Boating Under Influence


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BUI - Boating under the Influence

BUI - Boating under the Influence

Recently, not only has law enforcement significantly increased their efforts to remove impaired drivers from the roadways; its efforts have increasingly extended to intoxicated boaters on the waterways.

Consequently, those attorneys who have chosen to defend persons accused of driving a motor vehicle while under the influence of alcohol and/or drugs, must understand and prepare themselves with the tools necessary to defend those persons accused of operating a watercraft while under the influence.

This is especially true in many Puget Sound and Eastern Washington counties where boating is extremely popular.

While driving a car after consuming alcohol is increasingly criticized by society, boating and drinking are not only socially acceptable but socially encouraged. Boating is a leisure activity. It is traditionally enjoyed in Washington State. The use of alcohol is traditionally part of the social aspect within this activity.

The Statute

Like DUI, there are different means of committing the crime of Operation of a Vessel While Under the Influence of Intoxicating Liquor (BUI). The operator of a boat vessel is presumed to be under the influence of intoxicating liquor or any drug if:

(a) The person has 0.08 percent of more by weight of alcohol in the person's breath, as shown by analysis of the person's breath made under RCW 46.61.506; or

(b) The person has 0.08 percent of more by weight of alcohol in the person's blood, as shown by analysis of the person's breath made under RCW 46.61.506; or

(c) The person is under the influence of or affected by intoxicating liquor or any drug; or

(d) The person is under the combined influence of or affected by intoxicating liquor and any drug.

BUI Versus DUI: The Nitty Gritty

While it would appear the BUls are just like DUIs, but only on the water, in actuality, there are several differences.


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BUI Versus DUI: The Nitty Gritty

While it would appear the BUIs are just like DUIs, but only on the water, in actuality, there are several differences.

A. Whether The Implied Consent Law Applies

Of greatest import to both the boater and the attorney defending a person accused of BUI is that the Legislature has not associated these charges with Washington's Implied Consent Law. This provides relief for the boater because his or her driver's license will not be subject to a civil hearing in which a DOL hearing officer will summarily suspend a driver's license based solely upon allegations contained in a police report.

B. Civil and/or Coast Guard Hearings

This however, does not mean that all boaters accused of BUI are immune from civil hearings. If local or state law enforcement makes a report of an operator's arrest to the Coast Guard for BUI, it is likely that a civil hearing will be scheduled to determine if a fine is imposed by a federal government. Whereas DOL hearings on DUIs pertain only to one's driving privilege in the State of Washington, Coast Guard Civil Hearings pertain only to the imposition of monetary fines and legal requirements for a vessel. Also, Coast Guard hearing officers are given considerably more latitude in determining the appropriate penalty than their DOL counterparts. Equitable grounds exist for Coast Guard hearing officers whereas equity does not exist for the Department of Licensing purposes.

C. Field Sobriety Testing (FST)

While field sobriety testing creates legal and factual issues in DUIs, FSTs on the water provide the defense attorney with a plethora of legal and factual issues. Yet, the BUI Statute specifically states that an officer shall administer field sobriety tests only when circumstances permit. What that means is an enigma. Rarely, are BUI arrests commenced by routine stops, effectuated without the use of some form of field sobriety testing. For a DUI, field sobriety testing is voluntary, but oftentimes requested in a mandatory manner. When in doubt with a BUI or DUI, you should decline to take FSTs.

While FSTs for DUI are administered under the most strenuous of circumstances imaginable, performance of these tests while on the water, or after spending the better part of the day on the water, create issues limited only by the attorney's imagination. A Coast Guard study suggests that only two of these tests need to be conducted on land; the walk and turn and one leg stand test. Of course, bifurcated FSTs for BUI will certainly create legal issues because one
would need to be detained, removed from their boat, subjected to a series of tests on the water, then transported to land by the police and then subjected to further testing, all prior to arrest. However, whenever a person's freedom is curtailed to the extent associated with a formal arrest, Miranda warnings are required. Consequently, any test administered on land is subject to suppression.

D. Breath Test Refusal

Like driving cases, breath/blood test refusals present the attorney with several challenges. Furthermore, unlike DUIs, where over 90 percent of the time an attorney would advise a driver to take the breath test; boating cases are not as clear-cut. Unlike DUIs, where a refusal will result in greater administrative and criminal sanctions, a refusal following an arrest for BUI could benefit one in the criminal court, and have less adverse consequences in the civil forum.

Breath test refusals in driving cases can have a devastating impact on those accused of DUI. They increase the mandatory jail time, regardless of criminal history. They lengthen the mandatory license suspension imposed by both the court and the Department of Licensing. However, in the BUI context, not only does a refusal have no effect on mandatory penalties, it potentially has no relevance and can be suppressed.


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BUI Versus DUI: The Nitty Gritty Continued

E. Breath and Blood Testing

As mentioned earlier, the Operating a Vessel While Under the Influence of Alcohol Statute specifically states:

It shall be a violation for a person to operate a vessel while under the influence of intoxicating liquor or any drug. A person is considered to be under the influence of intoxicating liquor or any drug if:

(a) The person has 0.08 grams or more of alcohol per 210 liters of breath, as shown by analysis of the person's breath made under RCW 46.61.506; or

(b) The person has 0.08 percent of more by weight of alcohol in the person's blood, as shown by analysis of the person's blood made under RCW 46.61.506; or

(c) The person is under the influence of or affected by intoxicating liquor or any drug; or

(d) The person is under the combined influence of or affected by intoxicating liquor and any drug.

Since all chemical testing for alcohol or drugs accordance with the requirements of RCW 46.61.506, the gamut of challenges available in the DUI context are present in the BUI context too. Consequently, law enforcement must strictly comply with each and every statutory and administrative requirement prior to gaining admission of the test results in court.

A mouth check and at least 15 minutes of direct observation of the subject is required before a test may be administered. All mouth jewelry must be removed. If a subject chooses not to, or for some reason cannot remove the jewelry, he is deemed incapable of providing a sample. Usually, in such circumstances, the Implied Consent Statute will permit an officer to then request a blood test. The authority to request blood in lieu of breath test is derived from the Implied Consent Law and BUIs do not fall under that statute. Consequently, a boater's unwillingness to remove such objects will either invalidate the test or preclude law enforcement from obtaining one.

F. Observation of Accused Person

Experience reveals that the observation period is more challenging in the BUI context than with DUIs. While a driving case often times involves only one investigating officer, who stops, investigates, arrests, and administers the test, most BUI cases involve several police officers. Often, persons are stopped on the waterway by marine patrol. They may be contacted by one officer, administered field tests by another, and then, upon arrest, transported to shore for chemical testing. Breath testing is nearly always administered by another officer so that the marine patrol can get back out on the water to continue with its duties. During certain events, where emphasis patrols are in place, temporary facilities may be set up to handle chemical testing. These facilities constitute literal assembly line breath testing with often one operator conducting all testing. While one test is administered, that the officer may have several people, all of whom he is responsible for directly observing, waiting to take their test. Strict compliance with the statutory and administrative requirements can be very difficult for law enforcement in the marine environment. Accordingly, a pragmatic defense attorney can raise lots of reasonable doubt about the observation requirement's implementation.


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