PRIOR PRINTER'S NO. 49 PRINTER'S NO. 699
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
SENATOR HELFRICK, GAME AND FISHERIES, AS AMENDED, MARCH 11, 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 REPORTS and for classification of offenses and
5 penalties.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Sections 923(a) and 5502 SECTION 923(A) of Title <--
9 30 of the Pennsylvania Consolidated Statutes are IS amended to <--
10 read:
11 § 923. Classification of offenses and penalties.
12 (a) General rule.--The following penalties shall be imposed
13 for violations of this title:
14 (1) For a summary offense of the first degree, a fine of
15 $100 or imprisonment not exceeding 90 days.
16 (2) For a summary offense of the second degree, a fine
17 of $50 or imprisonment not exceeding 20 days.
18 (3) For a summary offense of the third degree, a fine of
1 $25.
2 (4) For a summary offense of the fourth degree, a fine
3 of $10.
4 (5) For a misdemeanor of the third degree, a fine of not
5 less than $250 nor more than $5,000, or imprisonment not
6 exceeding 90 days, or both.
7 (6) For a misdemeanor of the second degree, a fine of
8 not less than $500 nor more than $7,500 or imprisonment not
9 exceeding two years, or both.
10 [(6)] (7) For a misdemeanor of the first degree, a fine
11 of not less than $2,500 nor more than $10,000, or
12 imprisonment not exceeding five years, or both.
13 [(7)] (8) For a felony of the third degree, a fine of
14 not less than $2,500 nor exceeding $15,000, or imprisonment
15 not exceeding seven years, or both.
16 * * *
17 SECTION 2. TITLE 30 IS AMENDED BY ADDING A SECTION TO READ: <--
18 § 5124.1. LIQUOR OR MALT OR BREWED BEVERAGES.
19 (A) GENERAL RULE.--IN AN ACTION OR PROCEEDING UNDER THIS
20 TITLE IN WHICH A MATERIAL ELEMENT OF THE OFFENSE OR ACTION IS
21 THAT A SUBSTANCE IS LIQUOR OR A MALT OR BREWED BEVERAGE, ALL THE
22 FOLLOWING SHALL APPLY:
23 (1) CHEMICAL ANALYSIS IS NOT REQUIRED TO PROVE THAT THE
24 SUBSTANCE IS LIQUOR OR A MALT OR BREWED BEVERAGE.
25 (2) CIRCUMSTANTIAL EVIDENCE IS SUFFICIENT TO PROVE THAT
26 THE SUBSTANCE IS LIQUOR OR A MALT OR BREWED BEVERAGE.
27 (B) EVIDENCE PRESENTED BY A DEFENDANT.--NOTWITHSTANDING
28 SUBSECTION (A), NOTHING SHALL PREVENT A DEFENDANT FROM
29 PRESENTING EVIDENCE THAT A SUBSTANCE IS NOT LIQUOR OR A MALT OR
30 BREWED BEVERAGE.
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1 (C) APPLICABILITY.--THE PROVISIONS OF THIS SECTION SHALL
2 APPLY TO PROCEEDINGS BROUGHT BY OFFICERS AUTHORIZED TO ENFORCE
3 THIS TITLE UNDER THIS TITLE, TITLES 18 (RELATING TO CRIMES AND
4 OFFENSES), 42 (RELATING TO JUDICIARY AND JUDICIAL PROCEDURE) AND
5 75 (RELATING TO VEHICLES) AND THE ACT OF APRIL 12, 1951 (P.L.90,
6 NO.21), KNOWN AS THE LIQUOR CODE.
7 SECTION 3. SECTION 5125(J) OF TITLE 30 IS AMENDED TO READ:
8 § 5125. CHEMICAL TESTING TO DETERMINE AMOUNT OF ALCOHOL OR
9 CONTROLLED SUBSTANCE.
10 * * *
11 (J) IMMUNITY FROM CIVIL LIABILITY AND REPORTS.--NO
12 PHYSICIAN, NURSE OR TECHNICIAN OR HOSPITAL EMPLOYING THE
13 PHYSICIAN, NURSE OR TECHNICIAN AND NO OTHER EMPLOYER OF THE
14 PHYSICIAN, NURSE OR TECHNICIAN SHALL BE CIVILLY LIABLE FOR
15 [PROPERLY] WITHDRAWING BLOOD OR OBTAINING A URINE SAMPLE AND
16 REPORTING TEST RESULTS TO [THE WATERWAYS PATROLMAN] AN OFFICER
17 AUTHORIZED TO ENFORCE THIS TITLE AT THE REQUEST OF [A WATERWAYS
18 PATROLMAN UNDER THIS SECTION] THE COMMISSION OR AN OFFICER
19 AUTHORIZED TO ENFORCE THIS TITLE. NO PHYSICIAN, NURSE OR
20 TECHNICIAN OR HOSPITAL EMPLOYING THE PHYSICIAN, NURSE OR
21 TECHNICIAN MAY ADMINISTRATIVELY REFUSE TO PERFORM THE TESTS AND
22 PROVIDE THE RESULTS TO THE [WATERWAYS PATROLMAN] OFFICER
23 AUTHORIZED TO ENFORCE THIS TITLE EXCEPT AS MAY BE REASONABLY
24 EXPECTED FROM UNUSUAL CIRCUMSTANCES THAT PERTAIN AT THE TIME THE
25 REQUEST IS MADE.
26 * * *
27 SECTION 4. SECTION 5126 HEADING OF TITLE 30 IS AMENDED AND
28 THE SECTION IS AMENDED BY ADDING A SUBSECTION TO READ:
29 § 5126. REPORTS BY EMERGENCY ROOM AND MEDICAL PERSONNEL.
30 * * *
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1 (C) TOXICOLOGY TESTS OF VICTIMS.--IF ONE OR MORE PERSONS DIE
2 AS A RESULT OF A WATERCRAFT ACCIDENT, ANY EMERGENCY ROOM OR
3 OTHER MEDICAL FACILITY IN WHICH THE DECEASED VICTIM IS TREATED
4 SHALL TAKE BLOOD SAMPLES OF SUCH VICTIMS AND TRANSMIT THEM
5 WITHIN 24 HOURS FOR TESTING TO THE DEPARTMENT OF HEALTH OR A
6 CLINICAL LABORATORY APPROVED BY THE DEPARTMENT OF HEALTH AND
7 SPECIFICALLY DESIGNATED FOR SUCH PURPOSE TO DETERMINE THE DRUG
8 AND ALCOHOL CONTENTS OF THE BLOOD. THE PROVISIONS OF SUBSECTION
9 (B) SHALL APPLY TO ALL MEDICAL PERSONNEL WHO PERFORM DUTIES
10 UNDER THIS SUBSECTION.
11 SECTION 5. SECTION 5502 OF TITLE 30 IS AMENDED TO READ:
12 § 5502. Operating watercraft under influence of alcohol or
13 controlled substance.
14 (a) General rule.--No person shall operate or be in actual
15 physical control of the movement of a watercraft upon, in or
16 through the waters of this Commonwealth [while]:
17 (1) while under the influence of alcohol to a degree
18 which renders the person incapable of safe operation of [the]
19 a watercraft;
20 (2) while under the influence of any controlled
21 substance, as defined by the laws of this Commonwealth and
22 rules and regulations promulgated thereunder, to a degree
23 which renders the person incapable of safe operation of a
24 watercraft;
25 (3) while under the combined influence of alcohol and a
26 controlled substance to a degree which renders the person
27 incapable of safe operation of a watercraft; or
28 (4) while the amount of alcohol by weight in the blood
29 of [the person is 0.10% or greater.]:
30 (i) an adult is 0.10% or greater; or
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1 (ii) a minor is 0.02% or greater.
2 (a.1) Prima facie evidence.--
3 (1) It is prima facie evidence that:
4 (i) an adult had 0.10% or more by weight of alcohol
5 in his or her blood at the time of operating or being in
6 actual physical control of the movement of a watercraft
7 if the amount of alcohol by weight in the blood of the
8 person is equal to or greater than 0.10% at the time a
9 chemical test is performed on a sample of the person's
10 breath, blood or urine; and
11 (ii) a minor had 0.02% or more by weight of alcohol
12 in his or her blood at the time of operating or being in
13 actual physical control of the movement of a watercraft
14 if the amount of alcohol by weight in the blood of the
15 minor is equal to or greater than 0.02% at the time a
16 chemical test is performed on a sample of the person's
17 breath, blood or urine.
18 (2) For the purposes of this section, the chemical test
19 of the sample of the person's breath, blood or urine shall be
20 from a sample obtained.
21 (b) [Legal use no] Authorized use not a defense.--The fact
22 that any person charged with violating this section is or has
23 been legally entitled to use alcohol or controlled substances is
24 not a defense to a charge of violating this section.
25 (b.1) Certain arrests authorized.--In addition to any other
26 powers of arrest, an officer authorized to enforce this title is
27 hereby authorized to arrest without a warrant any person who the
28 officer has probable cause to believe has violated the
29 provisions of this section, regardless of whether the alleged
30 violation was committed in the presence of such officer. This
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1 authority to arrest extends to any hospital or other medical
2 treatment facility located beyond the territorial limits of the
3 officer's political subdivision where the person to be arrested
4 is found or was taken for purposes of emergency treatment,
5 examination or evaluation, provided there is probable cause to
6 believe that the violation of this section occurred within the
7 police officer's political subdivision.
8 (b.2) Certain disposition prohibited.--The attorney for the
9 Commonwealth shall not submit a charge brought under this
10 section for Accelerated Rehabilitative Disposition if:
11 (1) The defendant has been found guilty of or accepted
12 Accelerated Rehabilitative Disposition of a charge brought
13 under this section within seven years of the date of the
14 current offense.
15 (2) An accident occurred in connection with the events
16 surrounding the current offense and any person, other than
17 the defendant, was killed or seriously injured as a result of
18 the accident.
19 (c) Penalty.--A person violating any of the provisions of
20 this section commits a misdemeanor of the [third degree.] second
21 degree, except that a person convicted of a third or subsequent
22 offense commits a misdemeanor of the first degree and the
23 sentencing court shall order the person to pay a fine of not
24 less than $500 and serve a minimum term of imprisonment of:
25 (1) Not less than 48 consecutive hours.
26 (2) Not less than 30 days if the person has previously
27 accepted Accelerated Rehabilitative Disposition or any other
28 form of preliminary disposition, been convicted of,
29 adjudicated delinquent or granted a consent decree under 42
30 Pa.C.S. Ch. 63 (relating to juvenile matters) based on an
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1 offense under this section or an equivalent offense in this
2 or other jurisdictions within the previous seven years.
3 (3) Not less than 90 days if the person has two or more
4 times previously been convicted of, adjudicated delinquent or
5 granted a consent decree under 42 Pa.C.S. Ch. 63 based on an
6 offense under this section or an equivalent offense in this
7 or other jurisdictions within the previous seven years.
8 (d) Subsequent conviction.--Acceptance of Accelerated
9 Rehabilitative Disposition, an adjudication of delinquency or a
10 consent decree under 42 Pa.C.S. Ch. 63 or any other form of
11 preliminary disposition of any charge brought under this section
12 shall be considered a first conviction for the purpose of
13 computing whether a subsequent conviction of a violation of this
14 section shall be considered a second, third or subsequent
15 conviction.
16 (e) Sentencing guidelines.--The sentencing guidelines
17 promulgated by the Pennsylvania Commission on Sentencing shall
18 not supersede the mandatory penalties of this section.
19 (f) Direct appeal.--The Commonwealth has the right to appeal
20 directly to the Superior Court any order of court which imposes
21 a sentence for violation of this section which does not meet the
22 requirements of this section. The Superior Court shall remand
23 the case to the sentencing court for imposition of a sentence in
24 accordance with the provisions of this section.
25 (g) City of first class.--Notwithstanding the provision for
26 direct appeal to the Superior Court, if, in a city of the first
27 class, a person appeals from a judgment of sentence under this
28 section from the municipal court to the common pleas court for a
29 trial de novo, the Commonwealth shall have the right to appeal
30 directly to the Superior Court from the order of the common
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1 pleas court if the sentence imposed is in violation of this
2 section. If, in a city of the first class, a person appeals to
3 the court of common pleas after conviction of a violation of
4 this section in the municipal court and thereafter withdraws his
5 appeal to the common pleas court, thereby reinstating the
6 judgment of sentence of the municipal court, the Commonwealth
7 shall have 30 days from the date of the withdrawal to appeal to
8 the Superior Court if the sentence is in violation of this
9 section.
10 (h) Acceptance of ARD.--Any person who accepts Accelerated
11 Rehabilitative Disposition of any charge brought under this
12 section shall accept as conditions the imposition of, and the
13 judge shall impose in addition to any other condition, all of
14 the following:
15 (1) A mandatory suspension of watercraft operating
16 privileges for a period of not less than six months but not
17 more than 12 months.
18 (2) A condition that the defendant, as a condition to
19 entering the program, make restitution to any person who
20 incurred determinable financial loss as a result of the
21 defendant's actions which resulted in a charge of violating
22 this section.
23 (3) A condition that the defendant, as a condition to
24 entering the program, attend and successfully complete at his
25 own expense a commission-approved boating safety course.
26 (4) Court supervision for a period of not less than six
27 months. In cases where the defendant is required to make
28 restitution or submit to counseling or treatment, the court
29 supervision shall be for a period of not less than 12 months
30 or until the treatment or counseling is completed and the
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1 restitution is paid in full, whichever is longer.
2 (i) Preliminary disposition revoked.--Accelerated
3 Rehabilitative Disposition or other preliminary disposition of
4 any charge of violating this section may be revoked and the
5 court shall direct the attorney for the Commonwealth to proceed
6 on the charges as prescribed in general rules if any of the
7 following circumstances occur:
8 (1) The defendant is charged with or commits an offense
9 which violates the provisions of this section, any crime
10 enumerated in 18 Pa.C.S. (relating to crimes and offenses) or
11 any crime enumerated in 75 Pa.C.S. § 1542 (relating to
12 revocation of habitual offender's license) within the
13 probationary period.
14 (2) The defendant fails to make restitution as provided
15 for in this section.
16 (3) The defendant fails to successfully complete the
17 boating safety course.
18 (4) The defendant fails to successfully complete any
19 program of counseling or treatment, or both, required as a
20 condition of Accelerated Rehabilitative Disposition.
21 (5) The defendant violates the terms and conditions of
22 Accelerated Rehabilitative Disposition in any other way.
23 (j) Litter collection program.--In addition to the
24 conditions set forth under subsection (i) for Accelerated
25 Rehabilitative Disposition of any charge brought under this
26 section, the judge may impose and the person shall accept the
27 condition that the person engage in a program of collecting
28 litter from public and private property along Commonwealth
29 waterways, especially property which is littered with alcoholic
30 beverage containers. The duration of the person's participation
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1 in a litter collection program shall not exceed the duration of
2 the probationary period imposed on the person under Accelerated
3 Rehabilitative Disposition.
4 (k) Fees to be paid into Boat Fund.--With the exception of
5 court costs, program costs for counseling, treatment or a
6 boating safety course or any restitution referred to in this
7 section, any fee or financial condition imposed by a judge as a
8 condition of Accelerated Rehabilitative Disposition or any other
9 preliminary disposition of any charge under this section shall
10 be paid into the Boat Fund under section 531 (relating to
11 establishment and use of Boat Fund).
12 (l) Preliminary hearing or arraignment.--The presiding
13 judicial officer at the preliminary hearing or preliminary
14 arraignment relating to any charge of a violation of this
15 section shall not reduce or modify the original charges.
16 (m) Work release.--In any case in which a person is
17 sentenced to a period of imprisonment as a result of a
18 conviction for violating any provision of this section, the
19 judicial officer imposing that sentence shall consider assigning
20 that person to a daytime work release program pursuant to which
21 the person would be required to collect litter from public and
22 private property, especially property which is littered with
23 alcoholic beverage containers.
24 (n) Definitions.--As used in this section, the following
25 words and phrases shall have the meanings given to them in this
26 subsection:
27 "Adult." A person 21 years of age or older.
28 "Minor." A person under 21 years of age.
29 Section 2 6. This act shall take effect in 60 days. <--
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