§5125. Chemical testing to determine amount of alcohol or controlled substance.

(a) General rule.--Any person who operates or is in actual physical control of the movement of a watercraft, upon, in or through the waters of this Commonwealth, shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if one of the following applies:

(1) a waterways conservation officer has reasonable grounds to believe the person operated or was in actual physical control of the movement of a watercraft in violation of section 5502 (relating to operating watercraft under influence of alcohol or controlled substance); or

(2) the person operated or was in actual physical control of the movement of a watercraft which was involved in an accident in which the operator, passenger or any other person required treatment at a medical facility or was killed.

(b) Suspension for refusal.--

(1) If any person placed under arrest for a violation of section 5502 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but, upon notice by the waterways conservation officer, the commission shall suspend the boating privileges of the person as follows:

(i) Except as set forth in subparagraph (ii), for a period of 12 months.

(ii) For a period of 18 months if any of the following apply:

(A) The person's boating privileges have previously been suspended under this subsection.

(B) The person has, prior to the refusal under this paragraph, been sentenced for an offense under section 5502.

(2) It is the duty of the waterways conservation officer to inform the person that:

(i) the person's boating privileges will be suspended upon refusal to submit to chemical testing; and

(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 5502(a)(1), the person will be subject to the penalties provided in section 5502(c.1)(3).

(3) Any person whose boating privileges are suspended under this section shall have the same right of appeal as provided for in cases of suspension for other reasons.

(c) Test results admissible in evidence.--In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 5502 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant's blood, as shown by chemical testing of the person's breath, blood or urine by tests conducted by qualified persons using approved equipment, shall be admissible in evidence.

(1) Chemical tests of breath shall be performed on devices approved by the Department of Health using procedures prescribed jointly by regulations of the Department of Health and the Department of Transportation. Devices shall have been tested for accuracy within a period of time and in a manner specified by regulations of the Department of Health and the Department of Transportation. For purposes of breath testing, a qualified person means a person who has fulfilled the training requirement in the use of the equipment in a training program approved by the Department of Health and the Department of Transportation. A certificate or log showing that a device was tested for accuracy and that the device was accurate shall be presumptive evidence of those facts in every proceeding in which a violation of this title is charged.

(2) (i) Chemical tests of blood or urine shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health or by a Pennsylvania State Police criminal laboratory. For purposes of blood and urine testing, a qualified person means an individual who is authorized to perform those chemical tests under the act of September 26, 1951 (P.L.1539, No.389), known as The Clinical Laboratory Act.

(ii) For purposes of blood and urine testing to determine blood alcohol or controlled substance content levels, the procedures and equipment prescribed by the Department of Health shall be reviewed as provided for by 75 Pa.C.S. § 1547(c)(2)(ii) (relating to chemical testing to determine amount of alcohol or controlled substance).

(3) Chemical tests of blood or urine, if conducted by a facility located outside this Commonwealth, shall be performed:

(i) by a facility licensed and approved by the Department of Health for this purpose; or

(ii) by a facility licensed to conduct the tests by the state in which the facility is located and licensed pursuant to the Clinical Laboratory Improvement Amendments of 1988 (Public Law 100-578, 102 Stat. 2903).

(4) For purposes of blood testing to determine the amount of a Schedule I or nonprescribed Schedule II or III controlled substance or a metabolite of such a substance, the minimum levels of these substances which must be present in a person's blood in order for the test results to be admissible in a prosecution for a violation of section 5502 or any other violation of this title arising out of the same action shall be the same as prescribed by the department under 75 Pa.C.S. § 1547(c)(4).

(d) Presumptions from amount of alcohol.--(Deleted by amendment).

(e) Refusal admissible in evidence.--In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 5502 or any other violation of this title arising out of the same action, the fact that the defendant refused to submit to chemical testing as required by subsection (a) may be introduced in evidence, along with other testimony concerning the circumstances of the refusal. No presumptions shall arise from this evidence but it may be considered along with other factors concerning the charge.

(f) Other evidence admissible.--Subsections (a) through (i) shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or a controlled substance or both.

(g) Test results available to defendant.--Upon the request of the person tested, the results of any chemical test shall be made available to him or his attorney.

(h) Test by personal physician.--The person tested shall be permitted to have a physician of his own choosing administer an additional breath, blood or urine chemical test and the results of the test shall also be admissible in evidence. The chemical testing given at the direction of the waterways conservation officer shall not be delayed by a person's attempt to obtain an additional test.

(i) Request by operator for test.--Any person involved in an accident or placed under arrest for a violation of section 5502 may request a chemical test of his breath, blood or urine. These requests shall be honored when it is reasonably practicable to do so.

(j) Immunity from civil liability and reports.--No physician, nurse or technician or hospital employing the physician, nurse or technician and no other employer of the physician, nurse or technician shall be civilly liable for withdrawing blood or obtaining a urine sample and reporting test results to an officer authorized to enforce this title at the request of the commission or an officer authorized to enforce this title. No physician, nurse or technician or hospital employing the physician, nurse or technician may administratively refuse to perform the tests and provide the results to the officer authorized to enforce this title except as may be reasonably expected from unusual circumstances that pertain at the time the request is made.

(k) Prearrest breath test authorized.--A waterways conservation officer, having reasonable suspicion to believe a person is operating or in actual physical control of the movement of a watercraft while under the influence of alcohol, may require that person, prior to arrest, to submit to a preliminary breath test on a device approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the waterways conservation officer in determining whether or not the person should be placed under arrest. The preliminary breath test shall be in addition to any other requirements of this title. No person has any right to expect or demand a preliminary breath test. Refusal to submit to the test shall not be considered for purposes of subsections (b) and (e).

(May 30, 1984, P.L.339, No.68, eff. 60 days; Oct. 31, 1997, P.L.485, No.49, eff. 60 days; Nov. 9, 2006, P.L.1375, No.149, eff. 60 days; July 8, 2007, P.L.82, No.27, eff. imd.; Nov. 1, 2012, P.L.1716, No.211, eff. 60 days)

Notation

2012 Amendment.  Act 211 amended subsec. (b)(2)(ii).

2007 Amendment.  Act 27 amended subsecs. (a) and (c).

2006 Amendment.  Act 149 amended subsecs. (a), (b), (c), (h) and (k) and deleted subsec. (d).

1997 Amendment.  Act 49 amended subsec. (j).

1984 Amendment.  Act 68 added section 5125.

Cross References.  Section 5125 is referred to in section 901 of this title.