BOATING UNDER THE INFLUENCE (BUI)

   Living in Florida provides numerous opportunities to get out on the water, whether it is to go fishing, skiing, or some other activity involving the use of a motorcraft. While it is actually legal to consume alcohol while operating a water vessel, it is not legal to operate a water vessel while under the influence of alcohol. Due to the multiple hazards that are presented when operating a motorcraft, it is important to observe all safety precautions when operating a motorized water vessel.

   Boating Under the Influence (BUI) usually occurs when a police officer, deputy, or wildlife officer arrests an individual on suspicion of BUI. This typically occurs when the operator of the water vessel is operating the vessel erratically, recklessly, or carelessly. As with a charge of Driving Under the Influence (DUI), there are many things that can be done to fight a charge of Boating Under the Influence, or BUI.

   A person will be found guilty of Boating Under the Influence or BUI if that individual is under the influence of alcoholic beverages or a chemical or controlled substance to the extent that their normal faculties are impaired, or have a blood or breath-alcohol level of 0.08 or above.

WHAT ARE THE POSSIBLE PENALTIES FOR
BOATING UNDER THE INFLUENCE (BUI)?

   The charge and general penalties of a conviction for Boating Under the Influence/BUI/BWI is governed by section 327.35 of the Florida Statutes. The following are possible penalties for a conviction of Boating Under the Influence/BUI/BWI under that statute.

   For a first-time offender, the punishment for such a violation is a fine from $500-$1000 and up to 6 months in jail for a first conviction. In addition to the fines and terms of imprisonment, the individual will be required to go on probation for a period of up to 1 year, will be required to attend a substance abuse course for an evaluation and any treatment recommended, will have to perform 50 hours of community service, and the vessel that was being operated while the driver was under the influence will be required to be impounded for a period of 10 days.

   For a second conviction, a person will face a fine from $1,000-$2,000 and up to 9 months in jail for a second conviction. If the second conviction occurs within a period of 5 years after the date of a prior conviction for Boating Under the Influence or BUI, there will be mandatory imprisonment for a period of 10 days. Additionally, as a condition of any probation, the court will order the impoundment or immobilization of the vessel involved or any one vehicle registered in the defendant’s name at the time of impoundment or immobilization, for a period of 30 days or for the unexpired term of any lease or rental agreement that expires within 30 days (though, this impoundment or immobilization can be dismissed if it would cause a hardship to a third party).

   The punishment for a third violation for Boating Under the Influence or BUI is all about the timing. If the third conviction is within 10 years of a prior conviction, that individual commits a felony of the third degree, and the court is required to order imprisonment for a period of not less than 30 days. As a condition of any probation ordered, the court is also required to order impoundment or immobilization of the vessel involved or any one vehicle registered in the defendant’s name for a period of 90 days (also may be dismissed for hardship to third party).

   If the third conviction is outside of 10 years from a prior conviction, the punishment is a fine of not less than $2,000 and not more than $5,000 along with up to 12 months imprisonment.

   If someone commits a fourth violation, regardless of timing, that person has committed a third degree felony. Any fine imposed will not be less than $2,000.

   The above penalties are greater if damage is done to the property or person of another, and are far greater if someone dies as a result of a person operating a vessel under the influence (BUI manslaughter).
 

IMPOUNDMENT OR IMMOBILIZATION OF VESSEL

   At the time of sentencing, the court must issue an order for the impoundment or immobilization of a vessel. Furthermore, within 7 business days of such an order, and again 30 business days before the actual impoundment or immobilization of the vessel, the clerk of the court must send notice by certified mail to the registered owner of the vehicle if the registered owner is a person other than the defendant.

   Any person that owns but was not operating the vessel subject to impoundment or immobilization when the offense occurred may submit to the court a police report that indicates the vessel was stolen at the time of the offense or other documentation showing that the vessel was purchased after the offense was committed from someone other than the defendant or his agent. If the vessel was stolen or the sale was done with proper intentions, the order of impoundment or immobilization will be dismissed. Such a determination is made at an evidentiary hearing, which may be requested by the person that owns the vessel and is asserting such a claim.

   Any person that has not requested a review of the impoundment of the vessel based on the previous paragraph, may, within 10 days after the date that person has knowledge of the location of the vessel, file a complaint in the county in which they reside in order to determine whether the vessel was wrongfully taken or withheld from the owner. When filing the complaint, the owner (or lienholder) may post a bond equal to the amount of costs and fees for impoundment or immobilization to ensure payment of those costs and fees in the event the owner or lienholder loses. The owner or lienholder would thereafter receive a certificate releasing the vessel from the appropriate clerk of court.

   At all times it is encouraged that boaters have a “designated driver” who does not consume alcoholic beverages while out on the water.
 

DOES IMPLIED CONSENT APPLY IN BOATING UNDER THE INFLUENCE (BUI) CASES?

   Many people have heard about the implied consent laws with respect to Driving Under the Influence, or DUI. However, the law of implied consent differs somewhat from that which applies to driving a motor vehicle, so it is important to note that difference.

   Ordinarily, if one is arrested for Driving Under the Influence, you are told that the failure to submit to a breath test will result in the suspension of your driver’s license for a period of one year for a first-time refusal, and a period of 18 months if you have previously refused to submit to a lawful request of a breath test.

   A person that is lawfully arrested for Boating Under the Influence/BUI/BWI, however, is not subjected to a loss of their license for any period whatsoever. Section 327.352, Florida Statutes, states that any person that accepts the privilege of operating a vessel within the state of Florida is deemed to have given his or her consent to the administration of a breath or urine test if law enforcement has reasonable cause to believe that person was operating the vessel within this state while under the influence of alcoholic beverages or some other chemical or controlled substance. In other words, if you operate a boat within the jurisdiction of the state of Florida, you have given your implied consent to a test of your breath or urine when law enforcement has “reasonable cause” to ask for it.

   If a person refuses to submit to such a test, that person must be told that their failure to submit to a test of their breath or urine will result in a civil penalty of $500 for a first-time refusal, and also that if they have previously refused to submit to a lawful breath or urine test, such refusal will constitute a misdemeanor in addition to any other penalties. Without this warning, the State can not use the refusal to administer any penalties at all. Importantly, there is no suspension of any license to operate a motor vehicle or vessel associated with a refusal of any of the above tests.

   Implied consent with respect to blood tests is similar to that associated with Driving Under the Influence in a motor vehicle. An individual is deemed to have given their consent to an approved blood test by operating a vessel within the state of Florida if (1) there is reasonable cause to believe the person was operating a vessel while under the influence of alcoholic beverages or chemical or controlled substances, (2) the person appears for treatment at a hospital, clinic, or other medical facility, and (3) the administration of a breath or urine test is impractical or impossible. A person that is capable of refusal must be told that their failure to submit to such a blood test will result in a fine of $500, and that a refusal, if that person has previously been fined for refusal to submit to such a test, is a misdemeanor in addition to any other penalties. Again, the failure to administer such a warning will preclude the State from seeking any penalties as a result of a refusal.

   There are many requirements that must be met when law enforcement administers a breath, blood, or urine test in order for the State to use the results of that test against you. As a result, it is important to contact an attorney as soon as possible to begin fighting a charge of Boating Under the Influence, or BUI.


WHAT HAPPENS IF SOMEONE REFUSES TO SUBMIT TO A BREATH, BLOOD, OR URINE TEST?

   First of all, the arrest of that individual must be lawful, which is where McDERMOTT LAW FIRM starts in developing your legal defense.

   If the arrest is found to be lawful, a person that refuses to submit to a blood, breath, or urine test as outline above is subject to a civil penalty of $500. However, within 30 days, a hearing can be requested in order to contest the $500 penalty, during which time the payment of that penalty will be delayed. Once a person refuses to submit to a lawful request of their breath, blood, or urine, law enforcement is required to go through certain procedural steps in order for that refusal to be used against them.

   McDERMOTT LAW FIRM will file the request for review on your behalf and ensure that all of the requirements under the law are followed to their fullest extent.


CAN ANYONE BE FORCED TO GIVE BLOOD?

 Only under very specific circumstances that involve a charge of Boating Under the Influence (BUI) that involved a crash causing serious bodily injury or death. If this is the case for you, it is extremely important to contact an attorney to represent your rights immediately.


WHAT IF SOMEONE IS UNDER 21?

 As with Driving Under the Influence (DUI), it is illegal for someone under the age of 21 to operate of drive a vessel with a breath-alcohol level of 0.02 or higher.

   Pursuant to section 327.355, Florida Statutes, when an officer has probable cause to believe that someone under 21 is operating a vessel while under the influence of alcohol or with a breath-alcohol level, the laws of implied consent apply. That officer may then request the individual to submit to a test to determine their breath-alcohol level.

   If someone under 21 refuses such a test, the officer is required to warn that person that failure to take the test will result is the required performance of 50 hours of public service, and that they will not be allowed to lawfully operate a vessel again until those hours have been completed.

   If convicted of Boating Under the Influence, or BUI, a person under 21 is subject to 50 hours of community service, will be precluded from operating a vessel until those hours of community service are complete, and will be required to complete a boating safety course.


HOW CAN McDERMOTT LAW FIRM HELP?

   McDERMOTT LAW FIRM handles BUI, BWI, Drunk Boating and Boating Under the Influence, BUI Manslaugher, and all Vessel or Watercraft related cases including Vessel Homicide. McDERMOTT LAW FIRM prepares extensively for all BUI, BWI, Drunk Boating, and Boating Under the Influence charges. We will also handle any other Watercraft and Water Vessel allegations or charges that may be brought against you whether they result in a BUI/BWI/Boating Under the Influence charge or not.

When you retain McDERMOTT LAW FIRM, we are going to fight from start to finish to put the State to their burden of providing every document and to ensure every procedural step is taken in order for them to bring charges against you. We will maintain communication with the Prosecutor on the case from the very beginning in order to ensure that every avenue is explored in putting on your defense. As previously explained, there are a lot of requirements the State must meet in order to use any of the above tests, or refusal to perform those tests, against you. It is therefore important to hire an attorney that is well versed in what those requirements are, and that knows how to exploit any weakness in the State’s case. McDERMOTT LAW FIRM will not only defend your rights, but will help to guide you through what can be a rather stressful process. Should you be cited for any allegation on the water please contact McDERMOTT LAW FIRM to discuss your case.


 

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