1998 Regular Session
To: Highways and Transportation
By: Senator(s) Smith
Senate Bill 2717
AN ACT TO REQUIRE OFF-HIGHWAY VEHICLES TO BE REGISTERED; TO AUTHORIZE THE DEPARTMENT OF WILDLIFE, FISHERIES AND PARKS TO ISSUE CERTIFICATES OF REGISTRATION; TO ESTABLISH FEES AND PROCEDURE FOR ISSUANCE OF REGISTRATION; TO PLACE FEES IN A SPECIAL FUND; TO PROVIDE THAT SUCH FUNDS BE USED FOR CERTAIN PURPOSES; TO MAKE IT UNLAWFUL TO OPERATE AN OFF-HIGHWAY VEHICLE ON PUBLIC LANDS WHILE INTOXICATED; TO PROVIDE PENALTIES; TO CREATE AN ADVISORY COMMITTEE; TO CREATE AN OFF-HIGHWAY VEHICLE SAFETY EDUCATION PROGRAM; TO AMEND SECTION 55-3-33, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE DEPARTMENT OF WILDLIFE, FISHERIES AND PARKS TO CHARGE A FEE FOR ATV USE IN STATE PARKS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following words, as used in this act, shall have the following meanings:
(a) "All-terrain vehicle (ATV)" means any three- or four-wheel motor vehicle of width less than fifty (50) inches designed for off-highway use traveling on three (3) or four (4) low pressure tires, having a seat designated to be straddled by rider and handlebars for steering control.
(b) "Certificate of registration" means the document provided by the department for a new or used all-terrain vehicle, off-highway motorcycle, or OHV.
(c) "Dealer" means any person engaged wholly or in part in the business of selling or offering for sale, buying or taking in trade for the purpose of resale, or exchanging, displaying, demonstrating or offering for sale all-terrain vehicles and/or off-highway motorcycles.
(d) "Department" means the Department of Wildlife, Fisheries and Parks.
(e) "Designated" means posted open for OHV use with appropriate signs by the department.
(f) "Forest road" means a hard surfaced road, gravel or dirt road, or other route capable of travel by a two-wheel-drive four-wheeled conventional vehicle designed for highway use, except an interstate, state or county highway.
(g) "Fund" means the Off-Highway Vehicle Trails Fund.
(h) "Forest trail" means a designated path or way capable of travel only by a vehicle of less than fifty (50) inches in width.
(i) "Off-highway vehicle (OHV)" means a motor-driven recreational vehicle capable of cross-country travel on natural terrain without benefit of a road or trail, including an all-terrain vehicle and off-highway motorcycle as defined in paragraph (a). "Off-highway vehicle" does not include a snowmobile; a motorcycle; a watercraft; a farm vehicle being used for farming (other than ATV); a vehicle used for military, fire, emergency or law enforcement purposes; a construction or logging vehicle used in the performance of its common function; a motor vehicle owned by or operated under contract with a utility, whether publicly or privately owned, when used for work on utilities; a commercial vehicle being used for its intended purpose; or an aircraft. OHV or vehicle includes, but is not limited to, a multi-track or multi-wheel-drive vehicle, an ATV, a motorcycle or related two-, three- or four-wheel vehicle, an amphibious machine, a ground effect air cushion vehicle, or other means of transportation deriving motive power from a source other than muscle or wind.
(j) "Operate" means to ride in or on and be in actual physical control of the operation of an OHV.
(k) "Operator" means a person who operates or is in actual physical control of the operation of an OHV.
(l) "Owner" means any of the following:
(i) A vendee or lessee of an OHV which is the subject of an agreement for the conditional sale or lease of the OHV with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee;
(ii) A person renting an OHV or having the exclusive use of an OHV for more than thirty (30) days; or
(iii) A person who holds legal ownership of an OHV.
(m) "Route" means a forest road or other road that is designated for the purposes of this act by the department.
(n) "Safety instructor" means a person who has been certified by a nationally recognized ATV or OHV organization to certify instructors and to do on-site evaluations of instructors. Instructors must have majority approval of the OHV Trails Advisory Committee.
(o) "Visual supervision" means the direct observation of the operator with the unaided or normally corrected eye, where the observer is able to come to the immediate aid of the operator.
(p) "Roadway" means that portion of a highway improved, designated or ordinarily used for vehicular travel. If a highway includes two (2) or more separate roadways, the term roadway refers to a roadway separately but not to all roadways collectively.
(q) "OEM" means original equipment manufacturer.
(r) "Safety Education Fund" means the Safety Education Fund created under this act.
SECTION 2. (1) Any owner of an OHV vehicle shall apply to the department for a certificate of registration for the OHV vehicle. This application must be accompanied by proof of sales tax paid or a bill of sale. Anyone who sells an OHV shall provide a bill of the sale to the purchaser.
(2) (a) The application shall contain the name and mailing address of the owner. The application shall contain the signature of the owner certifying that statements made are true and correct to the best of the applicant's knowledge, information and belief, under penalty of perjury.
(b) Every application for a certificate of registration shall contain a description of the OHV to be registered, including the model year, the date of purchase, engine displacement, manufacturer and the name and address of the person from whom the OHV was purchased. The application shall be on forms prescribed and furnished by the department and shall contain any other information required by the department.
(3) (a) If a dealer buys or acquires a used OHV for resale, he shall report the acquisition to the department on forms the department provides, or he may apply for and obtain a certificate of registration as provided in this act. If a dealer acquires a new OHV, he may apply for and obtain a certificate of registration as provided in this act.
(b) Every dealer transferring an OHV requiring registration shall assign the registration to the new owner.
(4) No person may sell, assign or transfer an OHV registered by the department without delivering to the purchaser or transferee a certificate of registration with an assignment on it showing registration in the purchaser or transferee's name. No person may purchase or otherwise acquire an OHV registered by the department without obtaining a certificate of registration for it in his name.
(5) The department shall maintain a record of any certificate of registration and public access sticker it issues.
(6) An OHV operated solely on private property by the owner of the property, a family member of the owner, or an invited guest of the owner is exempt from the public access sticker provision but must obtain the registration sticker and certificate of registration.
(7) An accident which occurs on an OHV does not affect the operator's driving record so long as such accident occurs while the OHV is operated off highways, roadways, streets and forest roads that are non-designated for OHV use.
(8) An OHV used in a safety and training program under the supervision of a safety instructor is exempt from the provisions of this act.
(9) All stickers shall be permanently attached to the vehicles in the manner prescribed in the location designated by the department before the vehicle may legally be operated.
(10) If, at the time of sale, the purchaser certifies on a form provided by the department that the purchased vehicle otherwise requiring a registration under this act will be used and stored outside of this state and will not be returned by the purchaser to this state for use, then a registration sticker will not be required.
SECTION 3. (1) The department may charge a fee not to exceed Five Dollars ($5.00) to issue a certificate of registration, a transfer of registration, or a duplicate or corrected certificate of registration. The registration shall be deposited into the Off-Highway Vehicle Trails Fund.
(2) The Off-Highway Vehicle Trails Fund is created as a special fund in the Department of Wildlife, Fisheries and Parks. Money from federal, state and private sources may be deposited into the fund. All interest accrued on the fund shall be deposited into the fund.
(a) All money in the fund shall be used, subject to appropriation, by the department for the following purposes:
(i) Grants for construction of off-highway vehicle recreational trails on county, municipal, other units of local government or private lands where a recreational need for the construction is shown.
(ii) Grants for maintenance and construction of off-highway vehicle recreational trails on federal lands, where permitted by law.
(iii) Grants for development of off-highway vehicle trail-side facilities in accordance with criteria approved by the National Recreational Trails Advisory Committee.
(iv) Grants for acquisition of property from willing sellers for off-highway vehicle recreational trails when the objective of a trail cannot be accomplished by other means.
(v) Grants for development of urban off-highway vehicle trail linkages near homes and work places.
(vi) Grants for maintenance of existing off-highway vehicle recreational trails, including the grooming and maintenance of trails.
(vii) Grants for restoration of areas damaged by usage of off-highway vehicle recreational trails and back country terrain.
(viii) Grants for provision of features that facilitate the access and use of off-highway vehicle trails by persons with disabilities.
(ix) Grants for acquisition of easements for off-highway vehicle trails or for trail corridors.
(x) Grants for a rider education and safety program.
(xi) Administration, enforcement, planning and implementation of this act.
(3) The department may charge a fee not to exceed Fifteen Dollars ($15.00) to issue a two-year Off-Highway Vehicle Public Access Sticker (PAS). The department shall establish dates for renewal and appropriate design.
The PAS sticker shall be on the rear fender or bumper of the OHV in clear visible sight. Money collected shall be placed into the Off-Highway Vehicle Trails Fund.
(4) The Off-Highway Vehicle Trails Fund shall be administered by the department and shall be used for the signing, improvement, maintenance and construction of OHV trails, routes or areas for the administration and enforcement of this act; for the leasing of land; for the acquisition of easements, permits or other agreements for the use of land for OHV trails, routes or areas.
(5) All monies appropriated to the fund shall be for projects that are open to the public, and the department shall execute contracts prior to the expenditures of such monies to ensure such projects are open to the public.
(6) (a) The safety education program shall be administered by the department.
(b) The department may accept gifts, grants or bequests from any public or private source or a federal or local unit of government for the purposes of the Safety Education Fund.
(7) (a) Not less than fifty-five percent (55%) of the monies appropriated to the Off-Highway Vehicle Trails Fund shall be distributed each year in the form of grants to local governments for the purpose of planning, improving, constructing, signing and maintaining OHV trails, areas and routes and access to those trails, areas and routes, the leasing of land, and the acquisition of easements, permits or other agreements for the use of land for OHV trails, areas and routes.
(b) A grant application by a local government shall include a plan for restoration of any of the natural resources of this state on public land that is damaged due to OHV use. The local government shall indicate on its application that its use of grant money is consistent with and meets the requirements of law and that the trail, route or area is available to the public. The department shall not approve a grant unless the application meets the requirements of this act. The department shall make application forms available and consider grant requests on a yearly basis in consultation with the OHV trails advisory committee.
(c) A grant shall not be made for a trail, route or area unless the trail, route or area is available for OHV use and is approved by the department. A grant for the cost of leasing of land and the acquisition of easements, permits or other agreements may equal one hundred percent (100%) of the incurred expense. Specifications shall be prescribed by the department.
(d) Not less than twenty percent (20%) of the monies appropriated to the fund shall be used each year for enforcement of this act or the purchase of any necessary equipment used for enforcement of this act. Of this amount available for enforcement, the department may make available funds for distribution in the form of grants by the department to law enforcement agencies of local governments in the following percentage amounts: sixty percent (60%) of the funds available for the first year of operation of the fund; fifty percent (50%) of the funds available in the second year; forty percent (40%) of the funds available in the third year; and twenty-four percent (24%) of the funds available in the fourth and each succeeding year thereafter. The balance of the funds available may be used by the department for the enforcement of this act or for the purchase of any necessary equipment used for the enforcement of this act. In making grants available for distribution under this subsection, the department shall consider the following factors:
(i) The number of miles of OHV trails, routes or areas within the county;
(ii) The number of local government law enforcement agency employees available for enforcement of this act;
(iii) The estimated number of OHV's within the county and that are brought into the county for OHV use; and
(iv) Any other factors considered appropriate by the department.
(e) The department shall require a local government law enforcement agency receiving a grant under this act to maintain records and submit an annual report to verify the expenditure of grant monies received.
(f) Not less than fifteen percent (15%) of the monies appropriated to the Off-Highway Vehicle Trails Fund shall be distributed each year in the form of grants to local governments or not-for-profit organizations.
(g) Not more than ten percent (10%) of the monies appropriated to the fund in any year shall be used for administration of this act. The department may use revenue from the funds for personnel to operate the program under this act.
(h) Grants under this section shall remain available until expended once a contract or commitment has been entered into under this section. A contract shall be for a period of not more than one (1) year.
SECTION 4. (1) A child under sixteen (16) years of age:
(a) Shall not operate an OHV on public lands or public access trails unless that child is under the direct visual supervision of an adult and that child has in his or her immediate possession an OHV safety certificate issued pursuant to this act or a comparable OHV safety certificate issued under the authority of another state;
(b) Shall not knowingly be permitted by the parent or legal guardian of the child or by the owner or person in charge of an OHV to operate that OHV except as provided in paragraph (1) of this subsection; and
(c) Shall present the OHV safety certificate to a peace officer upon demand when operating the OHV.
(2) A child under twelve (12) years of age:
(a) Shall not operate a four-wheeled ATV unless the child is at least ten (10) years old, is operating the vehicle on private land owned by a relative or legal guardian of the child, or is operating such ATV in agricultural operations; and
(b) Shall not knowingly be permitted to operate a four-wheeled ATV by the parent or legal guardian of the child or by the owner or person in charge of the four-wheeled ATV except as provided in paragraph (1) of this subsection.
(3) A child who is less than sixteen (16) years of age:
(a) Shall not operate a three-wheeled ATV; and
(b) Shall not knowingly be permitted to operate a three-wheeled ATV by a parent or legal guardian of such child or by the owner or person in charge of that ATV.
(4) The owner or person in charge of an OHV shall not knowingly permit the vehicle to be operated by a person who is incompetent to operate the vehicle because of mental or physical disability.
(5) Not later than eighteen (18) months after this section becomes effective, the department shall implement a comprehensive OHV information, safety education and training program that shall include the training of operators and the preparation and dissemination of information and safety advice to the public. The program shall provide for the training of youthful operators and for the issuance of OHV safety certificates to those who successfully complete the training provided under the program and may include separate instruction for each type of OHV. In implementing such program, the department shall cooperate with private organizations and associations, private and public corporations, the Department of Education and local governments. The department shall consult with OHV and environmental organizations and associations in regard to the subject matter of a training program and performance testing that leads to certification of OHV operators. The Department of Wildlife, Fisheries and Parks may designate persons it considers qualified to provide course instruction and to award OHV safety certificates.
(6) Notwithstanding any other provision of this section, an operator who is under twelve (12) years of age shall not cross a highway or street. An operator who is at least twelve (12) years of age but less than sixteen (16) years of age may cross a highway or street if the operator has a valid OHV safety certificate in his or her immediate possession and meets any other requirements under this section for operation of the vehicle.
(7) The requirement of possession or presentation of an OHV safety certificate under this section shall not take effect until one hundred twenty (120) days following implementation of the program for the vehicle proposed to be operated as required by this section.
SECTION 5. (1) A person who is under sixteen (16) years of age, before operating an ATV or OHV, shall complete an OHV safety education course approved by the department. This course may include a written examination and a driving test designed to test the competency of the applicant. Upon successful completion of this safety education course, a person shall receive an OHV safety certificate.
(2) A safety education course conducted by a college or university, a school system, a law enforcement agency, other governmental agency located in this state, or Department of Education approved nonprofit service organization shall be conducted in compliance with this section. An agency or a school conducting a course under this subsection may contract with the department for the costs of conducting a course.
(3) A safety education course for ATV, OHV, or both, required by this section and approved by the department may be conducted by a private business enterprise.
SECTION 6. (1) A local government may pass an ordinance or resolution establishing access routes along streets and highways under its jurisdiction if those access routes do not involve state or federal highways. If necessary, consent of a state or federal land management agency shall be obtained for the location of such routes.
(2) A local government may pass an ordinance or resolution allowing a permanently disabled person to operate an OHV in that local government.
(3) A local government does not have a duty to maintain a highway under its respective jurisdiction in a condition reasonably safe and convenient for the operation of OHV's, except the following OHV's:
(a) OHV's registered as motor vehicles under state law; and
(b) OHV's permitted by an ordinance or resolution as provided in subsection (2) of this section.
(4) A local government is immune from tort liability for injuries or damages sustained by any person arising in any way out of the operation or use of an OHV on maintained or unmaintained highways, shoulders and rights-of-way over which that local government has jurisdiction. The immunity provided by this subsection does not apply to actions that constitute gross negligence. Gross negligence is defined as conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.
SECTION 7. (1) A person shall not operate an OHV:
(a) At a rate of speed greater than is reasonable and proper or in a careless manner without having due regard for conditions then existing;
(b) Unless the OHV is equipped with a functioning muffler to prevent excessive or unusual noise and a functioning spark arrester of a type approved by the U.S. Forest Service.
(c) On the private property of another without the consent of the owner or lessee. Failure to post private property does not imply consent for OHV use.
(d) To drive or pursue any animal except as a part of normal farming operations involving the driving of livestock.
(2) A person shall not operate an ATV during the hours of thirty (30) minutes after sunset to thirty (30) minutes before sunrise without displaying a lighted headlight and lighted tail light. This shall apply to ATV's manufactured on or after January 1, 1990.
SECTION 8. (1) A person who violates a provision of this act is guilty of a misdemeanor and upon conviction thereof shall be punished by imprisonment for not more than ninety (90) days, or a fine of not less than Fifty Dollars ($50.00) or more than One Thousand Dollars ($1,000.00), or both, for each violation.
(2) In addition to the penalties otherwise provided under this section, a court of competent jurisdiction may order a person to restore, as nearly as possible, any land, water, stream bank, stream bed or other natural or geographic formation damaged by the violation of this act to the condition it was in before the violation occurred.
SECTION 9. (1) No person shall buy, sell or possess an OHV on which an identification number has been removed, changed, mutilated or defaced. It shall be the duty of any person buying, or any lienholder financing, an OHV to inspect prior to its purchase or creation of the lien thereon, to ensure that it is in compliance with this section.
(2) All OHV's having identification numbers or marks which have been removed, changed, mutilated or defaced contrary to this chapter are subject to forfeiture. Any such property shall be seized by any conservation officer or law enforcement of the department, or other officer of the law including any sheriff or deputy sheriff. Upon the seizure of such property, forfeiture proceedings shall be instituted pursuant to Sections 49-7-251 through 49-7-257, Mississippi Code of 1972. Provided, however, that any such property which has previously been registered or titled within the State of Mississippi is not subject to forfeiture if the application for registration or title contained no false or fraudulent information, or if the property seized has a value less than One Thousand Dollars ($1,000.00).
SECTION 10. (1) The department shall adopt the necessary rules and regulations to implement this act.
(2) The department shall prescribe and provide suitable forms of applications, certificates of registration and all other notices and forms necessary to carry out this act.
(3) The department may make necessary investigations to procure information required to carry out this act.
(4) (a) The OHV Trails Advisory Committee is created within the department. The advisory committee shall assist the department in developing criteria for grants, nominate forest roads to be included as OHV routes, nominate forest trails, and assist the department in promulgating rules. The members shall come from recommendations presented to the executive director by the various groups. The members shall be appointed by the executive director. The advisory committee shall advise the department on recommendations made by OHV users of forest trails, roads, and areas that should be designated for OHV use.
(b) The advisory committee shall consist of one (1) member from each group:
(i) OHV trail users;
(ii) OEM dealers or manufacturers;
(iii) National Off-Highway Vehicle Conservation Council (NOHVCC);
(iv) Members of law enforcement;
(v) Members of the department, conservation or environmental group who shall only vote in case of a tie.
Members shall be appointed for terms of three (3) years, except that of the members first appointed, the member from NOHVCC and the member representing law enforcement shall be appointed for three (3) years and the balance of the members shall be appointed for two (2) years. The committee shall meet at least once each year. Members of the advisory committee shall receive no compensation or expenses for their services.
(5) Not later than January 1, 2001, the trails advisory committee shall report to the Senate Wildlife and Fisheries Committee and the Game and Fish Committee of the House of Representatives on the adequacy of funding for operation and enforcement of this act, any recommendations for change in these areas, and the effectiveness of the safety education and training program.
(6) All state-owned land under the jurisdiction of the department shall be closed to OHV use except designated routes, designated trails and designated areas. The department shall approve any subsequent revisions to the system and shall establish an effective date for the revisions.
(7) Individuals may apply and be granted by the department for special operating permits for OHV from states that do not require registration. The special operating permits must be used for organized group outings, trail rides, races, rallies or other promotional events. The permit must be carried by the vehicle operator and is valid for up to fourteen (14) days.
(8) Individuals who have a change of address must notify the department through the OHV registration section by December 31 of the year in which they have the change of address. Owners are responsible for renewing their public access sticker for use on their OHV. Renewal fees are the same as the first time registration fee.
SECTION 11. Section 55-3-33, Mississippi Code of 1972, is amended as follows:
55-3-33. (1) The Mississippi Department of Wildlife, Fisheries and Parks shall have the power and authority, and it shall be its duty to:
(a) Take charge and have full jurisdiction and control over all state parks, which parks shall be operated for the purpose of providing outdoor recreational activities and enjoyment for the citizens of the State of Mississippi and for the purpose of attracting visitors to the state.
(b) Set up a uniform accounting procedure for the state parks and prescribe the manner in which books, records and accounts shall be kept, which procedure shall account for all monies taken in and expended by the various parks and shall provide for periodic audits of such books.
(c) Accept gifts, bequests of money or other property, real or personal, to be used for the purpose of advancing the recreation and conservation interests in state parks. The department is authorized, subject to approval by the state Legislature, to purchase property, real or personal, to be used for state park purposes.
(d) Contract with the State Transportation Commission, any municipality or board of supervisors of the state for locating, constructing and maintaining roads and other improvements in state parks and for payment of a part of the costs thereof; however, no county or municipality more than twenty-five (25) miles distant from a state park may contract for, or do, or pay for any such work for a state park other than the International Gardens of Mississippi. Any county or municipality authorized to assist financially under the provisions of Sections 55-3-31 through 55-3-51 is authorized, in the discretion of its respective governing authority, to set aside, appropriate and expend monies from the General Fund for the purpose of defraying such expense after a mandatory election is held on the question within the county or municipality.
(e) Designate employees as peace officers with power to make arrests for infraction of the rules and regulations of the department. Such officers are authorized to carry weapons and to enforce the laws of the State of Mississippi within the confines of a state park.
(f) Enforce and delegate the responsibility to enforce all reasonable rules and regulations governing the occupancy and use of lands and waters in state parks under its jurisdiction, supply recreational and conservation facilities and charge fees for the use of same; review all rates and charges for facilities and accommodations furnished at the various state parks annually, making such charges as are justified; * * * establish fees for entrance to state parks, and a fee not to exceed Ten Dollars ($10.00) per month for the use of an OHV vehicle in state parks.
Each park shall retain from revenues generated therein, a sum sufficient to pay necessary expenses of operation, but in no event to be less than seventy-five percent (75%) of such revenues.
(2) The department shall have the authority to lease to any entity, sell and convey or otherwise transfer to any county or municipality, or close any state park or historical site within its jurisdiction which received a General Fund subsidy in Fiscal Year 1985 in excess of Two Dollars ($2.00) per visitor to such state park or historical site; provided, however, that this authority shall not include the authority to sell, lease or convey any park that was not in operation under the jurisdiction of the department for a full fiscal year prior to Fiscal Year 1986.
(3) The department may execute agreements with rails-to-trails and recreational districts by which the department will assume responsibility for the operation and maintenance of trails developed under Sections 55-25-1 through 55-25-15.
SECTION 12. Section 12 through Section 15 shall be known and may be cited as the "Alcohol OHV Safety Act."
SECTION 13. For the purposes of this chapter, the following terms shall have the following meanings unless the context shall prescribe otherwise:
(a) "Chemical test" means an analysis of a person's blood, breath, urine or other bodily substance for the determination of the presence of alcohol or any other substance which may impair a person's mental or physical ability.
(b) "Department" means Mississippi Department of Wildlife, Fisheries and Parks.
(c) "Executive director" means the chief officer of the department.
(d) "Intoxicated" means under the influence of alcohol or any combination of alcohol, controlled substance or drugs, so that there is impaired thought and action and loss of normal control of a person's faculties to such an extent as to endanger any person.
(e) "Law enforcement officer" means an officer described in Section 63-11-19 and includes a conservation officer employed by the Mississippi Department of Wildlife, Fisheries and Parks.
(f) "Prima facie evidence of intoxication" includes evidence that at the time of an alleged violation there was ten one-hundredths percent (.10%) or more by weight of alcohol in the person's blood.
(g) "Off-highway vehicle (OHV)" means a motor-driven recreational vehicle capable of cross-country travel on natural terrain without benefit of a road or trail, including an all-terrain vehicle and off-highway motorcycle as defined in paragraph (a). "Off-highway vehicle" does not include a snowmobile; a motorcycle; a watercraft; a farm vehicle being used for farming (other than ATV); a vehicle used for military, fire, emergency or law enforcement purposes; a construction or logging vehicle used in the performance of its common function; a motor vehicle owned by or operated under contract with a utility, whether publicly or privately owned, when used for work on utilities; a commercial vehicle being used for its intended purpose; or an aircraft. OHV or vehicle includes, but is not limited to, a multi-track or multi-wheel-drive vehicle, an ATV, a motorcycle or related two-, three- or four-wheel vehicle, an amphibious machine, a ground effect air cushion vehicle, or other means of transportation deriving motive power from a source other than muscle or wind.
(h) "Forest road" means a hard surfaced road, gravel or dirt road, or other route capable of travel by a two-wheel-drive four-wheeled conventional vehicle designed for highway use, except an interstate, state or county highway.
(i) "Forest trail" means a designated path or way capable of travel only by a vehicle of less than fifty (50) inches in width.
(j) "Operate" means to ride in or on and be in actual physical control of the operation of an OHV.
(k) "Operator" means a person who operates or is in actual physical control of the operation of an OHV.
SECTION 14. (1) A person who operates an OHV on public land over which this state has jurisdiction shall be deemed to have given consent to submit to a chemical test or test of his breath for the purpose of determining the alcoholic content of his blood, as a condition of operating the OHV in this state.
(2) A law enforcement officer who has probable cause to believe that a person has committed an offense under this chapter shall offer the person the opportunity to submit to a chemical test. It is not necessary for the law enforcement officer to offer a chemical test to an unconscious person. A law enforcement officer may offer a person more than one (1) chemical test under this section. However, all tests must be administered within three (3) hours after the officer has probable cause to believe the person violated this chapter. If a person refuses to submit to a chemical test under this chapter, the person shall be informed by the law enforcement officer that the refusal to submit to the test shall subject him to arrest and punishment consistent with the penalties prescribed in Section 59-23-7 for persons submitting to the test, and that the court shall order the person not to operate an OHV for at least one (1) year.
(3) If the chemical test results in prima facie evidence that the person is intoxicated, he shall immediately be arrested.
(4) (a) The law enforcement officer arresting a person pursuant to the provisions of this chapter shall inform the person arrested that:
(i) The person arrested has the right to be represented by legal counsel;
(ii) The person arrested may waive the right to be represented by legal counsel; and
(iii) The charge for which the person is being arrested may be used against him, upon conviction, for purposes of receiving an enhanced penalty as provided in Section 59-23-7.
(b) The citation or affidavit which is issued to the person arrested shall be uniform throughout all jurisdictions in the State of Mississippi and shall contain a place for the arresting official to sign, stating that he has advised the person arrested of the information contained in paragraph (a) of this subsection. The judge hearing the case or accepting the guilty plea, as the case may be, shall sign in a place provided on the citation or affidavit stating that the person arrested either employed an attorney or waived his right to an attorney after having been advised pursuant to paragraph (a) of this subsection. If the person arrested employed an attorney, the name, address and telephone number of the attorney shall be written on the citation or affidavit.
(c) The Mississippi Department of Wildlife, Fisheries and Parks shall prepare and furnish, no later than December 31, 1998, to all jurisdictions in the State of Mississippi a uniform citation form consistent with this chapter, which shall be used in all jurisdictions in the State of Mississippi.
(d) The Mississippi Department of Wildlife, Fisheries and Parks shall notify, by whatever means it deems appropriate, all law enforcement officers who are authorized to enforce the provisions of this chapter of their obligation to provide the information and execute the citation or affidavit, as described in paragraphs (a) and (b) of this subsection.
SECTION 15. (1) It is unlawful for any person to operate an OHV on the public lands of this state who:
(a) Is under the influence of intoxicating liquor;
(b) Is under the influence of any other substance which has impaired such person's ability to operate a watercraft; or
(c) Has ten one-hundredths percent (.10%) or more by weight volume of alcohol in the person's blood based upon milligrams of alcohol per one hundred (100) cubic centimeters of blood as shown by a chemical analysis of such person's breath, blood or urine administered as authorized by this chapter.
(2) (a) Upon conviction of any person for the first offense of violating subsection (1) of this section where chemical tests provided for under Section 59-23-5 were given, or where chemical test results are not available, such person shall be fined not less than Two Hundred Fifty Dollars ($250.00) nor more than One Thousand Dollars ($1,000.00), or imprisoned for not more than twenty-four (24) hours in jail, or both; and the court shall order such person to attend and complete an OHV safety education course developed or approved by the Department of Wildlife, Fisheries and Parks.
(b) Upon any second conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be fined not less than Six Hundred Dollars ($600.00) nor more than One Thousand Dollars ($1,000.00) and shall be imprisoned not less than forty-eight (48) consecutive hours nor more than one (1) year or sentenced to community service work for not less than ten (10) days nor more than one (1) year. The court shall order such person not to operate an OHV for one (1) year.
(c) For any third conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be fined not less than Eight Hundred Dollars ($800.00) nor more than One Thousand Dollars ($1,000.00) and shall be imprisoned not less than thirty (30) days nor more than one (1) year. The court shall order such person not to operate an OHV for two (2) years.
(d) Any fourth or subsequent violation of subsection (1) of this section shall be a felony offense and, upon conviction, the offenses being committed within a period of five (5) years, such person shall be fined not less than Two Thousand Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,000.00) and shall be imprisoned not less than ninety (90) days nor more than five (5) years in the state penitentiary. The court shall order such person not to operate an OHV for three (3) years.
(3) Any person convicted of operating any OHV in violation of subsection (1) of this section where the person (a) refused a law enforcement officer's request to submit to a chemical test, or (b) was unconscious at the time of a chemical test and refused to consent to the introduction of the results of such test in any prosecution, shall be punished consistent with the penalties prescribed herein for persons submitting to the test and the court shall order such person not to operate an OHV for the time periods specified in subsection (2) of this section.
(4) Any person who operates any OHV in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose or any other member or limb of another shall, upon conviction, be guilty of a felony and shall be committed to the custody of the State Department of Corrections for a period of time not to exceed ten (10) years.
(5) Upon conviction of any violation of subsection (1) of this section, the judge shall cause a copy of the citation and any other pertinent documents concerning the conviction to be sent immediately to the Mississippi Department of Wildlife, Fisheries and Parks. A copy of the citation or other pertinent documents, having been attested as true and correct by the Director of the Mississippi Department of Wildlife, Fisheries and Parks, or his designee, shall be sufficient proof of the conviction for purposes of determining the enhanced penalty for any subsequent convictions of violations of subsection (1) of this section.
SECTION 16. This act shall take effect and be in force from and after July 1, 1998.