Minnesota Session Laws - 1986, Regular Session

  

                         Laws of Minnesota 1986 

                         CHAPTER 401-S.F.No. 31 
           An act relating to motorboat safety; strengthening 
          prohibitions and penalties regarding operation of 
          motorboat while under the influence of alcohol or a 
          controlled substance; providing a penalty; amending 
          Minnesota Statutes 1984, sections 361.02, subdivision 
          9; and 361.12; proposing coding for new law in 
          Minnesota Statutes, chapter 361. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1984, section 361.02, 
subdivision 9, is amended to read: 
    Subd. 9.  "Underway or in use" means any watercraft in 
operation or use when not unless it is securely fastened to a 
dock or other permanent mooring.  As used in section 361.12 and 
section 3, "underway or in use" means any motorboat in operation 
unless it is fastened to a dock or other mooring, anchored, or 
beached. 
    Sec. 2.  Minnesota Statutes 1984, section 361.12, is 
amended to read: 
    361.12 [ALCOHOL, DRUGS, PHYSICAL OR MENTAL DISABILITY.] 
    Subdivision 1.  [ACTS PROHIBITED.] (a) No person shall 
operate or be in actual physical control of any 
watercraft motorboat while underway or in use on the waters of 
this state while under the influence of: 
    (1) alcohol, as provided in section 169.121, subdivision 1 
or, clauses (a) and (d);  
    (2) a controlled substance, as defined in section 152.01, 
subdivision 4; or 
    (3) a combination of any two or more of the elements named 
in clauses (1) and (2).  
    (b) No owner or other person having charge or control of 
any watercraft motorboat shall knowingly authorize or permit any 
person who individual the person knows or has reason to believe 
is under the influence of alcohol, or a controlled substance, as 
provided under paragraph (a), to operate such watercraft the 
motorboat while underway or in use on the waters of this state. 
    Subd. 2. (c) No owner or other person having charge or 
control of any watercraft motorboat shall knowingly authorize or 
permit any person, who by reason of any physical or mental 
disability is incapable of operating such watercraft the 
motorboat, to operate such watercraft the motorboat while 
underway or in use on the waters of this state. 
    Subd. 2.  [ARREST.] Conservation officers of the department 
of natural resources, sheriffs, sheriff's deputies, and other 
peace officers may arrest a person for a violation under 
subdivision 1 without a warrant upon probable cause, if the 
violation was committed in the officer's presence.  If the 
violation did not occur in the officer's presence, the officer 
may arrest the person if the person was involved in a motorboat 
accident resulting in death, personal injury, or property damage.
    Subd. 3.  [PRELIMINARY SCREENING TEST.] When an officer 
authorized under subdivision 2 to make arrests has reason to 
believe from the manner in which a person is operating, 
controlling, or acting upon departure from a motorboat, or has 
operated or been in control of a motorboat, that the operator 
may be violating or has violated subdivision 1, paragraph (a), 
the officer may require the operator to provide a breath sample 
for a preliminary screening test using a device approved by the 
commissioner of public safety for this purpose.  The results of 
the preliminary screening test shall be used for the purpose of 
deciding whether any arrest should be made under this section 
and whether to require the chemical tests authorized in section 
3, but may not be used in any court action except to prove that 
a test was properly required of an operator pursuant to section 
3.  Following the preliminary screening test, additional tests 
may be required of the operator as provided under section 3.  
Any operator who refuses a breath sample is subject to the 
provisions of section 3 unless, in compliance with that section, 
the operator submits to a blood, breath, or urine test to 
determine the presence of alcohol or a controlled substance. 
    Subd. 4.  [EVIDENCE.] (a) Upon the trial of any prosecution 
arising out of acts alleged to have been committed by any person 
arrested for operating or being in physical control of any 
motorboat in violation of subdivision 1, paragraph (a), the 
court may admit evidence of the amount of alcohol or a 
controlled substance in the person's blood, breath, or urine as 
shown by an analysis of those items. 
    (b) For the purposes of this subdivision: 
    (1) evidence that there was at the time an alcohol 
concentration of 0.05 or less is prima facie evidence that the 
person was not under the influence of alcohol; 
    (2) evidence that there was at the time an alcohol 
concentration of more than 0.05 and less than 0.10 is relevant 
evidence in indicating whether or not the person was under the 
influence of alcohol. 
    (c) Evidence of the refusal to take a preliminary screening 
test required under subdivision 3 or a chemical test required 
under section 3 is admissible into evidence in a prosecution 
under this section. 
    (d) This subdivision does not limit the introduction of any 
other competent evidence bearing upon the question whether or 
not the person was under the influence of alcohol or a 
controlled substance, including results obtained from partial 
tests on an infrared breath-testing instrument.  A result from a 
partial test is the measurement obtained by analyzing one 
adequate breath sample.  A sample is adequate if the instrument 
analyzes the sample and does not indicate the sample is 
deficient. 
    Subd. 5.  [PENALTIES.] (a) A person who violates any 
prohibition contained in subdivision 1 is guilty of a 
misdemeanor; except that a person who violates any prohibition 
contained in subdivision 1 within five years of a prior 
conviction under that subdivision or civil liability under 
section 3, subdivision 2, or within ten years of two or more 
prior convictions under that subdivision or civil liability 
under section 3, subdivision 2, is guilty of a gross misdemeanor.
    (b) A person who operates a motorboat on the waters of this 
state during the period the person is prohibited from operating 
any motorboat or after the person's motorboat operator's permit 
has been revoked, as provided under subdivision 6, is guilty of 
a misdemeanor. 
    Subd. 6.  [OPERATING PRIVILEGES SUSPENDED; REVOKED.] (a) 
Upon conviction, and in addition to any penalty imposed under 
subdivision 5, the person is prohibited from operating any 
motorboat on the waters of this state for a period of 90 days 
between May 1 and October 31, extending over two consecutive 
years if necessary.  
    (b) A person 13 years of age or older but less than 18 
years of age who violates any prohibition contained in 
subdivision 1 shall have his motorboat operator's permit revoked 
by the commissioner as required by section 361.22, subdivision 
2, in addition to any other penalty imposed by the court. 
    Subd. 7.  [DUTIES OF COMMISSIONER.] The court shall 
promptly forward copies of all convictions and criminal and 
civil penalties imposed under subdivision 5 and section 3, 
subdivision 2, to the commissioner.  The commissioner shall 
notify the convicted person of the period during which the 
person is prohibited from operating a motorboat as provided 
under subdivision 6 or section 3, subdivision 2.  The 
commissioner shall also periodically circulate to appropriate 
law enforcement agencies a list of all persons who are 
prohibited from operating any motorboat or have had their 
motorboat operator's permits revoked pursuant to subdivision 6 
or section 3, subdivision 2. 
    Subd. 8.  [IMMUNITY FROM LIABILITY.] The state or political 
subdivision which is the employer of an officer authorized under 
subdivision 2 to make an arrest for violations of subdivision 1 
is immune from any liability, civil or criminal, for the care or 
custody of the motorboat being operated by or in the physical 
control of the person arrested if the officer acts in good faith 
and exercises due care. 
    Sec. 3.  [361.121] [MANDATORY TESTING.] 
    Subdivision 1.  [CHEMICAL TESTING.] A person who operates 
or is in physical control of a motorboat while underway or in 
use on the waters of this state is required, subject to the 
provisions of this section, to take or submit to a test of the 
person's blood, breath, or urine for the purpose of determining 
the presence and amount of alcohol or a controlled substance.  
The test shall be administered at the direction of an officer 
authorized to make arrests under section 361.12, subdivision 2.  
Taking or submitting to the test is mandatory when requested by 
an officer who has probable cause to believe the person was 
operating or in physical control of a motorboat in violation of 
section 361.12, subdivision 1, paragraph (a), and one of the 
following conditions exist: 
    (1) the person has been lawfully placed under arrest for 
violating section 361.12, subdivision 1, paragraph (a); 
    (2) the person has been involved in a motorboat accident 
resulting in property damage, personal injury, or death; 
    (3) the person has refused to take the preliminary 
screening test provided for in section 361.12, subdivision 3; or 
    (4) the screening test was administered and recorded an 
alcohol concentration of 0.10 or more. 
    Subd. 2.  [PENALTIES.] (a) A person who refuses to take a 
test required under subdivision 1 is subject to a civil penalty 
not to exceed $700 and, in addition, the person is prohibited 
from operating any motorboat on the waters of this state for a 
period of one year. 
    (b) A person who operates a motorboat on the waters of this 
state during the period the person is prohibited from operating 
any motorboat as provided under paragraph (a) is guilty of a 
misdemeanor. 
    Subd. 3.  [RIGHTS AND OBLIGATIONS.] At the time a test is 
requested, the person must be informed: 
    (1) that Minnesota law requires a person to take a test to 
determine if the person is under the influence of alcohol or a 
controlled substance; 
    (2) that a person is subject to a civil penalty not to 
exceed $700 for refusing to take the test and, in addition, the 
person is prohibited from operating any motorboat, as provided 
under subdivision 2, for refusing to take the test; 
    (3) that if testing is refused it will not affect the 
person's motor vehicle driver's license; 
    (4) that if the test is taken and the results indicate that 
the person is under the influence of alcohol or a controlled 
substance, the person will be subject to criminal penalties and 
in addition to any other penalties the court may impose, the 
person's operating privileges will be suspended as provided 
under section 361.12, subdivision 6, paragraph (a); 
    (5) that, after submitting to testing, the person has the 
right to have additional tests made by a person of his own 
choosing; and 
    (6) that, if he refused to take a test, the refusal will be 
offered into evidence against him at trial. 
    Subd. 4.  [REQUIREMENT OF URINE TEST.] Notwithstanding 
subdivision 1, if there are reasonable and probable grounds to 
believe there is impairment by a controlled substance which is 
not subject to testing by a blood or breath test, a urine test 
may be required even after a blood or breath test has been 
administered. 
    Subd. 5.  [BREATH TEST USING AN INFRARED BREATH-TESTING 
INSTRUMENT.] In the case of a breath test administered using an 
infrared breath-testing instrument, the test shall consist of 
analyses in the following sequence:  one adequate breath sample 
analysis, one calibration standard analysis, and a second, 
adequate breath sample analysis.  In the case of a test 
administered using an infrared breath-testing instrument, a 
sample is adequate if the instrument analyzes the sample and 
does not indicate the sample is deficient.  For purposes of this 
section, when a test is administered using an infrared 
breath-testing instrument, failure of a person to provide two 
separate adequate breath samples in the proper sequence 
constitutes a refusal to take the test. 
    Subd. 6.  [CONSENT OF PERSON INCAPABLE OF REFUSAL NOT 
WITHDRAWN.] A person who is unconscious or who is otherwise in a 
condition rendering the person incapable of refusal is deemed 
not to have withdrawn the consent provided by subdivision 1 and 
the test may be given.  
    Subd. 7.  [MANNER OF MAKING TEST; ADDITIONAL TESTS.] Only a 
physician, medical technician, physician's trained mobile 
intensive care paramedic, registered nurse, medical 
technologist, or laboratory assistant acting at the request of a 
peace officer authorized to make arrests under section 361.12, 
subdivision 2, may withdraw blood for the purpose of determining 
the presence of alcohol or controlled substance.  This 
limitation does not apply to the taking of a breath or urine 
sample.  The person tested has the right to have a person of his 
own choosing administer a chemical test or tests in addition to 
any administered at the direction of a peace officer; provided, 
that the additional test sample on behalf of the person is 
obtained at the place where the person is in custody, after the 
test administered at the direction of a peace officer, and at no 
expense to the state. The failure or inability to obtain an 
additional test or tests by a person shall not preclude the 
admission in evidence of the test taken at the direction of a 
peace officer unless the additional test was prevented or denied 
by the peace officer. The physician, medical technician, 
physician's trained mobile intensive care paramedic, medical 
technologist, laboratory assistant, or registered nurse drawing 
blood at the request of a peace officer for the purpose of 
determining alcohol concentration shall in no manner be liable 
in any civil or criminal action except for negligence in drawing 
the blood.  The person administering a breath test shall be 
fully trained in the administration of breath tests pursuant to 
training given by the commissioner of public safety. 
    Sec. 4.  [EFFECTIVE DATE.] 
    Sections 1 to 3 are effective May 15, 1986, and apply to 
offenses committed on or after that date. 
    Approved March 24, 1986