Boating under the influence or boating while intoxicated (BUI / BWI)—Frequently Asked Questions.
What is the penalty for BUI? The crime of Boating Under the Influence (BUI) is a misdemeanor, punishable by a maximum of 90 days in jail and a $1000.00 fine.
What does the prosecution have to prove to convict me of a BUI? To prove this offense, the prosecution must prove, beyond a reasonable doubt, that the person was operating a vessel while under the influence. “Under the influence” means having a breath or blood alcohol test result of 0.08 or higher, or being “affected by” intoxicating liquor, any drug or a combination of the two, to an “appreciable degree.” The BUI law provides that a person arrested for BUI may, upon request, give a breath sample, or may request to have a blood sample taken for analysis. Under the BUI law, the law enforcement officer is to administer field sobriety tests, but only when circumstances permit. Clearly, any sobriety tests performed on a boat on the water could be challenged on the basis that any lack of balance could be attributed to the movement of the boat, rather than the influence of alcohol.
Will I lose my driver’s license if convicted of BUI? No. There is no “implied consent” statute boating under the influence like there is for driving under the influence. Thus, no administrative suspension or revocation of a person’s driver’s license will occur, nor will there be a suspension or revocation of a person’s driver’s due to a boating under the influence criminal conviction.
What if I refused the breath or blood test? Generally, a court has the discretion, under the rules of evidence, to allow the jury to hear evidence that you refused to submit to the breath or blood test. However, if the officer failed to advise you that a refusal may be used against you at trial, there is a strong argument to be made to the court that the refusal should not be used against you at trial.
What if any reduction of the charge is possible for a BUI? Is there a lesser offense? Yes, there is a lesser offense, which is an infraction—similar to a speeding ticket. The chances of having a BUI reduced to a lesser offense depend largely on the evidence, or lack of evidence the prosecutor has to use against you at trial. A BUI conviction is often difficult to obtain. The prosecution has to prove you were operating the vessel, but if there were several people on board and you were not seen operating it, this may be difficult to prove beyond a reasonable doubt. There may be constitutional challenges if your vessel was boarded without reasonable justification or some authority of law. Any field sobriety tests performed in a vessel would be subject to a challenge as well, since the reliability of the results are highly questionable due to the movement of the boat in water. For reasons such as these and others, the prosecution may be willing to reduce a BUI charge to a negligent operation of a vessel. Negligent operation of a vessel is merely an infraction, punishable by a fine of up to $500, but no jail time.
Under what authority can law enforcement board my vessel without permission? In some states, “reasonable suspicion” is likely needed to stop you in a boat. In other states, such searches can be performed by the police without cause. While Washington has not litigated this question with regard to BUI, it is likely safest for you to assume that, unlike your home, the police may stop your boat at any time and inspect the boat for floatation devices and the contents of the boat for illegal activity.
What if someone died as a result of a BUI? If someone died as a result of the operation of any vessel under the influence, the operator may be charged with homicide by watercraft. This is a class A felony offense.
What if someone was injured as a result of a BUI? If someone suffers serious bodily injury caused by operation of a vessel under the influence, the operator may be charged with assault by watercraft. Serious bodily injury means bodily injury that involves a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body. This is a class B felony offense.
What should I do if I was arrested for boating under the influence?
If you received a citation with a mandatory court appearance date, you must appear and you should enter a plea of not guilty. If you were not given a mandatory appearance date, the officer will forward the police report to the prosecutor and you will receive notice (a summons) in the mail indicating the date on which you should appear. In either event, you need to secure the advice of an attorney as soon as possible, so that any evidence in your favor can be preserved, including potential witness testimony, and so that a thorough investigation can begin without delay. More and more, prosecutors are becoming less willing to reduce BUI charges without solid reasons for doing so, including evidentiary problems. A skilled and experience attorney on your side, seasoned in defending such cases and in dealing with the prosecutors who prosecute them, can make all the difference when a criminal conviction is at stake. Ms. Callahan, author of the West publication, The Washington DUI Practice Manual Including Related Offenses, is widely respected by lawyers, judges and prosecutors as an attorney who is knowledgeable and skilled in defending cases involving operating while under the influence. Call today for a free consultation. When it seems as though the world is on your back, we will be at your side.