Section 306.118

Title XIX MOTOR VEHICLES, WATERCRAFT AND AVIATION

Chapter 306

Effective - 28 Aug 2008, 2 histories, see footnote   (history) 

  *306.118.  Until December 31, 2016 — Aggravated, chronic, persistent, and prior offenders — enhanced penalties — procedures. — 1.  For purposes of this section, unless the context clearly indicates otherwise, the following terms mean:

  (1)  "Aggravated offender", a person who:

  (a)  Has pleaded guilty to or has been found guilty of three or more intoxication-related boating offenses; or

  (b)  Has pleaded guilty to or has been found guilty of one or more intoxication-related boating offenses and any of the following: involuntary manslaughter under subsection 3 of section 306.111; assault with a vessel in the second degree under subsection 4 of section 306.111, or assault of a law enforcement officer in the second degree under subdivision (4) of subsection 1 of section 565.082;

  (2)  "Chronic offender":

  (a)  A person who has pleaded guilty to or has been found guilty of four or more intoxication-related boating offenses; or

  (b)  A person who has pleaded guilty to or has been found guilty of, on two or more separate occasions, any combination of the following: involuntary manslaughter under subsection 3 of section 306.111; assault with a vessel in the second degree under subsection 4 of section 306.111; or assault of a law enforcement officer in the second degree under subdivision (4) of subsection 1 of section 565.082; or

  (c)  A person who has pleaded guilty to or has been found guilty of two or more intoxication-related boating offenses and any of the following: involuntary manslaughter under subsection 3 of section 306.111; assault with a vessel in the second degree under subsection 4 of section 306.111; or assault of a law enforcement officer in the second degree under subdivision (4) of subsection 1 of section 565.082;

  (3)  "Intoxication-related boating offense", operating a vessel while intoxicated under subsection 2 of section 306.111; operating a vessel with excessive blood alcohol content under section 306.112; involuntary manslaughter under subsection 3 of section 306.111; assault with a vessel in the second degree under subsection 4 of section 306.111; any violation of subsection 2 of section 306.110; or assault of a law enforcement officer in the second degree under subdivision (4) of subsection 1 of section 565.082;

  (4)  "Persistent offender", one of the following:

  (a)  A person who has pleaded guilty to or has been found guilty of two or more intoxication-related boating offenses;

  (b)  A person who has pleaded guilty to or has been found guilty of involuntary manslaughter under subsection 3 of section 306.111, assault in the second degree under subsection 4 of section 306.111, assault of a law enforcement officer in the second degree under subdivision (4) of subsection 1 of section 565.082;

  (5)  "Prior offender", a person who has pleaded guilty to or has been found guilty of one intoxication-related boating offense, where such prior offense occurred within five years of the occurrence of the intoxication-related boating offense for which the person is charged.

  2.  Any person who pleads guilty to or is found guilty of a violation of subsection 2 of section 306.110, section 306.111, or section 306.112, who is alleged and proved to be a prior offender shall be guilty of a class A misdemeanor.

  3.  Any person who pleads guilty to or is found guilty of a violation of subsection 2 of section 306.110, section 306.111, or section 306.112, who is alleged and proved to be a persistent offender shall be guilty of a class D felony.

  4.  Any person who pleads guilty to or is found guilty of a violation of subsection 2 of section 306.110, section 306.111, or section 306.112, who is alleged and proved to be an aggravated offender shall be guilty of a class C felony.

  5.  Any person who pleads guilty to or is found guilty of a violation of subsection 2 of section 306.110, section 306.111, or section 306.112 who is alleged and proved to be a chronic offender shall be guilty of a class B felony.

  6.  No state, county, or municipal court shall suspend the imposition of sentence as to a prior offender, persistent offender, aggravated offender, or chronic offender under this section, nor sentence such person to pay a fine in lieu of a term of imprisonment, notwithstanding the provisions of section 557.011 to the contrary notwithstanding.  No prior offender shall be eligible for parole or probation until he or she has served a minimum of five days imprisonment, unless as a condition of such parole or probation such person performs at least thirty days of community service under the supervision of the court in those jurisdictions which have a recognized program for community service.  No persistent offender shall be eligible for parole or probation until he or she has served a minimum of ten days imprisonment, unless as a condition of such parole or probation such person performs at least sixty days of community service under the supervision of the court.  No aggravated offender shall be eligible for parole or probation until he or she has served a minimum of sixty days imprisonment.  No chronic offender shall be eligible for parole or probation until he or she has served a minimum of two years imprisonment.

  7.  The state, county, or municipal court shall find the defendant to be a prior offender, persistent offender, aggravated offender, or chronic offender if:

  (1)  The indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior offender, persistent offender, aggravated offender, or chronic offender; and

  (2)  Evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt the defendant is a prior offender, persistent offender, aggravated offender, or chronic offender; and

  (3)  The court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior offender, persistent offender, aggravated offender, or chronic offender.

  8.  In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of its hearing.

  9.  In a trial without a jury or upon a plea of guilty, the court may defer the proof in findings of such facts to a later time, but prior to sentencing.

  10.  The defendant shall be accorded full rights of confrontation and cross-examination, with the opportunity to present evidence, at such hearings.

  11.  The defendant may waive proof of the facts alleged.

  12.  Nothing in this section shall prevent the use of presentence investigations or commitments.

  13.  At the sentencing hearing both the state, county, or municipality and the defendant shall be permitted to present additional information bearing on the issue of sentence.

  14.  The pleas or findings of guilt^** shall be prior to the date of commission of the present offense.

  15.  The court shall not instruct the jury as to the range of punishment or allow the jury, upon a finding of guilt^**, to assess and declare the punishment as part of its verdict in cases of prior offenders, persistent offenders, aggravated offenders, or chronic offenders.

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(L. 2008 H.B. 1715)

*This section was repealed by S.B. 491, 2014, effective 1-01-17.  Due to the delayed repeal date, the version of this section in effect until 12-31-16 is printed here.

**Word "guilty" appears in original rolls.