§ 2302. Operation of a vessel or boat while under the influence of intoxicating liquor and/or drugs

2302. Operation of a vessel or boat while under the influence of intoxicating liquor and/or drugs

(a) No person shall motor, sail, row, operate, command or have actual physical control of any vessel or boat underway on Delaware waters:

(1) When the person is under the influence of alcohol;

(2) When the person is under the influence of a drug;

(3) When the person is under the influence of any combination of alcohol and any drug;

(4) When the person's alcohol concentration is 0.08 or more; or

(5) When the person's alcohol concentration is, within 4 hours after the time of vessel operation, 0.08 or more.

(b) Any person charged under subsection (a) of this section whose blood alcohol concentration is 8/100 of 1% or more by weight as shown by a chemical analysis of a blood, breath or urine sample taken within 4 hours of the alleged offense shall be guilty of violating subsection (a) of this section. This provision shall not preclude a conviction based on other admissible evidence.

(c) The fact that any person charged with violating this section is or has been legally entitled to use alcohol or a drug shall not constitute a defense against any charge of violating this section.

(d) It shall be an affirmative defense to a prosecution premised on paragraph (a)(5) of this section if the person proves by a preponderance of evidence that the person consumed a sufficient quantity of alcohol after the time of actual vessel operation and before any sampling to cause the person's alcohol concentration to exceed 0.08. Such evidence shall not be admitted unless notice of this defense is given to the prosecution at least 20 days before trial.

(e) The charging document may allege a violation of subsection (a) of this section without specifying any particular paragraph of subsection (a) of this section and the prosecution may seek conviction under any of the paragraphs of subsection (a) of this section.

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