(a) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel in this Municipality while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails to perform any duty imposed by law in the operating of the motorboat, jet ski or other motorized vessel, which act or failure proximately causes the death of any person within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the safety of others, and when the influence of alcohol, controlled substances or drugs is shown to be a contributing cause to the death, is guilty of a felony and shall be prosecuted under appropriate State law.
(b) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel in this Municipality while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails to perform any duty imposed by law in the operating of the motorboat, jet ski or other motorized vessel, which act or failure proximately causes the death of any person within one year next following the act or failure, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for thirty (30) days and shall be fined not less than $500 nor more than $1,000.
(c) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel in this Municipality while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails to perform any duty imposed by law in the operating of the motorboat, jet ski or other motorized vessel, which act or failure proximately causes bodily injury to any person other than himself or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day nor more than thirty (30) days, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than $200 nor more than $1,000.
(d) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel in this Municipality while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day nor more than thirty (30) days, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than $100 nor more than $500.
(e) Any person who, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, operates a motorboat, jet ski or other motorized vessel in this Municipality, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day nor more than thirty (30) days, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than $100 nor more than $500.
(f) Any person who:
(1) Knowingly permits his or her motorboat, jet ski or other motorized vessel to be operated in this Municipality by any other person who is:
(A) Under the influence of alcohol; or
(B) Under the influence of any controlled substance; or
(C) Under the influence of any other drug; or
(D) Under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than thirty (30) days and shall be fined not less than $100 nor more than $500.
(g) Any person who knowingly permits his or her motorboat, jet ski or other motorized vessel to be operated in this Municipality by any other person who is an habitual user of narcotic drugs or amphetamine or any derivative thereof, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than thirty (30) days and shall be fined not less than $100 nor more than $500.
(h) Any person under the age of twenty-one years who operates a motorboat, jet ski or other motorized vessel in this Municipality while he or she has an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, shall, for a first offense under this subsection, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $25 nor more than $100. For a second or subsequent offense under this subsection, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for twenty-four hours, and shall be fined not less than $100 nor more than $500.
A person arrested and charged with an offense under the provisions of subsection (a), (b), (c), (d), (e), (f), (g) or (i) of this section may not also be charged with an offense under this subsection arising out of the same transaction or occurrence.
(i) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel in this Municipality while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) The person when so operating has on or within the motorboat, jet ski or other motorized vessel one or more other persons who are unemancipated minors who have not reached their sixteenth birthday, shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than two days nor more than thirty (30) days, which jail term shall include actual confinement of not less than forty-eight hours, and shall be fined not less than $200 nor more than $1,000.
(j) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section, for the second offense under this section, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period of thirty (30) days, and the court may, in its discretion, impose a fine of not less than $1,000 nor more than $3,000.
(k) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section shall, for the third or any subsequent offense under this section, be guilty of a felony and shall be prosecuted under appropriate State law.
(l) For purposes of subsections (j) and (k) of this section relating to second, third and subsequent offenses, the following types of convictions shall be regarded as convictions under this section:
(1) Any conviction under the provisions of subsection (a), (b), (c), (d), (e) or (f) of this section or West Virginia Code 20-7-18b for an offense which occurred on or after the effective date of this section;
(2) Any conviction under the provisions of subsection (a) or (b) of this section or West Virginia Code 20-7-18b for an offense which occurred within a period of five years immediately preceding the date of the offense; and
(3) Any conviction under a municipal ordinance of this state or any other state or a statute of the United States or of any other state of an offense which has the same elements as an offense described in subsection (a), (b), (c), (d), (e), (f) or (g) of this section, which offense occurred after the effective date of this section.
(m) A person may be charged in a warrant or indictment or information for a second or subsequent offense under this section if the person has been previously arrested for or charged with a violation of this section which is alleged to have occurred within the applicable time periods for prior offenses, notwithstanding the fact that there has not been a final adjudication of the charges for the alleged previous offense. The warrant or indictment or information shall set forth the date, location and particulars of the previous offense or offenses. No person may be convicted of a second or subsequent offense under this section unless the conviction for the previous offense has become final.
(n) The fact that any person charged with a violation of subsection (a), (b), (c), (d) or (e) of this section, or any person permitted to operate as described under subsection (f) or (g) of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug shall not constitute a defense against any charge of violating subsection (a), (b), (c), (d), (e), (f) or (g) of this section.
(o) For purposes of this section, the term "controlled substance" shall have the meaning ascribed to it in West Virginia Code Chapter 60A.
(p) The sentences provided herein upon conviction for a violation of this section are mandatory and may not be subject to suspension or probation: Provided, That the court may apply the provisions of West Virginia Code Article 62-11A to a person sentenced or committed to a term of one year or less. An order for home detention by the court pursuant to the provisions of West Virginia Code Article 62-11B may be used as an alternative sentence to any period of incarceration required by this section.
(W. Va. Code § 20-7-18b; Ord. 2240. Passed 3-2-17.)