Senate Bill No. 528
(By Senator Yoder)
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[Introduced February 19, 1996; referred to the Committee
on Natural Resources.]
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A BILL to amend and reenact section eleven, article seven,
chapter twenty of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to further amend
said article by adding thereto fourteen new sections,
designated sections twenty-three-a through twenty-three-n,
inclusive, all relating to motorboating; definitions;
recreational watercraft; license to operate; application for
license; approval of application; issuance; license
expiration and renewal; application fee; accident or
collision upon waters of this state; requirements for
operating a recreational watercraft; notification;
recreational watercraft safety examination; records of examination and license application; display of license;
waterways safety fund; restricted license; violations; and
penalties.
Be it enacted by the Legislature of West Virginia:
That section eleven, article seven, chapter twenty of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that said article be
further amended by adding thereto fourteen new sections,
designated sections twenty-three-a through twenty-three-n,
inclusive, all to read as follows:
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
PART II. MOTORBOATING.
§20-7-11. Motorboats and other terms defined.
As used in this article, unless the context clearly requires
a different meaning:
(a) "Watercraft," means any of the following when used or
capable of being used for transportation on the water:
(1) A boat operated by machinery either permanently or
temporarily affixed;
(2) A sailboat other than a sailboard;
(3) An inflatable, manually propelled boat having a hull identification number meeting the requirements of the United
States coast guard;
(4) A canoe or row boat.
Watercraft does not include ferries. Watercrafts are
divided into four classes as follows:
Class A: Less than sixteen feet in length;
Class 1: At least sixteen feet but less than twenty-six
feet in length;
Class 2: At least twenty-feet but less than forty feet in
length;
Class 3: At least forty feet but not more than sixty-five
feet in length.
Any watercraft over sixty-five feet in length shall comply
with federal regulations.
(b) "Vessel" includes every description of watercraft,
including nondisplacement craft and seaplanes, used or capable of
being used as a means of transportation on water.
(c) "Rowboat" means any vessel designed to be rowed and that
is propelled by human muscular effort by oars or paddles and upon
which no mechanical propulsion device, electric motor, internal
combustion engine or sail has been affixed or is used for the operation of the vessel.
(d) "Sailboat" means any vessel, equipped with mast and
sails, dependent upon the wind to propel it in the normal course
of operation:
(1) Any sailboat equipped with an inboard engine is
considered a powercraft with auxiliary sail;
(2) Any sailboat equipped with a detachable motor is
considered a sailboat with auxiliary power; and
(3) Any sailboat being propelled by mechanical power,
whether under sail or not, is considered a powercraft and subject
to all laws and rules governing powercraft operation.
(e) "Powercraft" means any vessel propelled by machinery,
fuel, rockets or similar device.
(f) "Person" includes any individual, firm, partnership,
corporation, company, association or body politic, except the
United States and this state and includes any agent, trustee,
executor, receiver, assignee or other representative thereof.
(g) "Owner" includes any person who claims lawful possession
of a vessel by virtue of legal title or equitable interest
therein which entitled the person to the possession.
(h) "Operator" includes any person who navigates or has under his or her control a vessel or vessel and detachable motor,
on the waters in this state.
(i) "Visible" means visible on a dark night with clear
atmosphere.
(j) "Waters in this state" means all streams, rivers, lakes,
ponds, marshes, watercourses, waterways and all other bodies of
water, natural or manmade, that are situated wholly or partially
within this state or within its jurisdiction, and are used for
recreational boating.
(k) "Navigable waters" means waters that come under the
jurisdiction of the department of the army of the United States
and any waterways within or adjacent to this state, except inland
lakes having neither a navigable inlet or outlet.
(l) "In operation" in reference to vessels means that the
vessel is being navigated or otherwise used on the waters in this
state.
(m) "Sewage" means human body wastes and the wastes from
toilets and other receptacles intended to receive or retain body
waste.
(n) "Canoe" means a narrow vessel of shallow draft, pointed
at both ends and propelled by human muscular effort and includes kayaks.
(o) "Coast guard approved" means bearing an approval number
assigned by the United States coast guard.
(p) "Type one personal flotation device" means a device that
is designed to turn an unconscious person floating in water from
a face downward position to a vertical or slightly face upward
position, and that has at least nine kilograms, approximately
twenty pounds, of buoyancy.
(q) "Type two personal flotation device" means a device that
is designated to turn an unconscious person in the water from a
face downward position to a vertical or slightly face upward
position and to have at least seven kilograms, approximately
fifteen and four-tenths pounds, of buoyancy.
(r) "Type three personal flotation device" means a device
that is designed to keep a conscious person in a vertical or
slightly face upward position and to have at least seven
kilograms, approximately fifteen and four-tenths pounds, of
buoyancy.
(s) "Type four personal flotation device" means a device
that is designed to be thrown to a person in the water and not
worn, and is designed to have at least seven and five-tenths kilograms, approximately sixteen and five-tenths pounds, of
buoyancy.
(t) "Recreational hybrid personal flotation device" means a
type five personal flotation device that has one inflation
chamber in combination with inherently buoyant material and is
approved for use on a recreational boat. As used in this
article, "type five personal flotation device" means a device
that, unlike other personal flotation devices, has limitations on
its approval by the United States coast guard.
(u) "Inflatable watercraft" means any vessel constructed of
rubber, canvas or other material that is designed to be inflated
with any gaseous substance, constructed with two or more air
cells, and operated as a vessel. Inflatable watercraft propelled
by a motor shall be classified as powercraft and shall be
registered by length.
(v) "Idle speed" means the slowest possible speed needed to
maintain steerage or maneuverability.
(w) "Diver's flag" means a red flag not less than one foot
square having a diagonal white stripe extending from the masthead
to the opposite lower corner that when displayed indicates that
divers are in the water.
(x) "Muffler" means an acoustical filtering device
containing a baffle or baffles, including water-cooled exhaust
risers, elbows or both, that when installed in or on the exhaust
pipe of an internal combustion engine results in a reduction of
exhaust noise.
(y) "Law-enforcement vessel" means any vessel used in law
enforcement and under the command of a law-enforcement officer.
(z) "Recreational watercraft" means any of the following
when used or capable of being used for recreational
transportation on water:
(1) A boat powered by machinery either permanently or
temporarily affixed;
(2) A sailboat other than a sailboard;
(3) A personal watercraft powered by high pressure water
jets.
(aa) "Driver's license" means a license to operate a
commercial motor vehicle, a motor vehicle or motor driven cycle,
other than a commercial motor vehicle, and includes a temporary
license and a restricted license as provided in section twenty-
three-d of this article.
(bb) "Recreational watercraft operator's license" means a license issued to any person to operate a recreational watercraft
and includes an endorsement on a driver's license that authorizes
the license holder to operate such a watercraft.
(cc) "Motorboat" means any vessel propelled by an
electrical, steam, gas, diesel or other fuel propelled or driven
motor, whether or not the motor is the principal source of
propulsion, but does not include a vessel which has a valid
marine document issued by the bureau of customs of the United
States government or any federal agency successor thereto;
(dd) "Recreational watercraft operator's license or
endorsement" means a license to operate a recreation watercraft
and includes an endorsement on a driver's license or commercial
driver's license that authorizes the license holder to operate a
recreational watercraft.
(ee) "Commissioner" means the commissioner of the division
of motor vehicles; and
(ff) "Director" means the director of the division of
natural resources.
(gg) "Division" means the division of motor vehicles.
Unless otherwise provided, this article applies to all
vessels operating on the waters in this state. Nothing in this chapter may be construed in contravention of any valid federal
act or rule, but is in addition to the act or rule where not
inconsistent.
The state reserves to itself the exclusive right to regulate
the minimum equipment requirements of watercraft and vessels
operated upon the waters in this state.
§20-7-23a. Accident or collision upon waters of this state.
In case of accident to or collision with a person or
property on the waters of this state, due to the operation of any
vessel, the operator having knowledge of the accident or
collision shall immediately stop the vessel at the scene of the
accident or collision, to the extent that it is safe and
practical, and shall remain at the scene of the accident or
collision until he or she has given his or her name and address
and, in the case of a recreational watercraft operator, displayed
the operator's recreational watercraft operator's license on
request to any person injured in the accident or collision or to
the operator, occupant, owner or attendant of any vessel damaged
in the accident or collision, or to any law-enforcement officer
at the scene of the accident or collision. If the operator is
not the owner, the operator shall give the name and address of the owner of the vessel, together with the registration number of
the vessel, if any, to any person injured in the accident or
collision or to the operator, occupant, owner or attendant of any
vessel damaged in the accident or collision, or to any law-
enforcement officer at the scene of the accident or collision.
If the injured person is unable to comprehend and record the
information required to be given by this section, the other
operator involved in the accident or collision shall forthwith
notify the nearest law-enforcement agency having authority
concerning the location of the accident or collision, and the
operator's name, address and the registration number, if any, of
the vessel the operator was operating, and then remain at the
scene of the accident or collision or at the nearest location
from which notification is possible until a law-enforcement
officer arrives, unless removed from the scene by an emergency
vehicle operated by the state or a political subdivision or by an
ambulance.
If the accident or collision is with an unoccupied or
unattended vessel, the operator who collided with the vessel
shall securely attach the information required to be given in
this section, in writing, to a conspicuous place in or on the unoccupied or unattended vessel.
§20-7-23b. Operating a recreational watercraft; requirements.
(a) No person may operate a recreational watercraft on
waters in this state unless the person holds a valid recreational
watercraft operator's license issued pursuant to this chapter or
a valid United States coast guard license issued under 46 C.F.R.
10.202, as amended.
(b) No person whose recreational watercraft operator's
license has been suspended or revoked under this chapter may
operate recreational watercraft on waters in this state during
the period of suspension or revocation.
(c) No person who is under fourteen years of age may operate
recreational watercraft on waters in this state. No person who
is fourteen years of age or older, but is less than sixteen years
of age may operate recreational watercraft on waters in this
state unless the person is under the direct visual and audible
supervision of a person holding a valid recreational watercraft
operator's license.
(d) No person may permit the operation of recreational
watercraft on waters in this state by a person who:
(1) Is under fourteen years of age; or
(2) Is fourteen years of age or older, but is less than
sixteen years of age and is not under the direct visual and
audible supervision of a person holding a valid recreational
watercraft operator's license.
§20-7-23c. Notification of violations.
The trial judge of a court of record, in addition to or
independent of all other penalties provided by law shall notify
the division of motor vehicles of each conviction or guilty plea
entered for a violation of subsection (d), section twenty-three-b
of this article.
§20-7-23d. Recreational watercraft safety examination.
(a) Prior to being issued a recreational watercraft
operator's license, the applicant shall complete a boating safety
education program that includes first aid instruction and is
approved by the commissioner.
(b) The commissioner, in accordance with the provisions of
chapter twenty-nine-a of this code and subject to prior approval
of the director, shall promulgate rules governing the content and
administration of a recreational watercraft safety examination.
The examination shall be written and shall test knowledge of
first aid and provisions regarding watercraft safety contained in this chapter and rules promulgated by the commissioner. The
commissioner shall make available to the public information
regarding locations where, and dates and times when the
examination will be conducted. The examination shall contain a
statement signed and dated by each person taking it to certify
that the person has completed the examination and understands the
provisions regarding watercraft safety contained in this article
and rules promulgated under it. Authorized personnel of the
division or other persons designated by the commissioner shall
conduct the examination and shall provide notice to each person
taking it regarding whether the person completed it successfully.
(c) An examination application on a form furnished by the
commissioner shall be filed with the commissioner by a person who
wishes to obtain a recreational watercraft operation's license
and who:
(1) Has not held a recreational watercraft operator's
license;
(2) Held a recreational watercraft operator's license that
was suspended or revoked and the suspension or revocation has
ended.
(d) The application shall contain the applicant's full name; residence and, where applicable, business address; social
security number, if one has been assigned; signature; and
evidence satisfactory to the commissioner that the applicant has
successfully completed a boating safety education program that
includes first aid instruction and is approved by the
commissioner.
§20-7-23e. Recreational watercraft operator's license;
application.
(a) A licensure application on a form furnished by the
commissioner shall be filed with the commissioner by the person
applying for the recreational watercraft operator's license and
who:
(1) Has not held a recreational watercraft operator's
license; or
(2) Held a recreational watercraft operator's license that
was suspended or revoked and the suspension or revocation has
ended.
(b) The application shall include all of the following
information:
(1) The applicant's full name; date of birth; social
security number, if one has been assigned; sex; general physical description including height, weight, and hair and eye color;
residence and, where applicable, business address, including
county of residence; duration of residence in this state; country
of citizenship; and occupation;
(2) Whether the applicant previously has been licensed as a
recreational watercraft operator, and if so, the month and year
of the licensure, the licensing entity, and, in the case of a
license issued by an entity other than this state, any license
suspension or revocation existing at the time of the application
and the reason for it;
(3) Evidence satisfactory to the commissioner that the
applicant has successfully completed the recreational watercraft
safety examination required by section twenty-three-d of this
article; and
(4) In the case of an applicant who holds a valid driver's
license, any distinguishing number assigned to the applicant and
specified on the driver's license.
(c) The applicant shall sign the application and include
with it with a fee of fifteen dollars. All fees collected under
this section shall be paid into the waterways safety fund
established in this section twenty-three-j of this article and shall be used to pay expenses incurred by the division as a
result of the requirements of this section.
§20-7-23f. Same; approval.
(a) The commissioner or designee may approve the licensure
application filed by each applicant for a recreational watercraft
operator's license who successfully completes the recreational
watercraft safety examination. If the licensure application is
made to the commissioner's designee and it shows that the
applicant's recreational watercraft operator's license previously
has been suspended or revoked, the designee shall forward the
application to the commissioner, who shall determine whether to
approve it.
(b) The commissioner or designee shall provide notice to
each applicant of whether the licensure application has been
approved.
(c) The commissioner or designee shall forward to the
division all of the following information:
(1) A certifying statement regarding each application for a
recreational watercraft operator's license that has been
approved;
(2) In the case of an applicant who does not hold a valid driver's license, a copy of the licensure application required to
be filed under section twenty-three-e of this article.
(3) In the case of an applicant who holds a valid driver's
license, the applicant's full name, residence and, where
applicable, business address, social security number, if one has
been assigned and any distinguishing number assigned to the
applicant and specified on the driver's license.
(4) Notice of each recreational watercraft operator's
license that has been suspended or revoked, including the period
of suspension or revocation.
§20-7-23g. Recreation watercraft operator;s license; expiration;
renewal.
(a) In the case of an applicant whose application for a
recreational watercraft operator's license is approved and who
holds a valid driver's license, the recreational watercraft
operator's license shall be in the form of an endorsement on the
driver's license and shall expire and be renewable along with the
driver's license.
(b) In the case of an applicant whose application for a
recreational watercraft operator's license is approved and who
does not hold a valid driver's license, the recreational watercraft operator's license shall be in the form of a
restricted license as provided in section twenty-three-l of this
article, and expires on the applicant's birthday in the fourth
year after its date of issuance and is renewable like a driver's
license. During a year in which there is no twenty-ninth day of
February, the birthday of an applicant born on the twenty-ninth
day of February shall be considered for the purpose of this
section to be the first day of March.
§20-7-23h. Records of examination and license applications.
The commissioner or designee shall promulgate rules in
accordance with the provisions of article three, chapter twenty-
nine-a of this code to govern the manner in which examination
applications and results, licensure applications and other
records concerning recreational watercraft operator's licenses
are filed and maintained. The commissioner or designee shall
assign a number to each examination and licensure application for
a recreational watercraft operator's license, file them, and
index them by the applicant's last name and the number assigned.
The commissioner or designee shall maintain a record of each
recreational watercraft operator's license issued, each
application for licensure that is denied, each violation by the licensee of subsection (d), section twenty-three-b of this
article and each license that has been suspended or revoked
pursuant to section twenty-three-c of this article.
§20-7-23i. Display of license.
A licensed recreational watercraft operator shall display
the recreational watercraft operator's license on demand of a
law-enforcement officer or a person damaged or injured by the
operator in a collision on the waters in this state. Failure to
display the license shall be prima-facie evidence of operating
the recreational watercraft without a valid license.
§20-7-23j. Waterways safety fund.
There is hereby created in the state treasury the waterways
safety fund for deposit of moneys collected pursuant to the
provisions of this article.
§20-7-23k. Violations.
(a) Any person who violates a provision of this article or
a rule promulgated as provided by this article, for which no
penalty is otherwise provided, is guilty of a misdemeanor.
(1) If, within five years of the offense, the offender has
not been convicted of or pleaded guilty to a violation of a
municipal ordinance relating to operating a watercraft or manipulating any water skis, aquaplane or similar device while
under the influence of alcohol, drugs or both, of a municipal
ordinance relating to operating a watercraft or manipulating any
water skis, aquaplane or similar device with a prohibited
concentration of alcohol in the blood, breath or urine, in a case
in which the court found that the offender was under the
influence of alcohol, drugs or both, the court shall sentence the
offender to a term of imprisonment of three consecutive days and
may sentence the offender to a longer term of imprisonment. The
court shall impose upon the offender a fine of not less than one
hundred fifty nor more than one thousand dollars.
The court may suspend the execution of the mandatory three
consecutive days of imprisonment required by this subdivision if
the court, in lieu thereof, places the offender on probation and
requires the offender to attend, for three consecutive days, a
drivers' intervention program. The court also may suspend the
execution of any part of the mandatory three consecutive days of
imprisonment if the court places the offender on probation for
part of the three consecutive days; requires the offender to
attend, for that part of the three consecutive days, a drivers'
intervention program; and sentences the offender to a term of imprisonment equal to the remainder of the three consecutive days
that the offender does not spend attending the drivers'
intervention program. The court may require the offender, as a
condition of probation, to attend and satisfactorily complete any
treatment or education programs, in addition to the required
attendance at a drivers' intervention program, that the operators
of the drivers' intervention program determine that the offender
should attend and to report periodically to the court on his or
her progress in the programs. The court also may impose any
other conditions of probation on the offender that it considers
necessary.
(2) If, within five years of the offense, the offender has
been convicted of or pleaded guilty to a violation of a municipal
ordinance relating to operating a watercraft or manipulating any
water skis, aquaplane or similar device while under the influence
of alcohol, drugs or both, of a municipal ordinance relating to
operating a watercraft or manipulating any water skis, aquaplane
or similar device with a prohibited concentration of alcohol in
the blood, breath or urine, in a case in which the court found
that the offender was under the influence of alcohol, drugs or
both, the court shall sentence the offender to a term of imprisonment of ten consecutive days and may sentence the
offender to a longer term of imprisonment. In addition, the
court shall fine the offender not less than one hundred fifty nor
more than one thousand dollars.
In addition to any other sentence, the court may require the
offender to attend a drivers' intervention program.
(3) If, within five years of the offense, the offender has
been convicted of or pleaded guilty to more than one violation of
a municipal ordinance relating to operating a watercraft or
manipulating any water skis, aquaplane or similar device while
under the influence of alcohol, drugs or both, of a municipal
ordinance relating to operating a watercraft or manipulating any
water skis, aquaplane or similar device with a prohibited
concentration of alcohol in the blood, breath or urine, in a case
in which the court found that the offender was under the
influence of alcohol, drugs or both, the court shall sentence the
offender to a term of imprisonment of thirty consecutive days and
may sentence the offender to a longer term of imprisonment of not
more than one year. In addition, the court shall fine the
offender not less than one hundred fifty nor more than one
thousand dollars.
In addition to any other sentence, the court may require the
offender to attend a drivers' intervention program.
(4) Upon a showing that imprisonment of an offender
sentenced pursuant to subdivision (1), (2) or (3) of this
subsection would seriously affect his or her ability to continue
employment, the court may authorize that the offender be granted
work release from imprisonment after the offender has served the
three, ten or thirty consecutive days of imprisonment that is
required by this subsection. No court may authorize work release
from imprisonment during the three, ten or thirty consecutive
days of imprisonment that is required by this subsection. The
duration of the work release may not exceed the time necessary
each day for the offender to commute to and from the place of
employment and the place of imprisonment and the time actually
spent under employment.
(5) Notwithstanding any provision of this code that
authorizes the suspension of the imposition or execution of a
sentence or the placement of an offender in any treatment program
in lieu of imprisonment, no court may suspend the ten or thirty
consecutive days of imprisonment required by this section or
place an offender who is sentenced pursuant to subdivision (2) or (3) of this subsection in any treatment program in lieu of
imprisonment until after the offender has served the ten or
thirty consecutive days of imprisonment required by subdivision
(2) or (3) of this subsection. Notwithstanding any provision of
this code that authorizes the suspension of the imposition or
execution of a sentence or the placement of an offender in any
treatment program in lieu of imprisonment, no court, except as
specifically authorized by subdivision (1) of this subsection,
may suspend the three consecutive days of imprisonment required
by that subdivision or place an offender who is sentenced
pursuant to subdivision (1) of this subsection in any treatment
program in lieu of imprisonment until after the offender has
served the three consecutive days of imprisonment required.
(c) Any person who violates subsection (d), section twenty-
three-b of this article is guilty of a misdemeanor for the first
and second convictions. If the offender previously has been
convicted of or pleaded guilty to three or more violations of
that subsection, the court shall suspend for a period not to
exceed six months the offender's recreational watercraft
operator's license.
§20-7-23l. Restricted licenses.
The division of motor vehicles upon issuing a recreational
watercraft operator's license may whenever good cause appears to
impose restrictions suitable to the licensee's driving ability
with respect to the type of or special mechanical control devices
required on a recreational watercraft which the licensee may
operate or such other restrictions applicable to the licensee as
the division determines to be appropriate to assure the safe
operation of recreational watercraft by the licensee.
The division may either issue a special restricted license
or may set forth restrictions on the usual license form.
The division may upon receiving satisfactory evidence of any
violation of the restrictions of the license suspend or revoke
the license but the licensee shall be entitled to a hearing as
upon a suspension or revocation under chapter seventeen-b of this
code.
It is a misdemeanor for any person to operate a recreational
watercraft in any manner in violation of the restrictions imposed
in a restricted license issued to the person.
§20-7-23m. Recreational watercraft operator's license or
endorsement; issuance.
On receipt of notice provided pursuant to section twenty-three-f of this article that the commissioner or designee has
approved a recreational watercraft operator's license
application, the division of motor vehicles shall issue on the
person's request a recreational watercraft operator's license or
endorsement. No recreational watercraft operator's license may be
issued if the division has received notice from the commissioner
or designee pursuant to section twenty-three-e of this article
that the person's recreational watercraft operator's license has
been suspended or revoked and the period of suspension or
revocation is in effect.
In the case of a person who holds a valid driver's license,
a recreational watercraft operator's license shall be an
endorsement in a form the registrar shall specify on the driver's
license.
In the case of a person who does not hold a valid driver's
license, a recreational watercraft operator's license shall be in
the form of a restricted license as provided in section twenty-
three-l of this article.
§20-7-23n. Recreational watercraft operator's license or renewal
application fee.
Each application for a recreational watercraft operator's license or renewal shall be accompanied by a fee of six dollars.
Each application for a duplicate recreational watercraft
operator's license shall be accompanied by a fee of two dollars
and fifty cents.
NOTE: The purpose of this bill is to require that a
recreational watercraft operator's license be issued before
operating a watercraft on the waters of this state; and to
regulate the operation of recreational watercraft.
Section eleven has been completely rewritten and section
twenty-three-a through twenty-three-n are new; therefore,
strike-throughs and underscoring have been omitted.