Operating a vessel under the influence of alcohol or drugs, as used in Sections 11-302 through 11-308.

(a)   Alcohol concentration means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.

(b)   Other competent evidence includes (1) alcohol concentration tests obtained from samples taken two hours or more after the operation or attempted operation of a vessel; and (2) readings obtained from a partial alcohol concentration test on a breath testing machine.

(c)   Samples includes breath supplied directly for testing, which breath is not preserved.

(d)   Vessel and operate have the meanings provided by K.S.A. 32-1102 and amendments thereto.

(Ord. 917; Code 2021)

(a)   No person shall operate or attempt to operate any vessel within the city limits of Yates Center while:

(1)   The alcohol concentration in the person’s blood or breath, at the time or within two hours after the person operated or attempted to operate the vessel, is .08 or more;

(2)   under the influence of alcohol;

(3)   under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely operating a vessel; or

(4)   under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely operating a vessel.

(b)   No person shall operate or attempt to operate any vessel within this state if the person is a habitual user of any narcotic, hypnotic, somnifacient or stimulating drug.

(c)   If a person is charged with a violation of this section involving drugs, the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge

(d)   No person shall operate or attempt to operate any vessel within this state for three months after the date of refusal of submitting to a test if such person refuses to submit to a test pursuant to Section 11-303, and amendments thereto.

(e)   Violation of this section is a misdemeanor punishable:

(1)   On the first conviction, by imprisonment of not more than one year or a fine of not less than $100.00 nor more than one year or a fine of not less than $500, or both, and

(2)   On the second or a subsequent conviction, by imprisonment for not less than 90 days nor more than one year and, in the court’s discretion, a fine not exceeding $500.00,

(f)   In addition to any other penalties prescribed by ordinance, law or rule and regulation, and person convicted of a violation of this section shall be required to satisfactorily complete a boater education course of instruction approved by the secretary before such person subsequently operates or attempts to operate any vessel.

(Ord. 917; Code 2021)

(a)   Any person who operates or attempts to operate a vessel within the City of Yates Center is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs. A person who is dead or unconscious shall be deemed not to have withdrawn the person’s consent to such test or tests, which shall be administered in the manner provided by this section.

(b)   A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a) if the officer has reasonable grounds to believe the person was operating or attempting to operate a vessel while under the influence of alcohol or drugs, or both, and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vessel while under the influence of alcohol or drugs, or both, in violation of a state statute or a city ordinance; or (2) the person has been involved in a vessel accident or co11ision resulting in property damage, personal injury or death. The law enforcement officer directing administration of the test or tests may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the accident investigation or arrest.

(c)   If a law enforcement officer requests a person to submit to a test of blood under this section, the withdrawal of blood at the direction of the officer may be performed only by: (1) A person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person; (2) a registered nurse or a licensed practical nurse; or (3) any qualified medical technician. When presented with a written statement by a law enforcement officer directing blood to be withdrawn from a person who has tentatively agreed to allow the withdrawal of blood under this section, the person authorized herein to withdraw blood and the medical care facility where blood is drawn may rely on such a statement as evidence that the person has consented to the medical procedure used and shall not require the person to sign any additional consent or waiver form. In such a case, the person authorized to withdraw blood and the medical care facility shall not be liable in any action alleging lack of consent or lack of informed consent. No person authorized by this subsection to withdraw blood, nor any person assisting in the performance of a blood test nor any medical care facility where blood is withdrawn or tested that has been directed by any law enforcement officer to withdraw or test blood, shall be liable in any civil or criminal action when the act is performed in a reasonable manner according to generally accepted medical practices in the community where performed.

(d)   If there are reasonable grounds to be believe that there is impairment by a drug which is not subject to detection by the blood or breath test used, a urine test may be required. If a law enforcement officer requests a person to submit to a test of urine under this section, the collection of the urine sample shall be supervised by persons of the same sex as the person being tested and shall be conducted out of the view of any person other than the persons supervising the collection of the sample and the person being tested, unless the right to privacy is waived by the person being tested. The results of qualitative testing for drug presence shall be admissible in evidence and questions of accuracy or reliability shall go to the weight rather than the admissibility of the evidence.

(e)   No law enforcement officer who is acting in accordance with this section shall be liable in any civil or criminal proceeding involving the action.

(f)  

(1)   Before a test or tests are administered under this section, the person shall be given oral and written notice that:

(A)  There is no right to consult with an attorney regarding whether to submit to testing;

(B)  refusal to submit to testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of a vessel while under the influence of alcohol or drugs, or both;

(C)  the results of the testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of a vessel while under the influence of alcohol or drugs, or both; and

(D)  after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which if desired should be done as soon as possible and is customarily available from medical care facilities and physicians. After giving the foregoing information, a law enforcement officer shall request the person to submit to testing. The selection of the test or tests shall be made by the officer. If the person refuses to submit to and complete a test as requested pursuant to this section, additional testing shall not be given. The person’s refusal shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a vessel while under the influence of alcohol or drugs, or both.

(2)   Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.

(3)   It shall not be a defense that the person did not understand the written or oral notice required by this section.

(g)   Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.

(h)   Upon the request of any person submitting to testing under this section, a report of the results of the testing shall be made available to such person.

(i)    In addition to any other penalties prescribed by ordinance, law or rule and regulation, and person refusing to take a test or tests when requested to do so by a law enforcement officer pursuant to this section shall be required to satisfactorily complete a boater education course of instruction approved by the secretary before such person subsequently operates or attempts to operate any vessel.

(Ord. 917; Code 2021)

Without limiting or affecting the provisions of Section 11-303, the person tested shall have a reasonable opportunity to have an additional test by a physician of the person’s own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to Section 11-303 shall not be competent in evidence.

(Ord. 917; Code 2021)

In any criminal prosecution for violation of this article relating to operating or attempting to operate a vessel while under the influence of alcohol or drugs, or both, evidence of the concentration of alcohol or drugs in the defendant’s blood, urine, breath or other bodily substance may be admitted and shall give rise to the following:

(a)   If the alcohol concentration is less than .10, that fact may be considered with other competent evidence to determine if the defendant was under the influence of alcohol, or both alcohol and drugs.

(b)   If the alcohol concentration is .10 or more, it shall be prima facie evidence that the defendant was under the influence of alcohol to a degree that renders the person incapable of safely operating a vessel.

(c)   If there was present in the defendant’s bodily substance any narcotic, hypnotic, somnifacient, stimulating or other drug which has the capacity to render the defendant incapable of safely operating a vessel, that fact may be considered to determine if the defendant was under the influence of drugs, or both alcohol and drugs, to a degree that renders the defendant incapable of safely operating a vessel.

(Ord. 917; Code 2021)

(a)   The provisions of Section 11-305 shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or drugs, or both.

(b)   Nothing in this act shall require any samples of blood, breath or urine to be preserved for or furnished to the person for independent testing.

(Ord. 917; Code 2021)

A city law enforcement officer, and the state or any political subdivision of the state that employs a law enforcement officer, arresting or taking custody of a person for any offense involving the operation of or attempt to operate a vessel while under the influence of alcohol or drugs, or both, shall have immunity from any civil or criminal liability for the care and custody of the vessel that was being operated by or was in the physical control of the person arrested or in custody if the law enforcement officer acts in good faith and exercises due diligence.

(Ord. 917; Code 2021)

If any clause, paragraph, subsection or section of this article is held invalid, it shall be conclusively presumed that the City Council would have enacted the remainder of this act without such invalid clause, paragraph, subsection or section.

(Ord. 917; Code 2021)