State of South Dakota
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EIGHTY-SEVENTH SESSION
LEGISLATIVE ASSEMBLY, 2012
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400T0158
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SENATE JUDICIARY ENGROSSED NO. SB 10 - 2/13/2012
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Introduced by: The Committee on Judiciary at the request of the Department of Game, Fish
and Parks
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FOR AN ACT ENTITLED, An Act to revise certain provisions pertaining to boating while
under the influence.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 42-8-45 be amended to read as follows:
42-8-45. No person may operate a boat as defined in subdivisions 42-8-2(2b), (3), (5a), or
(6) while underway on the public waters of the state while:
(1) There is 0.08 percent or more by weight of alcohol in that person's blood as shown
by chemical analysis of that person's breath, blood, or other bodily substance;
(2) Under the influence of an alcoholic beverage, marijuana, or any controlled drug or
substance not obtained pursuant to a valid prescription, or any combination of an
alcoholic beverage, marijuana, or such controlled drug or substance;
(3) Under the influence of marijuana or any controlled drug or substance obtained
pursuant to a valid prescription, or any other substance, to a degree which renders the
person incapable of safely driving or operating such boat; or
(4) Under the combined influence of an alcoholic beverage and marijuana or any
controlled drug or substance obtained pursuant to a valid prescription, or any other
substance, to a degree which renders the person incapable of safely driving or
operating such boat; or
(5) Under the influence of any substance ingested, inhaled, or otherwise taken into the
body as prohibited by § 22-42-15.
Any violation of this section is a Class 1 misdemeanor.
Section 2. That § 42-8-45.1 be amended to read as follows:
42-8-45.1. A law enforcement officer may, without a warrant, arrest a person for a violation
of the provisions of § 42-8-45 if he the officer has probable cause to believe that the person to
be arrested has been involved in an accident on the public waters of the state and has violated
the provisions of § 42-8-45 and that the violation occurred prior to or immediately following
the accident.
Section 3. That § 42-8-45.3 be amended to read as follows:
42-8-45.3. The fact that any person charged with a violation of § 42-8-45 may use is or has
been prescribed a drug under the laws of this state does is not constitute a defense against any
charge of violating that section § 42-8-45.
Section 4. That § 42-8-45.4 be amended to read as follows:
42-8-45.4. In any criminal prosecution for a violation of § 42-8-45, the amount of alcohol
in the defendant's blood at the time alleged as shown by chemical analysis of the defendant's
blood, breath, or other bodily substance gives rise to the following presumptions:
(1) If there was at that time five hundredths percent or less by weight of alcohol in the
defendant's blood, it is presumed a presumption arises that the defendant was not
under the influence of intoxicating liquor an alcoholic beverage;
(2) If there was at that time in excess of five hundredths percent but less than eight
hundredths percent by weight of alcohol in the defendant's blood, such fact does not
give rise to any presumption that the defendant was or was not under the influence
of intoxicating liquor an alcoholic beverage, but such fact may be considered with
other competent evidence in determining the guilt or innocence of the defendant; and
(3) If there was at that time eight hundredths percent or more by weight of alcohol in the
defendant's blood, it is presumed a presumption arises that the defendant was under
the influence of intoxicating liquor an alcoholic beverage.
Percent by weight of alcohol in the blood shall be is based upon milligrams of alcohol per
1.0 cubic centimeters centimeter of whole blood or 2100 cubic centimeters of deep lung breath.
Section 5. That § 42-8-45.5 be amended to read as follows:
42-8-45.5. The provisions of § 42-8-45.4 may not be construed as limiting do not limit the
introduction of any other competent evidence bearing upon the question whether or not the
defendant was under the influence of intoxicating liquor an alcoholic beverage.
Section 6. That § 42-8-45.6 be amended to read as follows:
42-8-45.6. Any person who operates a boat while underway on the public waters of the state
in this state is considered to have consented given consent to the withdrawal of blood or other
bodily substance and chemical analysis of such the person's blood, breath, or other bodily
substance to determine the amount of alcohol in such the person's blood and to determine the
presence of marijuana or any controlled drug or substance or any substance ingested, inhaled,
or otherwise taken into the body as prohibited by § 22-42-15 or any other substance that may
render a person incapable of safely operating a boat. The arresting law enforcement officer may,
subsequent to the arrest of any operator for a violation of § 42-8-45, require the operator to
submit to the withdrawal of blood or other bodily substances as evidence.
The person, operating a boat underway which has been involved in a collision or an accident
resulting in bodily injury or death to any person or property damage to a boat or other property
to an apparent extent of one thousand dollars or more to any one person's property or two
thousand dollars or more in any one accident, shall submit to the withdrawal of blood or other
bodily substance for chemical analysis or chemical analysis of the person's breath. The officer
shall advise the person of the right to have an additional chemical analysis performed by a
technician of his or her own choosing at his or her own expense.
Any other person, operating a boat underway which has not been involved in a collision or
an accident resulting in bodily injury or death to any person or property damage to a boat or
other property to an apparent extent of one thousand dollars or more to any one person's
property or two thousand dollars or more in any one accident, shall be requested by the officer
to submit to the withdrawal of blood or other bodily substance for chemical analysis or chemical
analysis of his or her breath. The officer shall advise the person that:
(1) If he or she refuses to submit to the withdrawal or chemical analysis, no withdrawal
or chemical analysis may be required;
(2) Such refusal is admissible into evidence at trial; and
(3) That he or she has the right to have an additional chemical analysis performed by a
technician of his or her own choosing at his or her own expense.
If such person refuses to submit to chemical analysis of his or her blood, urine, breath, or
other bodily substance, or allow the withdrawal of blood or other bodily substance for chemical
analysis as provided in this section, and that person subsequently stands trial for violation of
§ 42-8-45, such refusal is admissible into evidence at the trial.
Section 7. That § 42-8-45.9 be amended to read as follows:
42-8-45.9.
The Any person tested pursuant to this chapter
shall be permitted to may have
a physician, laboratory technician, registered nurse, physician's assistant, or medical technologist
of his the person's own choosing administer the chemical analysis in addition to the one
administered at the direction of the law enforcement officer.
Section 8. That § 42-8-45.10 be amended to read as follows:
42-8-45.10. Upon the request of the any person who was tested pursuant to this chapter or
upon the request of his the person's attorney, the results of such analysis shall be made available
to him the person or to his the person's attorney.
Section 9. That § 42-8-45.7 be amended to read as follows:
42-8-45.7. Only a physician, laboratory technician, registered nurse, physician's assistant,
phlebotomist, expanded role licensed practical nurse, medical technician, or medical
technologist may withdraw blood for the purpose of determining the alcoholic content therein
of the blood. This limitation does not apply to the taking of a breath or other bodily substance
specimen. Such authorized persons, acting on the presumption of consent considered to have
been given by the person when operating a boat while underway in § 42-8-45.6, and any hospital
or facility employing such persons, are not liable and may not be held to pay damages to the
party from whom the blood sample is withdrawn, if the withdrawal is administered with usual
and ordinary care. No person authorized to withdraw blood under this section may be required
or forced to withdraw blood for the purposes provided in this chapter, unless required pursuant
to a written agreement.