5-396

5-396. Aggravated operating or actual physical
control of motorized watercraft while under the influence of
intoxicating liquor or drugs; classification

A. A person is guilty of aggravated operating or actual physical control of a
motorized watercraft that is underway while under the influence of intoxicating liquor or
drugs if the person does any of the following:

1. Within a period of eighty-four months commits a third or subsequent violation of
section 5-395 or 5-397 or this section or is convicted of a violation of section 5-395 or
5-397 or this section and has previously been convicted of any combination of convictions
of section 5-395 or 5-397 or this section or acts committed in another jurisdiction that
if committed in this state would be a violation of section 5-395 or 5-397 or this
section.

2. While a person under fifteen years of age is aboard the motorized watercraft,
commits any of the following:

(a) A first violation of section 5-395, if the person recklessly endangers the
person who is under fifteen years of age with a substantial risk of physical injury.

(b) A second violation of section 5-395 within a period of eighty-four months.

B. The dates of the commission of the offenses are the determining factor in
applying the eighty-four month provision provided in subsection A, paragraph 1 or
paragraph 2, subdivision (b) of this section regardless of the sequence in which the
offenses were committed. For purposes of this section, a third or subsequent violation
for which a conviction occurs does not include a conviction for an offense arising out of
the same series of acts. The time that a probationer is found to be on absconder status
or the time that a person is incarcerated in any state, federal, county or city jail or
correctional facility is excluded when determining the eighty-four month period provided
in subsection A, paragraph 1, subsection A, paragraph 2, subdivision (b) and subsection D
of this section.

C. A person who is convicted under subsection A, paragraph 1 of this section and
who within an eighty-four month period has been convicted of two prior violations of
section 5-395 or 5-397 or this section, or acts committed in another jurisdiction that if
committed in this state would be a violation of section 5-395 or 5-397 or this section,
is not eligible for probation, pardon, commutation or suspension of sentence or release
on any other basis until the person has served not less than four months in prison.

D. A person who is convicted under subsection A, paragraph 1 of this section and
who within an eighty-four month period has been convicted of three or more prior
violations of section 5-395 or 5-397 or this section, or acts committed in another
jurisdiction that if committed in this state would be a violation of section 5-395 or
5-397 or this section, is not eligible for probation, pardon, commutation or suspension
of sentence or release on any other basis until the person has served not less than eight
months in prison.

E. A person who is convicted under subsection A, paragraph 2, subdivision (a) or
(b) of this section shall serve at least the minimum term of incarceration required
pursuant to section 5-395.01.

F. A person who is convicted under subsection A, paragraph 2, subdivision (c) of
this section shall serve at least the minimum term of incarceration required pursuant to
section 5-397.

G. A person who is convicted of a violation of this section and who is placed on
probation shall attend and complete alcohol or drug screening, counseling and education
from an approved facility and, if ordered by the court, treatment from an approved
facility. If the person fails to comply with this subsection, in addition to section
13-901 the court may order that the person be incarcerated as a term of probation as
follows:

1. For a person sentenced pursuant to subsection C of this section, for an
individual period of not more than four months and a total period of not more than one
year.

2. For a person sentenced pursuant to subsection D of this section, for an
individual period of not more than eight months and a total period of not more than two
years.

H. The time that a person spends in custody pursuant to subsection G of this
section shall not be counted toward the sentence imposed if the person's probation is
revoked and the person is sentenced to prison following revocation of probation.

I. On conviction for a violation of this section, the court:

1. Shall order the person to pay a fine of not less than seven hundred fifty
dollars.

2. In addition to any other penalty prescribed by law, shall order the person to
pay an additional assessment of two hundred fifty dollars. If the conviction occurred in
the superior court or a justice court, the court shall transmit the assessed monies to
the county treasurer. If the conviction occurred in a municipal court, the court shall
transmit the assessed monies to the city treasurer. The city or county treasurer shall
transmit the monies received to the state treasurer. The state treasurer shall deposit
the monies received in the driving under the influence abatement fund established by
section 28-1304. Any fine imposed for a violation of this section and any assessments,
restitution and incarceration costs shall be paid before the assessment prescribed in
this paragraph.

3. In addition to any other penalty prescribed by law, shall order the person to
pay an additional assessment of one thousand five hundred dollars to be deposited by
the state treasurer in the prison construction and operations fund established by section
41-1651. This assessment is not subject to any surcharge. If the conviction occurred in
the superior court or a justice court, the court shall transmit the assessed monies to
the county treasurer. If the conviction occurred in a municipal court, the court shall
transmit the assessed monies to the city treasurer. The city or county treasurer shall
transmit the monies received to the state treasurer.

4. In addition to any other penalty prescribed by law, shall order the person to
pay an additional assessment of one thousand five hundred dollars to be deposited by the
state treasurer in the public safety equipment fund established by section 41-1723. This
assessment is not subject to any surcharge. If the conviction occurred in the superior
court or a justice court, the court shall transmit the assessed monies to the county
treasurer. If the conviction occurred in a municipal court, the court shall transmit the
assessed monies to the city treasurer. The city or county treasurer shall transmit the
monies received to the state treasurer.

J. Aggravated operating or actual physical control of a motorized watercraft that
is underway while under the influence of an intoxicating liquor or drugs committed under:

1. Subsection A, paragraph 1 of this section is a class 4 felony.

2. Subsection A, paragraph 2 of this section is a class 6 felony.