Senate Bill No. 531

(By Senators Hunter and Rowe)

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[Introduced March 20, 2001; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact sections eighteen, eighteen-a and eighteen-b, article seven, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to providing for the offense of operating a jet ski while under the influence of alcohol or a controlled substance or substances; and including jet skis under the negligent homicide provision regarding motor boats and other vessels.

Be it enacted by the Legislature of West Virginia:
That sections eighteen, eighteen-a and eighteen-b, article seven, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-18. Care in handling watercraft; duty to render aid after a collision, accident or casualty; accident reports.

(a) No person shall operate a motorboat, jet ski or other vessel or manipulate any water skis, surfboard or similar device in a reckless or negligent manner so as to endanger the life, limb or property of any person.
(b) No person shall operate any motorboat, jet ski or vessel, or manipulate any water skis, surfboard or similar device while under the influence of alcohol or a controlled substance or drug, under the combined influence of alcohol and any controlled substance or any other drug, or while having an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight.
(c) It shall be the duty of the operator of a vessel involved in a collision, accident or other casualty, so far as he or she can do so without serious danger to his or her own vessel, crew and passengers (if any), to render to other persons affected by the collision, accident or other casualty such assistance as may be practicable and as may be necessary in order to save them from or minimize any danger caused by the collision, accident or other casualty, and also to give his or her name, address and identification of his or her vessel in writing to any person injured and to the owner of any property damaged in the collision, accident or other casualty.
(d) The operator of a vessel involved in a collision, accident or other casualty shall file an accident report with the director if the incident results in a loss of life, in a personal injury that requires medical treatment beyond first aid or in excess of five hundred dollars damage to a vessel or other property. The report shall be made on such forms and contain such information as prescribed by the director. Upon a request duly made by an authorized official or agency of the United States, any information compiled or otherwise available to the director pursuant to this subsection shall be transmitted to the official or agency.
 §20-7-18a. Negligent homicide; penalties.
(a) When the death of any person ensues within one year as a proximate result of injury received by operating any motorboat, jet ski or vessel anywhere in this state in reckless disregard of the safety of others, the person so operating such the motorboat or vessel shall be is guilty of negligent homicide.
(b) Any person convicted of negligent homicide shall be is punished by imprisonment for not more than one year or by fine of not less than one hundred dollars nor more than one thousand dollars, or by both such fine and imprisonment.
(c) The director shall suspend the privilege to operate a motorboat or vessel in this state for a period of five years from the date of conviction.
§20-7-18b. Operating under influence of alcohol, controlled substances or drugs; penalties.
(a) Any person who:
(1) Operates a motorboat, jet ski or vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails to perform any duty imposed by law in the operating of such the motorboat, jet ski or vessel, which act or failure proximately causes the death of any person within one year next following such the act or failure; and
(3) Commits such an act or failure in reckless disregard of the safety of others, and when the influence of alcohol, controlled substances or drugs is shown to be a contributing cause to such the death, shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary state correctional facility for not less than one nor more than ten years and shall be fined not less than one thousand dollars nor more than three thousand dollars.
(b) Any person who:
(1) Operates a motorboat, jet ski or vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails to perform any duty imposed by law in the operating of such the motorboat, jet ski or vessel, which act or failure proximately causes the death of any person within one year next following such the act or failure, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than ninety days nor more than one year and shall be fined not less than five hundred dollars nor more than one thousand dollars.
(c) Any person who:
(1) Operates a motorboat, jet ski or vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails to perform any duty imposed by law in the operating of such the motorboat or vessel, which act or failure proximately causes bodily injury to any person other than himself or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars.
(d) Any person who:
(1) Operates a motorboat, jet ski or vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than six months, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(e) Any person who, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, operates a motorboat, jet ski or vessel in this state, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than six months, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(f) Any person who:
(1) Knowingly permits his or her motorboat, jet ski or vessel to be operated in this state by any other person who is:
(A) Under the influence of alcohol; or
(B) Under the influence of any controlled substance; or
(C) Under the influence of any other drug; or
(D) Under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(g) Any person who:
Knowingly permits his or her motorboat, jet ski or vessel to be operated in this state by any other person who is an habitual user of narcotic drugs or amphetamine or any derivative thereof, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(h) Any person under the age of twenty-one years who operates a motorboat, jet ski or vessel in this state while he or she has an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than ten hundredths of one percent, by weight, shall, for a first offense under this subsection, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than one hundred dollars. For a second or subsequent offense under this subsection, such the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars.
A person arrested and charged with an offense under the provisions of subsection (a), (b), (c), (d), (e), (f), (g) or (i) of this section may not also be charged with an offense under this subsection arising out of the same transaction or occurrence.
(i) Any person who:
(1) Operates a motorboat, jet ski or vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight; and
(2) The person when so operating has on or within the motorboat, jet ski or vessel one or more other persons who are unemancipated minors who have not reached their sixteenth birthday, shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than two days nor more than twelve months, which jail term shall include actual confinement of not less than forty-eight hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars.
(j) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section shall, for the second offense under this section, be guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period of not less than six months nor more than one year, and the court may, in its discretion, impose a fine of not less than one thousand dollars nor more than three thousand dollars.
(k) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section shall, for the third or any subsequent offense under this section, be guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary state correctional facility for not less than one nor more than three years, and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars.
(l) For purposes of subsections (j) and (k) of this section relating to second, third and subsequent offenses, the following types of convictions shall be regarded as convictions under this section:
(1) Any conviction under the provisions of subsection (a), (b), (c), (d), (e) or (f) of this section for an offense which occurred on or after the effective date of this section;
(2) Any conviction under the provisions of subsection (a) or (b) of this section for an offense which occurred within a period of five years immediately preceding the date of the offense; and
(3) Any conviction under a municipal ordinance of this state or any other state or a statute of the United States or of any other state of an offense which has the same elements as an offense described in subsection (a), (b), (c), (d), (e), (f) or (g) of this section, which offense occurred after the effective date of this section.
(m) A person may be charged in a warrant or indictment or information for a second or subsequent offense under this section if the person has been previously arrested for or charged with a violation of this section which is alleged to have occurred within the applicable time periods for prior offenses, notwithstanding the fact that there has not been a final adjudication of the charges for the alleged previous offense. In such case, the warrant or indictment or information must set forth the date, location and particulars of the previous offense or offenses. No person may be convicted of a second or subsequent offense under this section unless the conviction for the previous offense has become final.
(n) The fact that any person charged with a violation of subsection (a), (b), (c), (d) or (e) of this section, or any person permitted to operate as described under subsection (f) or (g) of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug shall not constitute a defense against any charge of violating subsection (a), (b), (c), (d), (e), (f) or (g) of this section.
(o) For purposes of this section, the term "controlled substance" shall have the meaning ascribed to it in chapter sixty-a of this code.
(p) The sentences provided herein upon conviction for a violation of this article are mandatory and shall may not be subject to suspension or probation: Provided, That the court may apply the provisions of article eleven-a, chapter sixty-two of this code to a person sentenced or committed to a term of one year or less. An order for home detention by the court pursuant to the provisions of article eleven-b, chapter sixty-two of this code may be used as an alternative sentence to any period of incarceration required by this section.

NOTE: The purpose of this bill is to provide that operating a jet ski while under the influence of alcohol is a crime just as operating a motor boat while under the influence is a crime. The bill also includes jet skis under boating provisions concerning negligent homicide.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.