BILL REQ. #:  S-0034.5 

Read first time 01/30/13.   Referred to Committee on Law & Justice.

     AN ACT Relating to boating safety; amending RCW 79A.60.040, 10.31.100, and 79A.60.150; reenacting and amending RCW 7.80.120; adding new sections to chapter 79A.60 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 79A.60.040 and 1998 c 213 s 7 are each amended to read as follows:
     (1) It ((shall be)) is unlawful for any person to operate a vessel in a reckless manner.
     (2) It ((shall be a violation)) is unlawful for a person to operate a vessel while under the influence of intoxicating liquor, marijuana, or any drug. A person is considered to be under the influence of intoxicating liquor, marijuana, or any drug if, within two hours of operating a vessel:
     (a) The person has an alcohol concentration of 0.08 ((grams)) or ((more of alcohol per two hundred ten liters of breath,)) higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or
     (b) The person has ((0.08 percent or more by weight of alcohol in the person's blood, as shown by analysis of the person's blood made under RCW 46.61.506)) a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or
     (c) The person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or
     (d) The person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.
     (3) The fact that any person charged with a violation of this section is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this section. ((A person cited under this subsection may upon request be given a breath test for breath alcohol or may request to have a blood sample taken for blood alcohol analysis. An arresting officer shall administer field sobriety tests when circumstances permit.
     (3))) (4) Any person who operates a vessel within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of the person's breath or blood for the purpose of determining the alcohol concentration, THC concentration, or presence of any drug in the person's breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person was operating a vessel while under the influence of intoxicating liquor, marijuana, or any drug. Neither consent nor this section precludes a police officer from obtaining a search warrant for a person's breath or blood. An arresting officer may administer field sobriety tests when circumstances permit.
     (5) The test or tests of breath must be administered pursuant to RCW 46.20.308. Where the officer has reasonable grounds to believe that the person is under the influence of a drug, or where the person is incapable due to physical injury, physical incapacity, or other physical limitation, of providing a breath sample, or where the person is being treated in a hospital, clinic, doctor's office, emergency medical vehicle, ambulance, or other similar facility, a blood test must be administered by a qualified person as provided in RCW 46.61.506(5). The officer shall warn the person that if the person refuses to take the test, the person will be issued a class 1 civil infraction under RCW 7.80.120.
     (6) A violation of subsection (1) of this section is a misdemeanor((, punishable as provided under RCW 9.92.030)). A violation of subsection (2) of this section is a gross misdemeanor. In addition to the statutory penalties imposed, the court may order the defendant to pay restitution for any damages or injuries resulting from the offense.

NEW SECTION.  Sec. 2   A new section is added to chapter 79A.60 RCW to read as follows:
     (1) The refusal of a person to submit to a test of the alcohol concentration, THC concentration, or presence of any drug in the person's blood or breath is admissible into evidence at a subsequent criminal trial.
     (2) A person's refusal to submit to a test or tests pursuant to RCW 79A.60.040 constitutes a class 1 civil infraction under RCW 7.80.120.

Sec. 3   RCW 7.80.120 and 2003 c 365 s 3 and 2003 c 337 s 4 are each reenacted and amended to read as follows:
     (1) A person found to have committed a civil infraction shall be assessed a monetary penalty.
     (a) The maximum penalty and the default amount for a class 1 civil infraction shall be two hundred fifty dollars, not including statutory assessments, except for an infraction of state law involving: (i) Potentially dangerous litter as specified in RCW 70.93.060(4) ((and an infraction of state law involving)); (ii) violent video or computer games under RCW 9.91.180; or (iii) a person's refusal to submit to a test or tests pursuant to RCW 79A.60.040 and section 2 of this act, in which case the maximum penalty and default amount is five hundred dollars;
     (b) The maximum penalty and the default amount for a class 2 civil infraction shall be one hundred twenty-five dollars, not including statutory assessments;
     (c) The maximum penalty and the default amount for a class 3 civil infraction shall be fifty dollars, not including statutory assessments; and
     (d) The maximum penalty and the default amount for a class 4 civil infraction shall be twenty-five dollars, not including statutory assessments.
     (2) The supreme court shall prescribe by rule the conditions under which local courts may exercise discretion in assessing fines for civil infractions.
     (3) Whenever a monetary penalty is imposed by a court under this chapter it is immediately payable. If the person is unable to pay at that time the court may grant an extension of the period in which the penalty may be paid. If the penalty is not paid on or before the time established for payment, the court may proceed to collect the penalty in the same manner as other civil judgments and may notify the prosecuting authority of the failure to pay.
     (4) The court may also order a person found to have committed a civil infraction to make restitution.

Sec. 4   RCW 10.31.100 and 2010 c 274 s 201 are each amended to read as follows:
     A police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant. A police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of the officer, except as provided in subsections (1) through (((10))) (11) of this section.
     (1) Any police officer having probable cause to believe that a person has committed or is committing a misdemeanor or gross misdemeanor, involving physical harm or threats of harm to any person or property or the unlawful taking of property or involving the use or possession of cannabis, or involving the acquisition, possession, or consumption of alcohol by a person under the age of twenty-one years under RCW 66.44.270, or involving criminal trespass under RCW 9A.52.070 or 9A.52.080, shall have the authority to arrest the person.
     (2) A police officer shall arrest and take into custody, pending release on bail, personal recognizance, or court order, a person without a warrant when the officer has probable cause to believe that:
     (a) An order has been issued of which the person has knowledge under RCW 26.44.063, or chapter 7.90, 10.99, 26.09, 26.10, 26.26, 26.50, or 74.34 RCW restraining the person and the person has violated the terms of the order restraining the person from acts or threats of violence, or restraining the person from going onto the grounds of or entering a residence, workplace, school, or day care, or prohibiting the person from knowingly coming within, or knowingly remaining within, a specified distance of a location or, in the case of an order issued under RCW 26.44.063, imposing any other restrictions or conditions upon the person; or
     (b) A foreign protection order, as defined in RCW 26.52.010, has been issued of which the person under restraint has knowledge and the person under restraint has violated a provision of the foreign protection order prohibiting the person under restraint from contacting or communicating with another person, or excluding the person under restraint from a residence, workplace, school, or day care, or prohibiting the person from knowingly coming within, or knowingly remaining within, a specified distance of a location, or a violation of any provision for which the foreign protection order specifically indicates that a violation will be a crime; or
     (c) The person is sixteen years or older and within the preceding four hours has assaulted a family or household member as defined in RCW 10.99.020 and the officer believes: (i) A felonious assault has occurred; (ii) an assault has occurred which has resulted in bodily injury to the victim, whether the injury is observable by the responding officer or not; or (iii) that any physical action has occurred which was intended to cause another person reasonably to fear imminent serious bodily injury or death. Bodily injury means physical pain, illness, or an impairment of physical condition. When the officer has probable cause to believe that family or household members have assaulted each other, the officer is not required to arrest both persons. The officer shall arrest the person whom the officer believes to be the primary physical aggressor. In making this determination, the officer shall make every reasonable effort to consider: (i) The intent to protect victims of domestic violence under RCW 10.99.010; (ii) the comparative extent of injuries inflicted or serious threats creating fear of physical injury; and (iii) the history of domestic violence of each person involved, including whether the conduct was part of an ongoing pattern of abuse.
     (3) Any police officer having probable cause to believe that a person has committed or is committing a violation of any of the following traffic laws shall have the authority to arrest the person:
     (a) RCW 46.52.010, relating to duty on striking an unattended car or other property;
     (b) RCW 46.52.020, relating to duty in case of injury to or death of a person or damage to an attended vehicle;
     (c) RCW 46.61.500 or 46.61.530, relating to reckless driving or racing of vehicles;
     (d) RCW 46.61.502 or 46.61.504, relating to persons under the influence of intoxicating liquor or drugs;
     (e) RCW 46.20.342, relating to driving a motor vehicle while operator's license is suspended or revoked;
     (f) RCW 46.61.5249, relating to operating a motor vehicle in a negligent manner.
     (4) A law enforcement officer investigating at the scene of a motor vehicle accident may arrest the driver of a motor vehicle involved in the accident if the officer has probable cause to believe that the driver has committed in connection with the accident a violation of any traffic law or regulation.
     (5) A law enforcement officer investigating at the scene of a vessel accident may arrest the operator of a vessel involved in the accident if the officer has probable cause to believe that the operator has committed, in connection with the accident, a violation of any boating safety law or rule.
     (6) Any police officer having probable cause to believe that a person has committed or is committing a violation of RCW 79A.60.040 shall have the authority to arrest the person.
     (((6))) (7) An officer may act upon the request of a law enforcement officer in whose presence a traffic infraction was committed, to stop, detain, arrest, or issue a notice of traffic infraction to the driver who is believed to have committed the infraction. The request by the witnessing officer shall give an officer the authority to take appropriate action under the laws of the state of Washington.
     (((7))) (8) Any police officer having probable cause to believe that a person has committed or is committing any act of indecent exposure, as defined in RCW 9A.88.010, may arrest the person.
     (((8))) (9) A police officer may arrest and take into custody, pending release on bail, personal recognizance, or court order, a person without a warrant when the officer has probable cause to believe that an order has been issued of which the person has knowledge under chapter 10.14 RCW and the person has violated the terms of that order.
     (((9))) (10) Any police officer having probable cause to believe that a person has, within twenty-four hours of the alleged violation, committed a violation of RCW 9A.50.020 may arrest such person.
     (((10))) (11) A police officer having probable cause to believe that a person illegally possesses or illegally has possessed a firearm or other dangerous weapon on private or public elementary or secondary school premises shall have the authority to arrest the person.
     For purposes of this subsection, the term "firearm" has the meaning defined in RCW 9.41.010 and the term "dangerous weapon" has the meaning defined in RCW 9.41.250 and 9.41.280(1) (c) through (e).
     (((11))) (12) Except as specifically provided in subsections (2), (3), (4), and (((6))) (7) of this section, nothing in this section extends or otherwise affects the powers of arrest prescribed in Title 46 RCW.
     (((12))) (13) No police officer may be held criminally or civilly liable for making an arrest pursuant to subsection (2) or (((8))) (9) of this section if the police officer acts in good faith and without malice.

NEW SECTION.  Sec. 5   A new section is added to chapter 79A.60 RCW to read as follows:
     (1) No person who has vessels for hire, or the agent or employee thereof, shall rent, lease, charter, or otherwise permit the use of a vessel, unless the person:
     (a) Displays the vessel registration numbers and a valid decal on the vessel hull as required by RCW 88.02.550(1);
     (b) Keeps a copy of the vessel registration certificate aboard the vessel, in compliance with RCW 88.02.340;
     (c) Displays a carbon monoxide decal on the vessel as required by RCW 88.02.390(2) if the vessel is motor-driven and is not a personal watercraft;
     (d) Provides a copy of the rental agreement to be kept aboard during the rental, lease, charter, or use period for vessels required under chapter 88.02 RCW to be registered;
     (e) Ensures that the vessel, if motor-propelled, meets the muffler or underwater exhaust system requirement in RCW 79A.60.130;
     (f) Outfits the vessel with the quantity and type of personal floatation devices required by RCW 79A.60.140 and 79A.60.160 for the number and ages of the people who will use the vessel;
     (g) Explains the personal floatation device requirements to the person renting, leasing, chartering, or otherwise using the vessel;
     (h) Equips the vessel with a skier-down flag, and explains observer and personal floatation requirements of RCW 79A.60.170, if the persons renting, leasing, chartering, or otherwise using the vessel will be waterskiing;
     (i) If the vessel is a personal watercraft, provides a personal floatation device and a lanyard attached to an engine cutoff switch for the operator to wear at all times when operating the personal watercraft, as required by RCW 79A.60.190;
     (j) Reviews with the person operating the vessel, and all other persons who the operator may permit to operate the vessel, all the information contained in the motor vessel safety operating and equipment checklist prescribed by the Washington state parks and recreation commission and required under RCW 79A.60.640(6); and
     (k) Provides all other safety equipment required by RCW 79A.60.110 and referenced in the motor vessel safety operating and equipment checklist prescribed by the Washington state parks and recreation commission and required under RCW 79A.60.640(6).
     (2) This section does not apply to fishing guides and charter boat operators who have a United States coast guard operator's license and are operating on navigable waters, and people who act in the capacity of a paid whitewater river outfitter or guide, or who operate a vessel carrying passengers for hire on whitewater rivers in this state.
     (3) As provided in RCW 79A.60.020, a violation of this section is a civil infraction punishable under chapter 7.84 RCW, unless:
     (a) The violation is a violation of RCW 88.02.550, which is punished as a class 2 civil infraction; or
     (b) The current violation is the person's third violation of the same provision of this chapter during the past three hundred sixty-five days. If it is the person's third violation, then it must be punished as a misdemeanor under RCW 9.92.030.

Sec. 6   RCW 79A.60.150 and 1993 c 244 s 13 are each amended to read as follows:
     If ((an infraction is issued under this chapter because a vessel does not contain the required equipment and if the operator is not the owner of the vessel, but is operating the vessel with the express or implied permission of the owner, then either or both operator or owner may be cited for the infraction)) a vessel does not contain the safety equipment required under this chapter and the rules of the commission, and the operator is not the owner of the vessel but is operating the vessel with the express or implied permission of the owner, then either the owner or the operator, or both, may be cited for the applicable infraction or charged with the applicable crime.