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Boating Under the Influence

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There is no denying that boating is a way of life here in South Florida.  Every weekend, thousands of boat owners enjoy fishing, diving, and cruising on the waterways, and many of them enjoying a beer or cocktail while doing so. However, what most people don't realize is that while operating a boat or jet-ski doesn't require a driver's license in Florida, boating while under the influence is still a crime with serious potential penalties.

What is boating under the influence?

Boating under the influence or B.U.I., as it is commonly referred to, is a crime that has several different components. Primarily it is defined as when a person is operating a vessel while under the influence of alcoholic beverages, or any other controlled substance to the extent that the person's normal capabilities are impaired, or the person has a breath alcohol level of 0.08 or higher.

How are B.U.I. cases investigated or proved?

Florida law allows boating under the influence to be proven in two different ways. The first method is by proving that a person was operating a boat while under the influence of alcohol to the extent that his or her “normal faculties” were impaired. This means that a person can be charged with B.U.I. even if that person refuses to take a breath test. Police officers initially look for preliminary signs that someone may be under the influence of alcohol, such as the odor of the person's breath while speaking, if the have bloodshot or glassy eyes, if their speech is slow or slurred, and finally if there are any open or empty alcoholic beverage containers in the boat. Officers will also often question the person operating the boat at the time they are stopped if they have been drinking at all, and if so, how much. These statements will later be used against the suspect. If the officers observe any combination of these preliminary signs that the suspect has been drinking, they next try to determine if they have been drinking to the point that they are impaired.

The most common way the police determine if a person's normal faculties are impaired is by having the person suspected of B.U.I. perform what are called field sobriety exercises. These exercises are divided attention tasks that are designed to help law enforcement officers determine whether or not a person is impaired.

These exercises are often both physical and mental in nature and are meant to evaluate the suspects ability to understand the instructions as well as physically perform them. These exercises test a person's physical ability to balance, walk, judge distances, eye hand coordination, as well as their mental ability to do things such as follow directions, count, and repeat things. These field sobriety exercises become even more complicated due to the simple fact that when someone is stopped for boating under the influence, the entire interaction and investigation is occurring on a moving boat on the water. The unstable nature of a boat on the water requires law enforcement officers to use special field sobriety exercises designed specifically for boating under the influence cases. These tests do not require a person to be standing while performing them. It is also very common for law enforcement officers to record the person performing these exercises on both video and audio recording devices such as body worn cameras, which are later used against that person as evidence of their level of impairment. 

The second and most obvious way of proving that a person was boating while under the influence of alcohol is with a breath test. Under Florida law, an officer can request a person to submit to a breath test when they have probable cause to believe they are operating a vessel while under the influence. Refusal to take a breath test in a B.U.I. investigation can result in a $500 fine, however unlike D.U.I.'s, in a boating under the influence case refusing the test will not suspend that person's driver's license. 

The legal breath alcohol limit for operating a vessel in Florida is 0.08. The law also increases both the fines and potential jail sentences for anyone convicted of boating under the influence with a breath level of 0.15 or having a person in the boat under the age of eighteen. The amount of alcoholic drinks it takes for a person to reach 0.08 varies greatly on several different factors such as the physical size of the person, their gender, how much and when they last ate, how quickly they consumed the drinks, how long they have been drinking, and what types of alcoholic drinks they drank.

Law enforcement is required to only use specific breath testing instruments that are approved by and in accordance with the strict guidelines set forth by the Florida Department of Law Enforcement. Additionally, these breath instruments are required to be calibrated and undergo mandatory testing by the agencies using them according to strict schedules. If the agency fails to comply with these guidelines regarding the testing instrument, the results may not be admissible in court proceedings.

What proof or reason do the police need to stop a vessel and begin a B.U.I. investigation?

The plain and simple answer is nothing. In Florida, law enforcement officers are permitted to stop any vessel operating on the waterway to conduct what are known as “safety inspections.” These inspections can be done without the operator of the vessel violating any laws or regulations. Officers are permitted to stop the vessel with their lights or sirens on and inspect the vessel to ensure it has the mandatory safety equipment such as life jackets and sound making devices, as well as copies of the required registration and decal. Therefore, what may start initially as a routine safety inspection can quickly switch into a B.U.I. investigation if the officer has reason to believe the operator may be under the influence of alcohol or some other controlled substance. 

What should I do if I'm being investigated for Boating Under the Influence?

Obviously, the safest and smartest advice is to have a designated driver or captain and not to operate a boat or any vessel while under the influence of any alcoholic beverages in the first place. However, if you have been drinking and are in the unfortunate position of being investigated for B.U.I. there are several things you should keep in mind.

First, remember that anything you say and do can and will be used against you in further court proceedings. With technology today it is safe to assume that everything you do or say from the moment you are stopped by law enforcement is being recorded.  You should not make any statements to law enforcement that could be considered admissions to drinking, including how much you drank or when you last drank. It is important to comply with the officer's commands; however, you have the constitutional right to remain silent and not answer any questions that may implicate yourself. 

On that same note if you are requested to perform field sobriety exercises, remember that these are entirely voluntary exercises. You are not required to perform any of these exercises nor can law enforcement force you to perform them. If you have been drinking or consuming a controlled substances, you should be cautious to comply with performing these exercises. Performing divided attention tasks that you have never done before while under the stress and anxiety of being under investigation is never a good combination.

Finally, if you are at the point where you are ultimately arrested for boating under the influence you may be requested to provide a breath sample. You should strongly consider refusing to take the breath test. A breath test result with a reading over 0.08 can be one of the most difficult pieces of evidence to overcome in defending against a charge of B.U.I.  While a $500 fine for refusing to provide a breath test may seem harsh, the mandatory penalties including potential jail time and fines that come with a conviction for boating under the influence are far worse.

What are the penalties for B.U.I.?

The penalties for boating under the influence can vary greatly depending on several different factors. These factors include whether it is a first time offense, if there was a crash involving damage to any other person or property, the offender's breath alcohol level and, in extreme cases, if there was any serious bodily injury or death resulting from the B.U.I.

There are several mandatory minimum penalties that must be imposed for anyone convicted of B.U.I. and some of those include; a mandatory adjudication or conviction, mandatory monthly reporting probation, substance abuse counseling and treatment, mandatory fines, community service hours, and mandatory impound of the vessel. 

Potential jail sentences can range any where from six months in jail for a first offense, and up to thirty years in prison in cases where someone dies as a result of the B.U.I.

If you or a loved one have been charged with a B.U.I., contact us today by clicking the button below.

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The attorneys and staff at Keller, Melchiorre & Walsh are here to help you. If you have been injured or harmed as a result of the actions of others or if you are facing criminal prosecution, don’t wait, call us now.

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