BOATING UNDER THE INFLUENCE
With all the focus on drunk driving, there is relatively little attention paid to drinking while operating a watercraft. But arrests for boating under the influence or boating DUI are becoming more and more common.
Boating under the influence or boating DUI (BUI) is governed by Title 5 of the Arizona Revised Statutes, entitled Amusements and Sports. As in the case of automobiles, you are guilty of boating under the influence if the State can prove the required elements of one the varying types of BUI under Arizona law.
BUI Laws Explained:
A Regular Boating Under the Influence applies when an individual operates a watercraft in Arizona:
- while under the influence of alcohol or drugs, or a combination of the two, if you are impaired to the slightest degree; and/or
- if you have a blood alcohol concentration of 0.08 (BAC) or greater.
Extreme Boating Under the Influence occurs when an individual’s BAC exceeds certain levels. In that regard, the Title 5 law contains a virtually identical version of the extreme DUI statute, providing additional penalties if:
- Your BAC is 0.15 or more (extreme BUI); or
- Your BAC is 0.20 or more (super extreme BUI).
Aggravated Boating Under the Influence or Felony Boating Under the Influence may apply where:
- You are charged with a third Boating Under the Influence within a period of seven years (eighty-four months); or
- You commit an offense of Regular Boating Under the Influence or Extreme Boating Under the Influence while there is a passenger on the watercraft who is under the age of 15.
Drug or Marijuana BUI
Drug Boating Under the Influence occurs if there is any dangerous drug, narcotic drug or other illegal drug including marijuana in your system, other than a drug prescribed by your doctor. However, even in instances of drugs prescribed by a doctor, you may be charged with BUI if law enforcement alleges you are impaired by the prescribed drug (recommended in the case of marijuana).
Commercial Boating Under the Influence occurs when a person operates a commercial watercraft, if you have a BAC of 0.04 or higher.
Boating Under the Influence Penalties:
If you have been charged with Boating Under the Influence, you face penalties that are similar to those for DUI, including fines, jail time and more. A conviction will cost you more than you might think. Many people think that the a boating DUI is really not big deal. But this is one of many misconceptions on the subject.
- First Offense Boating DUI (A.R.S. § 5-395).You should assume that it will cost you thousands of dollars in fines, assessments, and other charges, that you will be required to complete an alcohol and drug screening, and that you will be required to attend substance abuse classes. Jail time is also possible, although it can be suspended in some cases based upon your successful completing of the screening and attendance at alcohol/drug classes. If the judge determines that you recklessly exposed another person to serious injury, you will have to serve at least 24 consecutive hours in jail. Lastly, you will have a misdemeanor on your permanent criminal record.
- Second Offense Boating DUI (A.R.S. § 5-395).Mandatory jail time of at least 30 days (minimum 90-day sentence imposed, with suspension of 60 days after completion of screening/classes). Higher fines and fees.
- Drug or Marijuana Boating DUI (A.R.S. § 5-395).The penalties for a drug or marijuana related BUI mimic those of an alcohol related BUI. A person can be found guilty when a drug or metabolite if found in your system while operating watercraft.
- Extreme Boating DUI (A.R.S. § 5-397).You are subject to additional penalties if your BAC is 0.15 or more (Extreme BUI). A first offense will lead to at least 10 days in jail, as well as higher fines. If your BAC is 0.20 or higher (Super Extreme BUI), a minimum of forty-five days in jail must be served if convicted.
- Aggravated Boating DUI (R.S. § 5-396).As in the case of DUI, aggravated BUI is a felony, and the penalties reflect that classification. Aggravated BUI includes (a) three or more BUI’s within 84 months; and (b) BUI with a child passenger.
Operating a motorized watercraft while under the influence is a serious charge, and the potential penalties are significant. Protect yourself by hiring an experienced Arizona boating DUI lawyer.
BUI Defenses – Defending Boating Under the Influence:
Defenses to Boating Under the Influence are similar to those utilized in defending DUI charges. However, a BUI defense strategy is even more robust as the chaos brought on by alcohol in most lake environments and the inexperience of many of the investigating officers on lakes and rivers throughout Arizona leaves plenty of room for mistakes to be made by law enforcement. Listed below are several of the considerations to discuss with a boating under the influence attorney:
- Invalidating Field Sobriety Tests (FSTs): Unlike field sobriety tests that are administered in DUI investigations, boating FSTs are not standardized. As such, attacking the credibility of the results of boating FSTs is a much easier. Lake Patrol routinely administers sitting FSTs while on a boat in open water. Challenging the reliability of the testing environment and subsequent findings is paramount to invalidating boating FSTs.
- Challenging the BAC: The machines used to obtain blood alcohol concentrations are not always reliable and must be scrutinized and reevaluated by an experienced attorney and defense expert to ensure accuracy. Even when operating properly the machines used to test BAC have margins of error that should be assessed for the ways in which they can impact individual cases.
- Attacking the Reliability of Testing Measures Used: Regardless of whether law enforcement took a breath or blood samples (in some instances both), they must follow specific protocols to guarantee the results. One simple mistake by law enforcement can jeopardize their entire investigation and undermine the credibility of the BAC results obtained. It’s important to remember that many of the officers patrolling the lakes throughout Arizona are less experienced in administering breath and blood testing than their counterparts investigating DUIs.
- Undermining Accident Reconstruction (if applicable): When accidents are involved in BUI investigations reconstruction to determine the cause of the accident is far more difficult for the State. Without road evidence (skid marks), reconstructing boating accidents is
- Challenging the Stop of the Watercraft: Boating under the influence investigations frequently start with a watercraft stop or a stop at a checkpoint. While it may seem obvious that law enforcement is less concerned with the minor safety infraction, they used to stop your watercraft and more concerned with investigating BUI, it is your job to challenge the stop. Illegal stops result in the suppression of BUI evidence and many times, dismissal of the criminal case.
- Checking Jurisdiction: Because many of the waterways in Arizona separate Arizona from other states, it is important that a competent BUI lawyer ensure that the criminal activity the State is alleging actually took place in Arizona.
These are just a few of the defenses that may be applicable in your case. For more information about specific defenses that may be applicable to your case, call our office for a free and confidential consultation.
Frequently Asked Questions (FAQs):
Is BUI as bad as DUI?
- With a couple of exceptions, boating under the influence penalties are largely the same as for DUI, including jail time, fines, assessments, substance abuse screening, and more.
Does boating under the influence go on your driving record?
- No. Because BUI involves motorized watercraft and not a motor vehicle, a conviction does not go on your motor vehicle driving record. However, a conviction will go on your criminal record and the penalties for BUI in Arizona are extremely severe.
Can you refuse a breathalyzer or blood draw during a BUI investigation?
- You are required to provide a blood or breath sample. If an officer has probable cause to believe you are impaired by alcohol or drugs a refusal of a chemical test will normally result in an additional misdemeanor charge pursuant to A.R.S. §5-395(L).
Is an OUI Checkpoint Legal?
- Yes, law enforcement is permitted to place checkpoints on lakes and request that boaters stop in order to investigate possible impairment.
Misconceptions About Alcohol and Boating:
According to the United States Coast Guard, many of the problems associated with alcohol and boating arise because of mistaken beliefs. These beliefs include:
- Boating DUI is not nearly as serious as DUI. In fact, more than 15% of boating fatalities are linked to alcohol. Operating a motorized watercraft in Arizona while impaired, or with a blood alcohol content (BAC) of 0.08 or greater (0.04 in the case of commercial vessels), is a class 1 misdemeanor, at the very least. In some cases, you could also be charged under federal law.
- Partying is an acceptable part of boating, provided you’re not totally wasted.Operating a motorized boat or other watercraft while impaired to the slightest degree is a crime, just as it is for driving a car. You do not have to be roaring drunk to be impaired, or to be charged with BUI.
- Boating DUI is limited to alcohol. It’s ok to smoke pot while boating. As in the case of marijuana related DUI, the laws governing boating while under the influence include impairment as the result of drugs.
- It’s hard to get caught for drinking (or drugging) and boating.In recent years, tolerance for alcohol related boating has declined, and police are on the lookout for intoxicated boaters. Tools that were developed for the roadways, such as saturation patrols and sobriety checkpoints, are now being used by the Arizona Game and Fish Department / Sheriff’s Office to catch those suspected of boating under the influence. Don’t be misled by the rumors you might have heard about lenient treatment of impaired boaters — boating DUI is taken very seriously in Arizona.
BUI Lawyer in Arizona:
If you have been charged with boating under the influence, we can help. We have represented those charged with BUI throughout the state of Arizona and have experience defending BUIs in all jurisdictions and on all Arizona lakes. Contact the attorneys at Feldman & Royle to schedule a confidential and free consultation with a BUI lawyer.