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SB-1247 Vessels: operation under the influence of alcohol or drugs: chemical testing.(2017-2018)

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Date Published: 04/03/2018 04:00 AM
SB1247:v98#DOCUMENT

Amended  IN  Senate  April 02, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 1247


Introduced by Senator Gaines

February 15, 2018


An act to amend Section 651 655.1 of the Harbors and Navigation Code, relating to vessels.


LEGISLATIVE COUNSEL'S DIGEST


SB 1247, as amended, Gaines. Vessels: machinery: mechanically propelled vessel. operation under the influence of alcohol or drugs: chemical testing.
Existing law authorizes a peace officer, having reasonable cause to believe that any person was operating a mechanically propelled vessel or manipulating any water skis, aquaplane, or similar device under the influence of an alcoholic beverage or any drug, or both, who lawfully arrests the person for any violation of specified enumerated offenses involving the reckless or negligent operation of a vessel or water-related device while under the influence of an alcoholic beverage or any drug, or both, to request that the person submit to chemical testing of his or her blood, breath, or urine for the purpose of determining the drug or alcoholic content of the blood, as prescribed. Existing law also requires that the arrested individual be advised that a criminal complaint may be filed against him or her for operating a mechanically propelled vessel while under the influence of an alcoholic beverage or any drug, or both; that he or she has a right to refuse chemical testing; and that the peace officer has the authority to seek a search warrant compelling him or her to submit a blood sample. Existing law, for purposes of the above provision, defines “mechanically propelled vessel” to mean any vessel actively propelled by machinery, whether or not the machinery is the principal source of propulsion.
This bill would delete that definition of “mechanically propelled vessel” and would instead authorize a peace officer having reasonable cause to believe that any person was operating a vessel, as defined, or manipulating any water skis, aquaplane, or similar device under the influence of an alcoholic beverage or any drug, or both, who lawfully arrests such a person for such a violation, to request that the person submit to that chemical testing of his or her blood, breath, or urine.

Existing law governs vessels and associated equipment used, to be used, or carried in vessels used on waters subject to the jurisdiction of this state, except as provided. For these purposes, existing law defines “vessel” to mean every description of watercraft used or capable of being used as a means of transportation on water, except as specified.

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 violation of this provision is a misdemeanor. 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 endangered life, limb, or property.

This bill would, for purposes of those provisions governing vessels and associated equipment, define “machinery” as any sail, rigging, rudder, oar, paddle, or similar device used on a vessel. The bill would further provide that any vessel that uses machinery in its operation is a mechanically propelled vessel.

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

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


SECTION 1.

 Section 655.1 of the Harbors and Navigation Code is amended to read:
655.1.

(a)As used in this section, “mechanically propelled vessel” means any vessel actively propelled by machinery, whether or not the machinery is the principal source of propulsion.

(b)

655.1.
 (a) (1) A peace officer, having reasonable cause to believe that any person was operating a mechanically propelled vessel or manipulating any water skis, aquaplane, or similar device under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, who lawfully arrests the person for any violation of subdivision (b), (c), (d), (e), or (f) of Section 655, may request that person to submit to chemical testing of his or her blood, breath, or urine for the purpose of determining the drug or alcoholic content of the blood.
(2) The arrested person shall be advised of all of the following:
(A) A criminal complaint may be filed against him or her for operating a mechanically propelled vessel or manipulating any water skis, aquaplane, or similar device under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug.
(B) He or she has a right to refuse chemical testing.
(C) An officer has the authority to seek a search warrant compelling the arrested person to submit a blood sample as described in paragraph (16) of subdivision (a) of Section 1524 of the Penal Code.
(D) He or she does not have the right to have an attorney present before stating whether he or she will submit to the chemical testing, before deciding which chemical test or tests to take, or during the administration of the chemical test or tests chosen.

(c)

(b) If the person is lawfully arrested for operating a mechanically propelled vessel or manipulating any water skis, aquaplane, or similar device under the influence of an alcoholic beverage and submits to the chemical testing, the person has the choice of whether the chemical test shall be of his or her blood or breath and the person shall be advised by the arresting officer that he or she has that choice. If the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test. If a blood or breath test, or both, are unavailable, then subdivision (n) (m) applies.

(d)

(c) If the person is lawfully arrested for operating a mechanically propelled vessel or manipulating any water skis, aquaplane, or similar device under the influence of any drug or the combined influence of an alcoholic beverage and any drug and submits to the chemical testing, the person has the choice of whether the chemical test shall be of his or her blood, breath, or urine, and the officer shall advise the person that he or she has that choice.

(e)

(d) A person who chooses to submit to a breath test may also be requested to submit to a blood or urine test if the arresting officer has reasonable cause to believe that the person was operating a mechanically propelled vessel or manipulating any water skis, aquaplane, or similar device under the influence of any drug, or the combined influence of an alcoholic beverage and any drug, and if the arresting officer has a clear indication that a blood or urine test will reveal evidence of the person being under the influence. The arresting officer shall state in his or her report the facts upon which that belief and that clear indication are based. The person shall have the choice of submitting to and completing a blood or urine test, and shall be advised by the arresting officer that he or she is requested to submit to an additional test, and that he or she may choose a test of either blood or urine. If the person arrested is either incapable, or states that he or she is incapable, of completing either chosen chemical test, the person shall submit to and complete the other remaining chemical test.

(f)

(e) (1) A person who chooses to submit to a breath test shall be advised before or after the breath test that the breath-testing equipment does not retain any sample of the breath, and that no breath sample will be available after the breath test which could be analyzed later by the person or any other person.
(2) The person shall also be advised that, because no breath sample is retained, the person will be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so that there will be something retained that may be subsequently analyzed for the alcoholic content of the person’s blood. If the person completes a breath test and wishes to provide a blood or urine sample to be retained, the sample shall be collected and retained in the same manner as if the person had chosen a blood or urine test initially.
(3) The person shall also be advised that the blood or urine sample may be tested by either party in any criminal prosecution. The failure of either party to perform this chemical test shall place no duty upon the opposing party to perform the chemical test nor affect the admissibility of any other evidence of the drug or alcoholic content of the blood of the person arrested.

(g)

(f) If the person is lawfully arrested for any offense allegedly committed in violation of subdivision (b), (c), (d), (e), or (f) of Section 655, and because of the need for medical treatment, the person is first transported to a medical facility where it is not feasible to administer a particular chemical test of, or to obtain a particular sample of, the person’s blood, breath, or urine, the person has the choice of submitting to those chemical tests that are available at the facility to which that person has been transported. In this event, the arresting officer shall advise the person of those chemical tests that are available at the medical facility, and that the person’s choice is limited to those chemical tests that are available.

(h)

(g) Any person who is unconscious or otherwise in a condition rendering him or her incapable of refusal may be subjected to chemical testing of his or her blood, breath, or urine for the purpose of determining the drug or alcoholic content of the blood, whether or not the person is advised of the information specified in paragraph (2) of subdivision (b). (a).

(i)

(h) Any person who is afflicted with hemophilia is exempt from the blood test provided for in this section.

(j)

(i) Any person who is afflicted with a heart condition and is using an anticoagulant under the direction of a licensed physician and surgeon is exempt from the blood test provided for in this section.

(k)

(j) A person lawfully arrested for any offense allegedly committed while the person was operating a mechanically propelled vessel or manipulating any water skis, aquaplane, or similar device in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 may request the arresting officer to have a chemical test made of his or her blood or breath for the purpose of determining the drug or alcoholic content of the blood and, if so requested, the arresting officer shall have the chemical test performed. However, if a blood or breath test, or both, are unavailable, then subdivision (n) (m) applies.

(l)

(k) Any chemical test of blood, breath, or urine to determine the percentage, by weight, of alcohol in the blood shall be performed in accordance with Section 23158 of the Vehicle Code.

(m)

(l) This section does not limit the authority of a peace officer to gather evidence from a person lawfully arrested for a violation of subdivision (b), (c), (d), (e), or (f) of Section 655.

(n)

(m) If a blood or breath test is not available under paragraph (1) of subdivision (c) (b) or under subdivision (k), (j), the person shall submit to the remaining test in order to determine the percentage, by weight, of alcohol in the person’s blood. If both the blood and breath tests are unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.

SECTION 1.Section 651 of the Harbors and Navigation Code is amended to read:
651.

As used in this chapter, unless the context clearly requires a different meaning:

(a)“Alcohol” means any form or derivative of ethyl alcohol (ethanol).

(b)“Alcohol concentration” means either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

(c)“Associated equipment” means any of the following, excluding radio equipment:

(1)Any system, part, or component of a boat as originally manufactured or any similar part or component manufactured or sold for replacement, repair, or improvement of the system, part, or component.

(2)Any accessory or equipment for, or appurtenance to, a boat.

(3)Any marine safety article, accessory, or equipment intended for use by a person on board a boat.

(d)“Boat” means any vessel that is any of the following:

(1)Manufactured or used primarily for noncommercial use.

(2)Leased, rented, or chartered to another for the latter’s noncommercial use.

(3)Engaged in the carrying of six or fewer passengers, including those for-hire vessels carrying more than three passengers while using inland waters of the state that are not declared navigable by the United States Coast Guard.

(4)Commercial vessels required to be numbered pursuant to Section 9850 of the Vehicle Code.

(e)“Chemical test” means a test that analyzes an individual’s breath, blood, or urine for evidence of drug or alcohol use.

(f)“Controlled substance” means controlled substance as defined in Section 11007 of the Health and Safety Code.

(g)“Department” means the Department of Boating and Waterways.

(h)“Director” means the Director of Boating and Waterways.

(i)“Drug” means any substance or combination of substances other than alcohol that could so affect the nervous system, brain, or muscles of a person as to impair to an appreciable degree his or her ability to operate a vessel in the manner that an ordinarily prudent person, in full possession of his or her faculties, using reasonable care, would operate a similar vessel under like conditions.

(j)“Intoxicant” means any form of alcohol, drug, or combination thereof.

(k)“Legal owner” is a person holding the legal title to a vessel under a conditional sale contract, the mortgagee of a vessel, or the renter or lessor of a vessel to the state, or to any county, city, district, or political subdivision of the state, under a lease, lease-sale, or rental-purchase agreement that grants possession of the vessel to the lessee for a period of 30 consecutive days or more.

(l)(1)“Machinery” means any sail, rigging, rudder, oar, paddle, or similar device.

(2)Any vessel that uses machinery in its operation is a mechanically propelled vessel.

(m)“Manufacturer” means any person engaged in any of the following:

(1)The manufacture, construction, or assembly of boats or associated equipment.

(2)The manufacture or construction of components for boats and associated equipment to be sold for subsequent assembly.

(3)The importation into this state for sale of boats, associated equipment, or components thereof.

(n)“Marine employer” means the owner, managing operator, charterer, agent, master, or person in charge of a vessel other than a recreational vessel.

(o)“Motorboat” means any vessel propelled by machinery, whether or not the machinery is the principal source of propulsion, but shall not include a vessel that has a valid marine document issued by the United States Coast Guard or any federal agency successor thereto.

(p)“Operator” means the person on board who is steering the vessel while underway.

(q)“Owner” is a person having all the incidents of ownership, including the legal title, of a vessel whether or not that person lends, rents, or pledges the vessel; the person entitled to the possession of a vessel as the purchaser under a conditional sale contract; or the mortgagor of a vessel. “Owner” does not include a person holding legal title to a vessel under a conditional sale contract, the mortgagee of a vessel, or the renter or lessor of a vessel to the state or to any county, city, district, or political subdivision of the state under a lease, lease-sale, or rental-purchase agreement that grants possession of the vessel to the lessee for a period of 30 consecutive days or more.

(r)“Passenger” means every person carried on board a vessel other than any of the following:

(1)The owner or his or her representative.

(2)The operator.

(3)Bona fide members of the crew engaged in the business of the vessel who have contributed no consideration for their carriage and who are paid for their services.

(4)Any guest on board a vessel that is being used exclusively for pleasure purposes who has not contributed any consideration, directly or indirectly, for his or her carriage.

(s)“Person” means an individual, partnership, firm, corporation, limited liability company, association, or other entity, but does not include the United States, the state, or a municipality or subdivision thereof.

(t)“Personal watercraft” means a vessel 13 feet in length or less, propelled by machinery, that is designed to be operated by a person sitting, standing, or kneeling on the vessel, rather than in the conventional manner of sitting or standing inside the vessel.

(u)“Recreational vessel” means a vessel that is being used only for pleasure.

(v)“Registered owner” is the person registered by the Department of Motor Vehicles as the owner of the vessel.

(w)“Special-use area” means all or a portion of a waterway that is set aside for specified uses or activities to the exclusion of other incompatible uses or activities.

(x)“State” means a state of the United States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the District of Columbia.

(y)“State of principal use” means the state on which waters a vessel is used or intended to be used most during a calendar year.

(z)“Undocumented vessel” means any vessel that is not required to have, and does not have, a valid marine document issued by the United States Coast Guard or any federal agency successor thereto.

(aa)“Use” means operate, navigate, or employ.

(ab)“Vessel” includes every description of a watercraft or other artificial contrivance used or capable of being used as a means of transportation on water, except either of the following:

(1)A seaplane on the water.

(2)A watercraft specifically designed to operate on a permanently fixed course, the movement of which is restricted to a fixed track or arm to which the watercraft is attached or by which the watercraft is controlled.

(ac)“Water skis, an aquaplane, or a similar device” includes all forms of water skiing, barefoot skiing, skiing on skim boards, knee boards, or other contrivances, parasailing, ski kiting, or any activity where a person is towed behind or alongside a boat.

(ad)“Waters of this state” means any waters within the territorial limits of this state.