Boating Under the Influence

If you are pulled over for suspicion of boating under the influence and subsequently arrested, it is important to know your legal rights. Your actions during and immediately after the police interaction can significantly impact your case. Here are some key steps to follow:

1. Exercise Your Right to Remain Silent:
   You have the right to remain silent, and it’s crucial to use this right. Nervousness can lead to excessive talking, which might jeopardize your case. Remember, anything you say can be used against you in court.
2. Stay Calm and Polite:
   Try to stay calm and respectful. If you don’t understand why you were pulled over, ask the officer for an explanation politely. Officers must have probable cause to arrest you for boating under the influence.
3. Contact an Attorney:
   After your arrest, it is crucial to contact an attorney experienced in BUI cases. Florida has strict BUI laws, and a knowledgeable attorney can help you achieve the best possible outcome.

There are several reasons why someone might be stopped and arrested for a BUI. Law enforcement does not need probable cause to stop you for a routine safety inspection to ensure compliance with boating safety regulations. To stop for a BUI, however, law enforcement needs a reasonable suspicion that the operator is impaired. Reasonable suspicion is a lower standard than probable cause and can be based on several observable signs, such as:

• Erratic Operation of the Vessel such as: 
  • swerving, zigzagging, speeding, or drifting

• Violating Navigational Rules such as:
  •  ignoring buoys or markers or making unsafe turns

• Unsafe Boating Practices such as:
  •  reckless maneuvering or operating in restricted areas

• Physical Indicators in the Vessel Operator such as:
  •  slurred speech, bloodshot or glassy eyes, or unsteady balance.

• Observable Behaviors such as:
  • overloading the vessel, improperly seated passengers, or bottles of alcohol on board

If, during the stop and subsequent investigation, officers gather enough evidence to believe that the operator is under the influence, they need probable cause to make an arrest. This can be based on the results of field sobriety tests, breathalyzer tests, or other evidence of impairment.

In Florida, several law enforcement agencies have the authority to stop you for Boating Under the Influence (BUI). These agencies include:

Florida Fish and Wildlife Conservation Commission (FWC) Officers

FWC officers are specifically tasked with enforcing boating laws and regulations in Florida. They frequently patrol the state’s waterways and have the authority to stop vessels to check for compliance with safety regulations and registration and to investigate suspected BUI.

Local Law Enforcement

Local police departments and county sheriff’s offices also have jurisdiction over waterways within their respective areas. These officers can stop vessels for suspected BUI, conduct safety inspections, and enforce boating laws.

Florida Highway Patrol (FHP) 

While primarily responsible for enforcing traffic laws on the state’s highways, FHP officers can sometimes enforce boating laws in certain situations, particularly if the waterway is near a highway or if they are part of a specialized task force.

U.S. Coast Guard 

The U.S. Coast Guard has federal jurisdiction over navigable waters and can enforce federal and state boating laws, including BUI. They often conduct safety inspections and can stop vessels suspected of operating under the influence.

Other Authorized Agencies 

Other agencies, such as the Florida Department of Environmental Protection (DEP) and the National Park Service (NPS), may also have law enforcement officers with the authority to stop and inspect vessels for compliance with state and federal laws, including BUI, especially within state and national parks.

These agencies work together to ensure the safety of Florida’s waterways and to enforce laws designed to prevent accidents and injuries caused by impaired boating. If you are operating a vessel in Florida, it’s important to be aware that any of these agencies can stop and inspect your vessel for compliance with BUI laws.

Operating a vessel in Florida is a privilege, and anyone who does so is deemed to have consented to chemical or physical testing of their breath, blood, or urine. Find out more here.

Breath Test 

If you’re boating in Florida and get pulled over and arrested for suspicion of BUI, the officer can ask you to take a breath test, like blowing into a breathalyzer, to check your blood alcohol level. The officer can only ask you to take this test if:

1. You’ve been legally arrested for a BUI offense, and
2. The officer has good reason to believe you were operating a boat under the influence of alcohol.

Even if you take a breath test, you might be asked to take another type of test. Refusing a breath test can result in a $500 fine, and if you’ve refused such tests before, you could be charged with a misdemeanor. Refusing the test can also be used as evidence against you in court.

Urine Test

Similarly, if you are arrested for BUI, you may be required to take a urine test in addition to or instead of a breath test. These tests check for drugs or other substances that could impair your ability to operate a vessel safely.

Refusing a urine test carries the same penalties as refusing a breath test, including a $500 fine and potential misdemeanor charges if you have prior refusals. Your refusal can also be used as evidence against you in court.

Blood Test 

The law also specifies procedures and standards for testing blood alcohol levels and the presence of other substances. These tests must be performed by qualified professionals using approved methods and equipment.

There are two main scenarios where a blood test is specifically required:

1. If a boating accident results in death or serious injury, and the officer suspects the operator was under the influence, a blood test can be mandatory, even without an arrest.
2. If someone suspected of BUI is at a medical facility and a breath or urine test isn’t possible, a blood test can be administered. In some cases, if the person is unconscious or unable to refuse, consent is implied. If they can refuse and do so, this refusal can be used against them in court. Law enforcement can also obtain a blood sample taken for medical purposes without needing additional consent.

You have the right to an additional independent test at your own expense, and you or your attorney can access the results of any tests conducted by law enforcement.

Healthcare professionals assisting law enforcement with these tests are protected from liability, and the results of drug tests cannot be used to prosecute you for drug possession. Find out more here.

If you are arrested for BUI, it’s important to consult with an attorney who can advise you on your rights and options regarding chemical testing.

Sobriety Tests

Due to the unique challenges of performing field sobriety tests on a boat, law enforcement officers often modify traditional land-based tests or use specialized tests designed for the marine environment.

Some common field sobriety tests used in BUI stops in Florida include:

• Horizontal Gaze Nystagmus (HGN): This test involves observing the boater’s eye movements for involuntary jerking, which can be an indicator of impairment.
• Finger-to-Nose: The boater is asked to touch the tip of their nose with their finger while keeping their eyes closed.
• Palm Test: The boater is asked to hold their hand out with their palm facing up and then turn their hand over repeatedly.
• Hand-Eye Coordination Test: This test assesses the boater’s ability to track a moving object with their eyes and touch it with their finger.

It’s important to note that these tests may not be standardized or validated specifically for BUI detection, and their results can be influenced by factors other than intoxication, such as fatigue or the motion of the boat.

Florida Statute 327.35 outlines the penalties for Boating Under the Influence. A person is considered guilty of BUI if operating a vessel while impaired by alcohol, drugs, or other chemical substances to the extent that their normal faculties are impaired or if their blood alcohol concentration (BAC) is 0.08 or higher.

First-Time BUI Offense

The penalties for a first-time BUI offense include a fine ranging from $500 to $1,000, up to six months in jail, probation, a mandatory boating safety course, and potential vessel impoundment for up to 10 days.

Second-Time BUI Offense

The consequences become more severe for repeat offenses. A second BUI conviction within five years can result in a fine between $1,000 and $2,000, up to nine months in jail, and a 30-day impoundment of the vessel.

Third-Time BUI Offense

A third conviction within ten years is classified as a third-degree felony, carrying a potential prison sentence and higher fines. Subsequent convictions can also be charged as felonies, regardless of the time elapsed since previous offenses.

BUI Resulting in Property Damage

If the BUI incident causes property damage, injury, or death, the penalties are heightened significantly. BUI causing property damage is a first-degree misdemeanor, punishable by up to a year in jail and a $1,000 fine. 

If serious bodily injury occurs, it becomes a third-degree felony with up to five years in prison and a $5,000 fine. Causing death while boating under the influence is considered BUI manslaughter, a second-degree felony with potential sentences of up to 15 years and fines up to $10,000. These penalties can be further increased if the operator knew about the accident and failed to provide help.

Additional penalties for BUI convictions may include monthly reporting probation, mandatory participation in a substance abuse course, and community service. It’s important to note that any prior DUI convictions can affect the severity of penalties for BUI offenses.

If you’re facing a BUI charge in Florida, there are several legal strategies that can be employed, depending on the specifics of your case. These defenses aim to challenge the evidence against you or the procedures used by law enforcement.

1. Lack of Probable Cause: Law enforcement must have a valid reason, such as a boating violation or safety concern, to stop and board your vessel. If the stop was illegal, any evidence collected could be inadmissible in court.
2. Invalid Field Sobriety Tests (FSTs): FSTs are often unreliable, especially on a moving boat. Your attorney can challenge the validity of the tests if they were not administered properly or were inappropriate for the environment.
3. Inaccurate Chemical Tests: Breathalyzer and blood tests can be inaccurate due to various factors like improper calibration or human error. An experienced attorney can help you challenge the results of these tests.
4. Medical Conditions: Certain medical conditions can mimic signs of intoxication. If you have a medical condition that may have affected your behavior, an attorney can help you present evidence to support this defense.
5. Rising Blood Alcohol Defense: This defense argues that your blood alcohol concentration (BAC) was below the legal limit while operating the boat but rose above the limit by the time you were tested.

Remember, it’s crucial to consult with an experienced attorney as soon as possible. They can assess the specifics of your case, determine the most effective defenses, and help you navigate the complexities of BUI law in Florida.

To secure a Boating Under the Influence conviction in Florida, the state prosecutor must prove the following elements beyond a reasonable doubt:

1. Operation of a Vessel: The prosecutor must prove that the defendant was operating a vessel at the time of the alleged offense. This can be established through witness testimony, video evidence, or the defendant’s own admission.
2. Impaired Normal Faculties OR Unlawful BAC: The prosecutor must prove one of the following:

• Impaired Normal Faculties: The defendant was under the influence of alcohol, drugs, or a chemical substance to the extent that their normal faculties were impaired. This can be demonstrated through field sobriety tests, witness observations of the defendant’s behavior, or other evidence of impairment.
• Unlawful Blood or Breath Alcohol Concentration (BAC): The defendant had a BAC of 0.08 or higher. This is typically proven through breath, blood, or urine tests.

It’s important to note that the prosecutor must prove each element beyond a reasonable doubt. This means that the evidence must be so strong that there is no reasonable doubt in the mind of a reasonable person that the defendant is guilty.

If you are facing BUI charges, it is crucial to consult with an attorney who can help you understand the legal standards involved and build a strong defense.

In Florida, if you are under 21 years old and caught operating a vessel with a breath alcohol level of 0.02 or higher, you will face penalties. These penalties include 50 hours of community service, suspension of your boating privilege, and a mandatory boating safety course. This is considered a non-criminal infraction, but it does not prevent you from being prosecuted for a standard BUI charge if your breath alcohol level is 0.08 or higher.

If a law enforcement officer suspects an underage person of boating under the influence, they can detain them and request a breath test. Refusal to take the test can also result in penalties, including the ones mentioned above.

Unlike traffic laws for underage drinking and driving, a conviction under this law doesn’t prevent prosecution for a standard BUI charge, and penalties can be added on top of any other BUI penalties.

Preliminary alcohol screening devices can be used in both traffic and boating cases, but their results are treated differently. In traffic cases, the reading is presumed accurate and used for license suspension, while in boating cases, there’s no presumption of accuracy, but the reading is admissible in court.

In situations where it’s unclear who was operating a boat, Florida law presumes the owner or renter of the vessel to be the operator. This means they are the ones who will be held responsible for BUI if there is evidence of intoxication, while passengers over 21 may not be subject to the same scrutiny.

Remember

The consequences of a BUI are severe. If you’ve been charged with boating under the influence, you should contact a Florida criminal defense attorney immediately. An experienced BUI and DUI attorney will be able to properly advise you on your next steps, what defense to use for your specific case, and explain how the law applies to your case.

The lesser included offense for Boating Under the Influence is Reckless Operation of a Vessel. According to Florida Statute 327.33, it is illegal to operate any vessel in a way that shows complete disregard for the safety of people or property. This means if you operate a boat too fast, do dangerous stunts, or behave in a way that’s likely to hurt someone or damage something, you are guilty of reckless operation. This is a serious offense and is considered a first-degree misdemeanor.

Even if your actions do not rise to the level of recklessness, you still have to be careful when operating a boat. You must consider other boats around you, any posted speed limits or wake zones, and the overall situation to avoid endangering anyone’s life or property. Failing to do so is considered a careless operation, which is a less serious, non-criminal violation.

Remember

Everyone operating a boat in Florida must follow the navigation rules. These rules dictate how boats should maneuver, pass each other, and signal. In boating accidents, who’s at fault is usually decided based on whether someone followed the navigation rules. These rules act like the “rules of the road” for boats and help determine who is responsible if something goes wrong.

Yes, you can potentially plea to a lesser included offense if you qualify for the Deferred Prosecution Program (DETER) in Florida. DETER is a pre-trial intervention program designed for first-time DUI offenders, but it does not necessarily preclude the possibility of a plea bargain for a lesser offense.

Here’s why:

Plea Bargaining: Plea bargaining is a common practice in the criminal justice system, where the defendant agrees to plead guilty or not contest a lesser charge in exchange for a reduced sentence or other concessions from the prosecutor. This can happen even if the defendant qualifies for a diversion program like DETER.

Lesser Included Offenses: In a DUI case, lesser included offenses could include reckless driving or a non-criminal traffic infraction, and in BUI, it’s reckless operation of a vessel. These offenses typically carry less severe penalties than a DUI or BUI conviction. 

Prosecutorial Discretion: Ultimately, the decision to offer a plea bargain to a lesser included offense rests with the prosecutor. They will consider various factors, including the strength of the evidence, the defendant’s criminal history, and the case’s specific circumstances.

In Florida, qualifying for DETER can influence the plea bargaining process, including the possibility of pleading to a lesser included offense.