, in both BWI and OWI criminal proceedings involving controlled substances, a person may assert an affirmative defense that the controlled substance present in the person’s blood or urine was prescribed or dispensed for the person and was taken in accordance with the directions of a practitioner and the labeling directions of the pharmacy. The bill authorizes the use of the affirmative defense in proceedings related to a person’s refusal to submit to a test in BWI cases.
   The bill amends Code section 462A.14A to mirror the requirements that exist under Code chapter 321J for a licensed physician, a physician assistant, or advanced registered nurse practitioner to certify that the person to be tested is dead, unconscious, or otherwise in a condition rendering that person incapable of consent or refusal. If the certification is oral, a written certification must be completed by the physician, physician assistant, or advanced registered nurse practitioner within a reasonable time of the test.
   The bill strikes provisions to reduce redundancy regarding the advisement that a law enforcement officer is required to provide to a person suspected of BWI.
   The bill strikes medical personnel immunity from liability for actions in complying with requests to withdraw blood specimens when they use reasonable care and accepted medical practices.
   The bill strikes the mandatory civil penalty under current law for refusing to submit to a test. The bill authorizes a court to appoint the state public defender’s designee to represent an indigent person at a hearing related to a person’s refusal to consent to testing and whether the person must be prohibited from operating a motorboat or sailboat. In a proceeding regarding a prohibition of operating privileges due to a refusal, evidence of the results of analysis of a specimen of the defendant’s blood, breath, or urine is admissible upon proof of a proper foundation. Costs of a test refusal proceeding may be assessed to the operator upon issuance of an order prohibiting operation of a motorboat or sailboat. Such costs are category “B” restitution and upon request of the defendant, the court must determine the defendant’s reasonable ability to pay. Where the court has found that an order prohibiting operation of a motorboat or sailboat is not warranted, costs are assessed to the state.
   The bill aligns search warrant requirements in Code section 462A.14D to Code chapter 321J. The bill punishes the act of knowingly resisting or obstructing the withdrawal of a specimen pursuant to a valid search warrant issued as contempt punishable by a fine not exceeding $1,000 or by imprisonment not exceeding one year or by both.
   The bill makes it a simple misdemeanor for persons under the age of 21 who operate a motorboat or sailboat while having an alcohol concentration equal to or greater than .02 and less than .08. A simple misdemeanor is punishable by confinement for no more than 30 days and a fine of at least $105 but not more than $855.
   Under the bill, a person commits a class “B” felony when the person unintentionally causes an accident that results in the death of another while operating a motorboat or sailboat while intoxicated. A class “B” felony is punishable by confinement for no more than 25 years. In addition, a person commits a class “D” felony when the person unintentionally causes an accident that results in a serious injury while operating a motorboat or sailboat while intoxicated. A class “D” felony is punishable by confinement for no more than five years and a fine of at least $1,025 but not more than $10,245. Similar to vehicular homicide offenses involving OWI, a court is prohibited from deferring judgment, deferring a sentence, or suspending a sentence for these offenses.
   The bill generally aligns the periods of imprisonment and fine amounts for BWI offenses to those of OWI offenses. Under current law, a first offense of BWI is a serious misdemeanor and the minimum fine is $1,000. The bill increases the minimum fine to $1,250. The court may still waive one-half of the fine at the court’s discretion. However, the court cannot order a person to perform unpaid community service in lieu of a civil penalty or victim restitution. Surcharges and fees must also be assessed pursuant to Code chapter 911. Under current law, a second offense of BWI is an aggravated misdemeanor and the fine must be between $1,500 and $5,000. The bill increases the applicable fine to between $1,875 and $6,250. A third or subsequent offense of BWI is a class “D” felony and the fine must be between $2,500 and $7,500. The bill increases the applicable fine to between $3,125 and $9,375.