Boating Under the Influence | BUI

source: Press Release


Florida is not only surrounded on three sides by two large bodies of water, the Gulf of Mexico and Atlantic Ocean, but Florida also boasts over 11,000 square miles of waterways. So it is no surprise that boating is a popular summertime activity. Also no surprise is that Florida law treats the crime of Boating under the Influence (BUI) quite similarly to the crime of Driving Under the Influence (DUI). Each type of crime has enhanced penalties depending on the circumstances. Additionally, each crime counts as a prior conviction for the other in order to enhance penalties. Both DUI and BUI charges also require submission to a blood, breath or urine testing. Unlike the DUI law though, that suspends driving privileges for any refusal to submit to a blood, breath or urine testing, any refusal to submit to testing involving a BUI, results in a $500 fine. Both types of suspensions can be challenged through an administrative proceeding conducted separately from the criminal charge of DUI or BUI.

Unlike motor vehicles used on the roadway, boats may be legally stopped and boarded by an officer merely for the purposes of enforcing registration, safety and fishing laws. Probable cause of a civil infraction or reasonable suspicion of criminal activity is not required. There have even been BUI arrests that resulted from an officer watching the person dock their boat. Even so, defenses to a BUI charges can be gleamed from the initial stop. For example, if stopped merely for a safety check, this means that the officer had observed the boat being properly operated and not in a manner indicating an impaired operator.

Once contact is established by an officer, a BUI investigation may be commenced on the boat in the form of questioning, observing the operator's ability to show proper safety compliance, and the performance of field sobriety exercises. The officer can even tow the boat to shore for further field sobriety exercises on land that are more consistently used in DUI investigations. Of course, being out on the water and in the sun can be one of many issues to effect a person's performance on these exercises, leading to defenses in this area. A refusal to take these forms of exercises cannot result in an administrative fine, but may used as evidence of consciousness of guilt in the prosecution of the criminal charge.

Persons arrested for BUI are subject to the testing of their blood, breath or urine. Blood testing is allowed when the subject is at a facility for medical treatment and breath or urine testing is impractical or impossible. Blood testing is also allowed when there is a boating accident involving death or serious bodily injury. Otherwise, testing of urine and breath are most often done at the jail or a law enforcement agency's office and must be subsequent to arrest. If the refuses a blood, breath or urine test, that person must be informed that his or her failure to submit will result in a civil penalty of $500, and that if that person has been previously been fined for refusal to submit he or she is committing a misdemeanor. A refusal to submit is also admissible in any criminal proceeding. These types of testing can be successfully challenged if not taken according to applicable laws and rules.

As with any criminal charge, you have the right to a jury trial on a BUI charge. If acquitted the matter is over, but if convicted several levels of penalties are involved. The penalties for BUI increase, similarly to DUI penalties, depending on the existence of certain circumstances such as prior convictions, blood or breath alcohol level, serious bodily injury or death. For example:

BUI TYPE JAIL FINES
1st offense
maximum 6 months
$500-$1000 plus court costs

2nd offense
maximum 9 months
$1000-$2000 plus court costs

3rd offense within 10 years of a prior conviction
3rd degree felony maximum 5 years
maximum $5000 plus court costs

3rd offense outside 10 years of a prior conviction
3rd degree felony maximum 12 months
$2000-$5000 plus court costs

4th offense
3rd degree felony maximum 5 years
minimum $2000 plus court costs

1st offense involving
tests .20 or above or when
accompanied by a minor maximum
maximum 9 months
$1000-$2000 plus court costs

2nd offense involving
tests .20 or above or when
accompanied by a minor
maximum 12 months
$2000-$4000 plus court costs

involving serious bodily injuries
3rd degree felony maximum 5 years
$5000 plus court costs

involving death
2nd degree felony maximum 15 years
maximum $10,000 plus court costs

Further penalties for any type BUI may also involve probation, substance abuse classes, community service, and the impounding of the vessel.

So whether on a sail boat, motor boat or jet ski, Florida law prohibits boating under the influence of alcoholic beverages, controlled substances to the extent that person's normal faculties are impaired or while having a blood or breath alcohol level of .08 or above. Nevertheless, there are defenses to the charge of BUI.

Challenges to the stop of a boat can in fact result in suppression of evidence in spite of the fact that law enforcement has seemingly unbridled discretion when it comes to stopping boats for safety checks. To that end, the facts of any particular case may reveal a valid legal challenge to the stop of a boat. Also who is actually driving the boat can be the basis for a defense. After the boat is stopped law enforcement officers have to articulate facts to support a detention. If not the field exercises may not be admissible and without the field exercises there may be insufficient evidence.

Finally, challenges to a BUI arrest based upon performance of the field exercises can result in dismissal. To that end, an officer's training and experience in field testing boaters is extremely important to the analysis of whether probable cause existed for an arrest. If all of the above challenges fail than like a DUI case challenges to breath, urine and blood testing may provide issues that lead to favorable results for those charged with BUI in Florida.

The bottom line is BUI arrests are on the rise in the name of boating safety. Therefore boaters who drink may be arrested if they are impaired by alcohol or drugs. Nevertheless, it is not illegal to drink alcohol and operate a boat. Thus there are defenses to the charge of BUI that must be explored in order to properly assess the validity of such charges.