A Ramp up to Boating Season

Some Things to Know About Boating under the Influence

Since summer is here and boating is such a popular activity throughout Florida, I thought this would be a good opportunity to provide information about Boating under the Influence (“BUI”) law and compare it to Driving Under the Influence (“DUI”). This is important because there are both similarities and differences between the two.

What are the Similarities?

The primary BUI statute is Florida Statute 327.35. The standard for being under the influence of alcohol, chemical substances or controlled substances is to the extent that your normal faculties are impaired, having a breath alcohol level of 0.08 grams of alcohol per 210 liters of breath, or a blood alcohol level of 0.08 grams of alcohol per 100 milliliters of blood. This is the same as DUI.

For the most part, the mandatory minimum penalties, for first, second, and third offenses are the same as DUI law. Like DUI, there are enhanced penalties for blood/breath alcohol above 0.15, for two offenses within five years, and for three offenses with the last two within ten years of each other. The definition of “normal faculties,” the presumptions of impairment, the treatment of persons under twenty-one who operate a vessel while consuming alcohol are all the same as DUI law. Likewise, there is also a mandatory adjudication of guilt upon conviction, just like a DUI. In addition, the convictions are interchangeable so previous DUI convictions are considered previous BUI convictions, and vice versa. In fact, the regulatory schemes are largely identical.

So, what are the Differences?

The main regulatory difference is with implied consent and refusing to submit to testing. Any person who accepts the privilege of operating a vessel within the state of Florida is deemed to have given his or her consent to submit to an approved chemical or physical test, if lawfully arrested for operating a vessel while under the influence of alcoholic beverages. Florida Statute § 327.352. This means that refusal to submit to testing can be used against you in court just like in a DUI. However, the administrative penalty for doing so is different from a DUI. If you refuse testing when arrested for DUI your driver’s license is suspended. Refusal in a BUI case results in a $500 civil penalty. The consequences for failing to pay the civil fine are outlined in Florida Statute § 327.35215. Like a DUI, you can request a hearing to determine the legality of your arrest. If the fine is upheld, you have thirty days to pay or your ability to operate a vessel within the state will be suspended. From there, operating a vessel while suspended due to failure to pay the civil fine is a first degree misdemeanor.

The biggest differences between DUIs and BUIs can be found in the context of the criminal investigation. The first major difference is about how you will likely come into contact with law enforcement. The second difference is the types of field sobriety exercises you will be asked to perform during the DUI investigation.

On the road, a law enforcement officer can generally only stop a vehicle when there is probable cause to believe the operator is committing a traffic infraction or there is reason to believe the driver is ill, tired, or impaired. There are some other reasons, like checkpoints, but these are the two major legal reasons for stopping a vehicle. Challenging the lawfulness of traffic stops is a major component of DUI defense.

In a BUI case, there is rarely a basis to contest the vessel stop. On the water, a law enforcement officer can stop any vessel any time in order to conduct a safety check. State v. Casal, 410 So.2d 152 (Fla. 1982). This safety check gives the officer an opportunity to check your safety equipment, lights, fire extinguisher, fishing permits, etc. Because of this ability to conduct a vessel safety inspection, there is rarely an ability to challenge the legality of the stop.

As far as law enforcement is concerned, the safety inspection gives the officer an opportunity to check for signs of impairment. The common signs of impairment for BUI are the same as for DUI; the odor of alcohol, watery or bloodshot eyes, and a flushed face. Although there are many more innocent explanations for these physical characteristics when boating rather than driving, these signs alone still form the basis for detaining a boater for a BUI investigation. Think about this a moment, the odor of alcohol, a red face from being in the sun all day, and watery eyes from the wind blowing in your face could result in being the subject of a BUI investigation.

To me this is problematic because the field sobriety exercises used in a BUI investigation are different, and in my opinion more difficult to understand, than DUI field sobriety exercises. The BUI investigation will often take place on a vessel so walking exercises are usually not conducted. Instead, you will likely be asked to perform what are commonly called the “seated standard field sobriety exercises.” In addition to the Horizontal Gaze Nystagmus (“the HGN”) and the finger-to-nose exercises, these include the “palm-pat” and the hand coordination exercise. If the BUI investigation takes place on land, you will likely be asked to perform the standard field sobriety exercises.

If you are arrested for BUI after performing theses exercises it is important to consult an attorney who is familiar with the exercises. They are relatively new, the standard instructions are confusing, and they are difficult to perform even in ideal conditions. Knowing these exercises and challenging them when they are not conducted properly is a major component of BUI defense.

• Despite being one of the most heavily relied upon exercises by law enforcement, the HGN exercise is considered scientific evidence and will not be admissible in court unless conducted by a drug recognition expert.

• The finger-to-nose can be affected by movement of the vessel and other conditions where it is performed.

• The palm-pat involves placing your hands directly on top of each other palm to palm and turning over the top hand with increasing speed. Signs of impairment include failing to increase speed as instructed and not lining your hands properly.

• The hand coordination test is intended to replicate the walk-and-turn but using your fists. It involves walking your fists out from your chest, clapping your hands, and walking them back. The instructions are very confusing and officers who have not had sufficient training may not instruct you properly or demonstrate the exercise correctly.

The last thing to consider regarding BUI investigations is the potential for being investigated by a poorly trained or inexperienced officer. During major summer holidays or peak times of the year, it is not uncommon of law enforcement agencies to focus on BUI prevention. From a personnel perspective, this may involve taking officers off the street and putting them on the water under the assumption that investigating a BUI is identical to investigating a DUI. Investigating a BUI is not the same as investigating a DUI. Likewise, defending a BUI is not the same as defending a DUI. If you are arrested for BUI, be sure to hire any attorney who knows the difference.

My advice for avoiding a BUI is the same as avoiding a DUI, have a designated driver. As long as the designated driver is born before 1988, he or she will not need to have a boater safety card. There is no minimum age for operating a vessel, but any operator born after January 1, 1988 will need a boater safety identification card in accordance with Florida Statute § 327.95. There are no speed limits, no travel lanes, and few traffic control devices so having someone on board who can safely navigate the waters if someone has had too much to drink should not be difficult and it may save you lots of time, money and heartache.

If you are facing BUI charges, contact me at Luke Law and put me to work for you. You can reach me at 904-637-2700 or nathan@lukelaw.com. Luke Law, LLC is located in Orange Park, Florida, and is conveniently located near Green Cove Springs, Middleburg, and most areas in northeast Florida. I am also available to travel to you to discuss your legal matters.

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