Mass. Gen. Laws ch. 90B, sec. 8 — MA Code / Part I / Title XIV / Chapter 90B / Section 8
Operation while under influence of intoxicating liquor or narcotics, etc.; breath or blood testing; water skiing; professional exhibitions
Status: in_force

Section 8. (a) (1) No person shall operate any vessel on the waters of the commonwealth with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while such person is under the influence of intoxicating liquor or marijuana, narcotic drugs, depressant or stimulant substances, as defined in chapter ninety-four C, or from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270. (A) Whoever so operates any vessel shall be punished by a fine of not less than one hundred nor more than one thousand dollars, or by imprisonment for not more than two and one-half years, or both. If the defendant has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense within six years preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than three hundred nor more than one thousand dollars and by imprisonment for not less than fourteen days nor more than two and one-half years, provided that the sentence imposed upon such person shall not be reduced to less than fourteen days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served fourteen days of such sentence; provided, however, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative, to obtain emergency medical or psychiatric services unavailable at said institution, or to engage in employment pursuant to a work release program. If the defendant has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense two times within six years preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than five hundred nor more than one thousand dollars and by imprisonment for not less than six months nor more than two and one-half years, provided that the sentence imposed upon such person shall not be reduced to less than six months, nor suspended, nor shall any person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served six months of such sentence; provided, however, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program; provided, further, that the defendant shall serve such six month sentence in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of those who operate while under the influence of intoxicating liquor. If the defendant has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense three times within ten years preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than five hundred nor more than one thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than ten years or by such fine and imprisonment in a jail or house of correction for not less than one year nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one year nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one year of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this paragraph a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. If the defendant has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense four or more times within ten years preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than one thousand five hundred dollars and by imprisonment in the state prison for not less than two and one-half years nor more than ten years, or by such fine and imprisonment in a jail or house of correction for not less than two years nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than two years nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served two years of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this paragraph a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. (B) A prosecution commenced under the provisions of this paragraph shall not be placed on file or continued without a finding. No trial shall be commenced on a complaint alleging a violation of this paragraph, nor shall any plea be accepted on such a complaint, nor shall the prosecution on such a complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendant's record, if any, of prior convictions of like offenses or of assignment to an alcohol education or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the defendant's arraignment. The commissioner of probation shall give priority to requests for such records. (C) At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of this paragraph, the prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and eighteen alleging a violation of this paragraph and one or more prior like offenses. If such application is made upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint. If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense. (D) If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and eighteen on a complaint under this paragraph he shall be deemed to have waived right to a jury trial on all elements of said complaint subject to the right to appeal pursuant to section twenty-seven A of said chapter two hundred and eighteen. (E) Except as provided herein the provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of this paragraph if said person has been convicted of or assigned to an alcohol education or rehabilitation program because of a like offense by a court of the commonwealth within a period of six years immediately preceding the commission of the offense with which he is charged. (F) Notwithstanding the provisions of section six A of chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of this subparagraph be actually imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this paragraph shall apply only to a defendant who has not been convicted previously of a like offense or assigned to an alcohol education or rehabilitation program within six years preceding the date of the commission of the offense for which he has been convicted. (2) (a) 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 such failure or refusal shall be admissible in any action by the registrar under this section or in any proceedings provided for in section twenty-four N of chapter ninety, 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 eight one-hundredths, there shall be no presumption. A certificate, signed and sworn to, by a chemist of the department of state police or by a chemist of a laboratory certified by the department of public health, 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. (A) If a person arrested for operating a vessel while under the influence of intoxicating liquor refuses to submit to such test or analysis, after having been informed that his license, permit or right to operate motor vehicles shall be suspended and any certificate or numbers may be revoked for a period of one hundred and twenty days for such refusal, no such test or analysis shall be made, but the officer before whom such refusal was made shall immediately prepare a written report of such refusal. Each such report shall be made on a form approved by the registrar, and shall be sworn to under the penalties of perjury by the officer before whom such refusal was made. Each such report shall set forth the grounds for the officer's belief that the person arrested had been operating a vessel while under the influence of intoxicating liquor, and shall state that such person had refused to submit to such chemical test or analysis when requested by such officer to do so such refusal having been witnessed by another person other than the defendant. Each such report shall identify which police officer requested said chemical test or analysis, and the other person witnessing said refusal. Each such report shall be sent forthwith to the registrar and to the director along with a copy of the notice of intent to suspend in any form, including electronic or otherwise, that the registrar deems appropriate. Upon receipt of such report, the registrar shall suspend any license or permit to operate motor vehicles issued to such person under chapter ninety or the right of such person to operate motor vehicles in the commonwealth under section ten for a period of one hundred and twenty days, and the director may revoke any and all certificates of number of any vessel of such person and may refuse to issue any certificate of number to such vessels for a period of one hundred and twenty days. Said report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding any suspension specified in this section. (B) Any person whose license, permit or right to operate motor vehicles has been suspended or whose certificate of number has been revoked under this paragraph shall be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the officer have reasonable grounds to believe that such person had been operating a vessel while under the influence of intoxicating liquor on the waters of the commonwealth, (ii) was such person placed under arrest and (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall reinstate such license, permit or right to operate motor vehicles of such person and shall notify the director of such reinstatement. Upon receipt of such notification, the director shall reinstate such certificate of number to the vessel of such person. Notwithstanding any of the foregoing, any person whose certificate of number has been revoked under this paragraph may at any time apply for and shall, within fifteen days, be granted a hearing before the director for the purpose of requesting the issuance of a certificate of number on the grounds of hardship and the director may, in his discretion, issue such certificate of number under such terms and conditions as he deems appropriate and necessary. 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) (A) Notwithstanding any of the foregoing, any person convicted of or charged with a violation of paragraph (1) and who has not been previously convicted or assigned to an alcohol education or rehabilitation program because of a like offense, may, if he consents, be placed on probation for not more than two years and shall, as a condition of probation, be ordered to complete a boating safety education course, if he has not previously completed one and received a certificate of same and, if deemed necessary by the court, to complete an alcohol education or rehabilitation program provided or sanctioned by the division of alcoholism, and comply with all conditions of said alcohol education or rehabilitation program. Such conditions of probation shall specify a date before which such boating safety education course and alcohol education or rehabilitation program must be attended and completed. Such order of probation shall be in addition to any penalties imposed as provided in paragraph (1) of this subsection. Notwithstanding any of the above provisions, a judge, before imposing sentence on a defendant who pleads guilty to or is found guilty of a violation of paragraph (1) and who has not been convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense two or more times within ten years of the date of the commission of the offense for which he has been convicted shall receive a report from the probation staff of the court which shall include, but not be limited to, a copy of the defendant's operating record, the criminal record of the defendant, if any, and such information as may be available as to the defendant's use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and that the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant's consent, place a defendant on probation for two years, provided that a condition of such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program, as provided by or sanctioned by the division of alcoholism, pursuant to regulations to be promulgated by said division in consultation with the department of correction and with the approval of the secretary of health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program and, unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for furlough or receive any deduction from his sentence for good conduct until he shall have served two days of such sentence; and provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this paragraph a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. If such defendant fails to attend or complete the residential alcohol education or rehabilitation program before the second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for not less than fourteen days; provided, however, that such sentence shall not be reduced to less than fourteen days, nor suspended, nor shall such person be eligible for furlough or receive any deduction from his sentence for good conduct until he shall have served fourteen days of such sentence; and provided further that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this paragraph a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. (B) The defendant shall pay for the cost of the services provided by the boating safety education course, the alcohol education or rehabilitation program, and the residential alcohol treatment program; however, no person shall be excluded from said programs for inability to pay, provided that such person files an affidavit of indigency or inability to pay with the court, that investigation by the probation officer confirms such indigency or establishes that the payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and that the court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (4) (a) A conviction of a violation of paragraph (1) shall revoke the license or right to operate motor vehicles and may, in the discretion of the director, revoke the certificate of number of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license, right to operate, or certificate of number. Such revoked license and certificate of number shall immediately be surrendered to the prosecuting officer who shall forward the license to the registrar and the certificate of number to the director. The court shall report immediately any revocation, under this paragraph, of a license or right to operate to the registrar and to the police department of the municipality in which the defendant is domiciled and any revocation, under this paragraph, of a certificate of number to the director. (b) Where the license, right to operate, or certificate of number has been revoked under this paragraph, and such person has not been convicted of a like offense or has not been assigned to an alcohol education or rehabilitation program because of a like offense by a court of the commonwealth within a period of ten years preceding the date of the commission of the offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to operate to such person and the director may refuse to issue a certificate of number to the vessel of such person unless the prosecution of such person has terminated in favor of the defendant, until one year after the date of conviction; provided, however, that if such person has been placed under probation as provided by paragraph (3) of this subsection and has successfully completed all terms of such probation, the registrar shall not restore the license or reinstate the right to operate to such person and the director may refuse to issue a certificate of number to the vessel of such person until forty-five days after the date of conviction. Where the license, right to operate or certificate of number of a person has been revoked under this paragraph, and such person has been previously convicted of or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense within a period of ten years preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate and the director may refuse to issue a certificate of number to the vessel of such person unless the prosecution of such person has terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of one year from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past like offenses have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. Where the license, right to operate, or certificate of number of any person has been revoked under this paragraph and such person has been previously convicted or assigned to an alcohol education or rehabilitation program because of a like offense by a court of the commonwealth two times within a period of ten years preceding the date of commission of the offense for which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three of chapter ninety due to a violation of said section due to a prior revocation for a like offense, the registrar shall not restore the license or reinstate the right to operate and the director may refuse to issue a certificate of number to the vessel of such person, unless the prosecution of such person has terminated in favor of the defendant, until five years after the date of conviction; provided, however, that such person may, after the expiration of two years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. Where the license, right to operate, or certificate of number of a person has been revoked under this paragraph and such person has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense three times within a period of ten years preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate and the director may refuse to issue a certificate of number to the vessel of such person unless the prosecution of such person has terminated in favor of the defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. Where the license, right to operate, or certificate of number of a person has been revoked under this paragraph and such person has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense four or more times within a period of ten years preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate and the director may refuse to issue a certificate of number to the vessel of such person unless the prosecution of such person has terminated in favor or the defendant, until fifteen years after the date of the conviction; provided, however, that such person may, after the expiration of seven years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. Notwithstanding the foregoing, no new license shall be issued or right to operate be reinstated by the registrar to any person convicted of a violation of paragraph (1) until ten years after the date of conviction in case the registrar determines upon investigation and after hearing that the action of the person so convicted in committing such offense caused an accident resulting in the death of another, nor at any time after a subsequent conviction of such an offense, whenever committed, in case the registrar determines in the manner aforesaid that the action of such person, in committing the offense of which he was so subsequently convicted, caused an accident resulting in the death of another. Notwithstanding any of the foregoing, any person whose certificate of number has been revoked under this paragraph may at any time apply for and shall within fifteen days be granted a hearing for the purpose of requesting the issuance of a certificate of number on the grounds of hardship and the director may, in his discretion, issue such certificate of number under such terms and conditions as he deems appropriate and necessary. For the purposes of this subsection, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on file, and a license may be revoked under this subsection notwithstanding the pendency of a prosecution upon appeal or otherwise after such a conviction. Where there has been more than one conviction in the same prosecution, the date of the first conviction shall be deemed to be the date of conviction under this paragraph. There shall be an assessment of $250 against a person who is convicted of, placed on probation for, or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a vessel while under the influence of intoxicating liquor or marijuana, narcotic drugs, depressant or stimulant substances or from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270; provided, however, that $150 of the $250 collected under this assessment shall be deposited by the court with the state treasurer into the Head Injury Treatment Services Trust Fund, established by section 59 of chapter 10, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. (b) No person shall 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. (c) No person shall operate any motorboat on the waters of the commonwealth towing a person or persons on water skis, a surfboard or other similar device, unless there is in such motorboat a person who has attained age twelve in addition to the operator in a position to observe the person or persons being towed, and unless such motorboat is equipped with a ladder, steps or similar means by which any person being towed can be taken from the water. (d) So much of the provisions of subsection (b) as prohibit the use of water skis, surfboards or similar devices in the nighttime, and the provisions of subsections (c) and (d), shall not apply to a performer engaged in a professional exhibition which has previously been approved by the director. (e) (1) Whoever upon any waters of the commonwealth, operates a vessel recklessly, or operates a vessel negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a vessel for the purpose of making a record and thereby violates any speed regulation, or whoever without stopping and making known his name, residence and the identification number of his vessel goes away after knowingly colliding with or otherwise causing injury to any other vessel or property, or whoever knowingly makes any false statement in an application for a certificate of number of a vessel shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both. Whoever uses a vessel without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one-half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one-half years in a house of correction or for not less than two and one-half years nor more than five years in the state prison or by both fine and imprisonment. Whoever upon any waters of the commonwealth operates a vessel and, without stopping and making known his name, residence and the identification number of his vessel, goes away after knowingly colliding with or otherwise causing injury to any person shall be punished by imprisonment for not less than two months nor more than two years. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons. (2) A conviction of a violation of this subsection shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate and to the director, who may immediately revoke the certificates of number of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of such license, right to operate or certificates of number. If it appears by the records of the director that the person so convicted is the owner of a vessel or has exclusive control of any vessel as a manufacturer or dealer or otherwise, the director may revoke the certificates of number of any or all vessels so owned or exclusively controlled. (3) The registrar, after having revoked the license or right to operate of any person under this subsection, in his discretion, may issue a new license or reinstate the right to operate and the director may issue a new certificate of number, if the prosecution of such person in the superior court has terminated in favor of the defendant or after an investigation or upon hearing, the registrar may issue a new license or reinstate the right to operate and the director may issue a new certificate of number to a person convicted in any court of the violation of any provision of this subsection; provided, that no license shall be issued by the registrar to any person convicted of going away without stopping and making known his name, residence and the certificate of number of his vessel after having, while operating such vessel upon any such waters, knowingly collided with or otherwise caused injury to any person, or to any person adjudged a delinquent child by reason thereof under the provisions of section fifty-eight B of chapter one hundred and nineteen, until one year after the date of revocation following his original conviction or adjudication if for a first offense or until two years after the date of revocation following any subsequent conviction or adjudication, or to any person convicted of using a vessel knowing that such use is unauthorized, until one year after the date of revocation following his original conviction or adjudication if for a first offense or until three years after the date of revocation following any subsequent conviction or adjudication, or to any person convicted of violating any other provision of this subsection until sixty days after the date of revocation following his original conviction if for a first offense, or one year after the date of revocation following any subsequent conviction within a period of three years. But the registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of a conviction of operating a vessel upon any such waters negligently so that the lives or safety of the public might be endangered and the director, after investigation, may at any time rescind the revocation of a certificate of number revoked because of a conviction of operating a vessel upon any such waters negligently so that the lives or safety of the public might be endangered. Notwithstanding any of the foregoing, any person whose certificate of number has been revoked under this subsection may at any time and shall within fifteen days be granted a hearing for the purpose of requesting the issuance of a certificate of number on the grounds of hardship and the director may, in his discretion, issue such certificate of number under such terms and conditions as he deems appropriate and necessary. (4) The prosecution of any person for the violation of any provision of this subsection, if a subsequent offense, shall not, unless the interests of justice require such disposition, be placed on file or otherwise disposed of except by trial, judgment and sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. If the court or magistrate certifies in writing that it is satisfied that the reasons relied upon are sufficient and that the interests of justice require the allowance of the motion, the motion shall be allowed and the certificate shall be filed in the case. A copy of the motion and certificate shall be sent by the court or magistrate forthwith to the director. (f) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol education or rehabilitation program because of a like offense by a court of the commonwealth one or more times within a period of six years preceding the date of commission of the offense for which said defendant is being prosecuted.

Section 8. (a) (1) No person shall operate any vessel on the waters of the commonwealth with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while such person is under the influence of intoxicating liquor or marijuana, narcotic drugs, depressant or stimulant substances, as defined in chapter ninety-four C, or from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270.

(A) Whoever so operates any vessel shall be punished by a fine of not less than one hundred nor more than one thousand dollars, or by imprisonment for not more than two and one-half years, or both.

If the defendant has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense within six years preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than three hundred nor more than one thousand dollars and by imprisonment for not less than fourteen days nor more than two and one-half years, provided that the sentence imposed upon such person shall not be reduced to less than fourteen days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served fourteen days of such sentence; provided, however, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative, to obtain emergency medical or psychiatric services unavailable at said institution, or to engage in employment pursuant to a work release program.

If the defendant has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense two times within six years preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than five hundred nor more than one thousand dollars and by imprisonment for not less than six months nor more than two and one-half years, provided that the sentence imposed upon such person shall not be reduced to less than six months, nor suspended, nor shall any person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served six months of such sentence; provided, however, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program; provided, further, that the defendant shall serve such six month sentence in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of those who operate while under the influence of intoxicating liquor.

If the defendant has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense three times within ten years preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than five hundred nor more than one thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than ten years or by such fine and imprisonment in a jail or house of correction for not less than one year nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one year nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one year of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this paragraph a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program.

If the defendant has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense four or more times within ten years preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than one thousand five hundred dollars and by imprisonment in the state prison for not less than two and one-half years nor more than ten years, or by such fine and imprisonment in a jail or house of correction for not less than two years nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than two years nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served two years of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this paragraph a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program.

(B) A prosecution commenced under the provisions of this paragraph shall not be placed on file or continued without a finding. No trial shall be commenced on a complaint alleging a violation of this paragraph, nor shall any plea be accepted on such a complaint, nor shall the prosecution on such a complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendant's record, if any, of prior convictions of like offenses or of assignment to an alcohol education or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the defendant's arraignment. The commissioner of probation shall give priority to requests for such records.

(C) At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of this paragraph, the prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and eighteen alleging a violation of this paragraph and one or more prior like offenses. If such application is made upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint. If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense.

(D) If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and eighteen on a complaint under this paragraph he shall be deemed to have waived right to a jury trial on all elements of said complaint subject to the right to appeal pursuant to section twenty-seven A of said chapter two hundred and eighteen.

(E) Except as provided herein the provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of this paragraph if said person has been convicted of or assigned to an alcohol education or rehabilitation program because of a like offense by a court of the commonwealth within a period of six years immediately preceding the commission of the offense with which he is charged.

(F) Notwithstanding the provisions of section six A of chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of this subparagraph be actually imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this paragraph shall apply only to a defendant who has not been convicted previously of a like offense or assigned to an alcohol education or rehabilitation program within six years preceding the date of the commission of the offense for which he has been convicted.

(2) (a) 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 such failure or refusal shall be admissible in any action by the registrar under this section or in any proceedings provided for in section twenty-four N of chapter ninety, 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 eight one-hundredths, there shall be no presumption. A certificate, signed and sworn to, by a chemist of the department of state police or by a chemist of a laboratory certified by the department of public health, 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.

(A) If a person arrested for operating a vessel while under the influence of intoxicating liquor refuses to submit to such test or analysis, after having been informed that his license, permit or right to operate motor vehicles shall be suspended and any certificate or numbers may be revoked for a period of one hundred and twenty days for such refusal, no such test or analysis shall be made, but the officer before whom such refusal was made shall immediately prepare a written report of such refusal. Each such report shall be made on a form approved by the registrar, and shall be sworn to under the penalties of perjury by the officer before whom such refusal was made. Each such report shall set forth the grounds for the officer's belief that the person arrested had been operating a vessel while under the influence of intoxicating liquor, and shall state that such person had refused to submit to such chemical test or analysis when requested by such officer to do so such refusal having been witnessed by another person other than the defendant. Each such report shall identify which police officer requested said chemical test or analysis, and the other person witnessing said refusal. Each such report shall be sent forthwith to the registrar and to the director along with a copy of the notice of intent to suspend in any form, including electronic or otherwise, that the registrar deems appropriate. Upon receipt of such report, the registrar shall suspend any license or permit to operate motor vehicles issued to such person under chapter ninety or the right of such person to operate motor vehicles in the commonwealth under section ten for a period of one hundred and twenty days, and the director may revoke any and all certificates of number of any vessel of such person and may refuse to issue any certificate of number to such vessels for a period of one hundred and twenty days. Said report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding any suspension specified in this section.

(B) Any person whose license, permit or right to operate motor vehicles has been suspended or whose certificate of number has been revoked under this paragraph shall be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the officer have reasonable grounds to believe that such person had been operating a vessel while under the influence of intoxicating liquor on the waters of the commonwealth, (ii) was such person placed under arrest and (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall reinstate such license, permit or right to operate motor vehicles of such person and shall notify the director of such reinstatement. Upon receipt of such notification, the director shall reinstate such certificate of number to the vessel of such person.

Notwithstanding any of the foregoing, any person whose certificate of number has been revoked under this paragraph may at any time apply for and shall, within fifteen days, be granted a hearing before the director for the purpose of requesting the issuance of a certificate of number on the grounds of hardship and the director may, in his discretion, issue such certificate of number under such terms and conditions as he deems appropriate and necessary.

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) (A) Notwithstanding any of the foregoing, any person convicted of or charged with a violation of paragraph (1) and who has not been previously convicted or assigned to an alcohol education or rehabilitation program because of a like offense, may, if he consents, be placed on probation for not more than two years and shall, as a condition of probation, be ordered to complete a boating safety education course, if he has not previously completed one and received a certificate of same and, if deemed necessary by the court, to complete an alcohol education or rehabilitation program provided or sanctioned by the division of alcoholism, and comply with all conditions of said alcohol education or rehabilitation program. Such conditions of probation shall specify a date before which such boating safety education course and alcohol education or rehabilitation program must be attended and completed. Such order of probation shall be in addition to any penalties imposed as provided in paragraph (1) of this subsection.

Notwithstanding any of the above provisions, a judge, before imposing sentence on a defendant who pleads guilty to or is found guilty of a violation of paragraph (1) and who has not been convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense two or more times within ten years of the date of the commission of the offense for which he has been convicted shall receive a report from the probation staff of the court which shall include, but not be limited to, a copy of the defendant's operating record, the criminal record of the defendant, if any, and such information as may be available as to the defendant's use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and that the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant's consent, place a defendant on probation for two years, provided that a condition of such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program, as provided by or sanctioned by the division of alcoholism, pursuant to regulations to be promulgated by said division in consultation with the department of correction and with the approval of the secretary of health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed.

Failure of the defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program and, unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for furlough or receive any deduction from his sentence for good conduct until he shall have served two days of such sentence; and provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this paragraph a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. If such defendant fails to attend or complete the residential alcohol education or rehabilitation program before the second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for not less than fourteen days; provided, however, that such sentence shall not be reduced to less than fourteen days, nor suspended, nor shall such person be eligible for furlough or receive any deduction from his sentence for good conduct until he shall have served fourteen days of such sentence; and provided further that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this paragraph a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program.

(B) The defendant shall pay for the cost of the services provided by the boating safety education course, the alcohol education or rehabilitation program, and the residential alcohol treatment program; however, no person shall be excluded from said programs for inability to pay, provided that such person files an affidavit of indigency or inability to pay with the court, that investigation by the probation officer confirms such indigency or establishes that the payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and that the court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of the cost of said program.

(4) (a) A conviction of a violation of paragraph (1) shall revoke the license or right to operate motor vehicles and may, in the discretion of the director, revoke the certificate of number of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license, right to operate, or certificate of number. Such revoked license and certificate of number shall immediately be surrendered to the prosecuting officer who shall forward the license to the registrar and the certificate of number to the director. The court shall report immediately any revocation, under this paragraph, of a license or right to operate to the registrar and to the police department of the municipality in which the defendant is domiciled and any revocation, under this paragraph, of a certificate of number to the director.

(b) Where the license, right to operate, or certificate of number has been revoked under this paragraph, and such person has not been convicted of a like offense or has not been assigned to an alcohol education or rehabilitation program because of a like offense by a court of the commonwealth within a period of ten years preceding the date of the commission of the offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to operate to such person and the director may refuse to issue a certificate of number to the vessel of such person unless the prosecution of such person has terminated in favor of the defendant, until one year after the date of conviction; provided, however, that if such person has been placed under probation as provided by paragraph (3) of this subsection and has successfully completed all terms of such probation, the registrar shall not restore the license or reinstate the right to operate to such person and the director may refuse to issue a certificate of number to the vessel of such person until forty-five days after the date of conviction.

Where the license, right to operate or certificate of number of a person has been revoked under this paragraph, and such person has been previously convicted of or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense within a period of ten years preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate and the director may refuse to issue a certificate of number to the vessel of such person unless the prosecution of such person has terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of one year from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past like offenses have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary.

Where the license, right to operate, or certificate of number of any person has been revoked under this paragraph and such person has been previously convicted or assigned to an alcohol education or rehabilitation program because of a like offense by a court of the commonwealth two times within a period of ten years preceding the date of commission of the offense for which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three of chapter ninety due to a violation of said section due to a prior revocation for a like offense, the registrar shall not restore the license or reinstate the right to operate and the director may refuse to issue a certificate of number to the vessel of such person, unless the prosecution of such person has terminated in favor of the defendant, until five years after the date of conviction; provided, however, that such person may, after the expiration of two years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary.

Where the license, right to operate, or certificate of number of a person has been revoked under this paragraph and such person has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense three times within a period of ten years preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate and the director may refuse to issue a certificate of number to the vessel of such person unless the prosecution of such person has terminated in favor of the defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary.

Where the license, right to operate, or certificate of number of a person has been revoked under this paragraph and such person has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense four or more times within a period of ten years preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate and the director may refuse to issue a certificate of number to the vessel of such person unless the prosecution of such person has terminated in favor or the defendant, until fifteen years after the date of the conviction; provided, however, that such person may, after the expiration of seven years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary.

Notwithstanding the foregoing, no new license shall be issued or right to operate be reinstated by the registrar to any person convicted of a violation of paragraph (1) until ten years after the date of conviction in case the registrar determines upon investigation and after hearing that the action of the person so convicted in committing such offense caused an accident resulting in the death of another, nor at any time after a subsequent conviction of such an offense, whenever committed, in case the registrar determines in the manner aforesaid that the action of such person, in committing the offense of which he was so subsequently convicted, caused an accident resulting in the death of another.

Notwithstanding any of the foregoing, any person whose certificate of number has been revoked under this paragraph may at any time apply for and shall within fifteen days be granted a hearing for the purpose of requesting the issuance of a certificate of number on the grounds of hardship and the director may, in his discretion, issue such certificate of number under such terms and conditions as he deems appropriate and necessary.

For the purposes of this subsection, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on file, and a license may be revoked under this subsection notwithstanding the pendency of a prosecution upon appeal or otherwise after such a conviction. Where there has been more than one conviction in the same prosecution, the date of the first conviction shall be deemed to be the date of conviction under this paragraph.

There shall be an assessment of $250 against a person who is convicted of, placed on probation for, or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a vessel while under the influence of intoxicating liquor or marijuana, narcotic drugs, depressant or stimulant substances or from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270; provided, however, that $150 of the $250 collected under this assessment shall be deposited by the court with the state treasurer into the Head Injury Treatment Services Trust Fund, established by section 59 of chapter 10, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason.

(b) No person shall 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.

(c) No person shall operate any motorboat on the waters of the commonwealth towing a person or persons on water skis, a surfboard or other similar device, unless there is in such motorboat a person who has attained age twelve in addition to the operator in a position to observe the person or persons being towed, and unless such motorboat is equipped with a ladder, steps or similar means by which any person being towed can be taken from the water.

(d) So much of the provisions of subsection (b) as prohibit the use of water skis, surfboards or similar devices in the nighttime, and the provisions of subsections (c) and (d), shall not apply to a performer engaged in a professional exhibition which has previously been approved by the director.

(e) (1) Whoever upon any waters of the commonwealth, operates a vessel recklessly, or operates a vessel negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a vessel for the purpose of making a record and thereby violates any speed regulation, or whoever without stopping and making known his name, residence and the identification number of his vessel goes away after knowingly colliding with or otherwise causing injury to any other vessel or property, or whoever knowingly makes any false statement in an application for a certificate of number of a vessel shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both.

Whoever uses a vessel without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one-half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one-half years in a house of correction or for not less than two and one-half years nor more than five years in the state prison or by both fine and imprisonment.

Whoever upon any waters of the commonwealth operates a vessel and, without stopping and making known his name, residence and the identification number of his vessel, goes away after knowingly colliding with or otherwise causing injury to any person shall be punished by imprisonment for not less than two months nor more than two years.

A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons.

(2) A conviction of a violation of this subsection shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate and to the director, who may immediately revoke the certificates of number of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of such license, right to operate or certificates of number. If it appears by the records of the director that the person so convicted is the owner of a vessel or has exclusive control of any vessel as a manufacturer or dealer or otherwise, the director may revoke the certificates of number of any or all vessels so owned or exclusively controlled.

(3) The registrar, after having revoked the license or right to operate of any person under this subsection, in his discretion, may issue a new license or reinstate the right to operate and the director may issue a new certificate of number, if the prosecution of such person in the superior court has terminated in favor of the defendant or after an investigation or upon hearing, the registrar may issue a new license or reinstate the right to operate and the director may issue a new certificate of number to a person convicted in any court of the violation of any provision of this subsection; provided, that no license shall be issued by the registrar to any person convicted of going away without stopping and making known his name, residence and the certificate of number of his vessel after having, while operating such vessel upon any such waters, knowingly collided with or otherwise caused injury to any person, or to any person adjudged a delinquent child by reason thereof under the provisions of section fifty-eight B of chapter one hundred and nineteen, until one year after the date of revocation following his original conviction or adjudication if for a first offense or until two years after the date of revocation following any subsequent conviction or adjudication, or to any person convicted of using a vessel knowing that such use is unauthorized, until one year after the date of revocation following his original conviction or adjudication if for a first offense or until three years after the date of revocation following any subsequent conviction or adjudication, or to any person convicted of violating any other provision of this subsection until sixty days after the date of revocation following his original conviction if for a first offense, or one year after the date of revocation following any subsequent conviction within a period of three years. But the registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of a conviction of operating a vessel upon any such waters negligently so that the lives or safety of the public might be endangered and the director, after investigation, may at any time rescind the revocation of a certificate of number revoked because of a conviction of operating a vessel upon any such waters negligently so that the lives or safety of the public might be endangered.

Notwithstanding any of the foregoing, any person whose certificate of number has been revoked under this subsection may at any time and shall within fifteen days be granted a hearing for the purpose of requesting the issuance of a certificate of number on the grounds of hardship and the director may, in his discretion, issue such certificate of number under such terms and conditions as he deems appropriate and necessary.

(4) The prosecution of any person for the violation of any provision of this subsection, if a subsequent offense, shall not, unless the interests of justice require such disposition, be placed on file or otherwise disposed of except by trial, judgment and sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. If the court or magistrate certifies in writing that it is satisfied that the reasons relied upon are sufficient and that the interests of justice require the allowance of the motion, the motion shall be allowed and the certificate shall be filed in the case. A copy of the motion and certificate shall be sent by the court or magistrate forthwith to the director.

(f) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol education or rehabilitation program because of a like offense by a court of the commonwealth one or more times within a period of six years preceding the date of commission of the offense for which said defendant is being prosecuted.