PRIOR PRINTER'S NOS. 49, 699, 780 PRINTER'S NO. 953
No. 55 Session of 1997
INTRODUCED BY HELFRICK, TOMLINSON, PICCOLA, SALVATORE,
BRIGHTBILL, BELL, AFFLERBACH, JUBELIRER, HART, THOMPSON,
HECKLER, MADIGAN, MUSTO, MURPHY, LEMMOND AND ARMSTRONG,
JANUARY 15, 1997
AS AMENDED ON THIRD CONSIDERATION, APRIL 8, 1997
AN ACT
1 Amending Title 30 (Fish) of the Pennsylvania Consolidated
2 Statutes, further providing for operating watercraft under
3 influence of alcohol or controlled substance, for chemical
4 testing and for classification of offenses and penalties.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Section 923(a) of Title 30 of the Pennsylvania
8 Consolidated Statutes is amended to read:
9 § 923. Classification of offenses and penalties.
10 (a) General rule.--The following penalties shall be imposed
11 for violations of this title:
12 (1) For a summary offense of the first degree, a fine of
13 $100 or imprisonment not exceeding 90 days.
14 (2) For a summary offense of the second degree, a fine
15 of $50 or imprisonment not exceeding 20 days.
16 (3) For a summary offense of the third degree, a fine of
17 $25.
18 (4) For a summary offense of the fourth degree, a fine
1 of $10.
2 (5) For a misdemeanor of the third degree, a fine of not
3 less than $250 nor more than $5,000, or imprisonment not
4 exceeding 90 days, or both.
5 (6) For a misdemeanor of the second degree, a fine of
6 not less than $500 nor more than $7,500 or imprisonment not
7 exceeding two years, or both.
8 [(6)] (7) For a misdemeanor of the first degree, a fine
9 of not less than $2,500 nor more than $10,000, or
10 imprisonment not exceeding five years, or both.
11 [(7)] (8) For a felony of the third degree, a fine of
12 not less than $2,500 nor exceeding $15,000, or imprisonment
13 not exceeding seven years, or both.
14 * * *
15 Section 2. Title 30 is amended by adding a section to read:
16 § 5124.1. Liquor or malt or brewed beverages.
17 (a) General rule.--In an action or proceeding under this
18 title in which a material element of the offense or action is
19 that a substance is liquor or a malt or brewed beverage, all the
20 following shall apply:
21 (1) Chemical analysis is not required to prove that the
22 substance is liquor or a malt or brewed beverage.
23 (2) Circumstantial evidence is sufficient to prove that
24 the substance is liquor or a malt or brewed beverage.
25 (b) Evidence presented by a defendant.--Notwithstanding
26 subsection (a), nothing shall prevent a defendant from
27 presenting evidence that a substance is not liquor or a malt or
28 brewed beverage.
29 (c) Applicability.--The provisions of this section shall
30 apply to proceedings brought by officers authorized to enforce
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1 this title under this title, Titles 18 (relating to crimes and
2 offenses), 42 (relating to judiciary and judicial procedure) and
3 75 (relating to vehicles) and the act of April 12, 1951 (P.L.90,
4 No.21), known as the Liquor Code.
5 Section 3. Sections 5125(j) and 5502 of Title 30 are amended
6 to read:
7 § 5125. Chemical testing to determine amount of alcohol or
8 controlled substance.
9 * * *
10 (j) Immunity from civil liability and reports.--No
11 physician, nurse or technician or hospital employing the
12 physician, nurse or technician and no other employer of the
13 physician, nurse or technician shall be civilly liable for
14 [properly] withdrawing blood or obtaining a urine sample and
15 reporting test results to [the waterways patrolman] an officer
16 authorized to enforce this title at the request of [a waterways
17 patrolman under this section] the commission or an officer
18 authorized to enforce this title. No physician, nurse or
19 technician or hospital employing the physician, nurse or
20 technician may administratively refuse to perform the tests and
21 provide the results to the [waterways patrolman] officer
22 authorized to enforce this title except as may be reasonably
23 expected from unusual circumstances that pertain at the time the
24 request is made.
25 * * *
26 § 5502. Operating watercraft under influence of alcohol or
27 controlled substance.
28 (a) General rule.--No person shall operate or be in actual
29 physical control of the movement of a watercraft upon, in or
30 through the waters of this Commonwealth [while]:
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1 (1) while under the influence of alcohol to a degree
2 which renders the person incapable of safe operation of [the]
3 a watercraft;
4 (2) while under the influence of any controlled
5 substance, as defined by the laws of this Commonwealth and
6 rules and regulations promulgated thereunder, to a degree
7 which renders the person incapable of safe operation of a
8 watercraft;
9 (3) while under the combined influence of alcohol and a
10 controlled substance to a degree which renders the person
11 incapable of safe operation of a watercraft; or
12 (4) while the amount of alcohol by weight in the blood
13 of [the person is 0.10% or greater.]:
14 (i) an adult is 0.10% or greater; or
15 (ii) a minor is 0.02% or greater.
16 (a.1) Prima facie evidence.--
17 (1) It is prima facie evidence that:
18 (i) an adult had 0.10% or more by weight of alcohol
19 in his or her blood at the time of operating or being in
20 actual physical control of the movement of a watercraft
21 if the amount of alcohol by weight in the blood of the
22 person is equal to or greater than 0.10% at the time a
23 chemical test is performed on a sample of the person's
24 breath, blood or urine; and
25 (ii) a minor had 0.02% or more by weight of alcohol
26 in his or her blood at the time of operating or being in
27 actual physical control of the movement of a watercraft
28 if the amount of alcohol by weight in the blood of the
29 minor is equal to or greater than 0.02% at the time a
30 chemical test is performed on a sample of the person's
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1 breath, blood or urine.
2 (2) For the purposes of this section, the chemical test
3 of the sample of the person's breath, blood or urine shall be
4 from a sample obtained within three hours after the person
5 drove, operated or was in actual physical control of the
6 watercraft.
7 (b) [Legal use no] Authorized use not a defense.--The fact
8 that any person charged with violating this section is or has
9 been legally entitled to use alcohol or controlled substances is
10 not a defense to a charge of violating this section.
11 (b.1) Certain arrests authorized.--In addition to any other
12 powers of arrest, an officer authorized to enforce this title is
13 hereby authorized to arrest without a warrant any person who the
14 officer has probable cause to believe has violated the
15 provisions of this section, regardless of whether the alleged
16 violation was committed in the presence of such officer. This
17 authority to arrest extends to any hospital or other medical
18 treatment facility located beyond the territorial limits of the
19 officer's political subdivision where the person to be arrested
20 is found or was taken for purposes of emergency treatment,
21 examination or evaluation, provided there is probable cause to
22 believe that the violation of this section occurred within the
23 police officer's political subdivision.
24 (b.2) Certain disposition prohibited.--The attorney for the
25 Commonwealth shall not submit a charge brought under this
26 section for Accelerated Rehabilitative Disposition if:
27 (1) The defendant has been found guilty of or accepted
28 Accelerated Rehabilitative Disposition of a charge brought
29 under this section within seven years of the date of the
30 current offense.
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1 (2) An accident occurred in connection with the events
2 surrounding the current offense and any person, other than
3 the defendant, was killed or seriously injured as a result of
4 the accident.
5 [(c) Penalty.--A person violating any of the provisions of <--
6 this section commits a misdemeanor of the [third degree.] second <--
7 degree, except that a person convicted of a third or subsequent
8 offense commits a misdemeanor of the first degree and the
9 sentencing court shall order the person to pay a fine of not
10 less than $500 and serve a minimum term of imprisonment of:
11 (1) Not less than 48 consecutive hours.
12 (2) Not less than 30 days if the person has previously
13 accepted Accelerated Rehabilitative Disposition or any other
14 form of preliminary disposition, been convicted of,
15 adjudicated delinquent or granted a consent decree under 42
16 Pa.C.S. Ch. 63 (relating to juvenile matters) based on an
17 offense under this section or an equivalent offense in this
18 or other jurisdictions within the previous seven years.
19 (3) Not less than 90 days if the person has two or more
20 times previously been convicted of, adjudicated delinquent or
21 granted a consent decree under 42 Pa.C.S. Ch. 63 based on an
22 offense under this section or an equivalent offense in this
23 or other jurisdictions within the previous seven years.
24 (C) GRADING AND PENALTIES.-- <--
25 (1) A PERSON VIOLATING ANY OF THE PROVISIONS OF THIS
26 SECTION COMMITS A MISDEMEANOR OF THE SECOND DEGREE, EXCEPT A
27 PERSON WHO MEETS THE REQUIREMENTS OF PARAGRAPH (2). THE
28 SENTENCING COURT SHALL ORDER THE PERSON TO PAY A FINE OF NOT
29 LESS THAN $500 AND TO SERVE A MINIMUM TERM OF IMPRISONMENT
30 OF:
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1 (I) NOT LESS THAN 48 CONSECUTIVE HOURS; OR
2 (II) NOT LESS THAN 30 DAYS IF THE PERSON HAD
3 PREVIOUSLY ACCEPTED ACCELERATED REHABILITATIVE
4 DISPOSITION OR ANY OTHER FORM OF PRELIMINARY DISPOSITION
5 OR HAD BEEN CONVICTED OF, ADJUDICATED DELINQUENT OR
6 GRANTED A CONSENT DECREE UNDER 42 PA.C.S. CH. 63
7 (RELATING TO JUVENILE MATTERS) BASED ON AN OFFENSE UNDER
8 THIS SECTION OR AN EQUIVALENT OFFENSE IN THIS OR OTHER
9 JURISDICTIONS WITHIN THE PREVIOUS SEVEN YEARS CALCULATED
10 FROM THE DATE OF ACCEPTANCE, CONVICTION, ADJUDICATION OR
11 GRANT.
12 (2) IF THE PERSON HAS TWO OR MORE TIMES PREVIOUSLY BEEN
13 CONVICTED OF, ADJUDICATED DELINQUENT OR GRANTED A CONSENT
14 DECREE UNDER 42 PA.C.S. CH. 63 BASED ON AN OFFENSE UNDER THIS
15 SECTION OR AN EQUIVALENT OFFENSE IN THIS OR OTHER
16 JURISDICTIONS WITHIN THE PREVIOUS SEVEN YEARS, A PERSON
17 COMMITS A MISDEMEANOR OF THE FIRST DEGREE. THE SENTENCING
18 COURT SHALL ORDER THE PERSON TO PAY A FINE OF NOT LESS THAN
19 $2,500 NOR MORE THAN $10,000 AND TO SERVE A MINIMUM TERM OF
20 IMPRISONMENT OF NOT LESS THAN 90 DAYS.
21 (d) Subsequent conviction.--Acceptance of Accelerated
22 Rehabilitative Disposition, an adjudication of delinquency or a
23 consent decree under 42 Pa.C.S. Ch. 63 or any other form of
24 preliminary disposition of any charge brought under this section
25 shall be considered a first conviction for the purpose of
26 computing whether a subsequent conviction of a violation of this
27 section shall be considered a second, third or subsequent
28 conviction.
29 (e) Sentencing guidelines.--The sentencing guidelines
30 promulgated by the Pennsylvania Commission on Sentencing shall
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1 not supersede the mandatory penalties of this section.
2 (f) Direct appeal.--The Commonwealth has the right to appeal
3 directly to the Superior Court any order of court which imposes
4 a sentence for violation of this section which does not meet the
5 requirements of this section. The Superior Court shall remand
6 the case to the sentencing court for imposition of a sentence in
7 accordance with the provisions of this section.
8 (g) City of first class.--Notwithstanding the provision for
9 direct appeal to the Superior Court, if, in a city of the first
10 class, a person appeals from a judgment of sentence under this
11 section from the municipal court to the common pleas court for a
12 trial de novo, the Commonwealth shall have the right to appeal
13 directly to the Superior Court from the order of the common
14 pleas court if the sentence imposed is in violation of this
15 section. If, in a city of the first class, a person appeals to
16 the court of common pleas after conviction of a violation of
17 this section in the municipal court and thereafter withdraws his
18 appeal to the common pleas court, thereby reinstating the
19 judgment of sentence of the municipal court, the Commonwealth
20 shall have 30 days from the date of the withdrawal to appeal to
21 the Superior Court if the sentence is in violation of this
22 section.
23 (h) Acceptance of ARD.--Any person who accepts Accelerated
24 Rehabilitative Disposition of any charge brought under this
25 section shall accept as conditions the imposition of, and the
26 judge shall impose in addition to any other condition, all of
27 the following:
28 (1) A mandatory suspension of watercraft operating
29 privileges for a period of not less than six months but not
30 more than 12 months.
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1 (2) A condition that the defendant, as a condition to
2 entering the program, make restitution to any person who
3 incurred determinable financial loss as a result of the
4 defendant's actions which resulted in a charge of violating
5 this section.
6 (3) A condition that the defendant, as a condition to
7 entering the program, attend and successfully complete at his
8 own expense a commission-approved boating safety course.
9 (4) Court supervision for a period of not less than six
10 months. In cases where the defendant is required to make
11 restitution or submit to counseling or treatment, the court
12 supervision shall be for a period of not less than 12 months
13 or until the treatment or counseling is completed and the
14 restitution is paid in full, whichever is longer.
15 (i) Preliminary disposition revoked.--Accelerated
16 Rehabilitative Disposition or other preliminary disposition of
17 any charge of violating this section may be revoked and the
18 court shall direct the attorney for the Commonwealth to proceed
19 on the charges as prescribed in general rules if any of the
20 following circumstances occur:
21 (1) The defendant is charged with or commits an offense
22 which violates the provisions of this section, any crime
23 enumerated in 18 Pa.C.S. (relating to crimes and offenses) or
24 any crime enumerated in 75 Pa.C.S. § 1542 (relating to
25 revocation of habitual offender's license) within the
26 probationary period.
27 (2) The defendant fails to make restitution as provided
28 for in this section.
29 (3) The defendant fails to successfully complete the
30 boating safety course.
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1 (4) The defendant fails to successfully complete any
2 program of counseling or treatment, or both, required as a
3 condition of Accelerated Rehabilitative Disposition.
4 (5) The defendant violates the terms and conditions of
5 Accelerated Rehabilitative Disposition in any other way.
6 (j) Litter collection program.--In addition to the
7 conditions set forth under subsection (i) for Accelerated
8 Rehabilitative Disposition of any charge brought under this
9 section, the judge may impose and the person shall accept the
10 condition that the person engage in a program of collecting
11 litter from public and private property along Commonwealth
12 waterways, especially property which is littered with alcoholic
13 beverage containers. The duration of the person's participation
14 in a litter collection program shall not exceed the duration of
15 the probationary period imposed on the person under Accelerated
16 Rehabilitative Disposition.
17 (k) Fees to be paid into Boat Fund.--With the exception of
18 court costs, program costs for counseling, treatment or a
19 boating safety course or any restitution referred to in this
20 section, any fee or financial condition imposed by a judge as a
21 condition of Accelerated Rehabilitative Disposition or any other
22 preliminary disposition of any charge under this section shall
23 be paid into the Boat Fund under section 531 (relating to
24 establishment and use of Boat Fund).
25 (l) Preliminary hearing or arraignment.--The presiding
26 judicial officer at the preliminary hearing or preliminary
27 arraignment relating to any charge of a violation of this
28 section shall not reduce or modify the original charges.
29 (m) Work release.--In any case in which a person is
30 sentenced to a period of imprisonment as a result of a
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1 conviction for violating any provision of this section, the
2 judicial officer imposing that sentence shall consider assigning
3 that person to a daytime work release program pursuant to which
4 the person would be required to collect litter from public and
5 private property, especially property which is littered with
6 alcoholic beverage containers.
7 (n) Definitions.--As used in this section, the following
8 words and phrases shall have the meanings given to them in this
9 subsection:
10 "Adult." A person 21 years of age or older.
11 "Minor." A person under 21 years of age.
12 Section 4. This act shall take effect in 60 days.
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