18791-1:N:05/06/1999:FC/tng LRS1999-6913




HB756
By Representative Guin
RFD Judiciary
Rd 1 11-MAY-1999


SYNOPSIS:This bill, relating to boating safety, would: 1) Increase the period of time within which to renew a boater certification after the certification expires; 2) increase the age for a nonresident to be exempt temporarily from boater certification to age 14; 3) delete the provision for the issuance of temporary boater safety certifications and duplicate cards for an additional fee; 4) further prohibit the issuance of boater safety certifications to a person under the age of 14 and certain other persons; 5) prohibit persons from giving noncertified persons permission to operate vessels covered by the law; 6) lower the blood alcohol level for the lawful operation of vessels and other marine transportation devices to .08; and 7) further provide for the testing of boat operators for operating a boat under the influence of alcohol or drugs by any law enforcement officer based on probable cause.
Amendment 621 of the Constitution of Alabama of 1901 prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.
The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of Amendment 621. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in Amendment 621.

A BILL
TO BE ENTITLED
AN ACT

Relating to boating safety; to amend Section 33-5-52, Code of Alabama 1975, to further provide for the period of time within which to renew an expired boater certification and to further provide for the age for a nonresident to be temporarily exempt from boater safety certification; to amend Section 33-5-54, Code of Alabama 1975, to delete the provision for the issuance of temporary boater safety certifications and duplicate cards; to amend Section 33-5-57, Code of Alabama 1975, to further prohibit the issuance of boater safety certifications to certain persons under certain conditions; to amend Section 33-5-66, Code of Alabama 1975, to prohibit persons from giving noncertified persons permission to operate certain vessels; to amend Section 32-5A-191.3, Code of Alabama 1975, to further prohibit the operation of certain vessels and other marine transportation devices with alcohol in the blood, or under the influence of alcohol or a controlled substance, and to further provide for the testing of boat operators by any law enforcement officer based on probable cause; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Section 33-5-52, Code of Alabama 1975, is amended to read as follows:

33-5-52.

"(a) Every person, except those specifically exempted by statutory enactment, within five years from April 28, 1994, shall procure a boater safety certification before operating a motorized vessel upon the waters of this state, as defined in Section 33-5-3. This section shall not apply to any sailboat, rowboat, or canoe. Notwithstanding anything to the contrary herein, an Alabama resident 16 years of age and older, who has not been previously issued a boater safety certification, may for a period of thirty (30) days following the date of sale of the vessel to the person, operate the vessel upon the waters provided the following conditions are met: (1) the vessel has been registered in the name of the person; and (2) a notarized bill of sale for the vessel, indicating that the person is the purchaser and owner of the vessel, is in the possession of the person at all times of operation. In addition, any person while taking test drives of vessels for sale when accompanied by a licensed vessel dealer, shall be exempt during the drive from the certification. Every new resident of the State of Alabama, before operating a motorized vessel, shall procure the certification within 30 days after establishing residence in this state.

"(b) Each boater safety certification issued to a person, if issued at the same time the person is issued a valid Alabama motor vehicle driver or learner license, or valid Alabama nondriver identification card, or if issued prior to the expiration date of the driver or learner license or card, shall expire on the expiration date of the person's valid Alabama motor vehicle driver or learner license or card. In all other cases, the expiration date of each boater safety certification shall be four years from the date of issuance.

"(c) Every boater safety certification issued under this article may be renewed at the end of the certification period without examination upon application. For the purpose of renewal of a boater safety certification, the Department of Public Safety shall mail renewal notices to each certification holder 30 days after the expiration date if the certification has not been renewed. A grace period of 60 days after the expiration date of certification shall exist for the purpose of certification renewal and the certification shall be valid for this time period. The applicant shall apply for renewal of certification anytime during a period beginning 30 days before the expiration date of the then current certification until one year three years after the expiration date of certification. Failure to make application for renewal within the specified time shall result in the applicant being required to take, and successfully pass, a written or oral examination as administered by the Department of Public Safety. If any person's birthday is February 29, the first day of March following shall be regarded as the birthday for the purposes of this section.

"(d) Nonresidents at least 12 14 years of age who have in their immediate possession a valid boater safety certification or vessel operator's certification issued in their home state or country shall be exempt from the requirements of this section, but under no circumstances shall a person be granted any privileges of operation beyond those granted to an Alabama resident certification holder of the same age.

"(e) Nonresidents at least 12 14 years of age whose home state or country does not require boater safety certification or the licensing of vessel operators shall also be exempt from the requirements of this section for a cumulative operation period of not more than 45 days in any calendar year. Otherwise, any nonresidents shall be examined and certified under the same terms and conditions as Alabama residents. Nonresidents may be examined and obtain certification in any county and the certification shall be entitled "Nonresident Alabama Boater Safety Certification," but under no circumstances shall a person be granted any privileges of operation beyond those granted to an Alabama resident certification holder of the same age.

"(f) A person operating a vessel pursuant to a valid and legal commercial activity, shall, during the period of time of that activity only, be exempt from the requirement of boater safety certification. Otherwise, the person shall be subject to the requirement.

"(g) A person, while using a rental vessel, shall be exempt from the certification requirements of this section if the following conditions are met:
"(1) The person rents a vessel from a boat rental business duly licensed by the municipality or the county if the following three conditions are met:
"a. The rental contract specifies that the lessee has been instructed in the proper and safe operation of the vessel by the lessor or the authorized agent of the lessor, and
"b. The lessor in fact has complied with the terms of rental contract and all parties sign the contract, and
"c. The lessee signs a statement that the lessee is not currently under suspension or revocation of any boater safety certification or vessel operation privilege in this state."

Section 2. Section 33-5-54, Code of Alabama 1975, is amended to read as follows:

33-5-54.

"(a) Unless otherwise provided in this article, upon the installation of a system for the issuance of boater safety certifications with color photographs of holders, all certifications and renewals issued in this state shall be issued in the following manner:
"(1) The person shall apply under oath to the judge of probate or license commissioner of the county of residence for the certification or renewal upon a form which shall be provided by the Director of Public Safety.
"(2) Subject to the other provisions of this section, the judge of probate or license commissioner shall take a color photograph of the holder, with equipment to be furnished by the Department of Public Safety, to be attached to each application.

"(b) It is the legislative intent to implement and maintain a boater safety certification program at the lowest possible cost to the citizens of Alabama. Consistent with this goal, it is the legislative intent to not require payment for boater safety certifications when certifications are obtained at the time of issuance of a valid Alabama motor vehicle driver or learner license or valid Alabama nondriver identification card, but rather utilize one card for those purposes.

"(c) The following requirements shall apply to persons obtaining boater safety certifications other than at the time of issuance of their Alabama motor vehicle driver or learner license or identification card:

"For the purpose of defraying the cost of issuing boater safety certifications with color photographs of the holder thereon, the judge of probate or license commissioner shall collect for each certification the sum of twenty dollars ($20) for a four-year certification, and the judge of probate or license commissioner shall give the applicant a boater safety certification, but validly licensed Alabama motor vehicle driver or learner license holders or holders of valid Alabama nondriver identification cards, obtaining certifications prior to the expiration date of an Alabama driver or learner license or identification card, shall be issued a temporary certification which shall expire on the expiration date of the driver or learner license or card, the cost of which shall be an issuance fee of one dollar and fifty cents ($1.50), and the fee amount shall be retained by the probate judge and distributed as otherwise provided for issuance fees in Section 33-5-55.

"(d) Notwithstanding anything to the contrary, in the event the applicant is, at the time of issuance, also issued a valid Alabama motor vehicle driver or learner license or valid Alabama nondriver identification card, then the applicant shall not be required to pay any additional amount for the boater safety certification. Any person may have a duplicate card issued, at the same cost as the original, for the convenience of the individual. The duplicate shall be marked "duplicate"."

Section 3. Section 33-5-57, Code of Alabama 1975, is amended to read as follows:

33-5-57.

"A boater safety certification shall not be issued to the following persons:
"(1) Any person less than 12 14 years of age.
"(2) Any person whose vessel operating right or privilege is suspended.
"(3) Any person whose vessel operating right or privilege is revoked.
"(4) Any person who is an habitual drunkard or addicted to the use of narcotic drugs abuser of alcohol or drugs.
"(5) Any person adjudged insane or an idiot, imbecile, or feeble-minded, until restored to competency by judicial judgment, or released from a hospital for the insane or feeble-minded, upon certification by the superintendent or medical director that the person is competent, and upon certification by the Director of Public Safety or examining officer that the person is competent to operate a vessel with safety to persons and property.
"(6) (5) Any person afflicted with or suffering from a physical or mental disability which, in the opinion of the Director of Public Safety or examining officer will prevent the person from exercising reasonable and ordinary control over a vessel."

Section 4. Section 33-5-66, Code of Alabama 1975, is amended to read as follows:

33-5-66.

"(a) Any person of whom a boater safety certification is required, who operates a motorized vessel on the waters of this state as the terms are defined in Section 33-5-3, without first complying with this article, or the rules and regulations promulgated, shall be guilty of a Class B misdemeanor, and, upon conviction, is punishable as provided in Sections 13A-5-7 and 13A-5-12. Any person so convicted shall be fined not less than one hundred dollars ($100).

"(b) Any person who gives permission to operate a motorized vessel on the waters of this state as the terms are defined in Section 33-5-3, to a person of whom a boater safety certification is required, without first complying with this article or the rules and regulations promulgated pursuant to this article, shall be guilty of Class C misdemeanor and, upon conviction, is punishable as provided in Sections 13A-5-7 and 13A-5-12, except that the minimum fine shall be not less than fifty dollars ($50).

"(b) (c) Any person who willfully makes a false statement under oath, in an application or renewal for a boater safety certification, shall be guilty of perjury and upon conviction is punishable as provided by law.

"(c) (d) Any person who willfully conceals or withholds a material fact called for in an application for or renewal of a boater safety certification with intent to obtain certification by fraud shall be guilty of a Class C misdemeanor and, upon conviction, is punishable as provided in Sections 13A-5-7 and 13A-5-12. Any person so convicted shall be fined not less than fifty dollars ($50).

"(d) (e) Any person who violates any provision of this article for which no fixed punishment is prescribed or who violates any rule or regulation promulgated as authorized by this article shall be guilty of a Class C misdemeanor and, upon conviction, is punishable as provided in Sections 13A-5-7 and 13A-5-12. Any person so convicted shall be fined not less than fifty dollars ($50).

"(e) (f) All fines, penalties, or forfeitures imposed and collected under this article shall be forwarded immediately by the officer of the court who collects them to the Commissioner of Conservation and Natural Resources, together with a report giving a list and description of each case in which a fine, penalty, or forfeiture was collected. The reports shall be on forms provided by the commissioner and shall contain information as the commissioner may require. All moneys received by the commissioner shall be covered by him immediately upon receipt into the State Treasury to the credit of the State Water Safety Fund. Any officer of the court who fails to make the reports provided for or who fails to remit any fines, penalties, or forfeitures, as provided by law, and collected under this article in the manner provided shall be guilty of a Class C misdemeanor and, upon conviction, shall be fined not more than one hundred dollars ($100)."

Section 5. Section 32-5A-191.3, Code of Alabama 1975, is amended to read as follows:

32-5A-191.3.

"(a) A person shall not drive operate or be in actual physical control of any vessel, or manipulate any water skis, aquaplane, or any other marine transportation device on the waters of this state, as the waters are defined in Section 33-5-3, while:

"(1) There is 0.10 0.08 percent or more by weight of alcohol in the blood for persons 21 years of age or older or 0.02 percent by weight of alcohol in the blood for persons under 21 years of age;

"(2) Under the influence of alcohol;

"(3) Under the influence of a controlled substance to a degree which renders the person incapable of safely driving operating;

"(4) Under the combined influence of alcohol and a controlled substance to a degree which renders the person incapable of safely driving operating; or

"(5) Under the influence of any substance which impairs the mental or physical faculties of the person to a degree which renders the person incapable of safely driving operating.

"(b) In the case of a vessel or other marine device described in subsection (a), only where the a law enforcement officer of the Department of Conservation and Natural Resources has prior to stopping a vessel probable cause to believe that the operator of the vessel is driving operating under the influence of alcohol or under the influence of a controlled substance in violation of this section, the law enforcement officer is authorized to administer and may test the operator, at the scene, by using a field breathalyzer or other approved device, as a screening device, to determine if the operator may be operating a vessel or device in violation of subsection (a). Refusal to submit to a field breathalyzer test or other approved testing device shall result in the same punishment as provided in subsection (c) of Section 32-5-192 for operators of motor vehicles on the state highways. No field breathalyzer test shall be administered where the operator is stopped for violations other than under this section.

"(c) The fact that any person charged with violating this section is or has been legally entitled to use alcohol or a controlled substance shall not constitute a defense against any charge of violating this section.

"(d) Upon first conviction, a person violating this section shall be punished by imprisonment in the county or municipal jail for not more than one year, or by fine of not less than two hundred fifty dollars ($250) nor more than one thousand dollars ($1,000), or by both fine and imprisonment. In addition, on a first conviction, the Commissioner of Conservation and Natural Resources shall suspend the vessel operating privilege or boater safety certification of the person so convicted for a period of 90 days. First time offenders convicted of driving or operating a vessel while under the influence of alcohol shall may also be required to complete a DUI court referral program approved by the State Administrative Office of Courts. Neither reckless or careless operation of a vessel, nor any other boating or water safety infraction is a lesser included offense under a charge of operating a vessel while under the influence of alcohol or controlled substances.

"(e) On a second conviction within a five-year period, the person convicted of violating this section shall be punished by a fine of not less than five hundred dollars ($500) nor more than two thousand five hundred dollars ($2,500) and by imprisonment, which may include hard labor in the county or municipal jail for not more than one year. The sentence shall include a mandatory sentence which is not subject to suspension or probation of imprisonment in the county or municipal jail for not less than 48 consecutive hours or community service for not less than 20 days. In addition, the Commissioner of Conservation and Natural Resources shall revoke the vessel operating privileges or boater safety certification of the person so convicted for a period of one year.

"(f) On a third or subsequent conviction within a five-year period, the person convicted of violating this section shall be punished by a fine of not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) and by imprisonment, which may include hard labor, in the county or municipal jail for not less than 60 days nor more than one year, to include a minimum of 60 days which shall be served in the county or municipal jail and which cannot be probated or suspended. In addition, the Commissioner of Conservation and Natural Resources shall revoke the vessel operating privilege or boater safety certification of the person so convicted for a period of three years.

"(g) All fines collected for violation of this section as to vessels or other marine devices on the waters of this state shall be paid into the State Water Safety Fund.

"(h) A person who has been arrested for violating this section shall not be released from jail under bond or otherwise, until there is less than the same percent by weight of alcohol in the person's blood as specified in subdivision (1) of subsection (a).

"(i) "Vessel," for the purposes of this section, shall mean any vessel as defined in Section 33-5-3, operated on the waters of this state, as defined in Section 33-5-3.

"(j) No provision of this section shall be construed to assess points for DUI convictions under motor vehicle convictions for driving under the influence."

Section 6. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621 because the bill defines a new crime or amends the definition of an existing crime.

Section 7. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.

Section 8. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.


Boats and Boating
Licenses and Licensing
Law Enforcement
Driving Under the Influence
Code Amended