act-1997-0-49•Pennsylvania Act 1997-49 — FISH AND BOAT CODE (30 PA.C.S.) - AMEND
Pennsylvania Act 1997-49 — FISH AND BOAT CODE (30 PA.C.S.) - AMEND
act-1997-0-491997 Pa. Act 49Law
Act text
FISH AND BOAT CODE (30 PA.C.S.) - AMEND
Act of Oct. 31, 1997, P.L. 485, No. 49 Cl. 30
Session of 1997
No. 1997-49
SB 55
AN ACT
Amending Title 30 (Fish) of the Pennsylvania Consolidated
Statutes, further providing for operating watercraft under
influence of alcohol or controlled substance, for chemical
testing and for classification of offenses and penalties.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 923(a) of Title 30 of the Pennsylvania
Consolidated Statutes is amended to read:
§ 923. Classification of offenses and penalties.
(a) General rule.--The following penalties shall be imposed
for violations of this title:
(1) For a summary offense of the first degree, a fine of
$100 or imprisonment not exceeding 90 days.
(2) For a summary offense of the second degree, a fine
of $50 or imprisonment not exceeding 20 days.
(3) For a summary offense of the third degree, a fine of
$25.
(4) For a summary offense of the fourth degree, a fine
of $10.
(5) For a misdemeanor of the third degree, a fine of not
less than $250 nor more than $5,000, or imprisonment not
exceeding 90 days, or both.
(6) For a misdemeanor of the second degree, a fine of
not less than $500 nor more than $7,500, or imprisonment not
exceeding two years, or both.
[(6)] (7) For a misdemeanor of the first degree, a fine
of not less than $2,500 nor more than $10,000, or
imprisonment not exceeding five years, or both.
[(7)] (8) For a felony of the third degree, a fine of
not less than $2,500 nor exceeding $15,000, or imprisonment
not exceeding seven years, or both.
* * *
Section 2. Title 30 is amended by adding a section to read:
§ 5124.1. Liquor or malt or brewed beverages.
(a) General rule.--In an action or proceeding under this
title in which a material element of the offense or action is
that a substance is liquor or a malt or brewed beverage, all the
following shall apply:
(1) Chemical analysis is not required to prove that the
substance is liquor or a malt or brewed beverage.
(2) Circumstantial evidence is sufficient to prove that
the substance is liquor or a malt or brewed beverage.
(b) Evidence presented by a defendant.--Notwithstanding
subsection (a), nothing shall prevent a defendant from
presenting evidence that a substance is not liquor or a malt or
brewed beverage.
(c) Applicability.--The provisions of this section shall
apply to proceedings brought by officers authorized to enforce
this title under this title, Titles 18 (relating to crimes and
offenses), 42 (relating to judiciary and judicial procedure) and
75 (relating to vehicles) and the act of April 12, 1951 (P.L.90,
No.21), known as the Liquor Code.
Section 3. Sections 5125(j) and 5502 of Title 30 are amended
to read:
§ 5125. Chemical testing to determine amount of alcohol or
controlled substance.
* * *
(j) Immunity from civil liability and reports.--No
physician, nurse or technician or hospital employing the
physician, nurse or technician and no other employer of the
physician, nurse or technician shall be civilly liable for
[properly] withdrawing blood or obtaining a urine sample and
reporting test results to [the waterways patrolman] an officer
authorized to enforce this title at the request of [a waterways
patrolman under this section] the commission or an officer
authorized to enforce this title. No physician, nurse or
technician or hospital employing the physician, nurse or
technician may administratively refuse to perform the tests and
provide the results to the [waterways patrolman] officer
authorized to enforce this title except as may be reasonably
expected from unusual circumstances that pertain at the time the
request is made.
* * *
§ 5502. Operating watercraft under influence of alcohol or
controlled substance.
(a) General rule.--No person shall operate or be in actual
physical control of the movement of a watercraft upon, in or
through the waters of this Commonwealth [while]:
(1) while under the influence of alcohol to a degree
which renders the person incapable of safe operation of [the]
a watercraft;
(2) while under the influence of any controlled
substance, as defined by the laws of this Commonwealth and
rules and regulations promulgated thereunder, to a degree
which renders the person incapable of safe operation of a
watercraft;
(3) while under the combined influence of alcohol and a
controlled substance to a degree which renders the person
incapable of safe operation of a watercraft; or
(4) while the amount of alcohol by weight in the blood
of [the person is 0.10% or greater.]:
(i) an adult is 0.10% or greater; or
(ii) a minor is 0.02% or greater.
(a.1) Prima facie evidence.--
(1) It is prima facie evidence that:
(i) an adult had 0.10% or more by weight of alcohol
in his or her blood at the time of operating or being in
actual physical control of the movement of a watercraft
if the amount of alcohol by weight in the blood of the
person is equal to or greater than 0.10% at the time a
chemical test is performed on a sample of the person's
breath, blood or urine; and
(ii) a minor had 0.02% or more by weight of alcohol
in his or her blood at the time of operating or being in
actual physical control of the movement of a watercraft
if the amount of alcohol by weight in the blood of the
minor is equal to or greater than 0.02% at the time a
chemical test is performed on a sample of the person's
breath, blood or urine.
(2) For the purposes of this section, the chemical test
of the sample of the person's breath, blood or urine shall be
from a sample obtained within three hours after the person
drove, operated or was in actual physical control of the
watercraft.
(b) [Legal use no] Authorized use not a defense.--The fact
that any person charged with violating this section is or has
been legally entitled to use alcohol or controlled substances is
not a defense to a charge of violating this section.
(b.1) Certain arrests authorized.--In addition to any other
powers of arrest, an officer authorized to enforce this title is
hereby authorized to arrest without a warrant any person who the
officer has probable cause to believe has violated the
provisions of this section, regardless of whether the alleged
violation was committed in the presence of such officer. This
authority to arrest extends to any hospital or other medical
treatment facility located beyond the territorial limits of the
officer's political subdivision where the person to be arrested
is found or was taken for purposes of emergency treatment,
examination or evaluation, provided there is probable cause to
believe that the violation of this section occurred within the
police officer's political subdivision.
(b.2) Certain disposition prohibited.--The attorney for the
Commonwealth shall not submit a charge brought under this
section for Accelerated Rehabilitative Disposition if:
(1) The defendant has been found guilty of or accepted
Accelerated Rehabilitative Disposition of a charge brought
under this section within seven years of the date of the
current offense.
(2) An accident occurred in connection with the events
surrounding the current offense and any person other than the
defendant was killed or seriously injured as a result of the
accident.
[(c) Penalty.--A person violating any of the provisions of
this section commits a misdemeanor of the third degree.]
(c) Grading and penalties.--
(1) A person violating any of the provisions of this
section commits a misdemeanor of the second degree except a
person who meets the requirements of paragraph (2). The
sentencing court shall order the person to pay a fine of not
less than $500 and to serve a minimum term of imprisonment
of:
(i) not less than 48 consecutive hours; or
(ii) not less than 30 days if the person had
previously accepted Accelerated Rehabilitative
Disposition or any other form of preliminary disposition
or had been convicted of, adjudicated delinquent or
granted a consent decree under 42 Pa.C.S. Ch. 63
(relating to juvenile matters) based on an offense under
this section or an equivalent offense in this or other
jurisdictions within the previous seven years calculated
from the date of acceptance, conviction, adjudication or
grant.
(2) If the person has two or more times previously been
convicted of, adjudicated delinquent or granted a consent
decree under 42 Pa.C.S. Ch. 63 based on an offense under this
section or an equivalent offense in this or other
jurisdictions within the previous seven years, a person
commits a misdemeanor of the first degree. The sentencing
court shall order the person to pay a fine of not less than
$2,500 nor more than $10,000 and to serve a minimum term of
imprisonment of not less than 90 days.
(d) Subsequent conviction.--Acceptance of Accelerated
Rehabilitative Disposition, an adjudication of delinquency or a
consent decree under 42 Pa.C.S. Ch. 63 or any other form of
preliminary disposition of any charge brought under this section
shall be considered a first conviction for the purpose of
computing whether a subsequent conviction of a violation of this
section shall be considered a second, third or subsequent
conviction.
(e) Sentencing guidelines.--The sentencing guidelines
promulgated by the Pennsylvania Commission on Sentencing shall
not supersede the mandatory penalties of this section.
(f) Direct appeal.--The Commonwealth has the right to appeal
directly to the Superior Court any order of court which imposes
a sentence for violation of this section which does not meet the
requirements of this section. The Superior Court shall remand
the case to the sentencing court for imposition of a sentence in
accordance with the provisions of this section.
(g) City of first class.--Notwithstanding the provision for
direct appeal to the Superior Court, if, in a city of the first
class, a person appeals from a judgment of sentence under this
section from the municipal court to the common pleas court for a
trial de novo, the Commonwealth shall have the right to appeal
directly to the Superior Court from the order of the common
pleas court if the sentence imposed is in violation of this
section. If, in a city of the first class, a person appeals to
the court of common pleas after conviction of a violation of
this section in the municipal court and thereafter withdraws his
appeal to the common pleas court, thereby reinstating the
judgment of sentence of the municipal court, the Commonwealth
shall have 30 days from the date of the withdrawal to appeal to
the Superior Court if the sentence is in violation of this
section.
(h) Acceptance of ARD.--Any person who accepts Accelerated
Rehabilitative Disposition of any charge brought under this
section shall accept as conditions the imposition of, and the
judge shall impose in addition to any other condition, all of
the following:
(1) A mandatory suspension of watercraft operating
privileges for a period of not less than six months but not
more than 12 months.
(2) A condition that the defendant, as a condition to
entering the program, make restitution to any person who
incurred determinable financial loss as a result of the
defendant's actions which resulted in a charge of violating
this section.
(3) A condition that the defendant, as a condition to
entering the program, attend and successfully complete at his
own expense a commission-approved boating safety course.
(4) Court supervision for a period of not less than six
months. In cases where the defendant is required to make
restitution or submit to counseling or treatment, the court
supervision shall be for a period of not less than 12 months
or until the treatment or counseling is completed and the
restitution is paid in full, whichever is longer.
(i) Preliminary disposition revoked.--Accelerated
Rehabilitative Disposition or other preliminary disposition of
any charge of violating this section may be revoked and the
court shall direct the attorney for the Commonwealth to proceed
on the charges as prescribed in general rules if any of the
following circumstances occur:
(1) The defendant is charged with or commits an offense
which violates the provisions of this section, any crime
enumerated in 18 Pa.C.S. (relating to crimes and offenses) or
any crime enumerated in 75 Pa.C.S. § 1542 (relating to
revocation of habitual offender's license) within the
probationary period.
(2) The defendant fails to make restitution as provided
for in this section.
(3) The defendant fails to successfully complete the
boating safety course.
(4) The defendant fails to successfully complete any
program of counseling or treatment, or both, required as a
condition of Accelerated Rehabilitative Disposition.
(5) The defendant violates the terms and conditions of
Accelerated Rehabilitative Disposition in any other way.
(j) Litter collection program.--In addition to the
conditions set forth under subsection (i) for Accelerated
Rehabilitative Disposition of any charge brought under this
section, the judge may impose and the person shall accept the
condition that the person engage in a program of collecting
litter from public and private property along Commonwealth
waterways, especially property which is littered with alcoholic
beverage containers. The duration of the person's participation
in a litter collection program shall not exceed the duration of
the probationary period imposed on the person under Accelerated
Rehabilitative Disposition.
(k) Fees to be paid into Boat Fund.--With the exception of
court costs, program costs for counseling, treatment or a
boating safety course or any restitution referred to in this
section, any fee or financial condition imposed by a judge as a
condition of Accelerated Rehabilitative Disposition or any other
preliminary disposition of any charge under this section shall
be paid into the Boat Fund under section 531 (relating to
establishment and use of Boat Fund).
(l) Preliminary hearing or arraignment.--The presiding
judicial officer at the preliminary hearing or preliminary
arraignment relating to any charge of a violation of this
section shall not reduce or modify the original charges.
(m) Work release.--In any case in which a person is
sentenced to a period of imprisonment as a result of a
conviction for violating any provision of this section, the
judicial officer imposing that sentence shall consider assigning
that person to a daytime work release program pursuant to which
the person would be required to collect litter from public and
private property, especially property which is littered with
alcoholic beverage containers.
(n) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection:
"Adult." A person 21 years of age or older.
"Minor." A person under 21 years of age.
Section 4. This act shall take effect in 60 days.
APPROVED--The 31st day of October, A. D. 1997.
THOMAS J. RIDGE
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