Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Section 8 of chapter 90B of the General Laws is hereby amended by striking out subsections (a) and (b), as appearing in the 1988 Official Edition, and inserting in place thereof the following two subsections:-

(a) (1) No person shall operate any vessel on the waters of the commonwealth while such person is under the influence of intoxicating liquor or marijuana, narcotic drugs, depressant or stimulant substances, as defined in section one of chapter ninety-four C, or the vapors of glue.

(2) In any prosecution for a violation of paragraph (1), evidence of the percentage, by weight, of alcohol in the defendant's blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of whether the defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a law enforcement officer, it was made with the consent of the defendant, the results thereof were made available to the defendant upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any person for the purpose of such test or analysis except by a physician, registered or certified medical technician; and, provided further, that a chemical test or analysis of the defendant's breath shall be by means of equipment which has been calibrated within thirty days of its use.

Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal process but any failure of the law enforcement officer to attempt to administer or have administered such test or analysis, shall be so admissible. If such evidence is that such percentage was five one-hundredths or less, there shall be a presumption that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest, if such law enforcement officer had reasonable grounds to believe that the person arrested had been operating a vessel while under the influence of intoxicating liquor; if such evidence is that such percentage was more than five one-hundredths but less than ten one-hundredths, there shall be no presumption; and if such evidence is that such percentage was ten one-hundredths or more, there shall be a presumption that such defendant was under the influence of intoxicating liquor. A certificate, signed and sworn to, by a chemist of the department of public safety or by a chemist of a laboratory certified by said department, or a reading from a device certified by said department as providing accurate readings of the percentage of alcohol in blood, and signed and sworn to by the law enforcement officer who administered such test which contains the results of an analysis of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood.

Whoever operates a vessel on the waters of the commonwealth shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating while under the influence of intoxicating liquor; provided, however, that no person shall be deemed to have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section fifty-one of chapter one hundred and eleven; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a law enforcement officer, having reasonable grounds to believe that the person arrested has been operating a vessel under the influence of intoxicating liquor.

If a person arrested for operating while under the influence of intoxicating liquor refuses to submit to such test or analysis, after having been informed that the refusal to so submit shall be punished by a civil fine of not more than one hundred dollars, such person shall be subject to a civil fine of not more than one hundred dollars assessed through an adjudicatory proceeding conducted by the division pursuant to the provisions of chapter thirty A. Such penalty shall be the exclusive penalty that may be prescribed for a refusal to submit to such test or analysis.

At the time of such refusal such person shall be cited for such refusal which citation shall state that such person shall be subject to an adjudicatory hearing held by the division of law enforcement. Written notice of the date, time and place of such hearing shall be provided to the person either by service, in hand, or by certified mail, return receipt requested. Such notice in addition shall include a concise statement of the facts giving rise to the hearing, reference to this section, the potential penalty hereunder, a statement of such person's rights to an adjudicatory hearing and the manner in which such person may waive such hearing, the consequences of waiver, and the manner of payment of the penalty if such person elects to pay the penalty and waive the adjudicatory hearing.

Such person may waive the right to an adjudicatory hearing by so stating in writing or by failing to appear twice at such adjudicatory hearing at the designated time, date and place. The division may reschedule hearing dates, times and places in response to written requests received at least one day prior to such hearing.

If a person waives his right to an adjudicatory hearing, such person shall be assessed the full civil penalty of one hundred dollars. If a civil administrative penalty is assessed, said civil administrative penalty shall be final upon the expiration of thirty days if no action for judicial review is commenced pursuant to said chapter thirty A.

If a person fails to pay a civil administrative penalty assessed pursuant to this section within ninety days of the time it becomes final, such person shall be liable to the commonwealth for up to three times the amount of such penalty, together with the costs, plus interest from the time the civil administrative penalty became final, including all costs and attorney's fees incurred directly in the collection thereof. The rate of interest shall be the rate set forth in section six C of chapter two hundred and thirty-one. The director shall refuse to issue an original certificate of number or to renew the certificate of number for any boat owned by a person who fails to pay such civil administrative penalty and any related penalties or costs, until such payment is made in full.

(3) Any person convicted of a violation of paragraph (1) may as part of the disposition in the case, be ordered to participate in a boating safety education course or an alcohol education or rehabilitation program or a drug treatment or drug rehabilitation program.

(b) No person shall operate any motorboat or vessel or use any water skis, surfboard or similar device on the waters of the commonwealth negligently so as to endanger the lives or safety of the public, or use any water skis, surfboard or similar device thereon in the nighttime.