2005 Arizona Revised Statutes - Revised Statutes §5-396  Aggravated operating or actual physical control of motorized watercraft while under the influence of intoxicating liquor or drugs; classification

A. A person is guilty of aggravated operating or actual physical control of a motorized watercraft that is underway while under the influence of intoxicating liquor or drugs if the person commits a third or subsequent violation of section 5-395 or 5-397 or this section or is convicted of a violation of section 5-395 or 5-397 or this section and has previously been convicted of any combination of convictions of section 5-395 or 5-397 or this section or acts committed in another state that if committed in this state would be a violation of section 5-395 or 5-397 or this section within a period of sixty months.

B. The dates of the commission of the offenses are the determining factor in applying the sixty month provision provided in subsection A of this section regardless of the sequence in which the offenses were committed. For purposes of this section, a third or subsequent violation for which a conviction occurs does not include a conviction for an offense arising out of the same series of acts.

C. Aggravated operating or actual physical control of a motorized watercraft that is underway while under the influence of intoxicating liquor or drugs is a class 4 felony.

D. Notwithstanding section 41-1604.06, a person who is convicted under subsection A of this section and who within a sixty month period has been convicted of two prior violations of section 5-395 or 5-397 or this section, or acts committed in another state that if committed in this state would be a violation of section 5-395 or 5-397 or this section, is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than four months in prison.

E. Notwithstanding section 41-1604.06, a person who is convicted under subsection A of this section and who within a sixty month period has been convicted of three or more prior violations of section 5-395 or 5-397 or this section, or acts committed in another state that if committed in this state would be a violation of section 5-395 or 5-397 or this section, is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than eight months in prison.

F. A person who is convicted of a violation of this section and who is placed on probation shall attend and complete alcohol or drug screening, counseling and education from an approved facility and, if ordered by the court, treatment from an approved facility. If the person fails to comply with this subsection, in addition to section 13-901 the court may order that the person be incarcerated as a term of probation as follows:

1. For a person sentenced pursuant to subsection D of this section, for an individual period of not more than four months and a total period of not more than one year.

2. For a person sentenced pursuant to subsection E of this section, for an individual period of not more than eight months and a total period of not more than two years.

G. The time that a person spends in custody pursuant to subsection D, E or F of this section shall not be counted toward the sentence imposed if the person's probation is revoked and the person is sentenced to prison following revocation of probation.

H. A person convicted of a violation of this section shall pay a fine of not less than seven hundred fifty dollars.

I. In addition to any other penalty prescribed by law, persons convicted pursuant to this section shall pay an additional assessment of one thousand five hundred dollars to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is 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.

J. In addition to any other penalty prescribed by law, persons convicted pursuant to this section shall pay an additional assessment of one thousand five hundred dollars to be deposited by the state treasurer in the state general fund. This assessment is 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.