Bill Text: GA SB71 | 2009-2010 | Regular Session | Introduced
Bill Title: Hunting; prohibit engaging in certain outdoor sporting activities while under the influence of alcohol, drugs, other substances
Spectrum: Partisan Bill (Republican 6-0)
Status: (Introduced - Dead) 2009-01-30 - Senate Read and Referred [SB71 Detail]
Download: Georgia-2009-SB71-Introduced.html
09 LC
25 5408
Senate
Bill 71
By:
Senators Heath of the 31st, Jackson of the 24th, Butterworth of the 50th,
Douglas of the 17th, Murphy of the 27th and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
prohibit engaging in certain outdoor sporting activities while under the
influence of alcohol, drugs, or other substances; to amend Code Section 27-3-7
of the Official Code of Georgia Annotated, relating to hunting under the
influence of alcohol or drugs, so as to harmonize certain provisions with those
applicable to driving a vehicle under the influence of alcohol, drugs, or other
substances; to amend Chapter 7 of Title 52 of the Official Code of Georgia
Annotated, relating to registration, operation, and sale of watercraft, so as to
harmonize certain provisions relating to operation of vessels, water skis,
aquaplanes, and surfboards while under the influence of alcohol or drugs with
those applicable to driving a vehicle under the influence of alcohol, drugs, or
other substances; to change certain provisions relating to ordering drugs or
alcohol tests, implied consent notice, reports, suspension, hearing, and
certificate of inspection relating to vessels; to provide an effective date; to
provide for applicability; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Code
Section 27-3-7 of the Official Code of Georgia Annotated, relating to hunting
under the influence of alcohol or drugs, is amended by revising subsections (b)
and (f) and adding a new subsection (f.1) as follows:
"(b)
A person
shall not hunt while:
(1)
Under the influence of alcohol to the extent that it is less safe for the person
to hunt;
(2)
Under the influence of any drug to the extent that it is less safe for the
person to hunt;
(3)
Under the combined influence of alcohol and any drug to the extent that it is
less safe for the person to hunt;
(4)
The person's alcohol concentration is 0.10 grams or more at any time within
three hours after such hunting from alcohol consumed before such hunting ended;
or
(5)
Subject to the provisions of subsection (c) of this Code section, there is any
amount of marijuana or a controlled substance, as defined in Code Section
16-13-21, present in the person's blood or urine, or both, including the
metabolites and derivatives of each or both without regard to whether or not any
alcohol is present in the person's breath or
blood.
At any time
and under any circumstances when a person would be prohibited by subsection (a)
or (k) of Code Section 40-6-391 from driving or being in actual physical control
of a moving vehicle on public roads, he or she shall also be prohibited from
hunting at any place in this state. Violation of this subsection shall
constitute unlawfully hunting while under the influence of alcohol or
drugs."
"(f)(1)
Upon the trial of any civil or criminal action or proceeding arising out of acts
alleged to have been committed by any person hunting in violation of subsection
(b) of this Code section, the amount of alcohol in the person's blood at the
time alleged, as shown by chemical analysis of the person's blood, urine,
breath, or other bodily substance, shall give rise to
the
following presumptions:
(1)
If there was at that time a blood alcohol concentration of 0.05 grams or less,
it shall be presumed that the person was not under the influence of alcohol, as
prohibited by paragraphs (1), (2), and (3) of subsection (b) of this Code
section;
(2)
If there was at that time a blood alcohol concentration in excess of 0.05 grams
but less than 0.08 grams, such fact shall not give rise to any presumption that
the person was or was not under the influence of alcohol, as prohibited by
paragraphs (1), (2), and (3) of subsection (b) of this Code section, but such
fact may be considered with other competent evidence in determining whether the
person was under the influence of alcohol, as prohibited by paragraphs (1), (2),
and (3) of subsection (b) of this Code section;
(3)
If there was at that time a blood alcohol concentration of 0.08 grams or more,
it shall be presumed that the person was under the influence of alcohol, as
prohibited by paragraphs (1), (2), and (3) of subsection (b) of this Code
section; and
inferences and
considerations regarding whether a person was unlawfully hunting under the
influence of alcohol the same as those inferences and considerations provided by
subsection (b) of Code Section 40-6-392 regarding whether a person was
unlawfully driving or in actual physical control of a moving vehicle under the
influence of alcohol.
(4)(2)
If there was at that time or within three hours after hunting, from alcohol
consumed before such hunting ended,
a blood
alcohol concentration of 0.10 or more
grams
an alcohol
concentration which is specifically unlawful under paragraph (5) of subsection
(a) or paragraph (1) of subsection (k) of Code Section 40-6-391 for purposes of
driving or being in actual physical control of a moving
vehicle, the person shall be in violation
of
paragraph
(4) of subsection (b) of this Code
section.
(f.1)
No plea of nolo contendere shall be accepted for any person under the age of 21
charged with a violation of this Code
section."
SECTION
2.
Chapter
7 of Title 52 of the Official Code of Georgia Annotated, relating to
registration, operation, and sale of watercraft, is amended by revising
subsections (a), (d), (j), and (k) of Code Section 52-7-12, relating to
operation of vessels, water skis, aquaplanes, and surfboards while under the
influence of alcohol or drugs, as follows:
"(a)
No person
shall operate, navigate, steer, or drive any moving vessel, or be in actual
physical control of any moving vessel, nor shall any person manipulate any
moving water skis, moving aquaplane, moving surfboard, or similar moving device
while:
(1)
Under the influence of alcohol to the extent that it is less safe for the person
to operate, navigate, steer, drive, manipulate, or be in actual physical control
of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or
similar moving device;
(2)
Under the influence of any drug to the extent that it is less safe for the
person to operate, navigate, steer, drive, manipulate, or be in actual physical
control of a moving vessel, moving water skis, moving aquaplane, moving
surfboard, or similar moving device;
(3)
Under the combined influence of alcohol and any drug to the extent that it is
less safe for the person to operate, navigate, steer, drive, manipulate, or be
in actual physical control of a moving vessel, moving water skis, moving
aquaplane, moving surfboard, or similar moving device;
(4)
The person's alcohol concentration is 0.10 grams or more at any time within
three hours after such operating, navigating, steering, driving, manipulating,
or being in actual physical control of a moving vessel, moving water skis,
moving aquaplane, moving surfboard, or similar moving device from alcohol
consumed before such operating, navigating, steering, driving, manipulating, or
being in actual physical control ended; or
(5)
Subject to the provisions of subsection (b) of this Code section, there is any
amount of marijuana or a controlled substance, as defined in Code Section
16-13-21, present in the person's blood or urine, or both, including the
metabolites and derivatives of each or both without regard to whether or not any
alcohol is present in the person's breath or
blood.
At any time
and under any circumstances when a person would be prohibited by subsection (a)
or (k) of Code Section 40-6-391 from driving or being in actual physical control
of a moving vehicle on public roads, he or she shall also be prohibited from
operating, navigating, steering, or driving any moving vessel; being in actual
physical control of any moving vessel; or manipulating any moving water skis,
moving aquaplane, moving surfboard, or similar moving device. Violation of this
subsection shall constitute unlawfully operating, navigating, steering, driving,
manipulating, or being in actual physical control of a moving vessel, moving
water skis, moving aquaplane, moving surfboard, or similar moving device while
under the influence of alcohol or
drugs."
"(d)(1)
Upon the trial of any civil or criminal action or proceeding arising out of acts
alleged to have been committed by any person while operating, navigating,
steering, driving, manipulating, or being in actual physical control of a moving
vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving
device while under the influence of alcohol, the amount of alcohol in the
person's blood at the time alleged, as shown by chemical analysis of the
person's blood, urine, breath, or other bodily substance, shall give rise to
the
following presumptions:
(1)
If there was at that time an alcohol concentration of 0.05 grams or less, it
shall be presumed that the person was not under the influence of alcohol, as
prohibited by paragraphs (1), (2), and (3) of subsection (a) of this Code
section;
(2)
If there was at that time an alcohol concentration in excess of 0.05 grams but
less than 0.08 grams, such fact shall not give rise to any presumption that the
person was or was not under the influence of alcohol, as prohibited by
paragraphs (1), (2), and (3) of subsection (a) of this Code section, but such
fact may be considered with other competent evidence in determining whether the
person was under the influence of alcohol, as prohibited by paragraphs (1), (2),
and (3) of subsection (a) of this Code section;
(3)
If there was at that time an alcohol concentration of 0.08 grams or more, it
shall be presumed that the person was under the influence of alcohol, as
prohibited by paragraphs (1), (2), and (3) of subsection (a) of this Code
section; and
inferences and
considerations regarding whether a person was unlawfully operating, navigating,
steering, driving, manipulating, or being in actual physical control of a moving
vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving
device while under the influence of alcohol the same as those inferences and
considerations provided by subsection (b) of Code Section 40-6-392 regarding
whether a person was unlawfully driving or in actual physical control of a
moving vehicle while under the influence of alcohol.
(4)(2)
If there was at that time or within three hours after operating, navigating,
steering, driving, manipulating, or being in actual physical control of a moving
vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving
device,
from alcohol consumed before such operating, navigating, steering, driving,
manipulating, or being in actual physical control
ended,
an alcohol concentration
of 0.10 or
more grams
which is
specifically unlawful under paragraph (5) of subsection (a) or paragraph (1) of
subsection (k) of Code Section 40-6-391 for purposes of driving or being in
actual physical control of a moving
vehicle, the person shall be in violation
of
paragraph
(4) of subsection (a) of this Code
section."
"(j)
In any
civil or criminal action or proceeding arising out of acts alleged to have been
committed by any person in violation of subsection (k) of this Code section, if
there was at that time or within three hours after operating, navigating,
steering, driving, or being in actual physical control of a moving vessel or
personal watercraft from alcohol consumed before such operating, navigating,
steering, driving, or being in actual physical control ended an alcohol
concentration of 0.02 grams or more in the person's blood, breath, or urine, the
person shall be in violation of subsection (k) of this Code
section
Reserved.
(k)(1)
A person under the age of 21 shall not operate, navigate, steer, drive, or be in
actual physical control of any moving vessel, moving water skis, moving
aquaplane, moving surfboard or similar moving device, or personal watercraft
while the person's alcohol concentration is 0.02 grams or more at any time
within three hours after such operating, navigating, steering, driving, or being
in actual physical control from alcohol consumed before such operating,
navigating, steering, driving, or being in actual physical control
ended.
(2)
No plea of nolo contendere shall be accepted for any person under the age of 21
charged with a violation of this Code section."
SECTION
3.
Said
chapter is further amended by revising Code Section 52-7-12.5, relating to
ordering drugs or alcohol tests, implied consent notice, reports, suspension,
hearing, and certificate of inspection relating to vessels, as
follows:
"52-7-12.5.
(a)
The test or tests required under Code Section 52-7-12 shall be administered as
soon as possible at the request of a law enforcement officer having reasonable
grounds to believe that the person has been operating or was in actual physical
control of a moving vessel upon the waters of this state in violation of Code
Section 52-7-12 and the officer has arrested such person for a violation of Code
Section 52-7-12, any federal law in conformity with Code Section 52-7-12, or any
local ordinance which is identical to Code Section 52-7-12 in accordance with
Code Section 52-7-21 or the person has been involved in a boating accident
resulting in serious injuries or fatalities. Subject to Code Section 52-7-12,
the requesting law enforcement officer shall designate which test
or
tests shall be
administered,
provided that the officer shall require a breath test or a blood test and may
require a urine test
initially and
may subsequently require a test or tests of any substances not initially
tested.
(b)
At the time a chemical test or tests are requested, the arresting officer shall
select and read to the person the appropriate implied consent
warning
notice
from the following:
(1)
Implied consent notice for suspects under age 21:
'Georgia
law requires you to submit to state administered chemical tests of your blood,
breath, urine, or other bodily substances for the purpose of determining if you
are under the influence of alcohol or drugs. If you refuse this testing, your
privilege to operate a vessel on the waters of this state will be suspended for
a minimum period of one year. Your refusal to submit to the required testing may
be offered into evidence against you at trial. If you submit to testing, the
results of that test or tests may be used against you. If the results of such
test or tests indicate an alcohol concentration of
0.02
grams
(state the
same amount as that specified in paragraph (1) of subsection (k) of Code Section
40-6-391) or more or the presence of any
illegal drug, your privilege to operate a vessel on the waters of this state may
be suspended for a minimum period of one year. After first submitting to the
required state tests, you are entitled to additional chemical tests of your
blood, breath, urine, or other bodily substances at your own expense and from
qualified personnel of your own choosing. Will you submit to the state
administered chemical tests of your
(designate
which tests) under the implied consent
law?'; or
(2)
Implied consent notice for suspects age 21 or over:
'Georgia
law requires you to submit to state administered chemical tests of your blood,
breath, urine, or other bodily substances for the purpose of determining if you
are under the influence of alcohol or drugs. If you refuse this testing, your
privilege to operate a vessel on the waters of this state will be suspended for
a minimum period of one year. Your refusal to submit to the required testing may
be offered into evidence against you at trial. If you submit to testing, the
results of that test or tests may be used against you. If the results of such
test or tests indicate an alcohol concentration of
0.10
grams
(state the
same amount as that specified in paragraph (5) of subsection (a) of Code Section
40-6-391) or more or the presence of any
illegal drug, your privilege to operate a vessel on the waters of this state may
be suspended for a minimum period of one year. After first submitting to the
required state tests, you are entitled to additional chemical tests of your
blood, breath, urine, or other bodily substances at your own expense and from
qualified personnel of your own choosing. Will you submit to the state
administered chemical tests of your
(designate
which tests) under the implied consent
law?'
If
any such notice is used by a law enforcement officer to advise a person of his
or her rights regarding the administration of chemical testing, such person
shall be deemed to have been properly advised of his or her rights under this
Code section and under Code Section 52-7-12.6 and the results of any chemical
test, or the refusal to submit to a test, shall be admitted into evidence
against such person.
This notice
shall be deemed sufficient if such notice read by an arresting officer is
substantially complied with.
Such notice
shall be read in its entirety but need not be read exactly so long as the
substance of the notice remains unchanged.
(c)
Subsection
(b) of this Code section shall apply to any case wherein the request for
chemical testing is made regarding an offense committed on or after June 1,
1998. Subsection (b) of this Code section shall not apply to any case wherein
the request for chemical testing was made regarding an offense committed prior
to June 1, 1998, in which case those provisions of former Code Section 52-7-12
governing the admissibility of evidence of results of chemical testing or
refusal to submit to chemical testing which were in effect at the time the
offense was committed shall apply
Reserved.
(d)
If a person under arrest or a person who was involved in any boating accident
resulting in serious injuries or fatalities submits to a chemical test upon the
request of a law enforcement officer and the test results indicate that a
suspension of the privilege of operating a vessel on the waters of this state is
required under this Code section, the results shall be reported to the
department. Upon the receipt of a sworn report of the law enforcement officer
that the officer had reasonable grounds to believe the arrested person had been
operating or was in actual physical control of a moving vessel upon the waters
of this state in violation of Code Section 52-7-12 or that such person had been
operating or was in actual physical control of a moving vessel upon the waters
of this state and was involved in a boating accident involving serious injuries
or fatalities and that the person submitted to a chemical test at the request of
the law enforcement officer and the test results indicate either an alcohol
concentration of
0.10
grams
an amount the
same as that specified in paragraph (5) of subsection (a) of Code Section
40-6-391 or more or, for a person under
the age of 21, an alcohol concentration of
0.02
grams
an amount the
same as that specified in paragraph (1) of subsection (k) of Code Section
40-6-391 or more, and the vessel being
operated was a motorized vessel having ten or more horsepower or was a sailboat
more than 12 feet in length, the department shall suspend the person's privilege
to operate a vessel upon the waters of this state pursuant to Code Section
52-7-12.6, subject to review as provided for in this Code section.
(e)
If a person under arrest or a person who was involved in any boating accident
resulting in serious injuries or fatalities refuses, upon the request of a law
enforcement officer, to submit to a chemical test designated by the law
enforcement officer as provided in subsection (a) of this Code section, no test
shall be given; but the law enforcement officer shall report the refusal to the
department. Upon the receipt of a sworn report of the law enforcement officer
that the officer had reasonable grounds to believe the arrested person had been
operating or was in actual physical control of a moving vessel upon the waters
of this state in violation of Code Section 52-7-12 or that such person had been
operating or was in actual physical control of a moving vessel upon the waters
of this state and was involved in a boating accident which resulted in serious
injuries or fatalities and that the person had refused to submit to the test
upon the request of the law enforcement officer, and the vessel being operated
was a motorized vessel having ten or more horsepower or was a sailboat more than
12 feet in length, the department shall suspend the person's privilege of
operating a vessel on the waters of this state for a period of one
year.
(e.1)
Nothing in this Code section shall be deemed to preclude the acquisition or
admission of evidence of a violation of Code Section 52-7-12 if obtained by
voluntary consent or a search warrant as authorized by the Constitution or laws
of this state or the United States.
(f)(1)
The law enforcement officer, acting on behalf of the department, shall
personally serve the notice of intention to suspend or disqualify the privilege
of operating a vessel on the waters of this state of the arrested person or
other person refusing such test on such person at the time of the person's
refusal to submit to a test or at the time at which such a test indicates that
suspension or disqualification is required under this Code section. The officer
shall forward to the department the notice of intent to suspend and the sworn
report required by subsection (d) or (e) of this Code section within ten
calendar days after the date of the arrest of such person. The failure of the
officer to transmit the sworn report required by this Code section within ten
calendar days shall not prevent the department from accepting such report and
utilizing it in the suspension of an operator's privilege as provided in this
Code section.
(2)
If notice has not been given by the arresting officer, the department, upon
receipt of the sworn report of such officer, shall suspend the person's
privilege to operate a vessel and, by regular mail, at the last known address,
notify such person of such suspension. The notice shall inform the person of the
grounds of suspension, the effective date of the suspension, and the right to
review. The notice shall be deemed received three days after
mailing.
(g)(1)
A person whose operator's privilege is suspended pursuant to this Code section
shall request, in writing, a hearing within ten business days from the date of
personal notice or receipt of notice sent by certified mail or statutory
overnight delivery, return receipt requested, or the right to said hearing shall
be deemed waived. Within 30 days after receiving a written request for a
hearing, the department shall hold a hearing as is provided in Chapter 13 of
Title 50, the 'Georgia Administrative Procedure Act.' The hearing shall be
recorded.
(2)
The scope of the hearing shall be limited to the following issues:
(A)(i)
Whether the law enforcement officer had reasonable grounds to believe the person
was operating or in actual physical control of a moving vessel while under the
influence of alcohol or a controlled substance and was lawfully placed under
arrest for violating Code Section
52-7-12.;
or
(ii)
Whether the person was involved in a vessel accident or collision resulting in
serious injury or fatality;
and
(B)
Whether at the time of the request for the test or tests the officer informed
the person of the person's implied consent rights and the consequence of
submitting or refusing to submit to such
test;
and:
(C)(i)
Whether the person refused the test; or
(ii)
Whether a test or tests were administered and the results indicated an alcohol
concentration
of 0.10
grams or more or, for a person under the age of 21, an alcohol concentration of
0.02 grams or more
that was
unlawful under paragraph (2) of subsection (d) of Code Section
52-7-12; and
(C)(D)
Whether the test or tests were properly administered by an individual possessing
a valid permit issued by the Division of Forensic Sciences of the Georgia Bureau
of Investigation on an instrument approved by the Division of Forensic Sciences
or a test conducted by the Division of Forensic Sciences, including whether the
machine at the time of the test was operated with all its electronic and
operating components prescribed by its manufacturer properly attached and in
good working order, which shall be required. A copy of the operator's permit
showing that the operator has been trained on the particular type of instrument
used and one of the original copies of the test results or, where the test is
performed by the Division of Forensic Sciences, a copy of the crime lab report
shall satisfy the requirements of this subparagraph.
(3)
The hearing officer shall, within five calendar days after such hearing, forward
a decision to the department to rescind or sustain the suspension of the
person's privilege to operate a vessel on the waters of this state. If no
hearing is requested within the ten business days specified in paragraph (1) of
this subsection, and the failure to request such hearing is due in whole or in
part to the reasonably avoidable fault of the person, the right to a hearing
shall have been waived. The request for a hearing shall not stay the suspension
of the person's privilege to operate a vessel on the waters of this state;
provided, however, that if the hearing is timely requested and is not held
within 60 days and the delay is not due in whole or in part to the reasonably
avoidable fault of the person, the suspension shall be stayed until such time as
the hearing is held and the hearing officer's decision is made.
(4)
In the event the person is acquitted of a violation of Code Section 52-7-12 or
such charge is initially disposed of other than by a conviction or plea of nolo
contendere, then the suspension shall be terminated. An accepted plea of nolo
contendere shall be entered on the operator's record and shall be considered and
counted as a conviction for purposes of any future violations of Code Section
52-7-12.
(h)
If the suspension is sustained after such a hearing, the person whose privilege
to operate a vessel on the waters of this state has been suspended under this
Code section shall have a right to file for a judicial review of the
department's final decision, as provided for in Chapter 13 of Title 50, the
'Georgia Administrative Procedure Act'; while such appeal is pending, the order
of the department shall not be stayed.
(i)
Each time an approved breath-testing instrument is inspected, the inspector
shall prepare a certificate which shall be signed under oath by the inspector
and which shall include the following language:
'This
breath-testing instrument (serial no. __________) was thoroughly inspected,
tested, and standardized by the undersigned on (date __________) and all of its
electronic and operating components prescribed by its manufacturer are properly
attached and are in good working order.'
When
properly prepared and executed, as prescribed in this subsection, the
certificate shall, notwithstanding any other provision of law, be
self-authenticating, shall be admissible in any court of law, and shall satisfy
the pertinent requirements of paragraph (1) of subsection (c) of Code Section
52-7-12 and subparagraph
(g)(2)(C)
(g)(2)(D)
of this Code section."
SECTION
4.
This
Act shall become effective on July 1, 2009, and shall apply to offenses
committed on or after such date.
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.
