5-397

5-397. Operating or in actual physical control
of a motorized watercraft while under the extreme influence of
intoxicating liquor; trial by jury; sentencing; classification;
definition

A. It is unlawful for a person to operate or be in actual physical control of a
motorized watercraft that is underway within this state if the person has an alcohol
concentration as follows within two hours of operating or being in actual physical
control of the motorized watercraft and the alcohol concentration results from alcohol
consumed either before or while operating or being in actual physical control of the
motorized watercraft:

1. 0.15 or more but less than 0.20.

2. 0.20 or more.

B. A person who is convicted of a violation of this section is guilty of operating
or being in actual physical control of a motorized watercraft while under the extreme
influence of alcohol.

C. At the arraignment, the court shall inform the defendant that the defendant may
request a trial by jury and that the request, if made, shall be granted.

D. A person who is convicted of a violation of this section:

1. Shall be sentenced to serve not less than thirty consecutive days in jail and is
not eligible for probation or suspension of execution of sentence unless the entire
sentence is served if the person is convicted of a violation of subsection A, paragraph 1
of this section. A person who is convicted of a violation of subsection A, paragraph 2 of
this section shall be sentenced to serve not less than forty-five consecutive days in
jail and is not eligible for probation or suspension of execution of sentence unless the
entire sentence is served.

2. Shall pay a fine of not less than two hundred fifty dollars, except that a
person who is convicted of a violation of subsection A, paragraph 2 of this section shall
pay a fine of not less than five hundred dollars. The fine prescribed in this paragraph
and any assessments, restitution and incarceration costs shall be paid before the
assessment prescribed in paragraph 3 of this subsection.

3. Shall 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.

4. May be ordered by a court to perform community restitution.

5. Shall pay an additional assessment of one thousand 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.

6. Shall pay an additional assessment of one thousand 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.

E. Notwithstanding subsection D, paragraph 1 of this section, at the time of
sentencing if the person is convicted of a violation of subsection A, paragraph 1 of this
section, the judge may suspend all but ten days of the sentence if the person completes a
court ordered alcohol or other drug screening, education or treatment program. If the
person fails to complete the court ordered alcohol or other drug screening, education or
treatment program and has not been placed on probation, the court shall issue an order to
show cause to the defendant as to why the remaining jail sentence should not be served.

F. If within a period of eighty-four months a person is convicted of a second
violation of this section or is convicted of a violation of this section and has
previously been convicted of a violation of section 5-395 or 5-396 or an act in another
jurisdiction that if committed in this state would be a violation of this section or
section 5-395 or 5-396, the person:

1. Shall be sentenced to serve not less than one hundred twenty days in jail, sixty
days of which shall be served consecutively, and is not eligible for probation or
suspension of execution of sentence unless the entire sentence has been served if the
person is convicted of a violation of subsection A, paragraph 1 of this section. A person
who is convicted of a violation of subsection A, paragraph 2 of this section shall be
sentenced to serve not less than one hundred eighty days in jail, ninety of which shall
be served consecutively, and is not eligible for probation or suspension of execution of
sentence unless the entire sentence has been served.

2. Shall pay a fine of not less than five hundred dollars, except that a person who
is convicted of a violation of subsection A, paragraph 2 of this section shall pay a fine
of not less than one thousand dollars. The fine prescribed in this paragraph and any
assessments, restitution and incarceration costs shall be paid before the assessment
prescribed in paragraph 3 of this subsection.

4. Shall be ordered by a court to perform at least thirty hours of community
restitution. If the person fails to complete the community restitution ordered pursuant
to this paragraph, the court may order alternative sanctions if the court determines that
alternative sanctions are more appropriate.

5. Shall pay an additional assessment of one thousand two hundred fifty 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.

6. Shall pay an additional assessment of one thousand two hundred fifty 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.

G. Notwithstanding subsection F, paragraph 1 of this section, at the time of
sentencing, if the person is convicted of a violation of subsection A, paragraph 1 of
this section, the judge may suspend all but sixty days of the sentence if the person
completes a court ordered alcohol or other drug screening, education or treatment
program. If the person fails to complete the court ordered alcohol or other drug
screening, education or treatment program and has not been placed on probation, the court
shall issue an order to show cause as to why the remaining jail sentence should not be
served.

H. In applying the eighty-four month provision of subsection F of this section, the
dates of the commission of the offense shall be the determining factor, irrespective of
the sequence in which the offenses were committed.

I. A second violation for which a conviction occurs as provided in this section
shall not include a conviction for an offense arising out of the same series of acts.

J. A person who is convicted of a violation of this section is guilty of a class 1
misdemeanor.

K. For the purposes of this section, "alcohol concentration" means grams of alcohol
per one hundred milliliters of blood or grams of alcohol per two hundred ten liters of
breath.