BUI and Boating Safety Laws

As with DUI, some of our clients who have been charged with BUI have wanted to read the actual law for themselves. Below, we have highlighted those relevant sections of “South Carolina Boating and Safety Act of 1999.” In addition to the BUI sections, we have also included some of the other provisions relating to general boating safety as well as what you are required to do if you are in an accident on the water. You will find that the penalties for a BUI are essentially the same as a DUI. There is loss of boating privileges, fines, ADSAP, and possible prison time (or public service in some cases). A BUI is a misdemeanor unless great bodily injury or death occurs. In those circumstances, the charge becomes a felony, and you are facing mandatory prison, not local jail, time. After reading these statutes, we hope you will realize how serious a BUI arrest is and call us for a private consultation. Before undertaking reading these provisions, our first bit of sage advice is to go get a large cup of strong coffee. Enjoy.

CHAPTER 21.

SECTION 50-21-5. Short title.

This act may be cited as the “South Carolina Boating and Safety Act of 1999.”

HISTORY: 1999 Act No. 124, Section 2.A.

SECTION 50-21-10. Definitions.

As used in this title unless the context clearly requires a different meaning:

(1) “Abandon” or “abandoned” means any watercraft that has been moored, stranded, wrecked, sinking, or sunk, and has been left unattended for longer than forty-five days. A watercraft is not abandoned if it is legally moored or is on private property.

(2) “Boat” means a vessel.

(3) “Associated equipment” does not include radio equipment and means:

(a) a system, part, or component of a boat as originally manufactured or a similar part or component manufactured or sold for replacement, repair, or improvement of the system, part, or component;

(b) an accessory or equipment for, or appurtenance to, a boat;

(c) a marine safety article, accessory, or equipment intended for use by a person on board a boat.

(4) “Boat livery” means a business that holds watercraft for rent, lease, or charter.

(5) “Certificate of number” means the registration.

(6) “Certificate of origin” means a document establishing the initial chain of ownership, such as manufacturer’s certificate of origin or statement of origin, importer’s certificate of origin, or builder’s certification.

(7) “Dealer’s permit” means a certificate issued by the department to a marine business to extend the privilege of using marine dealer demonstration numbers on boats or motors for demonstration or testing purposes and assignment on appropriate documents. Abuse of these privileges results in termination of the dealer’s permit.

(8) “Demonstration numbers” means a temporary certificate of number issued to permitted marine dealers or manufacturers for the purpose of demonstrating watercraft held for sale, or used on watercraft which are being repaired or tested or used by an established customer whose boat is being repaired.

(9) “Department” means the South Carolina Department of Natural Resources.

(10) “Hull identification number” means the letter and number combination required by the United States Coast Guard or its successor agency on all watercraft manufactured after November 1, 1972.

(11) “Marina” means a facility which provides mooring or dry storage for watercraft.

(12) “Marine dealer” means a business that engages in buying or selling, exchanging, brokering, manufacturing, or servicing watercraft or outboard motors for watercraft.

(13) “Marine manufacturer” means a person engaged in the manufacturing of watercraft or outboard motors for sale or trade.

(14) “No Wake-Idle Speed” means a regulated boating area established for the safety of the public. “No Wake-Idle Speed” means that a vessel cannot proceed at a speed greater than that speed which is necessary to maintain steerageway.

(15) “Operate” means to navigate, steer, drive, or be in control. It also includes the manipulation of moving water skis, a moving aquaplane, a moving surfboard, or similar moving device.

(16) “Operator” means the person who operates or has charge or command of the navigation or use of a vessel or watercraft.

(17) “Outboard motor” means a combustion engine or electric propulsion system, which is used to propel a watercraft and which is detachable from the watercraft as a unit. No outboard motor of less than five horsepower or its equivalent is required to be titled under this chapter.

(18) “Owner” means a person, other than a lienholder, who claims lawful possession of a vessel or outboard motor by virtue of legal title or equitable interest in it which entitled him to possession.

(19) “Person” means an individual, a partnership, a firm, a corporation, an association, or other legal entity.

(20) “Reportable boating accident” means an accident, collision, or other casualty involving a vessel subject to this chapter which results in loss of life, injury which results in loss of consciousness, necessity for medical treatment, necessity to carry a person from the scene, disability which prevents the discharge of normal duties beyond the day of casualty, or actual physical damage to property including vessels in excess of the minimum amount set by the United States Coast Guard for reportable accidents.

(21) “Serial number” means the identifying manufacturer’s number affixed to a watercraft before November 2, 1972, and to outboard motors before, on, and after that date. The serial number of watercraft manufactured after November 1, 1972, is part of the hull identification number.

(22) “Temporary certificate of number” is a temporary registration assigned to a vessel to allow operation for a limited purpose.

(23) “Tender” means a small watercraft attendant to a larger vessel that meets United States Coast Guard requirements and is used solely for ferrying supplies or passengers and crew between its parent vessel and shore.

(24) “Use” means operate, navigate, or employ.

(25) “Vessel” means every description of watercraft, other than a seaplane regulated by the federal government, used or capable of being used as a means of transportation on water.

(26) “Water device” means a motorboat, boat, personal watercraft or vessel, water skis, an aquaplane, surfboard, or other similar device.

(27) “Waters of the State” means waters within the territorial limits of the State but not private lakes or ponds.

(28) “Watercraft” means any thing used or capable of being used as a means of transportation on the water but does not include: a seaplane regulated by the federal government, water skis, aquaplanes, surfboards, windsurfers, tubes, rafts, and similar devices or any thing that does not meet construction or operational requirements of the state or federal government for watercraft.

HISTORY: 1962 Code Section 70-295; 1955 (49) 299; 1959 (51) 409; 1961 (52) 588; 1972 (57) 2791; 1993 Act No. 128, Section 3; 1993 Act No. 181, Section 1269; 1999 Act No. 100, Part II, Section 64.G, H; 1999 Act No. 124, Section 2.A; 2008 Act No. 344, Section 2, eff six months after approval (approved June 11, 2008).

SECTION 50-21-20. Legislative declaration of policy.

It is the policy of this State to promote safety for persons and property in and connected with the use, operation, and equipment of vessels and to promote uniformity of laws relating thereto.

HISTORY: 1962 Code Section 70-295.1; 1955 (49) 299; 1959 (51) 409; 1972 (57) 2791; 1993 Act No. 181, Section 1269.

SECTION 50-21-30. Watercraft laws and ordinances; application for special rules and regulations.

(1) The provisions of Title 50 and other applicable laws of this State shall govern the operation, equipment, titling, numbering, and all other matters relating thereto for watercraft and water devices using or held for use on the waters of this State; but nothing in this chapter may be construed to prevent the adoption of any ordinance or local law relating to operation and equipment of watercraft; provided, that the ordinances or local laws shall be operative only so long as and to the extent that they are identical to provisions of this chapter, amendments thereto, or regulations issued thereunder.

(2) Any subdivision of this State may, at any time, but only after three days’ public notice make formal application to the department for special rules and regulations with reference to the operation of vessels on any waters within its territorial limits and shall set forth therein the reasons which make such special rules and regulations necessary or appropriate.

(3) The department is hereby authorized to make special rules and regulations with reference to the operation of vessels on waters within the territorial limits of this State.

HISTORY: 1962 Code Section 70-295.2; 1955 (49) 299; 1959 (51) 409; 1972 (57) 2791; 1993 Act No. 181, Section 1269; 2008 Act No. 344, Section 3, eff six months after approval (approved June 11, 2008).

SECTION 50-21-40. Administration of chapter.

The administration of this chapter shall be vested in the department. The department shall enforce this chapter through its Natural Resources Enforcement Division.

HISTORY: 1962 Code Section 70-295.3; 1955 (49) 299; 1959 (51) 409; 1972 (57) 2431; 1993 Act No. 181, Section 1269.

SECTION 50-21-80. Enforcement of provisions of chapter; authority to issue summons or make arrests.

Any person employed or elected by this State or political subdivision thereof, whose duty it is to preserve the peace or to make arrests or to enforce the law including, but not limited to, members of the sheriff’s departments, state police, enforcement officers, deputies, or other qualified persons, upon recommendation of the appropriate agency, may be empowered to enforce the provisions of this chapter. The department shall be the agency primarily responsible for enforcement of all laws pertaining to boating. Any such person is empowered to issue a summons for appearance in court or before a magistrate or make arrest for violations of this chapter or of the regulations prescribed under it.

HISTORY: 1962 Code Section 70-295.17; 1955 (49) 299; 1959 (51) 409; 1972 (57) 2791; 1993 Act No. 181, Section 1269; 2008 Act No. 321, Section 1, eff 6 months after approval (approved June 16, 2008).

SECTION 50-21-85. Conditions for operation of vessel displaying blue light; operating procedure in presence of such vessel; violations.

A person shall not operate a vessel displaying or using a rotating, strobing, flashing, or intermittently reflecting blue light unless a duly commissioned law enforcement officer is on board.

The operator of a vessel being approached by a vessel flashing a blue light shall stop or maneuver in a way as to permit boarding, so far as possible without endangering his vessel, and not begin normal movement again until directed by the law enforcement officer or until the vessel flashing a blue light has cleared the immediate area.

The operator of a vessel approaching an area where a vessel flashing a blue light is located or patrolling shall slow his vessel to a no wake speed and shall maintain the speed until clear of the area.

A person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than twenty-five dollars nor more than five hundred dollars, or imprisoned not more than thirty days for each violation.

HISTORY: 1979 Act No. 68, Section 1; 1993 Act No. 181, Section 1269; 2011 Act No. 59, Section 1, eff August 1, 2011.

SECTION 50-21-87. Operation of vessel prohibited within fifty feet of vessel displaying diver down flag; diving prohibited within fifty feet of vessel whose occupant is fishing.

(A) A person may not operate a vessel within fifty feet of another vessel when a diver is displaying a diver down flag (red with a diagonal white stripe) to mark the location of the diver. When the flag is being displayed in a water body too narrow to allow passage of another vessel other than within fifty feet, a vessel operator may proceed only past the displayed flag at a no-wake speed and allowing as much clearance between his vessel and the displayed flag as is safe and practical.

(B) A person may not engage in diving activities within fifty feet of a vessel whose occupant is fishing.

(C) A person does not violate this section if he fishes or displays a dive flag in an area before another person subsequently engages in diving activities or operates a vessel within fifty feet of a displayed dive flag.

HISTORY: 1993 Act No. 60, Section 1.

SECTION 50-21-90. Boating safety and educational program.

The department is hereby authorized to inaugurate a comprehensive boating safety and boating educational program, and to seek the cooperation of boatmen, the federal government and other states.

HISTORY: 1962 Code Section 70-295.7; 1955 (49) 299; 1959 (51) 409; 1972 (57) 2791; 1993 Act No. 181, Section 1269.

SECTION 50-21-100. Records to be kept by owners of boat liveries.

The owner of a boat livery shall cause to be kept a record of the name and address of the person or persons hiring any vessel; the identification number thereof, and the departure date and time, and the expected time of return. The record shall be preserved for at least six months.

HISTORY: 1962 Code Section 70-295.10; 1955 (49) 299; 1959 (51) 409; 1972 (57) 2791; 1993 Act No. 181, Section 1269.

SECTION 50-21-105. Towing of watercraft by department.

The department may tow away and store at the nearest commercial marina or any other suitable facility any unattended watercraft, a watercraft the operator of which is ill, intoxicated, or under a disability which renders him incapable of functioning safely, or other object which constitutes a hazard to navigation and which is not within an anchorage area approved by the United States Coast Guard.

The owner may regain control of the watercraft or other object by proving ownership to the operator of the facility and paying the fee charged for storage.

HISTORY: 1988 Act No. 452, Section 1; 1993 Act No. 181, Section 1269.

SECTION 50-21-110. Negligent operation of water device; offense; penalties.

(A) No person may operate any water device in a negligent manner.

(B) Negligent operation includes, but is not limited to, operating a water device at more than idle speed in a no wake zone, failing to maintain a proper lookout for other boats or persons, operating too fast for conditions on the water, racing, or pulling a skier through a designated swimming area.

(C) A person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty nor more than two hundred dollars or imprisoned not more than thirty days for each violation.

(D) In addition to other penalties, the department shall require any person who is convicted under this section three times within a five-year period to attend and complete a boating safety education program approved by the department. The person required to attend the class shall reimburse the department for the expense of the class. A person’s privilege to operate a water device within this State must be suspended until successful completion of the required class.

HISTORY: 1962 Code Section 70-295.11; 1955 (49) 299; 1957 (50) 125; 1959 (51) 409; 1971 (57) 853; 1972 (57) 2791; 1973 (58) 648; 1993 Act No. 181, Section 1269; 1999 Act No. 124, Section 2.C.

SECTION 50-21-111. Reckless operation of water device; offense; penalties.

(A) A person who operates any water device in such a manner as to indicate either a wilful or wanton disregard for the safety of persons or property is guilty of reckless operation.

(B) Reckless operation includes, but is not limited to, weaving through congested vessel traffic at more than idle speed; or jumping the wake of another vessel within two hundred feet of that vessel; or crossing the path or wake of another vessel when the visibility around the other vessel is obstructed; or maintaining a collision course with another vessel or object and swerving away in close proximity to the other vessel or object.

(C) A person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars nor more than two hundred dollars or imprisoned for not more than thirty days.

(D) A person convicted of reckless operation, in addition to any other penalties, shall be required by the department to attend and complete a boating safety education program approved by the department. The person required to attend the program shall reimburse the department for the expense of the program. A person’s privilege to operate a water device within this State shall be suspended until successful completion of the required program.

A person’s privilege to operate a water device within this State shall be suspended by the department for a period of ninety days upon conviction of a second offense of reckless operation of a water device within a five-year period. Following the ninety-day suspension, the person’s privilege shall remain suspended until successful completion of a boating safety education program approved by the department. The person required to attend the program shall reimburse the department for the expense of the program.

HISTORY: 1999 Act No. 124, Section 2.D.

SECTION 50-21-112. Operation of moving motorized water device or water device under sail while under the influence of drugs and/or alcohol; offense; penalties. 

(A) It is unlawful for a person to operate a moving motorized water device or water device undersail upon the waters of this State while under the:

(1) influence of alcohol to the extent that the person’s faculties to operate are materially and appreciably impaired;

(2) influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person’s faculties to operate are materially and appreciably impaired; or

(3) combined influence of alcohol and any other drug or drugs, or substances which cause impairment to the extent that the person’s faculties to operate are materially and appreciably impaired.

For purposes of this section “drug” means illicit or licit drug, a combination of licit or illicit drugs, a combination of alcohol and an illicit drug, or a combination of alcohol and a licit drug.

(B) A person violating this section is guilty of a misdemeanor and, upon conviction, must be punished:

(1) for a first offense, by a fine of two hundred dollars or imprisonment for not less than forty-eight hours nor more than thirty days. However, in lieu of the forty-eight hour minimum imprisonment, the court may provide for forty-eight hours of public service employment. The minimum forty-eight hour imprisonment or public service employment must be served at a time when it does not interfere with the offender’s regular employment under terms and conditions, as the court considers proper. However, the court may not compel an offender to perform public service employment instead of the minimum sentence;

(2) for a second offense, by a fine of not less than two thousand dollars nor more than five thousand dollars and imprisonment for not less than forty-eight hours nor more than one year. However, the fine imposed by this item may not be suspended in an amount less than one thousand dollars. Instead of service of imprisonment, the court may require that the individual complete an appropriate term of public service employment of not less than ten days upon terms and conditions the court considers proper. Upon imposition of a sentence of public service, the defendant may apply to the court to be allowed to perform his public service in his county of residence if he has been sentenced to public service in a county where he does not reside;

(3) for a third offense, by a fine of not less than three thousand five hundred dollars nor more than six thousand dollars and imprisonment for not less than sixty days nor more than three years.

(C) Any person convicted of operating a water device in violation of subsection (A), in addition to any other penalties, must be prohibited by the department from operating any water device within this State for six months for the first conviction, one year for the second conviction, and two years for the third conviction. Only those violations, which occurred within ten years including and immediately preceding the date of the last violation, shall constitute prior violations within the meaning of this section.

A person whose privilege is suspended under the provisions of this section must be notified by the department of the suspension and of the requirement to enroll in and successfully complete an Alcohol and Drug Safety Action Program certified by the Department of Alcohol and Other Drug Abuse Services prior to reinstatement of the privilege. An assessment of the extent and nature of the alcohol and drug abuse problem, if any, of the applicant must be prepared and a plan of education or treatment, or both, must be developed based upon the assessment. Entry into and successful completion of the services, if such services are necessary, recommended in the plan of education or treatment, or both, developed for the applicant is a mandatory requirement of the restoration of privileges to the applicant. The Alcohol and Drug Safety Action Program shall determine if the applicant has successfully completed the services. The Department of Alcohol and Other Drug Abuse Services shall determine the cost of services provided by each certified Alcohol and Drug Safety Action Program. Each applicant shall bear the cost of services recommended in the applicant’s plan of education or treatment. The cost of services must be within the limits set forth in Section 56-5-2990(C). No applicant may be denied services due to an inability to pay. Inability to pay for services may not be used as a factor in determining if the applicant has successfully completed services. If the applicant has not successfully completed the services as directed by the Alcohol and Drug Safety Action Program within one year of enrollment, a hearing must be provided by the Alcohol and Drug Safety Action Program and if further needed by the Department of Alcohol and Other Drug Abuse Services.

The department and the Department of Alcohol and Other Drug Abuse Services shall develop procedures necessary for the communication of information pertaining to reinstating the privilege, or otherwise. The procedures must be consistent with the confidentiality laws of this State and the United States.

A person convicted under this section, in addition to any other penalties, shall be required by the department to attend and complete a boating safety education program approved by the department. The person required to attend the program shall reimburse the department for the expense of the program. The person’s privilege to operate a water device within this State shall be suspended until successful completion of the required program.

(D) The suspension penalties assessed under this section are in addition to and not in lieu of any other civil remedies or criminal penalties which may be assessed. No part of the minimum sentences provided in this section may be suspended.

(E) For the purposes of this chapter any conviction, entry of a plea of guilty or of nolo contendere or forfeiture of bail, for the violation of any law or ordinance of this or any other state or any municipality of this or any other state that prohibits any person from operating a vessel or water device while under the influence of alcohol or drugs or a combination of both constitutes a prior offense for the purpose of any prosecution for any subsequent violation of this section. Only those offenses which occurred within a period of ten years including and immediately preceding the date of the last offense constitutes prior offenses within the meaning of this section.

HISTORY: 1991 Act No. 138, Section 1; 1993 Act No. 181, Section 1269; 1999 Act No. 124, Section 2.E.

SECTION 50-21-113. Operation of moving water device while under the influence of alcohol or drugs resulting in property damage, great bodily injury or death; penalties. 

(A) A person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs operates a moving water device, or is in actual control of a moving water device within this State and causes great bodily injury or death of a person other than himself, is guilty of a felony and, upon conviction, must be punished by a mandatory fine of not less than:

(1) five thousand dollars nor more than ten thousand dollars and mandatory imprisonment for not less than thirty days nor more than fifteen years when great bodily injury results;

(2) ten thousand dollars nor more than twenty-five thousand dollars and mandatory imprisonment for not less than one year nor more than twenty-five years when death results.

No part of the mandatory sentences required to be imposed by this section may be suspended, and probation may not be granted for any portion.

(B) As used in subsection (A) “great bodily injury” means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

(C) A person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs operates or is in actual control of a moving water device within this State and causes damage to property other than his own, or injury other than great bodily injury to a person other than himself, is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not less than five hundred dollars or imprisonment for not more than thirty days, or both.

(D) The department shall suspend the privilege of a person who is convicted or who pleads guilty or nolo contendere under this section to operate a water device or be in actual control of a moving water device within this State for a period to include any term of imprisonment plus:

(1) three years in the case of death or great bodily injury; or

(2) one year in the case of property damage or injury other than great bodily injury.

(E) The suspensions under this section are in addition to and not in lieu of any other civil remedies or criminal penalties.

HISTORY: 1999 Act No. 124, Section 2.F.

SECTION 50-21-114. Chemical test or analysis of breath, blood, or urine; implied consent; presumptions arising from blood alcohol content levels.

(A)(1) A person who operates a water device is considered to have given consent to chemical tests or analysis of his breath, blood, or urine to determine the presence of alcohol, drugs, or a combination of both, if arrested for an offense arising out of acts alleged to have been committed while the person was operating or directing the operation of a water device while under the influence of alcohol, drugs, or a combination of both. A test given must be administered at the direction of the arresting law enforcement officer. At the direction of the arresting officer, the person first must be offered a breath test to determine the alcohol concentration of his blood. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious or dead, or for any other reason considered acceptable by licensed medical personnel, a blood sample may be taken. If the officer has reasonable grounds to believe the person is under the influence of drugs other than alcohol, the officer may order that a urine sample be taken for testing. If the breath analysis reading is eight one-hundredths of one percent or above by weight of alcohol in the person’s blood, the officer may not require additional tests of the person as provided in this chapter.

(2) The breath test must be administered by a person trained and certified by the South Carolina Law Enforcement Division (SLED), using methods approved by SLED. The arresting officer may administer the tests if testing is done in conformity with the standards set out by SLED. Blood and urine samples must be taken by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, or other medical personnel trained to take the samples in a licensed medical facility. Blood samples or urine samples must be obtained and handled in accordance with procedures approved by SLED. No tests may be administered or samples taken unless the person has been informed that he does not have to take the test or give the samples, but that his privilege to operate a water device must be suspended or denied for one hundred eighty days if he refuses to submit to the tests.

(3) A hospital, physician, qualified technician, chemist, or registered nurse who takes samples or conducts the test or participates in the process of taking the samples or conducting the test in accordance with this section is not subject to a cause of action for assault, battery, or any other cause alleging that the drawing of blood or taking of samples at the request of the arrested person or a law enforcement officer was wrongful. This release from liability does not reduce the standard of medical care required of the person taking the samples or conducting the test. This qualified release also applies to the employer of the person who conducts the test or takes the samples. No person may be required by the arresting officer, or by any other law enforcement officer, to obtain or take any sample of blood or urine.

(4) The person tested or giving samples for testing may have a qualified person of his own choosing conduct additional tests at his expense and must be notified of that right. A person’s failure to request additional blood or urine tests is not admissible against the person in a criminal trial. The failure or inability of the person tested to obtain additional tests does not preclude the admission of evidence relating to the tests or samples taken at the direction of the law enforcement officer.

(5) The arresting officer must provide reasonable assistance to the person to contact a qualified person to conduct additional tests.

(6) SLED must administer the provisions of this subsection and may promulgate regulations necessary to carry out its provisions. The cost of the tests administered at the direction of the law enforcement officer must be paid from the general fund of the State. A fee of fifty dollars must be assessed at the time of the sentencing against persons convicted of, pleading guilty or nolo contendere to, or forfeiting bond for violating Section 50-21-112 or Section 50-21-113. This fee must be forwarded by the county treasurer to the State Treasurer and credited to the general fund of the State to defray any costs incurred by SLED and individuals and institutions obtaining the samples forwarded to SLED.

(B) In any criminal prosecution where a test or tests were administered pursuant to this chapter, the amount of alcohol in the person’s blood at the time of the alleged violation, as shown by chemical analysis of the person’s breath or other body fluids, gives rise to the following inferences:

(1) If there was at that time five one-hundredths of one percent or less by weight of alcohol in the person’s blood, it is presumed conclusively that the person was not under the influence of alcohol.

(2) If there was at that time in excess of five one-hundredths of one percent but less than eight one-hundredths of one percent by weight of alcohol in the person’s blood, this fact does not give rise to any inference that the person was or was not under the influence of alcohol, but this fact may be considered with other competent evidence in determining the guilt or innocence of the person.

(3) If there was at that time eight one-hundredths of one percent or more by weight of alcohol in the person’s blood, it may be inferred that the person was under the influence of alcohol.

(C) The provisions of this section may not be construed as limiting the introduction of other competent evidence bearing upon the question of whether or not the person was under the influence of alcohol, drugs, or a combination of them. Refusal, resistance, obstruction, or opposition to testing pursuant to this section is admissible as evidence at the trial of a person charged with the offense that precipitated the request for testing.

(D) A person who is unconscious or otherwise in a condition rendering him incapable of refusal is considered to be informed and not to have withdrawn the consent provided by subsection (A).

(E) If a person under arrest refuses, upon the request of a law enforcement officer, to submit to chemical tests provided in subsection (A), none may be given, but the department, on the basis of a report from the law enforcement officer that the arrested person was operating a water device within this State while under the influence of alcohol, drugs, or a combination of them, and that the person had refused to submit to the tests, must suspend his privilege to perform the above-mentioned activities for one hundred eighty days. The one hundred eighty-day period of suspension begins with the day after the date of the notice required to be given, unless a hearing is requested as provided, in which case the one hundred eighty-day period begins with the day after the date of the order sustaining the suspension. The report of the arresting officer must include what grounds he had for believing the arrested person was conducting the above-mentioned activity while under the influence of alcohol, drugs, or a combination of them.

(F) Upon suspending the operating privilege of a person, the department immediately shall notify the person in writing and upon his request give him an opportunity for a hearing as provided in Article 3, Chapter 23, Title 1 of the 1976 Code. The review must be scheduled by the Administrative Law Court in accordance with the division’s procedural rules. The scope of the hearing is limited to the issues set out by the Administrative Procedures Act and the division’s procedural rules. Upon order of the administrative law judge, the department either shall rescind its order of suspension or continue the suspension of the privilege.

(G) If a boating accident or marine casualty involves a fatality, the coroner having jurisdiction shall direct that a chemical blood test be performed on the deceased, within forty-eight hours of receiving notification of the death, to determine blood alcohol concentration or the presence of drugs, and that the results of the test be recorded properly in the coroner’s report.

(H) The suspensions under this section are in addition to and not in lieu of any other civil remedies or civil penalties which may be assessed.

HISTORY: 1991 Act No. 138, Section 1; 1993 Act No. 181, Section 1269; 1999 Act No. 124, Section 2.G; 2003 Act No. 61, Section 3.

SECTION 50-21-115. Reckless homicide by operation of boat; penalty; persons convicted of certain offenses prohibited from operating boat. 

When the death of a person ensues within three years as a proximate result of injury received by the operation of a boat in reckless disregard of the safety of others, the person operating the boat is guilty of reckless homicide. A person convicted of reckless homicide or a person who enters a plea of guilty of reckless homicide and receives sentence thereon must be fined not less than one thousand dollars nor more than five thousand dollars or imprisoned for not more than ten years, or both. A person convicted of reckless homicide, involuntary manslaughter, manslaughter, or murder in the operation of a boat must be prohibited by the court having jurisdiction of these violations from operating any boat within this State for a period of not more than five years.

HISTORY: 1980 Act No. 312, Section 1; 1993 Act No. 181, Section 1269; 1999 Act No. 124, Section 2; 2001 Act No. 97, Section 2.

SECTION 50-21-116. Chemical tests to determine presence of alcohol and/or drugs; requesting additional tests; release of results. 

Notwithstanding any other provision of law, a person must submit to either one or a combination of chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol, drugs, or a combination of alcohol and drugs, if there is probable cause to believe that the person violated or is under arrest for a violation of Section 50-21-113.

The tests must be administered at the direction of a law enforcement officer who has probable cause to believe that the person violated or is under arrest for violation of Section 50-21-113. The administration of one test does not preclude the administration of other tests. The resistance, obstruction, or opposition to testing pursuant to this section is evidence admissible at the trial of the offense which precipitated the requirement for testing. A person who is tested or gives samples for testing may have a qualified person of his choice conduct additional tests at his expense and must be notified of that right. A person’s request or failure to request additional blood or urine tests is not admissible against the person in the criminal trial.

The provisions of Section 50-21-114, relating to the administration of tests to determine a person’s alcohol concentration, additional tests at the person’s expense, the availability of other evidence on the question of whether or not the person was under the influence of alcohol, drugs, or a combination of them, availability of test information to the person or his attorney, and the liability of medical institutions and person administering the tests are applicable to this section and also extend to the officer requesting the test, the State or its political subdivisions, or governmental agency, or entity which employs the officer making the request, and the agency, institution, or employer, either governmental or private, of persons administering the tests. Notwithstanding any other provision of law pertaining to confidentiality of hospital records or other medical records, information regarding tests performed pursuant to this section must be released, upon subpoena, to a court, prosecuting attorney, defense attorney, or law enforcement officer in connection with an alleged violation of Section 50-21-113.

HISTORY: 1999 Act No. 124, Section 2.I.

SECTION 50-21-117. Operation of water device while privileges suspended; offense; penalties. 

(A) A person who operates any water device while his privileges are suspended is guilty of a misdemeanor and, upon conviction, must be fined two hundred dollars or imprisoned for thirty days for the first violation; for a second violation must be fined five hundred dollars and imprisoned for sixty consecutive days; and for a third or subsequent violation must be imprisoned for not less than ninety days nor more than six months, no portion of which may be suspended by the trial judge.

(B) If the privileges of the person convicted were suspended pursuant to the provisions of Section 50-21-112 or 50-21-113, he must be punished as follows and no part of the minimum sentence may be suspended:

(1) for a first offense, imprisoned for not less than ten nor more than thirty days;

(2) for a second offense, imprisoned for not less than sixty days nor more than six months;

(3) for a third and subsequent offense, not less than six months nor more than three years.

(C) A person who is convicted under the provisions of subsection (A) must have his privileges suspended for an additional three years by the department.

(D) The suspension penalties assessed under this section are in addition to and not in lieu of any other civil remedies or criminal penalties which may be assessed.

HISTORY: 1999 Act No. 124, Section 2.J.

SECTION 50-21-130. Duties of vessel operator involved in collision; offense and penalties; immunity of person rendering assistance; accident reports; suspension of privileges.

(A) It is the duty of the operator of a vessel involved in a collision, accident, or other casualty, if he can do so without serious danger to his own vessel, crew, or passengers, to render assistance as may be practical or necessary to persons affected by the collision, accident, or other casualty including personal injury or property damage and also to give his name, address, and identification of his vessel in writing to any person injured and to the owner of any property damaged in the collision, accident, or other casualty. A person who fails to stop or to comply with the requirements of this section, is guilty of:

(1) a misdemeanor, when personal injury or property damage results but great bodily injury or death does not result, and, upon conviction, must be imprisoned not less than thirty days nor more than one year or fined not less than one hundred dollars nor more than five thousand dollars, or both;

(2) a felony when great bodily injury results and, upon conviction, must be imprisoned not less than thirty days nor more than ten years and fined not less than five thousand dollars nor more than ten thousand dollars; or

(3) a felony when death results and, upon conviction, must be imprisoned not less than one year nor more than twenty-five years and fined not less than ten thousand dollars nor more than twenty-five thousand dollars.

(B) Any person who complies with subsection (1) of this section or who gratuitously and in good faith renders assistance at the scene of a vessel collision, accident, or other casualty shall not be liable for any civil damages as a result of the rendering of assistance or for any act or omission in providing or arranging salvage, towage, medical treatment, or other assistance.

(C) In the case of a reportable accident, the operator or owner of any vessel involved shall file a full description of the accident with the department and provide any information the department may require when requested as part of the investigation within forty-eight hours of the accident. The owner or operator of a watercraft involved must furnish his name, address, and identification of his watercraft in writing to any person injured or the owner of any property damaged in the accident as soon as possible after the collision. In the event an accident results in death, loss of consciousness, or serious bodily injury, the owner or operator immediately shall notify the department.

(D) The accident report must be without prejudice, and must be for the information of the department. However, a person alleged to have sustained injury or property damage or alleged to have caused injury or property damage, their attorney, personal representative, or an insurer may obtain a copy of the report. The fact the report has been made is admissible solely to show compliance with this section, but no report or any part or statement contained in the report is admissible as evidence in a civil trial. An insured alleged to be responsible for the accident cannot be reimbursed for property damages until the report is filed.

(E) The department shall administer a State Casualty Reporting System which shall be in conformity with that established by the United States Coast Guard.

(F) The department must suspend the privileges of a person convicted under this section for:

(1) two years if the operator of a vessel is convicted of not rendering assistance to persons affected in a collision, accident, or other casualty;

(2) one year if the operator of a vessel is convicted of not reporting a boating accident;

(3) a person’s privilege to operate a watercraft shall not be reinstated until the person attends and completes a boating safety education program approved by the department. The person required to attend the class shall reimburse the department for the expense of the program.

(G) The suspension penalties assessed under this section are in addition to and not in lieu of any other civil remedies or criminal penalties which may be assessed.

HISTORY: 1962 Code Section 70-295.13; 1955 (49) 299; 1959 (51) 409; 1961 (52) 588; 1972 (57) 2791; 1974 (58) 2678; 1993 Act No. 181, Section 1269; 1999 Act No. 124, Section 2.L; 2008 Act No. 321, Section 2, eff 6 months after approval (approved June 16, 2008).