NRS488.425. 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 in an amount that is equal to or greater than the amount set forth in subsection 3 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).

      (Added to NRS by 2005, 153; A 2007, 1461)