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 a violation of either:

(a) Section 5-395.

(b) Section 5-397.

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 of this section regardless of the sequence in which the offenses were committed. For the 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 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) 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 (b) 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 law enforcement and boating safety fund established by section 5-383.  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.