§5502. Operating watercraft under influence of alcohol or controlled substance.

(a) General impairment.--

(1) An individual may not operate or be in actual physical control of the movement of a watercraft after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely operating or being in actual physical control of the movement of the watercraft.

(2) An individual may not operate or be in actual physical control of the movement of a watercraft after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has operated or been in actual physical control of the movement of the watercraft.

(a.1) High rate of alcohol.--An individual may not operate or be in actual physical control of the movement of a watercraft after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has operated or been in actual physical control of the movement of the watercraft.

(a.2) Highest rate of alcohol.--An individual may not operate or be in actual physical control of the movement of a watercraft after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is 0.16% or higher within two hours after the individual has operated or been in actual physical control of the movement of the watercraft.

(a.3) Controlled substances.--An individual may not operate or be in actual physical control of the movement of a watercraft under any of the following circumstances:

(1) There is in the individual's blood any amount of a:

(i) Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act;

(ii) Schedule II or III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or

(iii) metabolite of a substance under subparagraph (i) or (ii).

(2) The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual's ability to safely operate or be in actual physical control of the movement of the watercraft.

(3) The individual is under the combined influence of alcohol and a drug or combination of drugs to a degree which impairs the individual's ability to safely operate or be in actual physical control of the movement of the watercraft.

(4) The individual is under the influence of a solvent or noxious substance in violation of 18 Pa.C.S. § 7303 (relating to sale or illegal use of certain solvents and noxious substances).

(a.4) Minors.--A minor may not operate or be in actual physical control of the movement of a watercraft after imbibing a sufficient amount of alcohol such that the alcohol concentration in the minor's blood or breath is 0.02% or higher within two hours after the minor has operated or been in actual physical control of the movement of the watercraft.

(a.5) Exception to two-hour rule.--Notwithstanding the provisions of subsection (a), (a.1), (a.2) or (a.4) where alcohol or controlled substance concentration in an individual's blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has operated or been in actual physical control of the movement of the watercraft is sufficient to establish that element of the offense under the following circumstances:

(1) where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and

(2) where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained.

(b) Authorized use not a defense.--The fact that any person charged with violating this section is or has been legally entitled to use alcohol or controlled substances is not a defense to a charge of violating this section.

(b.1) Certain arrests authorized.--In addition to any other powers of arrest, an officer authorized to enforce this title is hereby authorized to arrest without a warrant any person who the officer has probable cause to believe has violated the provisions of this section, regardless of whether the alleged violation was committed in the presence of such officer. This authority to arrest extends to any hospital or other medical treatment facility located beyond the territorial limits of the officer's political subdivision where the person to be arrested is found or was taken for purposes of emergency treatment, examination or evaluation, provided there is probable cause to believe that the violation of this section occurred within the police officer's political subdivision.

(b.2) Certain disposition prohibited.--The attorney for the Commonwealth shall not submit a charge brought under this section for Accelerated Rehabilitative Disposition if:

(1) The defendant has been found guilty of or accepted Accelerated Rehabilitative Disposition of a charge brought under this section within seven years of the date of the current offense.

(2) An accident occurred in connection with the events surrounding the current offense and any person other than the defendant was killed or seriously injured as a result of the accident.

(c) Grading.--

(1) Notwithstanding the provisions of paragraph (2):

(i) An individual who violates subsection (a) and who has no more than one prior offense commits a misdemeanor for which the individual may be sentenced to a term of imprisonment for not more than six months and to pay a fine under subsection (c.1).

(ii) An individual who violates subsection (a) and who has more than one prior offense commits a misdemeanor of the second degree.

(2) (i) An individual who violates subsection (a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death of any person or in damage to a watercraft or other property and who has no more than one prior offense commits a misdemeanor for which the individual may be sentenced to a term of imprisonment for not more than six months and to pay a fine under subsection (c.1).

(ii) An individual who violates subsection (a.1) or (a.4) and who has no more than one prior offense commits a misdemeanor for which the individual may be sentenced to a term of imprisonment for not more than six months and to pay a fine under subsection (c.1).

(iii) An individual who violates subsection (a)(1) where the individual refused testing of blood or breath and who has no prior offenses commits a misdemeanor for which the individual may be sentenced to a term of imprisonment for not more than six months and to pay a fine under subsection (c.1).

(iv) An individual who violates subsection (a.2) or (a.3) and who has no prior offenses commits a misdemeanor for which the individual may be sentenced to a term of imprisonment for not more than six months and to pay a fine under subsection (c.1).

(v) An individual who violates subsection (a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death of any person or in damage to a watercraft or other property and who has more than one prior offense commits a misdemeanor of the first degree.

(vi) An individual who violates subsection (a.1) or (a.4) and who has more than one prior offense commits a misdemeanor of the first degree.

(vii) An individual who violates subsection (a)(1) where the individual refused testing of blood or breath and who has one or more prior offenses commits a misdemeanor of the first degree.

(viii) An individual who violates subsection (a.2) or (a.3) and who has one or more prior offenses commits a misdemeanor of the first degree.

(c.1) Penalties.--

(1) Except as set forth in paragraph (2), (3) or (4), an individual who violates subsection (a) shall be sentenced as follows:

(i) For a first offense, to undergo a mandatory minimum term of six months' probation and to pay a fine of $300 and successfully complete an approved boating safety course.

(ii) For a second offense, to undergo imprisonment for not less than five days and to pay a fine of not less than $300 nor more than $2,500 and successfully complete an approved boating safety course.

(iii) For a third or subsequent offense, to undergo imprisonment for not less than ten days and to pay a fine of not less than $500 nor more than $5,000 and successfully complete an approved boating safety course.

(2) Except as set forth in paragraph (3) or (4), an individual who violates subsection (a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death of any person or damage to a watercraft or other property or who violates subsection (a.1) or (a.4) shall be sentenced as follows:

(i) For a first offense, to undergo imprisonment for not less than 48 consecutive hours and to pay a fine of not less than $500 nor more than $5,000 and successfully complete an approved boating safety course.

(ii) For a second offense, to undergo imprisonment for not less than 30 days and to pay a fine of not less than $750 nor more than $5,000 and successfully complete an approved boating safety course.

(iii) For a third offense, to undergo imprisonment for not less than 90 days and to pay a fine of not less than $1,500 nor more than $10,000 and successfully complete an approved boating safety course.

(iv) For a fourth or subsequent offense, to undergo imprisonment for not less than one year and to pay a fine of not less than $1,500 nor more than $10,000 and successfully complete an approved boating safety course.

(3) Except as set forth in paragraph (4), an individual who violates subsection (a)(1) and refused testing of blood or breath or an individual who violates subsection (a.2) or (a.3) shall be sentenced as follows:

(i) For a first offense, to undergo imprisonment for not less than 72 consecutive hours and to pay a fine of not less than $1,000 nor more than $5,000 and successfully complete an approved boating safety course.

(ii) For a second offense, to undergo imprisonment for not less than 90 days and to pay a fine of not less than $1,500 and successfully complete an approved boating safety course.

(iii) For a third or subsequent offense, to undergo imprisonment for not less than one year and to pay a fine of not less than $2,500 and successfully complete an approved boating safety course.

(4) Notwithstanding the provisions of this subsection relating to mandatory minimum sentences, if the court makes a finding that the county jail population exceeds its capacity, the court may allow an individual who violated this section and is serving a mandatory minimum term of imprisonment to be released on parole to serve some or all of the individual's term of imprisonment on house arrest with electronic surveillance. This shall not apply to an individual who violates subsection (a)(1) where there was an accident resulting in serious bodily injury or the death of any person.

(d) Subsequent conviction.--Acceptance of Accelerated Rehabilitative Disposition, an adjudication of delinquency or a consent decree under 42 Pa.C.S. Ch. 63 or any other form of preliminary disposition of any charge brought under this section or a conviction or guilty plea under 75 Pa.C.S. § 3802 (relating to driving under influence of alcohol or controlled substance) shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third or subsequent conviction.

(e) Sentencing guidelines.--The sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory penalties of this section.

(f) Direct appeal.--The Commonwealth has the right to appeal directly to the Superior Court any order of court which imposes a sentence for violation of this section which does not meet the requirements of this section. The Superior Court shall remand the case to the sentencing court for imposition of a sentence in accordance with the provisions of this section.

(g) City of first class.--Notwithstanding the provision for direct appeal to the Superior Court, if, in a city of the first class, a person appeals from a judgment of sentence under this section from the municipal court to the common pleas court for a trial de novo, the Commonwealth shall have the right to appeal directly to the Superior Court from the order of the common pleas court if the sentence imposed is in violation of this section. If, in a city of the first class, a person appeals to the court of common pleas after conviction of a violation of this section in the municipal court and thereafter withdraws his appeal to the common pleas court, thereby reinstating the judgment of sentence of the municipal court, the Commonwealth shall have 30 days from the date of the withdrawal to appeal to the Superior Court if the sentence is in violation of this section.

(h) Acceptance of ARD.--Any person who accepts Accelerated Rehabilitative Disposition of any charge brought under this section shall accept as conditions the imposition of, and the judge shall impose in addition to any other condition, all of the following:

(1) A mandatory suspension of watercraft operating privileges for a period of not less than six months but not more than 12 months.

(2) A condition that the defendant, as a condition to entering the program, make restitution to any person who incurred determinable financial loss as a result of the defendant's actions which resulted in a charge of violating this section.

(3) A condition that the defendant, as a condition to entering the program, attend and successfully complete at his own expense a commission-approved boating safety course.

(4) Court supervision for a period of not less than six months. In cases where the defendant is required to make restitution or submit to counseling or treatment, the court supervision shall be for a period of not less than 12 months or until the treatment or counseling is completed and the restitution is paid in full, whichever is longer.

(i) Preliminary disposition revoked.--Accelerated Rehabilitative Disposition or other preliminary disposition of any charge of violating this section may be revoked and the court shall direct the attorney for the Commonwealth to proceed on the charges as prescribed in general rules if any of the following circumstances occur:

(1) The defendant is charged with or commits an offense which violates the provisions of this section, any crime enumerated in 18 Pa.C.S. (relating to crimes and offenses) or any crime enumerated in 75 Pa.C.S. § 1542 (relating to revocation of habitual offender's license) within the probationary period.

(2) The defendant fails to make restitution as provided for in this section.

(3) The defendant fails to successfully complete the boating safety course.

(4) The defendant fails to successfully complete any program of counseling or treatment, or both, required as a condition of Accelerated Rehabilitative Disposition.

(5) The defendant violates the terms and conditions of Accelerated Rehabilitative Disposition in any other way.

(j) Litter collection program.--In addition to the conditions set forth under subsection (i) for Accelerated Rehabilitative Disposition of any charge brought under this section, the judge may impose and the person shall accept the condition that the person engage in a program of collecting litter from public and private property along Commonwealth waterways, especially property which is littered with alcoholic beverage containers. The duration of the person's participation in a litter collection program shall not exceed the duration of the probationary period imposed on the person under Accelerated Rehabilitative Disposition.

(k) Fees to be paid into Boat Fund.--With the exception of court costs, program costs for counseling, treatment or a boating safety course or any restitution referred to in this section, any fee or financial condition imposed by a judge as a condition of Accelerated Rehabilitative Disposition or any other preliminary disposition of any charge under this section shall be paid into the Boat Fund under section 531 (relating to establishment and use of Boat Fund).

(l) Preliminary hearing or arraignment.--The presiding judicial officer at the preliminary hearing or preliminary arraignment relating to any charge of a violation of this section shall not reduce or modify the original charges.

(m) Work release.--In any case in which a person is sentenced to a period of imprisonment as a result of a conviction for violating any provision of this section, the judicial officer imposing that sentence shall consider assigning that person to a daytime work release program pursuant to which the person would be required to collect litter from public and private property, especially property which is littered with alcoholic beverage containers.

(n) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Adult." A person 21 years of age or older.

"Minor." A person under 21 years of age.

(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.; July 7, 2011, P.L.211, No.33, eff. 60 days)

Notation

2011 Amendment.  Act 33 amended subsec. (d).

2007 Amendment.  Act 27 amended subsecs. (a.5) and (c) and added subsec. (c.1).

2006 Amendment.  Act 149 amended subsecs. (a), (a.1) and (c) and added subsecs. (a.2), (a.3), (a.4) and (a.5).

Cross References.  Section 5502 is referred to in sections 923, 928, 5125, 5126, 5502.1, 5502.2, 5502.3, 5506 of this title; section 9804 of Title 42 (Judiciary and Judicial Procedure).