GA Code § 52-7-12 (2021)
2021 Georgia Code|Title 52 - Waters of the State, Ports, and Watercraft|Chapter 7 - Registration, Operation, and Sale of Watercraft|Article 1 - General Provisions|§ 52-7-12. Operation of Watercraft While Under Influence of Alcohol, Toxic Vapors, or Drugs; Legal Drug Use Not Exempted; Blood and Other Chemical Tests; Test Refusal; Owner's Liability for Allowing Another to Operate While Intoxicated; Civil and Criminal Actions; Child Endangerment

  No person shall operate, navigate, steer, or drive any moving vessel, or be in actual physical control of any moving vessel, nor shall any person manipulate any moving water skis, moving aquaplane, moving surfboard, or similar moving device while:   Under the influence of alcohol to the extent that it is less safe for the person to operate, navigate, steer, drive, manipulate, or be in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device;   Under the influence of any drug to the extent that it is less safe for the person to operate, navigate, steer, drive, manipulate, or be in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device;   Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to operate, navigate, steer, drive, manipulate, or be in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device;   Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to operate, navigate, steer, drive, manipulate, or be in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device;   The person's alcohol concentration is 0.08 grams or more at any time within three hours after such operating, navigating, steering, driving, manipulating, or being in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device from alcohol consumed before such operating, navigating, steering, driving, manipulating, or being in actual physical control ended; or   Subject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person's blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person's breath or blood.     The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of operating, navigating, steering, driving, manipulating, or being in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device safely as a result of using a drug other than alcohol which such person is legally entitled to use.   Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while operating, navigating, steering, driving, manipulating, or being in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device while under the influence of alcohol or drugs, evidence of the amount of alcohol or drug in a person's blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person's blood, urine, breath, or other bodily substance, shall be admissible. Where such chemical test is made, the following provisions shall apply:   Chemical analysis of the person's blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation is authorized to approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, which shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences;   When a person undergoes a chemical test at the request of a law enforcement officer under subsection (e) of this Code section, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic or drug content therein, provided that this limitation shall not apply to the taking of breath or urine specimens. No physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person or employer thereof shall incur any civil or criminal liability as a result of the medically proper obtaining of such blood specimens when requested in writing by a law enforcement officer;   The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his or her own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer; and   Upon the request of the person who submits to a chemical test or tests at the request of a law enforcement officer, full information concerning such test or tests shall be made available to such person or such person's attorney. The arresting officer at the time of arrest shall advise the person arrested of his or her rights to a chemical test or tests according to this Code section.     Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while operating, navigating, steering, driving, manipulating, or being in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device while under the influence of alcohol, the amount of alcohol in the person's blood at the time alleged, as shown by chemical analysis of the person's blood, urine, breath, or other bodily substance, shall give rise to the following presumptions:   If there was at that time an alcohol concentration of 0.05 grams or less, it shall be presumed that the person was not under the influence of alcohol, as prohibited by paragraphs (1), (4), and (5) of subsection (a) of this Code section;   If there was at that time an alcohol concentration in excess of 0.05 grams but less than 0.08 grams, such fact shall not give rise to any presumption that the person was or was not under the influence of alcohol, as prohibited by paragraphs (1), (4), and (5) of subsection (a) of this Code section, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcohol, as prohibited by paragraphs (1), (4), and (5) of subsection (a) of this Code section; and   If there was at that time or within three hours after operating, navigating, steering, driving, manipulating, or being in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device from alcohol consumed before such operating, navigating, steering, driving, manipulating, or being in actual physical control ended an alcohol concentration of 0.08 or more grams, the person shall be in violation of paragraph (5) of subsection (a) of this Code section.     The State of Georgia considers that persons who are under the influence of alcohol, toxic vapors, or drugs while operating a vessel on the waters of this state constitute a direct and immediate threat to the welfare and safety of the general public. Therefore, any person who operates a vessel upon the waters of this state shall be deemed to have given consent, subject to subsection (c) of this Code section, to a chemical test or tests of his or her blood, breath, or urine or other bodily substance for the purpose of determining the alcoholic or drug content of his or her blood if arrested for any offense arising out of acts alleged to have been committed while the person was operating, navigating, steering, driving, manipulating, or in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device while under the influence of alcohol, toxic vapors, or any drug. The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been operating or was in actual physical control of a vessel upon the waters of this state while under the influence of alcohol, toxic vapors, or any drug. Subject to subsection (c) of this Code section, the requesting law enforcement officer shall designate which of the aforesaid tests shall be administered.   Any person who is dead, unconscious, or otherwise in a condition rendering him or her incapable of refusal shall be deemed not to have withdrawn the consent provided by subsection (e) of this Code section, and the test or tests may be administered subject to subsection (c) of this Code section.   If a person refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer as provided in subsection (e) of this Code section, no test shall be given; however, such refusal shall be admissible in evidence.   In the event of a boating accident involving a fatality, the investigating coroner or medical examiner having jurisdiction shall direct that a chemical blood test to determine alcohol concentration or the presence of drugs be performed on the dead person or persons and that the results of such test be properly recorded in his or her report.   It shall be unlawful for the owner of any vessel knowingly to allow or authorize any person to operate such vessel or to manipulate any water skis, aquaplane, surfboard, or similar device being towed by such vessel when the owner knows or has reasonable grounds to believe that said person is intoxicated or under the influence of alcohol, toxic vapors, or drugs in violation of this Code section.   In any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of subsection (k) of this Code section, if there was at that time or within three hours after operating, navigating, steering, driving, or being in actual physical control of a moving vessel or personal watercraft from alcohol consumed before such operating, navigating, steering, driving, or being in actual physical control ended an alcohol concentration of 0.02 grams or more in the person's blood, breath, or urine, the person shall be in violation of subsection (k) of this Code section.     A person under the age of 21 years shall not operate, navigate, steer, drive, or be in actual physical control of any moving vessel, moving water skis, moving aquaplane, moving surfboard or similar moving device, or personal watercraft while such person's alcohol concentration is 0.02 grams or more at any time within three hours after such operating, navigating, steering, driving, or being in actual physical control from alcohol consumed before such operating, navigating, steering, driving, or being in actual physical control ended.   No plea of nolo contendere shall be accepted for any person under the age of 21 years charged with a violation of this Code section.     A person who violates this Code section while transporting in a moving vessel or personal watercraft or towing on water skis, an aquaplane, a surfboard, or similar device a child under the age of 14 years shall be guilty of the separate offense of endangering a child by operating a moving vessel or personal watercraft under the influence of alcohol, toxic vapors, or drugs. The offense of endangering a child by operating a moving vessel or personal watercraft under the influence of alcohol, toxic vapors, or drugs shall not be merged with the offense of operating a vessel under the influence of alcohol, toxic vapors, or drugs for the purposes of prosecution and sentencing. An offender who is convicted of a violation of this subsection shall be punished in accordance with the provisions of subsection (d) of Code Section 16-12-1.   Every person convicted of violating this Code section shall, upon a first or second conviction thereof, be guilty of a misdemeanor; upon a third conviction thereof, be guilty of a high and aggravated misdemeanor; and upon a fourth or subsequent conviction thereof, be guilty of a felony except as otherwise provided in paragraph (4) of this subsection and shall be punished as follows:   For the first conviction with no conviction of and no plea of nolo contendere accepted to a charge of violating this Code section within the previous ten years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:   A fine of not less than $300.00 and not more than $1,000.00, which fine shall not, except as provided in subsection (n) of this Code section, be subject to suspension, stay, or probation;   A period of imprisonment of not fewer than ten days nor more than 12 months, which period of imprisonment may, at the sole discretion of the judge, be suspended, stayed, or probated, except that if the offender's alcohol concentration at the time of the offense was 0.08 grams or more, the judge may suspend, stay, or probate all but 24 hours of any term of imprisonment imposed under this subparagraph;   Not fewer than 40 hours of community service, except that for a conviction for violation of subsection (k) of this Code section where the person's alcohol concentration at the time of the offense was less than 0.08 grams, the period of community service shall be not fewer than 20 hours;   Completion of a DUI Alcohol or Drug Use Risk Reduction Program as defined in Code Section 40-1-1.The sponsor of any such program shall provide written notice of the Department of Driver Services' certification of the program to the person upon enrollment in the program;   A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; provided, however, that in the court's discretion, such evaluation may be waived; and   If the person is sentenced to a period of imprisonment for fewer than 12 months, a period of probation of 12 months less any days during which the person is actually incarcerated;     For the second conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:   A fine of not less than $600.00 and not more than $1,000.00, which fine shall not, except as provided in subsection (n) of this Code section, be subject to suspension, stay, or probation;   A period of imprisonment of not fewer than 90 days and not more than 12 months. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, and to such other terms and conditions as the judge may impose; provided, however, that the offender shall be required to serve not fewer than 72 hours of actual incarceration;   Not fewer than 30 days of community service;   Completion of a DUI Alcohol or Drug Use Risk Reduction Program as defined in Code Section 40-1-1.The sponsor of any such program shall provide written notice of the Department of Driver Services' certification of the program to the person upon enrollment in the program;   A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and   A period of probation of 12 months less any days during which the person is actually incarcerated;     For the third conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:   A fine of not less than $1,000.00 and not more than $5,000.00, which fine shall not, except as provided in subsection (n) of this Code section, be subject to suspension, stay, or probation;   A mandatory period of imprisonment of not fewer than 120 days and not more than 12 months. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, and to such other terms and conditions as the judge may impose; provided, however, that the offender shall be required to serve not fewer than 15 days of actual incarceration;   Not fewer than 30 days of community service;   Completion of a DUI Alcohol or Drug Use Risk Reduction Program as defined in Code Section 40-1-1.The sponsor of any such program shall provide written notice of the Department of Driver Services' certification of the program to the person upon enrollment in the program;   A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and   A period of probation of 12 months less any days during which the person is actually incarcerated;     For the fourth or subsequent conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:   A fine of not less than $1,000.00 and not more than $5,000.00, which fine shall not, except as provided in subsection (n) of this Code section, be subject to suspension, stay, or probation;   A period of imprisonment of not less than one year and not more than five years; provided, however, that the judge may suspend, stay, or probate all but 90 days of any term of imprisonment imposed under this paragraph. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, and to such other terms and conditions as the judge may impose;   Not fewer than 60 days of community service; provided, however, that if a defendant is sentenced to serve three years of actual imprisonment, the judge may suspend the community service;   Completion of a DUI Alcohol or Drug Use Risk Reduction Program as defined in Code Section 40-1-1.The sponsor of any such program shall provide written notice of the Department of Driver Services' certification of the program to the person upon enrollment in the program;   A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and   A period of probation of five years less any days during which the person is actually imprisoned;  provided, however, that if the ten-year period of time as measured in this paragraph commenced prior to May 15, 2013, then such fourth or subsequent conviction shall be a misdemeanor of a high and aggravated nature and punished as provided in paragraph (3) of this subsection;      For the purpose of imposing a sentence under this subsection, a plea of nolo contendere based on a violation of this Code section shall constitute a conviction; and   For purposes of determining the number of prior convictions or pleas of nolo contendere pursuant to the felony provisions of paragraph (4) of this subsection, only those offenses for which a conviction is obtained or a plea of nolo contendere is accepted on or after May 15, 2013, shall be considered; provided, however, that nothing in this subsection shall be construed as limiting or modifying in any way sentence enhancement provisions under Georgia law, including, but not limited to, provisions relating to punishment of recidivist offenders pursuant to Title 17.       If the payment of the fine required under subsection (m) of this Code section will impose an economic hardship on the defendant, the judge, at his or her sole discretion, may order the defendant to pay such fine in installments, and such order may be enforced through a contempt proceeding or a revocation of any probation otherwise authorized by this Code section.   In the sole discretion of the judge, he or she may suspend up to one-half of the fine imposed under subsection (m) of this Code section conditioned upon the defendant's undergoing treatment in a substance abuse treatment program as defined in Code Section 40-5-1.     As used in this Code section, the term:   "Homemade or inflatable raft" means any platform which floats on the water for purposes of providing buoyancy to a person and which renders transportation with only the aid of such person's hands, arms, legs, or feet.   "Personal watercraft" shall have the same meaning as set forth in Code Section 52-7-8.2.   "Vessel" means every description of watercraft, other than a sailboard or homemade or inflatable raft, used or capable of being used as a means of transportation on water.      (Ga. L. 1968, p. 487, § 10; Ga. L. 1973, p. 1427, § 11; Ga. L. 1986, p. 612, § 1; Ga. L. 1987, p. 3, § 52; Ga. L. 1992, p. 2075, § 3; Ga. L. 1994, p. 680, § 5; Ga. L. 1998, p. 672, § 1; Ga. L. 2013, p. 92, § 8/SB 136; Ga. L. 2013, p. 294, § 4-62/HB 242; Ga. L. 2014, p. 710, § 1-21/SB 298; Ga. L. 2014, p. 866, § 52/SB 340; Ga. L. 2016, p. 223, § 2/HB 172; Ga. L. 2020, p. 827, § 1-4/HB 998.)    The 2020 amendment,  effective August 5, 2020, substituted "alcohol concentration" for "blood alcohol concentration (BAC)" in the middle of subsection (h).   Cross references.   - Implied consent to chemical tests by virtue of operating motor vehicle, § 40-5-55.    Driving under the influence generally, § 40-6-391.    Chemical tests in DUI cases, § 40-6-392.    Obtaining blood sample where person unable to give consent, § 45-16-46.    Liability of owner of watercraft for injury or damage caused by operation of watercraft, §§ 51-1-21,51-1-22.   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1994, "this Code section" was substituted for "O.C.G.A. 52-7-12" at the end of subsection (i).   Editor's notes.   - Ga. L. 2013, p. 92, § 1/SB 136, not codified by the General Assembly, provides, in part, that Sections 8, 9, and 10 of this Act shall be known and may be cited as the "Jake and Griffin Prince BUI Law."   Ga. L. 2013, p. 92, § 14/SB 136, not codified by the General Assembly, provides, in part, that the amendment of this Code section by that Act shall apply to all offenses occurring on and after May 15, 2013; provided, however, that for purposes of determining the number of prior convictions or pleas of nolo contendere pursuant to the felony provisions of paragraph (4) of subsection (m) of Code Section 52-7-12, only those offenses for which a conviction or a plea of nolo contendere is obtained on or after May 15, 2013, shall be considered.   Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."   Ga. L. 2014, p. 866, § 54(e)/SB 340, not codified by the General Assembly, provides: "In the event of a conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2014 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to subparagraphs (m)(1)(D), (m)(2)(D), (m)(3)(D), and (m)(4)(D) of this Code section by Ga. L. 2014, p. 866 § 52/SB 340, was not given effect.   Law reviews.   - For review of 1998 legislation relating to waters of the state, ports, and watercraft, see 15 Ga. St. U.L. Rev. 251 (1998).   JUDICIAL DECISIONS   Qualification of examiner.    - Exclusion of the requirements for technical standards and procedures for the collection and testing of evidence by O.C.G.A. § 35-3-155 from the Administrative Procedure Act includes the procedure by which an officer obtains a Division of Forensic Sciences certificate to operate an Intoximeter 5000. State v. Corriher, 243 Ga. App. 648, 533 S.E.2d 800 (2000).   Rules for issuing permits for test operators.    - Forensic Sciences Division of the Georgia Bureau of Investigation is exempt under O.C.G.A. § 35-3-155 from the requirement of O.C.G.A. § 50-13-3(b) that the Division publish the Division's rules for granting permits for the administration of breath, blood, and urine tests. State v. Bowen, 274 Ga. 1, 547 S.E.2d 286 (2001), reversing, State v. Bowen, 245 Ga. App. 159, 537 S.E.2d 417 (2000).   Brief investigatory stop authorized.    - Merely observing a can of beer in the hand of one who is otherwise driving a car or operating a boat in a safe manner, in and of itself, constitutes an articulable suspicion that a violation of O.C.G.A. § 40-6-391 or O.C.G.A. § 52-7-12 may be occurring so as to authorize a brief investigatory stop. State v. Baker, 197 Ga. App. 1, 397 S.E.2d 554 (1990).    Department of Natural Resources officer who observed the defendant's boat operating with its docking lights improperly illuminated, O.C.G.A. § 52-7- 11(b)(2), had the authority to detain the defendant and make a brief safety inspection under O.C.G.A. § 52-7-25(b)(4); the defendant was not in custody during the stop and Miranda warnings were not required prior to field sobriety tests. Pedersen v. State, 337 Ga. App. 159, 786 S.E.2d 535 (2016), cert. denied, No. S16C1641, 2016 Ga. LEXIS 828 (Ga. 2016), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).   Weight and sufficiency of the evidence.    - Because defendant refused to submit to a breath test, smelled of alcohol, and failed several field sobriety tests, the trial court properly convicted defendant of violating O.C.G.A. § 52-7-12(a)(1) by operating a boat while under the influence of alcohol to the extent it was less safe to do so. Bowling v. State, 275 Ga. App. 45, 619 S.E.2d 688 (2005).    Cited in Fett v. Alderman, 117 Ga. App. 677, 161 S.E.2d 350 (1968).   RESEARCH REFERENCES   Am. Jur. 2d.   - 12 Am. Jur. 2d, Boats and Boating, §§ 12, 22, 32, 33.   5 Am. Jur. Pleading and Practice Forms, Boats and Boating, § 1.   ALR.    - Law of general average as affected by fact that necessity for sacrifice or expenditure was due to negligent navigation, 25 A.L.R. 154.    Negligence in navigating as affecting right to recover for injury by obstruction to navigation, 25 A.L.R. 1556.    Liabilities of the parties to a contract to towage with respect to injury sustained by the tow or tug during the performance of the towage service, 54 A.L.R. 104.   Res ipsa loquitur with respect to personal injuries or death on or about ship, 1 A.L.R.3d 642.   Validity, construction, and operation of school "zero tolerance" policies towards drugs, alcohol, or violence, 117 A.L.R.5th 459.   Validity, construction, and application of statutes prohibiting boating while intoxicated, boating while under the influence, or the like, 47 A.L.R.6th 107.   Driving While Intoxicated: Duty of Law Enforcement Officer to Advise Suspect of Their Rights Under Implied Consent Law, Including Offers of Test Alternatives, 51 A.L.R.7th 2.