2005 Arizona Revised Statutes - Revised Statutes §5-395.01  Operating or in actual physical control of a motorized watercraft while intoxicated; classification; penalties

A. A person who is convicted of a violation of section 5-395 is guilty of a class 1 misdemeanor. The person shall pay a fine of not less than two hundred fifty dollars. In addition to any other penalties under this section, the judge shall order the person to complete alcohol or other drug screening that is provided by a facility approved by the department of health services or a probation department. If a judge determines that the person requires further alcohol or other drug education or treatment, the person may be required pursuant to court order to obtain alcohol or other drug education or treatment under the court's supervision from an approved facility. The judge may review an education or treatment determination at the request of the state or the defendant or on the judge's initiative. The person shall pay the costs of the screening, education or treatment unless the court waives part or all of the costs.

B. Except as provided in section 5-398.01, the court may suspend any imposed sentence for a first violation of section 5-395 if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause to the defendant as to why the remaining jail sentence should not be served.

C. A court may order a person sentenced pursuant to this section to perform community restitution.

D. Notwithstanding subsection B of this section, if within a period of sixty months a person is convicted of a second violation of section 5-395 or is convicted of a violation of section 5-395 and has previously been convicted of an act in another state that if committed in this state would be a violation of section 5-395, the person shall be sentenced to serve not less than ninety days in jail, thirty days of which shall be served consecutively, and the person is not eligible for probation or suspension of execution of sentence unless the entire sentence has been served, except that the judge may suspend at the time of sentencing all but thirty days of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause as to why the remaining jail sentence should not be served. The judge shall order the person to pay a fine of not less than five hundred dollars.

E. The dates of the commission of the offense are the determining factor in applying the sixty month provision of subsection D of this section, irrespective of the sequence in which the offenses were committed. A second violation for which a conviction occurs as provided in this section shall not include a conviction for an offense arising out of the same series of acts.

F. If a person is referred to a screening or treatment facility, that facility shall report to the court whether the person has successfully completed the screening, education or treatment program.

G. Any political subdivision processing or utilizing the services of a person ordered to perform community restitution pursuant to this section does not incur any civil liability to the person ordered to perform community restitution as a result of these activities unless the political subdivision or its agent or employee acts with gross negligence.

H. After a person who is sentenced pursuant to subsection B of this section has served twenty-four consecutive hours in jail or after a person who is sentenced pursuant to subsection D of this section has served forty-eight consecutive hours in jail and after receiving confirmation that the person is employed or is a student, the court, on pronouncement of any jail sentence under this section, may provide in the sentence that the person may be permitted, if the person is employed or is a student and can continue the person's employment or studies, to continue such employment or studies for not more than twelve hours per day nor more than five days per week, and the remaining day, days or parts of days shall be spent in jail until the sentence is served. The person shall be allowed out of jail only long enough to complete the actual hours of employment or studies and no longer.

I. A person who is sentenced pursuant to this section is eligible for a home detention program pursuant to the provisions of section 9-499.07, subsections M through R or section 11-459, subsections L through Q.

J. The court shall allow the allegation of a prior conviction or other pending charge of a violation of section 5-395 filed twenty or more days before the date the case is actually tried and may allow the allegation of a prior conviction or other pending charge of a violation of section 5-395 filed any time before the date the case is actually tried, provided that when the allegation is filed this state must make available to the defendant a copy of any information obtained concerning the prior conviction or other pending charge. Any conviction may be used to enhance another conviction irrespective of the dates on which the offenses occurred within the sixty month provision.

K. If a person is placed on probation for violating section 5-395, the probation shall be supervised unless the court finds that supervised probation is not necessary or the court does not have supervisory probation services.

L. Persons who are convicted pursuant to section 5-395 shall pay an additional assessment of five hundred dollars or, if the person is convicted of a second violation pursuant to subsection D of this section, shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. These assessments are not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

M. Persons convicted pursuant to section 5-395 shall pay an additional assessment of five hundred dollars or for a second violation pursuant to subsection D of this section shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the state general fund. These assessments are not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.