NRS 488.410 - "Boating Under the Influence" (BUI) in Nevada


NRS 488.410 is the Nevada DUI law which prohibits boating under the influence of alcohol or drugs (BUI). Even if the driver is unimpaired and being safe, it is automatically illegal to operate watercraft with a .08% blood alcohol content (BAC) in Nevada. This statute states:

It is unlawful for any person who:

  • Is under the influence of intoxicating liquor;
  • Has a concentration of alcohol of 0.08 or more in his or her blood or breath; ...
  • Is under the influence of a controlled substance ... [or] chemical, poison or organic solvent; or
  • With an [illegal] amount of any ... prohibited substances in his or her blood or urine...

to operate or be in actual physical control of a vessel under power or sail on the waters of this State.

Predictably, many of Nevada's drunk boating cases occur in Lake Mead and Lake Tahoe. The penalties for BUI depend on the defendant's criminal history and whether anyone was hurt in the incident:

Nevada BUI offense

Penalties

NRS 488.410 - 1st-time conviction, and no victim was killed or seriously injured

Misdemeanor in Nevada:

  • up to 6 months in jail, and/or
  • up to $1,000 in fines

NRS 488.427 - Subsequent conviction, and no victim was killed or seriously injured

Category B felony in Nevada:

NRS 488.420 - BUI causing death or substantial bodily harm in Nevada

Category B felony:

  • 2 – 20 years in prison, and
  • $2,000 - $5,000 in fines

NRS 488.425 - BUI causing death, and the defendant has 3 prior BUI convictions

Category A felony in Nevada:

  • life in prison with the possibility of parole after 10 years; or
  • 25 years in prison with the possibility of parole after 10 years

Depending on the case, BUI charges could be reduced or dismissed as part of a Nevada plea bargain. There are several possible defenses, including:

  • the breath- or blood-testing equipment malfunctioned;
  • the police committed misconduct when investigating or arresting the suspect; or
  • the defendant had a medical condition that caused falsely BAC high results

In this article, our Las Vegas criminal defense attorneys discuss the Nevada crime of driving a boat while impaired. Click on a topic below to jump to that section:

watercraft
Boating while drunk or high is a crime in Nevada

1. Legal definition of operating a boat while under the influence

It is a crime in Nevada to drive a boat while either:

  • impaired by drugs, alcohol, or other chemicals;
  • having a blood alcohol content (BAC) of at least 0.08% even if the person is not impaired from the alcohol;
  • having illegal blood levels of the following drugs even if the person is not impaired from the drugs:

Prohibited substance while driving a boat in Nevada

Prohibited blood levels (nanograms per milliliter)

Amphetamine

100

Cocaine

50

Cocaine metabolite

50

Heroin

50

Heroin metabolite morphine:

50

Heroin metabolite 6-monoacetyl morphine

10

Lysergic acid diethylamide

10

Marijuana (delta-9-tetrahydrocannabinol)   

2

Marijuana metabolite (11-OH-tetrahydrocannabinol) 

5

Methamphetamine

100

Phencyclidine

10

Whereas driving a car while impaired is abbreviated as DUI, driving a boat under the influence is abbreviated as either BUI (B for boating) or OUI (O for operating).

Note that people face BUI charges no matter what kind of vessel they are driving, such as:

  • ships
  • yachts
  • motorboats
  • sailboats
  • jet skis1

1.1. Federal law

It is also against federal law under 46 USC § 2302 to drive a boat while under the influence of alcohol or a dangerous drug. BUI suspects potentially face prosecution under both state and federal law if the lake or river is federal land. But in practice, it is rare for both state and federal prosecutors to press charges for the same BUI incident.

1.2. Enforcement

In the same way police patrol highways for erratic driving, police also patrol Nevada's bigger lakes and rivers for erratic boating--especially during Memorial Day and Fourth of July. Nevada also participates in Operation Dry Water, where patrol boats heighten enforcement during one high-traffic weekend a year.

A recent high-profile BUI incident occurred at Lake Mead when a game warden spotted consumer advocate Erin Brockovich struggling to moor her motorboat. She subsequently failed a breathalyzer test and ultimately pleaded no contest in Henderson Justice Court.2

Nevada's other popular water landmarks include:

Lake Mead
Patrol boats are on the lookout for BUIs in Lake Mead.
  • Colorado River
  • Truckee River
  • White River
  • Lake Tahoe (Washoe & Douglas)
  • Lake Las Vegas (Clark)
  • Lake Mohave (Clark)
  • Spooner Lake (Washoe)
  • Overland Lake (Elko)
  • Wild Horse Reservoir (Elko)
  • Wilson Reservoir (Elko)
  • Lamoille Lake (Elko)
  • Lake Lahontan (Elko & Churchill)
  • Topaz Lake (Douglas)
  • Angel Lake (Elko)
  • Washoe Lake (Washoe)
  • Walker Lake (Mineral)
  • Pyramid Lake (Washoe)

1.3. Breath and blood tests

Anyone who drives a boat in Nevada gives "implied consent" to take a breath or blood test if a law enforcement officer suspects him or her of operating while impaired.

1.3.1. Preliminary breath test

When an officer first approaches the suspect, the officer may administer a Nevada preliminary breath test for alcohol. The officer will arrest suspects who refuse to submit to the preliminary breath test, even if the results would have been negative for alcohol.

The results of the preliminary test may not be used as evidence against the suspect should the case eventually go to trial. This test's sole purpose is to help the officer to determine whether the suspect may be intoxicated.3

1.3.2. Evidentiary breath or blood tests

Once a BUI suspect gets arrested, the suspect must submit to a Nevada breath test or a Nevada blood test. The results of these tests could come in as evidence if the case were to proceed to trial.

If the officer believes the defendant is only drunk and not high, the suspect may choose a breath test over the blood test. Otherwise, the defendant must take the blood test--this is because breathalyzers do not check for drugs, only alcohol.

If suspects refuse to take any test, then law enforcement may get a court order authorizing them to administer a forced blood draw.4

2. Penalties for boating under the influence in Nevada

The punishment for BUI increases with each successive conviction. And predictably, the sentence is harsher when the incident causes serious injury or death.

2.1. Misdemeanor BUI (first-time DUI)

sign
A first-time BUI is typically a misdemeanor in Nevada.

A first-time conviction in Nevada of operating a water vessel under the influence is a misdemeanor as long as no one gets seriously hurt or injured. The penalties carry up to six (6) months in jail and/or up to $1,000 in fines.

In practice, judges also order the defendant to complete an online boater safety course as well as community service.5

2.2. Felony BUI

Any BUI incident where the defendant has a previous conviction or where a victim was seriously injured or killed is a felony.

Note that judges may not grant probation or a suspended sentence to defendants convicted of felony BUI. Judges also may not dismiss felony BUI charges whenever there is probable cause to support the defendant's guilt.

Also note that if the defendant's boat had a passenger under 15 years old, the court will consider that an "aggravating factor." This means that the judge will order a steeper sentence that he/she would otherwise.

In addition, note that every defendant sentenced for a felony BUI will be required to undergo an evaluation for alcohol and drug abuse.

Finally, note that people sentenced to prison for DUI are usually housed in a minimum-security facility and are segregated from violent offenders.6

2.2.1. Second- or subsequent BUI

A second-time or subsequent BUI conviction in Nevada is a category B felony. The penalty carries:

  • two to fifteen (2 - 15) years in prison; and
  • fines of $2,000 to $5,0007

2.2.2. BUI causing serious injury or death

A Nevada BUI that causes someone else to die or sustain serious bodily harm is a category B felony. The penalty carries:

  • two to twenty (2 - 20) years in prison; and
  • fines of $2,000 to $5,0008

2.2.3. Homicide by vessel

Causing death by a BUI when the defendant has three prior BUI convictions is category A felony. The penalty carries:

  • life in prison with the possibility of parole after 10 years; or
  • 25 years in prison with the possibility of parole after 10 years9

2.3. Plea bargains

gavel
BUI could be reduced to reckless boating in Nevada.

As with every criminal case, it may be possible to negotiate BUI charges down to a dismissal or a lesser offense.

A common plea bargain is when BUI is reduced to "reckless or negligent boating" under NRS 488.400. This is only a misdemeanor and carries less of a stigma than boating under the influence.

2.4 BUI vs. DUI

Unlike DUIs in Nevada, BUI convictions do not cause the defendant's driver's license to get suspended.

Also unlike DUIs in Nevada, BUIs have no "seven-year wipeout" rule: If someone gets a BUI conviction and then seven years pass, any subsequent BUI charges will be prosecuted as a subsequent charge--not as a first-time charge.

And whereas a second-time DUI is a misdemeanor (as long as no one gets seriously hurt), a second-time BUI is always a felony whether or not anyone gets hurt.

3. Fighting Nevada charges of boating under the influence

As with DUI, there are literally dozens of possible ways to fight Nevada allegations of operating a water vessel while impaired. Five common defenses are:

  1. The defendant was not the one driving the boat;
  2. The law enforcement officer did not have probable cause to arrest the defendant;
  3. The breath- or blood-testing equipment was defective;
  4. The defendant had a physical or medical condition that causes falsely high BAC results;
  5. The law enforcement officer committed misconduct (such as not giving the defendant the option to take a breath test when no drug use was suspected)

In every case, the defense attorney would conduct a thorough investigation. This includes everything from getting the weather report and interviewing witnesses to documenting what the defendant ate prior to the incident and gathering medical records. Any of these factors could be the difference between a conviction and a dismissal.

If the defense attorney can show the prosecutors that they have too weak a case to prove guilt beyond a reasonable doubt, the state should dismiss the charges.

4. Deportation for boating under the influence

Boating under the influence is typically not a deportable offense. However, immigration laws are in a state of flux and are unpredictable.

Any non-U.S. citizen facing BUI charges should consult an attorney to try to ensure that the case will not threaten his/her legal status. Learn more about the criminal defense of immigrants in Nevada.

5. Sealing Nevada criminal records for boating under the influence

A misdemeanor BUI conviction may be sealed one (1) year after the case closes. However, felony BUI convictions may never be sealed from the defendant's record.10

Note that BUI charges that get dismissed can be sealed from the defendant's record right away.11Learn about how to seal Nevada criminal records.

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Call our Las Vegas criminal defense attorneys at 702-DEFENSE for a FREE consultation today.

Call a Nevada criminal defense attorney...

If you have been arrested for boating under the influence in Nevada, call our Las Vegas DUI defense attorneys at 702-DEFENSE (702-333-3673) for a free meeting. Our mission is to try to get your BUI charges reduced or dismissed as quickly as possible.

To learn about California BUI laws, go to our informational article on California BUI laws | Harbors & Navigation Code 655.

Injured in a BUI in Lake Mead? See our article about Lake Mead Boating Accidents and Injuries | Nevada personal injury lawyers.

Nevada BUI Defense Lawyer Disclaimer: The boating under the influence, BUI, drunk boating or other DUI defense information presented at this site should not be considered formal legal advice nor the formation of a lawyer or attorney client relationship. Any results set forth here were dependent on the facts of that case and the results will differ from case to case. Please contact a Nevada drunk boating defense lawyer or attorney for a free initial consultation. This website is not intended to solicit clients for matters outside of the State of Nevada.


Legal References

  1.  NRS 488.410  Unlawful acts; penalty. [Effective until the date of the repeal of the federal law requiring each state to make it unlawful for a person to operate a motor vehicle with a blood alcohol concentration of 0.08 percent or greater as a condition to receiving federal funding for the construction of highways in this State.]

          1.  It is unlawful for any person who:

          (a) Is under the influence of intoxicating liquor;

          (b) Has a concentration of alcohol of 0.08 or more in his or her blood or breath; or

          (c) Is found by measurement within 2 hours after operating or being in actual physical control of a vessel to have a concentration of alcohol of 0.08 or more in his or her blood or breath,

    --> to operate or be in actual physical control of a vessel under power or sail on the waters of this State.

          2.  It is unlawful for any person who:

          (a) Is under the influence of a controlled substance;

          (b) Is under the combined influence of intoxicating liquor and a controlled substance; or

          (c) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders the person incapable of safely operating or exercising actual physical control of a vessel under power or sail,

    --> to operate or be in actual physical control of a vessel under power or sail on the waters of this State.

          3.  It is unlawful for any person to operate or be in actual physical control of a vessel under power or sail on the waters of this State with an amount of any of the following prohibited substances in his or her blood or urine that is equal to or greater than:

     

                                                                                                          Urine                             Blood

                                                                                         Nanograms per             Nanograms per

          Prohibited substance                                                      milliliter                          milliliter

     

          (a) Amphetamine                                                                     500                                  100

          (b) Cocaine                                                                              150                                    50

          (c) Cocaine metabolite                                                            150                                    50

          (d) Heroin                                                                             2,000                                    50

          (e) Heroin metabolite:

                 (1) Morphine                                                                  2,000                                    50

                 (2) 6-monoacetyl morphine                                                10                                    10

          (f) Lysergic acid diethylamide                                                   25                                    10

          (g) Methamphetamine                                                             500                                  100

          (h) Phencyclidine                                                                      25                                    10

     

          4.  It is unlawful for any person to operate or be in actual physical control of a vessel under power or sail on the waters of this State with an amount of any of the following prohibited substances in his or her blood that is equal to or greater than:

     

                                                                                                                                                 Blood

                                                                                                                                 Nanograms per

          Prohibited substance                                                                                              milliliter

     

          (a) Marijuana (delta-9-tetrahydrocannabinol)                                                               2

          (b) Marijuana metabolite (11-OH-tetrahydrocannabinol)                                              5

     

          5.  If consumption is proven by a preponderance of the evidence, it is an affirmative defense under paragraph (c) of subsection 1 that the defendant consumed a sufficient quantity of alcohol after operating or being in actual physical control of the vessel, and before his or her blood was tested, to cause the defendant to have a concentration of 0.08 or more of alcohol in his or her blood or breath. A defendant who intends to offer this defense at a trial or preliminary hearing must, not less than 14 days before the trial or hearing or at such other time as the court may direct, file and serve on the prosecuting attorney a written notice of that intent.

          6.  Except as otherwise provided in NRS 488.427, a person who violates the provisions of this section is guilty of a misdemeanor.
  2. Tom Ragan, "Erin Brockovich arrested at Lake Mead", Las Vegas Review-Journal (June 8, 2013).
  3.  NRS 488.450  Implied consent to preliminary test of breath; failure to submit to test; use of results of test.

          1.  Any person who operates or is in actual physical control of a vessel under power or sail on the waters of this State shall be deemed to have given consent to a preliminary test of his or her breath to determine the concentration of alcohol in his or her breath when the test is administered at the request of a peace officer after a vessel accident or collision or where an officer stops a vessel, if the officer has reasonable grounds to believe that the person to be tested was:

          (a) Operating or in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance; or

          (b) Engaging in any other conduct prohibited by NRS 488.410, 488.420 or 488.425.

          2.  If the person fails to submit to the test, the officer shall, if reasonable grounds otherwise exist, arrest the person and take him or her to a convenient place for the administration of a reasonably available evidentiary test under NRS 488.460.

          3.  The result of the preliminary test must not be used in any criminal action, except to show there were reasonable grounds to make an arrest.
  4. NRS 488.460  Implied consent to evidentiary test; exemption from blood test; choice of test; circumstances in which peace officer may request person to submit to blood test; restrictions on requesting urine test; failure to submit to test; notification of parent or guardian of minor requested to submit to test.

          1.  Except as otherwise provided in subsections 3 and 4, a person who operates or is in actual physical control of a vessel under power or sail on the waters of this State shall be deemed to have given consent to an evidentiary test of his or her blood, urine, breath or other bodily substance to determine the concentration of alcohol in his or her blood or breath or to determine whether a controlled substance, chemical, poison, organic solvent or another prohibited substance is present, if such a test is administered at the request of a peace officer having reasonable grounds to believe that the person to be tested was:

          (a) Operating or in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance or with a prohibited substance in his or her blood or urine; or

          (b) Engaging in any other conduct prohibited by NRS 488.410, 488.420 or 488.425.

          2.  If the person to be tested pursuant to subsection 1 is dead or unconscious, the officer shall direct that samples of blood from the person be tested.

          3.  Any person who is afflicted with hemophilia or with a heart condition requiring the use of an anticoagulant as determined by a physician is exempt from any blood test which may be required pursuant to this section, but must, when appropriate pursuant to the provisions of this section, be required to submit to a breath or urine test.

          4.  If the concentration of alcohol of the blood or breath of the person to be tested is in issue:

          (a) Except as otherwise provided in this section, the person may refuse to submit to a blood test if means are reasonably available to perform a breath test.

          (b) The person may request a blood test, but if means are reasonably available to perform a breath test when the blood test is requested, and the person is subsequently convicted, the person must pay for the cost of the blood test, including the fees and expenses of witnesses whose testimony in court is necessary because of the use of the blood test. The expenses of such a witness may be assessed at an hourly rate of not less than:

                 (1) Fifty dollars for travel to and from the place of the proceeding; and

                 (2) One hundred dollars for giving or waiting to give testimony.

          (c) Except as otherwise provided in NRS 488.470, not more than three samples of the person's blood or breath may be taken during the 5-hour period immediately following the time of the initial arrest.

          5.  Except as otherwise provided in subsection 6, if the presence of a controlled substance, chemical, poison, organic solvent or another prohibited substance in the blood or urine of the person is in issue, the officer may request that the person submit to a blood or urine test, or both.

          6.  If the presence of marijuana in the blood of the person is in issue, the officer may request that the person submit to a blood test.

          7.  Except as otherwise provided in subsections 3 and 5, a peace officer shall not request that a person submit to a urine test.

          8.  If a person to be tested fails to submit to a required test as requested by a peace officer pursuant to this section and the officer has reasonable grounds to believe that the person to be tested was:

          (a) Operating or in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance or with a prohibited substance in his or her blood or urine; or

          (b) Engaging in any other conduct prohibited by NRS 488.410, 488.420 or 488.425,

    --> the officer may apply for a warrant or court order directing that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested.

          9.  If a person who is less than 18 years of age is requested to submit to an evidentiary test pursuant to this section, the officer shall, before testing the person, make a reasonable attempt to notify the parent, guardian or custodian of the person, if known.

          NRS 488.470  Requirements for evidentiary test of breath to determine concentration of alcohol in breath; refusal or failure to submit to test.

          1.  Except as otherwise provided in subsection 2, an evidentiary test of breath to determine the concentration of alcohol in a person's breath may be used to establish that concentration only if two consecutive samples of the person's breath are taken and:

          (a) The difference between the concentration of alcohol in the person's breath indicated by the two samples is less than or equal to 0.02;

          (b) If the provisions of paragraph (a) do not apply, a third evidentiary test of breath is administered and the difference between the concentration of alcohol in the person's breath indicated by the third sample and one of the first two samples is less than or equal to 0.02; or

          (c) If the provisions of paragraphs (a) and (b) do not apply, a fourth evidentiary test is administered. Except as otherwise provided in NRS 488.460, the fourth evidentiary test must be a blood test.

          2.  If the person fails to provide the second or third consecutive sample, or to submit to the fourth evidentiary test, the results of the first test may be used alone as evidence of the concentration of alcohol in the person's breath. If for some other reason a second, third or fourth sample is not obtained, the results of the first test may be used with all other evidence presented to establish the concentration.

          3.  If a person refuses or otherwise fails to provide a second or third consecutive sample or submit to a fourth evidentiary test, such refusal or failure constitutes a failure to submit to a required evidentiary test as provided in NRS 488.460.

          NRS 488.480  Admissibility of evidence of failure to submit to evidentiary test and results of test; availability of results of test; presumption of accuracy and reliability of testing device; judicial notice of certification of operator of testing device; other evidence not precluded.

          1.  If a person refuses to submit to a required chemical test provided for in NRS 488.450 or 488.460, evidence of that refusal is admissible in any criminal action arising out of acts alleged to have been committed while the person was:

          (a) Operating or in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance; or

          (b) Engaging in any other conduct prohibited by NRS 488.410, 488.420 or 488.425.

          2.  Except as otherwise provided in subsection 3 of NRS 488.450, a court may not exclude evidence of a required test or failure to submit to such a test if the peace officer or other person substantially complied with the provisions of NRS 488.450 to 488.500, inclusive.

          3.  If a person submits to a chemical test provided for in NRS 488.450 or 488.460, full information concerning that test must be made available, upon request, to the person or the person's attorney.

          4.  Evidence of a required test is not admissible in a criminal proceeding unless it is shown by documentary or other evidence that the device for testing breath was certified pursuant to NRS 484C.610 and was calibrated, maintained and operated as provided by the regulations of the Committee on Testing for Intoxication adopted pursuant to NRS 484C.620, 484C.630 or 484C.640.

          5.  If the device for testing breath has been certified by the Committee on Testing for Intoxication to be accurate and reliable pursuant to NRS 484C.610, it is presumed that, as designed and manufactured, the device is accurate and reliable for the purpose of testing a person's breath to determine the concentration of alcohol in the person's breath.

          6.  A court shall take judicial notice of the certification by the Director of a person to operate testing devices of one of the certified types. If a test to determine the amount of alcohol in a person's breath has been performed with a certified type of device by a person who is certified pursuant to NRS 484C.630 or 484C.640, it is presumed that the person operated the device properly.

          7.  This section does not preclude the admission of evidence of a test of a person's breath where the:

          (a) Information is obtained through the use of a device other than one of a type certified by the Committee on Testing for Intoxication.

          (b) Test has been performed by a person other than one who is certified by the Director.

          8.  As used in this section, “Director” means the Director of the Department of Public Safety.
  5. NRS 488.410; Francis McCabe, "Erin Brockovich-Ellis quietly resolves her drunken boating case", Las Vegas Review-Journal (October 4, 2013).
  6. NRS 488.430; NRS 488.420; NRS 488.427; NRS 488.425.
  7. NRS 488.427  Penalty for second or subsequent felony; exception; segregation of offender; plea bargaining prohibited; aggravating factor.

          1.  Unless a greater penalty is provided pursuant to NRS 488.425, a person who violates the provisions of NRS 488.410 and who has previously been convicted of a violation of NRS 488.420 or 488.425 or a violation of the law of any other jurisdiction that prohibits the same or similar conduct as set forth in NRS 488.420 or 488.425 is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years, and shall be further punished by a fine of not less than $2,000 nor more than $5,000. An offender so imprisoned must, insofar as practicable, be segregated from offenders whose crimes were violent and, insofar as practicable, be assigned to an institution or facility of minimum security.

          2.  The facts concerning a prior violation of NRS 488.420 or 488.425 must be alleged in the complaint, indictment or information, must not be read to the jury or proved at trial but must be proved at the time of sentencing.

          3.  A prosecuting attorney shall not dismiss a charge of violating the provisions of NRS 488.410 against a person previously convicted of violating NRS 488.420 or 488.425 in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless the prosecuting attorney knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial. A sentence imposed pursuant to subsection 1 must not be suspended, and probation must not be granted.

          4.  If a person less than 15 years of age was in the vessel at the time of the defendant's violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant.
  8. NRS 488.420  Penalty if death or substantial bodily harm results; exception; segregation of offender; plea bargaining prohibited; affirmative defense; aggravating factor. [Effective on the date of the repeal of the federal law requiring each state to make it unlawful for a person to operate a motor vehicle with a blood alcohol concentration of 0.08 percent or greater as a condition to receiving federal funding for the construction of highways in this State.]

          1.  Unless a greater penalty is provided pursuant to NRS 488.425, a person who:

          (a) Is under the influence of intoxicating liquor;

          (b) Has a concentration of alcohol of 0.10 or more in his or her blood or breath;

          (c) Is found by measurement within 2 hours after operating or being in actual physical control of a vessel under power or sail to have a concentration of alcohol of 0.10 or more in his or her blood or breath;

          (d) Is under the influence of a controlled substance or is under the combined influence of intoxicating liquor and a controlled substance;

          (e) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders the person incapable of safely operating or being in actual physical control of a vessel under power or sail; or

          (f) Has a prohibited substance in his or her blood or urine, as applicable, in an amount that is equal to or greater than the amount set forth in subsection 3 or 4 of NRS 488.410,

    Ê and does any act or neglects any duty imposed by law while operating or being in actual physical control of any vessel under power or sail, if the act or neglect of duty proximately causes the death of, or substantial bodily harm to, another person, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years and shall be further punished by a fine of not less than $2,000 nor more than $5,000. A person so imprisoned must, insofar as practicable, be segregated from offenders whose crimes were violent and, insofar as practicable, be assigned to an institution or facility of minimum security.

          2.  A prosecuting attorney shall not dismiss a charge of violating the provisions of subsection 1 in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless the prosecuting attorney knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial. A sentence imposed pursuant to subsection 1 must not be suspended, and probation must not be granted.

          3.  If consumption is proven by a preponderance of the evidence, it is an affirmative defense under paragraph (c) of subsection 1 that the defendant consumed a sufficient quantity of alcohol after operating or being in actual physical control of the vessel under power or sail, and before his or her blood was tested, to cause the defendant to have a concentration of alcohol of 0.10 or more in his or her blood or breath. A defendant who intends to offer this defense at a trial or preliminary hearing must, not less than 14 days before the trial or hearing or at such other time as the court may direct, file and serve on the prosecuting attorney a written notice of that intent.

          4.  If a person less than 15 years of age was in the vessel at the time of the defendant's violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant.
  9. NRS 488.425  Homicide by vessel: Penalty; segregation of offender; plea bargaining prohibited; affirmative defense; aggravating factor. [Effective until the date of the repeal of the federal law requiring each state to make it unlawful for a person to operate a motor vehicle with a blood alcohol concentration of 0.08 percent or greater as a condition to receiving federal funding for the construction of highways in this State.]

          1.  A person commits homicide by vessel if the person:

          (a) Operates or is in actual physical control of a vessel under power or sail on the waters of this State and:

                 (1) Is under the influence of intoxicating liquor;

                 (2) Has a concentration of alcohol of 0.08 or more in his or her blood or breath;

                 (3) Is found by measurement within 2 hours after operating or being in actual physical control of a vessel under power or sail to have a concentration of alcohol of 0.08 or more in his or her blood or breath;

                 (4) Is under the influence of a controlled substance or is under the combined influence of intoxicating liquor and a controlled substance;

                 (5) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders the person incapable of safely operating or exercising actual physical control of a vessel under power or sail; or

                 (6) Has a prohibited substance in his or her blood or urine, as applicable, in an amount that is equal to or greater than the amount set forth in subsection 3 or 4 of NRS 488.410;

          (b) Proximately causes the death of another person while operating or in actual physical control of a vessel under power or sail; and

          (c) Has previously been convicted of at least three offenses.

          2.  A person who commits homicide by vessel is guilty of a category A felony and shall be punished by imprisonment in the state prison:

          (a) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or

          (b) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served.

          3.  A person imprisoned pursuant to subsection 2 must, insofar as practicable, be segregated from offenders whose crimes were violent and, insofar as practicable, be assigned to an institution or facility of minimum security.

          4.  A prosecuting attorney shall not dismiss a charge of homicide by vessel in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless the prosecuting attorney knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial. A sentence imposed pursuant to subsection 2 may not be suspended nor may probation be granted.

          5.  If consumption is proven by a preponderance of the evidence, it is an affirmative defense under subparagraph (3) of paragraph (a) of subsection 1 that the defendant consumed a sufficient quantity of alcohol after operating or being in actual physical control of the vessel, and before his or her blood or breath was tested, to cause the defendant to have a concentration of alcohol of 0.08 or more in his or her blood or breath. A defendant who intends to offer this defense at a trial or preliminary hearing must, not less than 14 days before the trial or hearing or at such other time as the court may direct, file and serve on the prosecuting attorney a written notice of that intent.

          6.  If the defendant was transporting a person who is less than 15 years of age in the vessel at the time of the violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant.

          7.  As used in this section, “offense” means:

          (a) A violation of NRS 488.410 or 488.420;

          (b) A homicide resulting from operating or being in actual physical control of a vessel while under the influence of intoxicating liquor or a controlled substance or resulting from any other conduct prohibited by this section or NRS 488.410 or 488.420; or

          (c) A violation of a law of any other jurisdiction that prohibits the same or similar conduct as set forth in paragraph (a) or (b).

  10. NRS 179.245.
  11. NRS 179.255.

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