Another Memorial Day has come and gone. It was a beautiful weekend, which led many people out to the water. Unfortunately, two people did not enjoy the water without incident this weekend. News reports indicate that two men in their 20’s were injured when their jet skis collided on Lake Norman yesterday. One of the men was seriously injured and airlifted to Carolinas Medical Center. The other was less seriously injured and taken by ground transportation to Lake Norman Regional Medical Center. Both men are expected to recover.
The incident is still being investigated. However, officers indicate that the men were driving their jet skis “erratically” and crossed one jet ski in front of the other, at which point they crashed, throwing both men from the jet skis and cutting the top off of one of the jet skis, along with the steering column and controls. There has not been any information released about how fast the men were driving or whether they had been drinking, but new reports indicate that charges could be pending. Let’s take a look at what possible charges could result from this unfortunate incident.
The North Carolina Boating Safety Act was enacted to “promote safety for persons and property in and connected with the use, operation, and equipment of vessels” on the water. G.S. 75A-10 provides, in part, that
(a) No person shall operate any motorboat or vessel, or manipulate any water skis, surfboard, or similar device on the waters of this State in a reckless or negligent manner so as to endanger the life, limb, or property of any person.
(b) No person shall manipulate any water skis, surfboard, nonmotorized vessel, or similar device on the waters of this State while under the influence of an impairing substance.
(b1) No person shall operate any vessel while underway on the waters of this State:
(1) While under the influence of an impairing substance, or
(2) After having consumed sufficient alcohol that the person has, at any relevant time after the boating, an alcohol concentration of 0.08 or more.
The Boating and Safety Act defines a “vessel” as “every description of watercraft or structure, other than a seaplane on the water, used or capable of being used as a means of transportation or habitation on the water.” The first question we look at is whether a jet ski constitutes a vessel under the relevant statute. A quick review of the definition leads us to conclude that a jet ski is a “watercraft” that is “capable of being used as a means of transportation … on the water.” Therefore, a jet ski is a “vessel” under the Boating and Safety Act.
Next, we look at G.S. 75A-10(a) which provides that a person has violated this subsection by operating a vessel “in a reckless or negligent manner so as to endanger the life, limb, or property of any person.” Although we do not have any information as to how fast the jet skis were going, the news reports indicate that the men were driving “erratically” and crossed one jet ski in front of the other, and eventually did crash, resulting in injury to both men and jet skis. This information would be sufficient to conclude that the men were driving recklessly in violation of the statute.
What is the punishment for violating G.S. 75A-10(a)? G.S. 75A-10(b3) provides that “A person who violates a provision of subsection (a) or (b) of this section is guilty of a Class 2 misdemeanor.” G.S. 15A-1340.23(b) states that the maximum fine for a Class 2 misdemeanor is $1000 and subsection (c) contains the structured sentencing punishments for misdemeanors.
Under structured sentencing, someone with no prior convictions would receive a sentence between 1 and 30 days, with community punishment authorized. Community punishment is a sentence that “does not include an active punishment or assignment to a drug treatment court, or special probation” but may include conditions such as house arrest, community service or substance abuse treatment. An offender with one to four prior convictions would receive a sentence between 1 and 45 days, with community punishment or intermediate punishment authorized. Intermediate punishment is a sentence which “places an offender on supervised probation” and “may include drug treatment court, special probation” or conditions such as house arrest, community service or substance abuse treatment. An offender with more than four prior convictions would receive a sentence between 1 and 60 days, with either community, intermediate or active punishment authorized. Active punishment is a sentence “that requires an offender to serve a sentence of imprisonment and is not suspended.”
Now let’s consider the possibility that one or both of the men had been drinking before getting on their jet skis and driving recklessly. How would this change our analysis? G.S. 75A-10(b) would not be relevant since it covers water skis, surfboards, nonmotorized vessels, and similar devices, and we have determined that a jet ski meets the definition of a “vessel” under the statute.
So we look at G.S. 75A-10(b1) which provides that a person shall not operate a vessel “while under the influence of an impairing substance” or “after having consumed sufficient alcohol that the person has, at any relevant time after the boating, an alcohol concentration of 0.08 or more.” It is unlikely that the men’s reckless behavior alone would be sufficient to prove impairment. It is possible that the men’s blood was taken while at the hospital after the crash which could provide evidence of impairment or the men themselves might have provided statements which could indicate impairment.
If there is sufficient evidence of impairment to find one or both men guilty under G.S. 75A-10(b1), then subsection (b4) provides that “A person who violates subsection (b1) of this section is guilty of a Class 2 misdemeanor, punishable by a fine of not less than two hundred fifty dollars ($250.00).” Therefore, the punishment is the same as the punishment for a violation of subsection (a) except that the fine imposed must be at least $250.
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