CHAPTER 216

FORMERLY

HOUSE BILL NO. 290

AS AMENDED BY SENATE AMENDMENT NOS. 1, 3, AND 6

AN ACT TO AMEND TITLE 23, DELAWARE CODE, RELATING TO THE OPERATING, AND/OR CONTROL OF A VESSEL OR BOAT UPON THE WATERS OF THE STATE OF DELAWARE WHILE UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (two-thirds of all members elected in each House thereof concurring therein):

Section 1. Amend Section 2116(b), Chapter 21, Title 23, Delaware Code, by striking said Subsection in its entirety and substituting in lieu thereof the following:

"(b) No person may use any vessel to which this Subchapter applies, including those exempt in §2115 of this Title, or any water skis, aquaplane, surfboard or similar device in a negligent manner so as to endanger the life, limb or property of any person."

Section 2. Amend Title 23, Delaware Code, by adding a new Chapter to read as follows:

"Chapter 23. OPERATION OF A VESSEL OR BOAT WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR AND/OR DRUGS.

§2301. Definitions.

(a) 'Vessel' shall mean every device in, upon or by which any person may be transported upon the water excepting devices moved by human power.

(b) 'Underway' shall be defined as any vessel which is not at anchor or made fast ashore.

§2302. Operation of a vessel or boat while under the influence of intoxicating liquor and/or drugs.

(a) No person shall motor, sail, row, operate, command or have actual physical control of any vessel or boat underway on Delaware waters while under the influence of Intoxicating liquor or drugs or any combination of drugs and/or intoxicating liquors.

(b) Any person charged under Subsection (a) of this Section whose blood alcohol concentration is one tenth of 1% or more by weight as shown by a chemical analysis of a blood, breath or urine sample taken within 4 hours of the alleged offense shall be guilty of violating Subsection (a) of this Section. This provision shall not preclude a conviction based on other admissible evidence.

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

§2303. Consent to submit to chemical test.

(a) Any person who motors, sails, rows, commands, operates or has actual physical control of a vessel or boat underway on the waters of this State shall be deemed to have given his consent, subject to this Section and §2202 of this Title, to a chemical test or tests of his blood, breath and/or urine for the purpose of determining the presence of alcohol or a drug or drugs. The testing may be required of a person when an officer has probable cause to believe the person is in violation of §2302 of this Title, or a local ordinance substantially conforming thereto.

(b) At the time that a chemical test specimen is required, the person may be Informed that if testing is refused, the person shall be prohibited from operating a vessel upon Delaware's waters for a period of one (1) year.

(c) If there are reasonable grounds to believe that there is impairment by a drug or drugs which are not readily subject to detection by a breath test, a blood and/or urine test may be required even after a breath test has been administered.

(d) Alternative tests; physical incapacity.

If for any reason a person is physically unable to supply enough breath or complete the chemical test, he shall submit to other chemical tests as designated by the officer, subject to the requirements of Subsection (a) of this Section. Any person who is unconscious or who Is otherwise in a condition rendering him incapable of refusal shall be deemed to not have withdrawn the consent provided in §2303 of this Title and any test may be performed as provided in Subsection (a) of this Section.

(e) Refusal to submit as admissible evidence.

Upon any trial of any action or proceeding arising out of the acts alleged to have been committed by any person while in violation of §2202 of this Title, the court may admit evidence of the refusal of such person to submit to a chemical test of his breath, blood or urine.

(f) Admissibility in evidence of results of chemical test.

(1) Upon the trial of any action or proceeding arising out of acts alleged to have been committed by any person while under the influence of alcohol, and/or drugs or any combination thereof, with respect to any chemical test taken by or at the request of the State, the court shall admit the results of a chemical test of the person's breath, blood or urine according to the normal rules of evidence.

(g) The informing or failure to inform the accused concerning the implied consent provision shall not affect the admissibility of such results in any prosecution for a violation of §2302 (a) of this Title.

(h) The doctor-patient privilege shall not apply to the disclosure to law-enforcement personnel nor the admissibility into evidence in any criminal proceeding of the results of a chemical test of a person's blood, breath or urine for the purpose of determining the alcohol or drug content of his blood irrespective of whether such test was done at the request of a treating physician, other medical personnel, or a peace officer.

§2304. Refusal to submit to chemical test.

(a) If any person requested refuses to submit to a chemical test pursuant to §2303 of this Chapter, after being informed of the penalty for said refusal, that person shall be prohibited from operating a vessel upon Delaware waters for a period of one (1) year. This prohibition shall begin the day of said refusal.

(b) The Secretary of the Department shall notify In writing said persons of this prohibition and its duration and shall maintain a list of these individuals.

(c) Operation upon Delaware waters during the period of prohibition provided in subsection (a) of this section shall be punished by a fine of not less than $500 nor more than $2000 and/or 30 days in jail or both.

§2305. Penalties; jurisdiction.

Whoever is convicted of a violation of Section 2302 of this Chapter shall:

(1) For the first offense, be fined not less than $200 nor more than $1000 or imprisoned not less than 60 days nor more than 6 months or both.

(2) For each subsequent like offense occurring within 5 years from the former offense, be fined not less than $500 nor more than $2000 and imprisoned not less than 60 days nor more than 18 months. For the purposes of this Subsection, prior offenses shall include those occurring in any other state, the District of Columbia or under generally conforming local ordinances. A conviction for a violation of a criminal statute dealing with injury or death caused to another person by the person's driving or operation of the vessel, under the influence was included as an element of such charge, shall constitute such a first or similar offense if occurring within 10 years from the subsequent offense.

(3) Jurisdiction for violation of this chapter shall be in the Justice of the Peace Courts.

§2306. Enforcement of Chapter.

Any person authorized to make arrests under the laws of the State may enforce this Chapter.

§2307. Persons Qualified to Administer Tests.

Any person qualified under §2746 of Title 21 shall be qualified for the purposes of this chapter to withdraw blood from a person submitting to a chemical test or obtaining a specimen of breath or urine under this chapter.

§2309. Disposition of Vessel and Property.

(a) Where the only person on a vessel is an individual suspected of violating this Chapter, the following procedure shall apply:

1. The vessel shall be towed to a safe port and be secured.

2. An inventory of the vessel's contents shall be made. The occupant of the vessel shall sign the inventory and receive a copy thereof.

3. All contents of the vessel shall be secured on the boat whenever possible. If it is not possible to secure the contents on the vessel, the contents must be secured safely elsewhere.

4. The vessel shall remain secured until the vessel's occupant or their designee is capable of assuming responsiblity for the vessel.

(b) Where more than one person is on a vessel which has been stopped for a suspected violation of this Chapter, the following procedure shall apply:

1. The vessel shall be towed to a safe port and be secured unless there is a competent person on the vessel who is designated by the operator to take responsibility for the vessel.

2. If there is no competent person on the vessel to operate it, the procedures set forth in subsection (a) of this section shall apply.

(c) A vessel shall be considered at "a safe port and be secured" if:

1. The vessel is placed at a marina under a bailment contract with the marina operator, at the owners expense. The marina operator must be paid a storage fee by the owner or operator upon release of the vessel. When a vessel is placed at a marina, the marina operator shall sign and receive a copy of the inventory of the vessel; or

2. The vessel is transported to a State-operated facility,

(d) Where a vessel which has been stopped for a suspected violation of this Chapter has been damaged or has caused damage as a result of its operation in violation of the Chapter, the vessel may, at the direction of the investigating agency, be removed and impounded for evidentiary purposes. The vessel shall be inventoried pursuant to subsection (a)(2) of this Section, but the vessel shall not be released until evidentiary processing is completed."

Section 3. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Approved May 18, 1990.