Senate Bill No. 165

Senate Bill No. 165-Committee on Natural Resources

March 5, 1997
____________

Referred to Committee on Natural Resources

SUMMARY--Regulates use of belly boats and float tubes. (BDR 43-361)

FISCAL NOTE: Effect on Local Government: Yes.

Effect on the State or on Industrial Insurance: Yes.

EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.

AN ACT relating to recreational activities; regulating the use of belly boats and float tubes; authorizing the testing of operators of belly boats or float tubes to detect the presence of alcohol or a controlled substance; providing a penalty; and providing other matters properly relating thereto.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

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Section 1 Title 43 of NRS is hereby amended by adding thereto a new chapter to consist of the provisions set forth as sections 2 to 21, inclusive, of this act.
Sec. 2. As used in this chapter, unless the context otherwise requires, the words and terms defined in sections 3 to 6, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 3. The phrase "0.10 percent or more by weight of alcohol in his blood" includes a concentration of alcohol in the blood or breath of a person of 0.10 gram or more by weight of alcohol:
1. Per 100 milliliters of his blood; or
2. Per 210 liters of his breath.
Sec. 4. "Belly boat or float tube" means an inflatable inner tube with a seat sewn in the center that is used primarily for fishing in deep water and is propelled by the arms or feet of the user.
Sec. 5. "Darkness" means the period beginning 1 hour before sunset and ending 1 hour after sunrise.
Sec. 6. "Operate" means to navigate or otherwise use a belly boat or float tube on any water within the territorial limits of this state.
Sec. 7. Except as otherwise provided in sections 8 and 9 of this act, a belly boat or float tube may be operated in all waters within the territorial limits of this state either inside or outside existing no-wake buoy systems.
Sec. 8. 1. It is unlawful:
(a) To operate a belly boat or float tube within 200 feet of a shore-based activity, powerboat launch ramp, designated jet ski area, water intake tower, designated beach area or designated restricted area.
(b) To operate or ride in a belly boat or float tube without wearing a personal flotation device of a type approved by the United States Coast Guard and prescribed by the regulations of the board of wildlife commissioners.
(c) To operate a belly boat or float tube without carrying a whistle or horn that is either mechanically or battery operated.
(d) To operate a belly boat or float tube in a reckless or negligent manner that endangers the life or property of any person.
(e) To operate a belly boat or float tube during the hours of darkness without wearing a light attached to an armband or headband.
(f) For a child who has not attained 12 years of age to operate a belly boat or float tube, except that a child who has attained 11 years of age may operate a belly boat or float tube if the child's parent or an adult with supervisory responsibility for the child remains within 5 meters of the child and in a position to supervise the child.
2. The board of wildlife commissioners shall adopt regulations governing the specifications and characteristics of the equipment required by this section.
Sec. 9. 1. It is unlawful for a person to operate a belly boat or float tube if he:
(a) Is under the influence of intoxicating liquor;
(b) Has 0.10 percent or more by weight of alcohol in his blood; or
(c) Is found by measurement within 2 hours after operating the belly boat or float tube to have 0.10 percent or more by weight of alcohol in his blood.
2. It is unlawful for a person to operate a belly boat or float tube if he:
(a) Is under the influence of any controlled substance;
(b) Is under the combined influence of intoxicating liquor and a controlled substance; or
(c) Inhales, ingests, applies or otherwise uses a chemical, poison or organic solvent, or a compound or combination of any of these, to a degree which renders him incapable of safely operating the belly boat or float tube.
3. If consumption is proven by a preponderance of the evidence, it is an affirmative defense pursuant to paragraph (c) of subsection 1 that the defendant consumed a sufficient quantity of alcohol after operating the belly boat or float tube and before his blood was tested to cause the alcohol in his blood to equal or exceed 0.10 percent. A defendant who intends to offer this defense at a trial or preliminary hearing shall, not less than 14 days before the trial or hearing or at such other time as the court may direct, file and serve on the prosecuting attorney a written notice of that intent.
Sec. 10. 1. To determine whether a person operating a belly boat or float tube is under the influence of intoxicating liquor, the amount of alcohol in his blood or breath at the time of the test as shown by chemical analysis of his blood, breath or urine gives rise to the following presumptions:
(a) If there was at that time 0.05 percent or less by weight of alcohol in his blood, that at the time of the alleged violation, the defendant was not under the influence of intoxicating liquor.
(b) If there was at that time 0.10 percent or more by weight of alcohol in his blood, that at the time of the alleged violation, he was under the influence of intoxicating liquor.
(c) If there was at that time more than 0.05 but less than 0.10 percent by weight of alcohol in his blood, no presumption may be made, but this fact may be considered with other competent evidence in determining whether he was under the influence of intoxicating liquor.
2. The provisions of subsection 1 do not limit the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of intoxicating liquor.
3. As used in this section:
(a) The phrase "0.05 percent or less by weight of alcohol in his blood" includes a concentration of alcohol in the blood or breath of a person of 0.05 gram or less by weight of alcohol:
(1) Per 100 milliliters of his blood; or
(2) Per 210 liters of his breath.
(b) The phrase "more than 0.05 but less than 0.10 percent by weight of alcohol in his blood" includes a concentration of alcohol in the blood or breath of a person of more than 0.05 gram but less than 0.10 gram by weight of alcohol:
(1) Per 100 milliliters of his blood; or
(2) Per 210 liters of his breath.
Sec. 11. 1. Except as otherwise provided in subsections 5 and 6, a person who operates a belly boat or float tube on the waters of this state shall be deemed to have given his consent to an evidentiary test of his blood, urine, breath or other bodily substance for the purpose of determining the alcoholic content of his blood or breath or the presence of a controlled substance when such a test is administered at the direction of a peace officer having reasonable grounds to believe that the person to be tested was operating a belly boat or float tube while under the influence of intoxicating liquor or a controlled substance.
2. If a person refuses to submit to such a test as directed by a peace officer, evidence of that refusal is admissible in any criminal action to determine whether the person was operating a belly boat or float tube while under the influence of intoxicating liquor or a controlled substance.
3. The person to be tested must be informed that his refusal to submit to the test is admissible pursuant to subsection 2.
4. A person who is dead, unconscious or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent, and any such test may be administered whether or not the person is informed that evidence of his refusal to submit to the test is admissible.
5. A person who is afflicted with hemophilia or with a heart condition requiring the use of an anticoagulant as determined by a physician is exempt from any blood test that may be required pursuant to this section, but may be required to submit to a test of his breath or urine.
6. Except as otherwise provided in subsection 9, if the alcoholic content of the blood of the person to be tested is in issue, he may refuse to submit to a blood test if means are reasonably available to perform a breath test. If the person requests a blood test and the means are reasonably available to perform a breath test, and he is subsequently convicted, he shall pay for the cost of the substituted test, including the fees and expenses of witnesses in court.
7. If the presence of a controlled substance in the blood of the person is in issue, an officer may direct him to submit to a blood or urine test, or both, in addition to the breath test.
8. Except as otherwise provided in subsections 5 and 7, a peace officer shall not direct a person to submit to a urine test.
9. Except as otherwise provided in this subsection, a person who refuses to submit to a test required by this section may not be tested. If an officer has reasonable cause to believe that:
(a) The person to be tested was operating a belly boat or float tube while under the influence of intoxicating liquor or a controlled substance; and
(b) The person thereby caused the death or substantial bodily harm of another,
the officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested. Not more than three such samples may be taken during the 5-hour period immediately following the time of the initial arrest. In such a circumstance, the officer is not required to provide the person with a choice of tests for determining the alcoholic content or presence of a controlled substance in his blood.
Sec. 12. 1. A court may not exclude evidence of a failure to submit to a test pursuant to section 11 of this act if a peace officer or other person substantially complied with the provisions of that section.
2. If a person submits to such a test, full information concerning that test must be made available, upon his request, to him or his attorney.
3. Evidence of a required test is not admissible in a criminal proceeding unless it is shown by documentary or other evidence that the device for testing breath was certified, calibrated, maintained and operated as provided by the regulations of the committee on testing for intoxication adopted pursuant to NRS 484.3882, 484.3884, 484.3886 or 484.3888.
4. If the device for testing breath has been certified by the committee on testing for intoxication to be accurate and reliable pursuant to NRS 484.3882, it is presumed that, as designed and manufactured, the device is accurate and reliable for the purpose of testing a person's breath to determine the percent by weight of alcohol in the person's breath.
5. A court shall take judicial notice of the certification by the director of a person to operate testing devices of one of the certified types. If a test to determine the amount of alcohol in a person's breath has been performed with a certified type of device by a person who is certified pursuant to NRS 484.3886 or 484.3888, it shall be deemed that the person operated the device properly.
6. This section does not preclude the admission of evidence of a test of a person's breath where the:
(a) Information is obtained through the use of a device other than one of a type certified by the committee on testing for intoxication.
(b) Test has been performed by a person other than one who is certified by the director.
Sec. 13. 1. A person arrested for operating a belly boat or float tube while under the influence of intoxicating liquor or a controlled substance must be permitted, upon his request and at his expense, reasonable opportunity to have a qualified person of his own choosing administer a chemical test for the purpose of determining the alcoholic content of his blood or the presence of a controlled substance in his blood.
2. The failure or inability to obtain such a test does not preclude the admission of evidence relating to the refusal to submit to a test or relating to a test taken upon the request of a peace officer.
3. A test obtained pursuant to the provisions of this section may not be substituted for or stand in lieu of the test required by section 11 of this act.
Sec. 14. 1. The results of a blood test administered pursuant to the provisions of section 11 of this act are not admissible in a criminal action arising out of the acts alleged to have been committed while a person was under the influence of intoxicating liquor or a controlled substance unless:
(a) The blood tested was withdrawn by a physician, registered nurse, licensed practical nurse, emergency medical technician or a technician, technologist or assistant employed in a medical laboratory;
(b) The test was performed on whole blood, except that if the sample was clotted when it was received by the laboratory, the test may be performed on blood serum or plasma; and
(c) The person who withdrew the blood was authorized to do so by the appropriate licensing or certifying agency.
2. The limitation contained in paragraph (a) of subsection 1 does not apply to the taking of a chemical test of the urine, breath or other bodily substance.
3. No person listed in paragraph (a) of subsection 1 incurs any civil or criminal liability as a result of a blood test when requested to administer the test by a peace officer or the person to be tested.
Sec. 15. It is presumed that a solution or gas has been properly prepared and is suitable for calibrating a device if:
1. A manufacturer or technician in a laboratory prepares the chemical solution or gas to be used in calibrating the device for testing a person's breath to determine the percent by weight of alcohol in his breath; and
2. The technician makes an affidavit that the solution or gas has the chemical composition that is necessary for calibrating the device.
Sec. 16. 1. A coroner, or other public officer performing similar duties, shall in all cases in which a death has occurred as a result of an accident involving a belly boat or float tube on the waters of this state, whether the person killed is the operator of the belly boat or float tube or any other person, cause to be drawn from each decedent, within 8 hours after the accident, a blood sample to be analyzed for the presence and the amount of alcohol.
2. The findings of those examinations are a matter of public record and must be reported to the board of wildlife commissioners by the coroner or other public officer within 30 days after the death.
3. Analyses of blood alcohol are acceptable only if made by laboratories licensed to perform this function.
Sec. 17. If a person is found guilty of violating a provision of this chapter, the division of wildlife of the state department of conservation and natural resources may revoke or suspend that person's privilege to fish in this state for a specified time, not to exceed the time left until the expiration of that person's fishing license.
Sec. 18. 1. Every game warden, sheriff and other peace officer of this state and its political subdivisions shall enforce the provisions of this chapter and may stop and detain a belly boat or float tube subject to the provisions of this chapter.
2. A belly boat or float tube located upon the waters of this state is subject to inspection by the division of wildlife of the state department of conservation and natural resources or any lawfully designated agent or inspector thereof at any time to determine whether it is equipped in compliance with the provisions of this chapter.
Sec. 19. 1. If a peace officer has probable cause to believe that a belly boat or float tube or its contents contain evidence tending to show that a criminal offense has been committed or that a particular person has committed an offense, the officer may take whatever steps are reasonable to ensure the preservation of such evidence, including, without limitation, safe storage of the belly boat or float tube or its contents.
2. If a criminal conviction is obtained as a result of an action taken pursuant to subsection 1, the person convicted shall pay any storage fees incurred pursuant to that subsection. If a conviction is not obtained, the division of wildlife of the state department of conservation and natural resources shall pay those fees.
Sec. 20. If a person is halted by a game warden, sheriff or peace officer for a violation of a provision of this chapter, the person must, in the discretion of the game warden, sheriff or peace officer, either be given a citation or be taken without unnecessary delay before the proper magistrate. He must be taken before the magistrate in either of the following cases:
1. If the person does not furnish satisfactory evidence of identity; or
2. If the game warden, sheriff or peace officer has reasonable and probable grounds to believe the person will disregard a written promise to appear in court.
Sec. 21. A person who violates a provision of this chapter is guilty of a misdemeanor.
Sec. 22. The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
Sec. 23. The amendatory provisions of this act do not apply to offenses that are committed before October 1, 1997.
Sec. 24. This act becomes effective upon passage and approval for the purpose of adopting regulations and on October 1, 1997, for all other purposes.