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AB-2175 Vessels: removal.(2017-2018)

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Date Published: 04/13/2018 04:00 AM
AB2175:v97#DOCUMENT

Amended  IN  Assembly  April 12, 2018
Amended  IN  Assembly  March 15, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2175


Introduced by Assembly Member Aguiar-Curry

February 12, 2018


An act to amend Sections 523 and 655 Section 523 of the Harbors and Navigation Code, relating to vessels.


LEGISLATIVE COUNSEL'S DIGEST


AB 2175, as amended, Aguiar-Curry. Vessels: removal: watercraft safety. removal.

(1)Existing

Existing law authorizes any peace officer, as described, or any lifeguard or marine safety officer employed by a county, city, or district, while engaged in the performance of official duties, to remove a vessel from, and, if necessary, store a vessel removed from, a public waterway in certain circumstances.
This bill would authorize a peace officer or marine safety officer, while engaged in the performance of official duties, to remove a vessel from, and, if necessary, store a vessel removed from, public property within the territorial limits in which the officer may act, under specified circumstances relating to the use of the vessel in the commission of a crime. The bill would authorize a court to order a person convicted of a crime involving the use of a vessel that is removed and impounded pursuant to these provisions to pay the costs of towing and storage of the vessel and any related administrative costs imposed in connection with the removal, impoundment, storage, or release of the vessel.

(2)Existing law prohibits a person from using a vessel or other described device in a reckless or negligent manner so as to endanger the life, limb, or property of any person. Under existing law, a person who violates this provision is guilty of an infraction or a misdemeanor, as specified. Existing law requires the Division of Boating and Waterways to adopt regulations for the use of vessels and other described devices in a manner that will minimize the danger to life, limb, or property consistent with reasonable use of the equipment. Existing regulations provide that riding on a vessel propelled by machinery, as specified, is an act that endangers life, limb, or property.

This bill would provide that any person convicted of using a vessel or manipulating water skis, an aquaplane, or a similar device in a reckless or negligent manner that causes great bodily injury to another person shall be punished as provided. By changing the penalty for a crime, the bill would impose a state-mandated local program.

(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law authorizes any peace officer, as described, or any lifeguard or marine safety officer employed by a county, city, or district, while engaged in the performance of official duties, to remove and, if necessary, store a vessel, as defined, removed from a public waterway under specified circumstances.

This bill would make nonsubstantive changes to that provision.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YESNO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 523 of the Harbors and Navigation Code is amended to read:

523.
 (a) A peace officer, as described in Section 663, or a lifeguard or marine safety officer employed by a county, city, or district while engaged in the performance of official duties, may remove a vessel from, and, if necessary, store a vessel removed from, a public waterway under any of the following circumstances:
(1) When the vessel is left unattended and is moored, docked, beached, or made fast to land in a position that obstructs the normal movement of traffic or in a condition that creates a hazard to other vessels using the waterway, to public safety, or to the property of another.
(2) When the vessel is found upon a waterway and a report has previously been made that the vessel has been stolen or a complaint has been filed and a warrant thereon issued charging that the vessel has been embezzled.
(3) When the person or persons in charge of the vessel are by reason of physical injuries or illness incapacitated to an extent as to be unable to provide for its custody or removal.
(4) When an officer arrests a person operating or in control of the vessel for an alleged offense, and the officer is, by any provision of this code or other statute, required or permitted to take, and does take, the person arrested before a magistrate without unnecessary delay.
(5) When the vessel interferes with, or otherwise poses a danger to, navigation or to the public health, safety, or welfare.
(6) When the vessel poses a threat to adjacent wetlands, levies, sensitive habitat, any protected wildlife species, or water quality.
(7) When a vessel is found or operated upon a waterway with a registration expiration date in excess of one year before the date on which it is found or operated on the waterway.
(b) Costs incurred by a public entity pursuant to removal of vessels under subdivision (a) may be recovered through appropriate action in the courts of this state.
(c) (1) A peace officer, as described in Section 663, or marine safety officer employed by a city, county, or district, while engaged in the performance of official duties, may remove a vessel from, and, if necessary, store a vessel removed from, public property within the territorial limits in which the officer may act, in either of the following circumstances:
(A) When any vessel is found upon the public property and the officer has probable cause to believe the vessel was used in the commission of a crime.
(B) When a vessel is found upon public property and an officer has probable cause to believe that the vessel itself provides evidence that a crime was committed or the vessel contains evidence of a possible crime that was committed and the evidence cannot be easily removed from the vessel.
(2) Notwithstanding Section 3068 of the Civil Code, or Section 22851 of the Vehicle Code, no lien shall attach to a vessel removed under this subdivision unless it is determined that the vessel was used in the commission of a crime with the express or implied consent of the owner of the vessel.
(3) In any prosecution of a crime for which a vessel was removed and impounded under this subdivision, a court may order a person convicted of a crime involving the use of a vessel to pay the costs of towing and storage of the vessel and any administrative charges imposed in connection with the removal, impoundment, storage, or release of the vessel.

SEC. 2.Section 655 of the Harbors and Navigation Code is amended to read:
655.

(a)(1)No person shall use any vessel or manipulate water skis, an aquaplane, or a similar device in a reckless or negligent manner so as to endanger the life, limb, or property of any person. The department shall adopt regulations for the use of vessels, water skis, aquaplanes, or similar devices in a manner that will minimize the danger to life, limb, or property consistent with reasonable use of the equipment for the purpose for which it was designed.

(2)Notwithstanding subdivision (b) of Section 668, any person convicted of using a vessel or manipulating water skis, an aquaplane, or a similar device in a reckless or negligent manner that causes great bodily injury to another person shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code or by imprisonment in a county jail for not more than six months.

(b)No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.

(c)No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.

(d)No person shall operate any vessel other than a recreational vessel if the person has an alcohol concentration of 0.04 percent or more in his or her blood.

(e)No person shall operate any vessel, or manipulate water skis, an aquaplane, or a similar device who is addicted to the use of any drug. This subdivision does not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.

(f)No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or under the combined influence of an alcoholic beverage and any drug, and while so operating, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, water skis, aquaplane, or similar device, which act or neglect proximately causes bodily injury to any person other than himself or herself.

(g)Notwithstanding any other provision of law, information, verbal or otherwise, which is obtained from a commissioned, warrant, or petty officer of the United States Coast Guard who directly observed the offense may be used as the sole basis for establishing the necessary reasonable cause for a peace officer of this state to make an arrest pursuant to the United States Constitution, the California Constitution, and Section 836 of the Penal Code for violations of subdivisions (b), (c), (d), and (e) of this section.

(h)In any prosecution under subdivision (c), it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of operation of a recreational vessel if the person had an alcohol concentration of 0.08 percent or more in his or her blood at the time of the performance of a chemical test within three hours after the operation.

(i)In any prosecution under subdivision (d), it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of operation of a vessel other than a recreational vessel if the person had an alcohol concentration of 0.04 percent or more in his or her blood at the time of the performance of a chemical test within three hours after the operation.

(j)Upon the trial of any criminal action, or preliminary proceeding in a criminal action, arising out of acts alleged to have been committed by any person who was operating a vessel or manipulating water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage in violation of subdivision (b) or (f), the amount of alcohol in the person’s blood at the time of the test, as shown by a chemical test of that person’s blood, breath, or urine, shall give rise to the following presumptions affecting the burden of proof:

(1)If there was at that time less than 0.05 percent, by weight, of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense.

(2)If there was at that time 0.05 percent or more, but less than 0.08 percent, by weight, of alcohol in the person’s blood, that fact shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but the fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage at the time of the alleged offense.

(3)If there was at that time 0.08 percent or more, by weight, of alcohol in the person’s blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense.

(k)This section does not limit the introduction of any other competent evidence bearing upon the question whether the person ingested any alcoholic beverage or was under the influence of an alcoholic beverage at the time of the alleged offense.

(l)This section applies to foreign vessels using waters subject to state jurisdiction.

(m)Nothing in this section shall preclude prosecution under any other law.

SEC. 3.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.