Boating Under the Influence Defense Attorney in Tampa, Florida

More and more people have been boating lately and therefore the Hillsborough County Sheriff’s Office as well as Florida Fish and Wildlife (FWC) have more patrol units out on the water. Law enforcement is conducting safety boat inspections and are looking for anybody who commits boating violations, including Boating Under the Influence (BUI). BUIs are typically aggressively prosecuted and can lead to mandatory minimum sentences, including probation, possible jail time, fines and even the impoundment of the boat.

What is Boating Under the Influence?

It is not per se illegal to drink alcohol and operate a boat. However, similar to DUI, it is illegal to operate a boat with either a breath or blood alcohol concentration (BAC) of 0.08 or higher or while ones normal faculties are impaired by either drugs or alcohol.

The offense with a 0.08 or higher BAC will be entered in the system as: 327.3512A – BOAT3054 (MF) BOATING UNDER THE INFLUENCE under Florida Statute Section 327.35(1),

while in case of a refusal to submit to a blood, breath or urine test, the charge will be entered as: 327.3521A1 – (IN) BUI REFUSAL TO SUBMIT BREATH OR BLOOD ANALYSIS (CIVIL PENALTY).

Similar to the DUI context, it is illegal for someone under 21 to operate a boat with a BAC of 0.02 or higher.

The Meaning of “Operating a Vessel” in the BUI Context

One of the elements the prosecutor has to prove for a BUI charge is that the defendant was operating a vessel. That leaves the question what does it means to “operate” a vessel? Operating a vessel is defined in Florida Statute 327.02(34) as being “in charge of, in command of, or in actual physical control of a vessel upon the waters of this state, to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.”

It is important to note that based on this definition you can still be “operating” the vessel even if your boat is in the process of being towed as long as you are steering the boat.

BAC Above 0.08

When you are arrested for BUI, the law enforcement officer will ask you to submit to a chemical test of either your breath, blood or urine. It is illegal per se and you are presumed to be under the influence of alcohol if your breath or blood alcohol concentration is 0.08 or higher. Many FWC officers will have a breath test device on board their boat. Just like in DUI cases, the Intoxilyzer 8000 is used for the breath tests. FDLE maintains the records for each breath test instrument used in Florida. An experienced Tampa BUI attorney may be able to help you challenge the validity of the Intoxilyzer 8000 and therefore the validity of the breath test in your case.

Refusal to Submit to Chemical Test

Just like in the DUI context, you are expected to submit to a chemical test of either your breath, blood or urine. If you refuse to submit to a chemical test, you can be fined $500 for a first refusal or you can even face an additional criminal charge for a second or subsequent refusal. The state attorney will most likely use the refusal to submit against you in the Boating Under the Influence case and may use the refusal charge as leverage to get you to enter a plea to BUI.

What Are the Penalties for Boating Under The Influence?

Penalties for a 1st BUI

• Mandatory criminal conviction

• Mandatory 10 day impoundment or immobilization of the boat

• Up to 12 months probation

• Up to 6 months in jail

• Fines of $250 to $500

• Completion of a substance abuse course along with substance abuse evaluation and potential treatment if recommended

• 50 hours of community service

Penalties for 1st BUI With a BAC of 0.20 or above

• Fine of $500 to $1000

• Up to 9 months jail

Penalties For a 2nd BUI

• Mandatory criminal conviction

• Mandatory impoundment or immobilization of the boat

• Up to 12 months of probation

• Up to 9 months in jail

• Fines of $500 to $1000

• Completion of a substance abuse course along with evaluation and treatment

Penalties for 2nd BUI With a BAC of 0.20 or Above

• Fines of $1000 to $2000

• Up to 12 months in jail

Penalties for 2nd BUI Within 5 Years of Prior Conviction

• Mandatory minimum of 10 days in jail (at least 48 hours consecutive)

• 30 day impoundment or immobilization of boat

It is important to note that a first boating under the influence can be enhanced to a 2nd or subsequent offense if the defendant has a prior DUI or other alcohol related offense. A prior BUI can also be used to enhance a DUI to a 2nd or subsequent offense.

Penalties for a 3rd BUI Outside of 10 years

• Mandatory criminal conviction

• Mandatory impoundment or immobilization of the boat

• Up to 12 months of probation

• Up to 12 months in jail

• Fines of $1000 to $2500

• Completion of a substance abuse course along with evaluation and treatment

Penalties for a 3rd BUI With a BAC of 0.20 or Above

• Fines not less than $2000

Penalties for a 3rd BUI Within 10 Years of Prior Conviction

• Mandatory felony conviction

• Mandatory impoundment or immobilization of the boat

• Up to 5 years of probation

• Up to 5 years in prison

• Fines up to $5000

• Completion of a substance abuse course along with evaluation and treatment

Penalties for 3rd BUI With High BAC and Within 10 years

• Mandatory minimum jail time of 30 days up to 5 years

• Mandatory impound of boat of 90 days

Penalties for a 4th or Subsequent BUI

• Mandatory felony conviction

• Mandatory impoundment or immobilization of the boat

• Up to 5 years of probation

• Up to 5 years in prison

• Fines of $5000

• Completion of a substance abuse course along with evaluation and treatment

A 1st BUI causing property damage is considered a 1st degree misdemeanor and punishable by up to 12 months in jail. A BUI causing serious bodily injury, even if it’s a 1st offense, will elevate the charge to a 3rd degree felony and is punishable by up to 5 years in prison.

Boating While Intoxicated - Possible Jail Time

Whether or not you are going to be sentenced to jail time if arrested for BUI, will depend on your prior record as well as the circumstances of the case. If you caused an accident while boating under the influence and maybe even serious bodily injury or even death to another person, you are likely to receive some kind of jail or prison time even if this is your first offense.

If this is your first boating charge but you have one or more prior DUIs on your record, you may face some mandatory minimum jail time. However, Florida law does allow for the jail time to be served in a residential treatment facility. This means that even if you are facing mandatory jail time and have no defense to the charges, an experienced criminal defense attorney may be able to help you avoid incarceration and help you save your employment.

Does a BUI Affect Your Driver’s License?

In Florida an arrest for BUI, does not cause your license to be suspended and will not add any points to your driving record. However, Boating under the Influence can and often will be counted as a prior offense if you happen to be arrested for a DUI in the future. That means that if you are arrested for BUI this year and maybe DUI the following year, you are now facing the enhanced penalties for a 2nd DUI within 5 years, which carries mandatory minimum jail time of 10 days and a 5 year driver’s license suspension, whereas a 1st DUI does not carry any mandatory minimum jail time and only a 6 months to 1 year license suspension. This means that a BUI can possible affect your license in the future. This is why it is so important to fight any drunk boating arrest.

Types of Drunk Boating Offenses

Simple BUI

If you are caught operating your boat while under the influence of drugs or alcohol during a routine safety inspection, for example, you will likely face a simple BUI. This can be either a 1st, 2nd, 3rd, 4th or subsequent offense depending on whether or not you have had any prior BUI or DUI convictions.

BUI With BAC of 0.20 or Higher

This would be the charge if you are caught boating while under the influence and your blood or breath alcohol concentration is 0.20 or higher. In that case you would be facing enhanced penalties.

BUI With a Minor in the Vessel

If you are caught operating your boat while under the influence of alcohol or drugs and you have anyone under the age of 18 in the boat, you are facing a BUI with a Minor in the Vessel and therefore enhanced sanctions.

BUI Causing Property Damage

If you are caught operating a boat under the influence of drugs or alcohol and you either caused or contributed to an accident with property damage, you are guilty of a 1st degree misdemeanor and can be sentenced up to 12 months in jail.

BUI Causing Serious Bodily Injury to Another

If you are caught boating under the influence and you were involved in an accident that caused serious bodily injury to another, you are guilty of a 3rd degree felony and can be sentenced up to 5 years in prison.

BUI Manslaughter

BUI Manslaughter can be charged as either a second degree felony, punishable by up to 15 years in prison or a first degree felony punishable by up to 30 years in prison. The difference between the two charges is whether or not you were aware that an accident occurred. If you were aware that an accident occurred, even if you did not know that anybody was injured or died as a result of the accident, you can be charged with the first degree felony.

Implied Consent in BUI Cases

The so-called Implied Consent provision of Florida law applies to a BUI case the same it would to a DUI case. A person is considered to have given his or her implied consent to be subject to the breath, blood or urine tests requested by law enforcement. If you refuse to comply with the chemical test request in a DUI case, your license will be suspended. In a BUI case, you will face a $500 civil penalty.

BUI - Civil Penalty Provision

If you are stopped by law enforcement on your boat and law enforcement suspects that you are under the influence of alcohol or drugs, they will likely ask you to submit to a chemical test - either a breath, blood or urine test. If you refuse to comply with the request to take the test after a BUI arrest, law enforcement has to read you the implied consent provision. This means they have to tell you that:

• Your refusal to submit to the test will result in a $500 civil penalty

• If you refuse and have been fined for refusing to submit to the test previously, you are committing a misdemeanor

• The refusal to submit to the test is admissible as evidence in a criminal case.

BUI - Civil Penalty Hearing

If you refuse to submit to the chemical test, you have 30 days to request a hearing in order to challenge the imposition of the $500 civil penalty or pay the civil penalty. If you do not request a hearing and fail to pay the civil penalty on time, your privilege to operate a boat will be suspended until you pay the $500 civil penalty.

If you request the hearing, the hearing will take place in the county court in the county where the BUI occurred. The court will then determine whether or not the civil penalty is justified. If the court finds that the civil penalty is justified, you will need to pay the $500 penalty or risk your privilege to operate a boat be suspended. The court can also dismiss the civil penalty, in which case you don’t need to pay the $500 and your privilege to operate a boat will not be suspended.

If you are operating a boat even though you failed to pay the $500 civil penalty and your privilege to operate a boat has been suspended, you are guilty of a 1st degree misdemeanor and can be sentenced up to 12 months in jail.

Defenses for Boating Under the Influence

Similar to DUI here are multiple ways to defend a driving under the influence charge. One way to defend against this charge is to challenge the evidence that the state attorney has against you. If the state is not able to prove every single element against you beyond a reasonable doubt, you are not guilty. Another way to challenge a drunk boating charge is to make sure that the officer did not violate any of your constitutional rights. If your attorney can successfully argue that the officer violated any of your constitutional rights, the court would prevent the state from using certain evidence. In some cases that may lead to a complete dismissal of the charges. Some of the more important defenses for BUI are listed below.

Improper Stop or Detention - 4th Amendment Violation

One important issue to look at in each BUI case are the circumstances surrounding the stop and detention. If the law enforcement officer did not have a sufficient reason to stop you, or if the officer had a valid reason initially but had completed the initial stop but still continued to detain you, the court should exclude any evidence that the law enforcement officer was able to collect because of the improper stop or detention. That typically leaves the state attorney without any evidence to prove that you were under the influence of drugs or alcohol while operating your boat and would lead to an outright dismissal of the charges.

Challenging the Breath / Urine or Blood Test

Another way to potentially beat a BUI charge is by challenging the breath, urine or blood test the officer conducted and prevent the state from using those results against you. The breath test for example is conducted using the Intoxilyzer 8000. This machine has to be maintained on a regular basis. If law enforcement did not follow the proper procedures for the maintenance of that machine, the breath test may be excluded.