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 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.

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.

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. 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 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.

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.