BOATING UNDER THE INFLUENCE (BUI) DEFENSE IN FLORIDA​

AGGRESSIVE DEFENSE OF BOATING UNDER THE INFLUENCE CHARGES

CRITICAL 2025 UPDATE: Florida's BUI laws have undergone significant changes. Lucy's Law, Trenton's Law, and the Boater Freedom Act have fundamentally altered how BUI cases are investigated, prosecuted, and defended. If you've been charged with BUI, understanding these new laws is crucial to mounting an effective defense.

UNDERSTANDING FLORIDA'S BUI LAWS

Florida takes boating under the influence seriously—and for good reason. Florida consistently ranks among the highest in the nation for boating-related fatalities and alcohol-related boating accidents according to U.S. Department of Transportation statistics.

Under Florida Statute 327.35, it is illegal to operate any vessel while under the influence of alcohol or drugs. You can be convicted of BUI in Florida if:

• You have a blood alcohol concentration (BAC) of 0.08% or higher, OR

• Your normal faculties are impaired by alcohol, drugs (including prescription medications), or any combination thereof

Important: A BAC between 0.05% and 0.08% may also indicate impairment when accompanied by other evidence, though there is no legal presumption of impairment at this level.

What Constitutes a "Vessel" Under Florida Law?

The law defines "vessel" broadly to include virtually all watercraft: motorboats, sailboats, jet skis, kayaks, canoes, barges, airboats, and any other watercraft capable of being used for transportation on water. The only exception is seaplanes while on water.

MAJOR 2025 LAW CHANGES AFFECTING BUI CASES:

Lucy's Law (Effective July 1, 2025)

Named in memory of 17-year-old Luciana "Lucy" Fernandez who tragically died in a 2022 boating accident, Lucy's Law represents the most significant overhaul of Florida's BUI laws in decades:

Driver's License Suspension for BUI Convictions (NEW)

• For the first time ever, a BUI conviction now results in suspension of your driver's license—not just boating privileges

• This aligns BUI penalties with DUI penalties and represents a dramatic escalation in consequences

Enhanced Penalties for Leaving the Scene

• Leaving the scene of a boating accident resulting in death is now a first-degree felony (previously second-degree)

• This carries up to 30 years in prison

Mandatory Minimum Sentences

• BUI manslaughter now carries a 4-year mandatory minimum prison sentence

• Courts have less flexibility in plea negotiations for cases involving death or serious injury

Stricter Reckless Operation Penalties

• Reckless operation causing no injury: First-degree misdemeanor

• Reckless operation causing injury: Third-degree felony

• Reckless operation causing death: Second-degree felony

Trenton's Law (2025)

Named after 18-year-old Trenton Stewart who was killed by an impaired driver with a prior vehicular homicide conviction, Trenton's Law significantly increases penalties:

Refusal to Submit to Testing (MAJOR CHANGE)

• First refusal is now a first-degree misdemeanor (not just a $500 civil penalty)

• This applies to refusal of breath, blood, or urine tests

• Second and subsequent refusals remain first-degree misdemeanors with enhanced penalties

Enhanced Manslaughter Penalties

• If you have a prior conviction for DUI Manslaughter, BUI Manslaughter, Vehicular Homicide, or Vessel Homicide, any new DUI or BUI manslaughter charge is elevated to a first-degree felony

• Maximum sentence increased from 15 to 30 years in prison

Consciousness of Guilt

• Prosecutors now routinely argue that refusal to submit to testing demonstrates "consciousness of guilt"

• This can be used as additional evidence against you in court

The Boater Freedom Act - SB 1388 (Effective July 1, 2025)

This law creates significant new defense opportunities by restricting law enforcement's authority to stop vessels:

No More Random Safety Stops (CRITICAL DEFENSE OPPORTUNITY)

• Officers cannot stop or board your vessel solely to perform safety or marine sanitation equipment inspections

• Officers must have probable cause of a "primary offense" (such as BUI, reckless operation, or another Chapter 327 violation) before initiating a stop

Secondary Offense Designation

• Safety equipment violations and marine sanitation violations are now "secondary offenses"

• These violations can only be cited after a lawful stop for a primary offense

Defense Implications

• If law enforcement stopped your vessel without probable cause of a primary violation, all evidence gathered during that stop may be inadmissible

• This includes field sobriety test results, breathalyzer results, and officer observations

• Many BUI cases can now be challenged and potentially dismissed based on unlawful stops

PENALTIES FOR BUI CONVICTION

Florida's BUI penalties are severe and can have life-altering consequences:

First Offense BUI

• Fine: $500 to $1,000

• Jail: Up to 6 months

• Probation: Up to 1 year (mandatory)

• Community Service: 50 hours (mandatory)

• Vessel Impoundment: 10 days (mandatory)

• Driver's License Suspension: Yes (under Lucy's Law)

• Substance Abuse Course: Mandatory evaluation and treatment

• Boating Safety Course: Mandatory completion

Second Offense BUI

• Fine: $1,000 to $2,000

• Jail: Up to 9 months

• Mandatory Jail: Minimum 10 days if within 5 years of first offense (must be consecutive 48 hours)

• Vessel Impoundment: 30 days (mandatory)

• Driver's License Suspension: Yes (under Lucy's Law)

• All other first-offense requirements apply

Third Offense BUI (Within 10 Years)

• Classification: Third-degree felony

• Prison: Up to 5 years

• Fine: $2,000 to $5,000

• Mandatory Jail: Minimum 30 days (with 48 consecutive hours)

• Vessel Impoundment: 90 days (mandatory)

• Driver's License Suspension: Yes (under Lucy's Law)

Third Offense BUI (More Than 10 Years)

• Classification: Misdemeanor

• Jail: Up to 12 months

• Fine: $2,000 to $5,000

• Vessel Impoundment: 90 days

Fourth or Subsequent BUI (Any Time Frame)

• Classification: Third-degree felony

• Prison: Up to 5 years

• Fine: Minimum $2,000 (no maximum)

• Vessel Impoundment: 90 days

Enhanced Penalties

BAC of 0.15% or Higher OR Minor Passenger Under 18:

• First Offense: $1,000 to $2,000 fine; up to 9 months jail

• Second Offense: $2,000 to $4,000 fine; up to 12 months jail

• Third Offense: Minimum $4,000 fine

BUI Causing Property Damage:

• Classification: First-degree misdemeanor

• Up to 1 year jail and $1,000 fine

BUI Causing Serious Bodily Injury:

• Classification: Third-degree felony

• Up to 5 years prison and $5,000 fine

BUI Manslaughter:

• Classification: Second-degree felony (or first-degree if enhanced under Trenton's Law)

• Prison: 15 years (or up to 30 years if enhanced)

• Mandatory Minimum: 4 years in prison (cannot be waived)

• Fine: Up to $10,000

BUI Manslaughter with Failure to Render Aid:

• Classification: First-degree felony (under Lucy's Law)

• Prison: Up to 30 years

• Mandatory Minimum: 4 years in prison

Additional Consequences

• Criminal Record: A permanent criminal record affecting employment, housing, professional licenses, and educational opportunities

• Prior Conviction Enhancement: Any DUI or BUI conviction counts as a prior for future DUI or BUI offenses in Florida

• Interstate Driver License Compact: BUI convictions may affect your driving privileges in other states

• Increased Insurance Costs: Maritime and auto insurance premiums may increase substantially

• Professional Consequences: Certain professions may be impacted, including maritime careers, commercial driving, and jobs requiring security clearances

KEY DIFFERENCES BETWEEN BUI AND DUI:

1. Law Enforcement Authority to Stop (MAJOR CHANGE IN 2025)

BUI (Before July 1, 2025): Officers could conduct random vessel safety stops without any suspicion of wrongdoing.

BUI (After July 1, 2025 - Boater Freedom Act): Officers must have probable cause of a primary violation before stopping your vessel. Safety equipment checks are now secondary offenses only.

DUI: Officers must have reasonable suspicion of a traffic violation or criminal activity to initiate a traffic stop.

Defense Impact: The Boater Freedom Act now provides BUI defendants with similar Fourth Amendment protections as DUI defendants. Unlawful stops can result in case dismissal.

2. Field Sobriety Testing

BUI:

• Traditional roadside sobriety tests (Walk-and-Turn, One-Leg Stand) are not validated for use on boats

• Officers typically use different exercises: Horizontal Gaze Nystagmus (HGN), Palm Pat, Finger Count, Finger-to-Nose, and Alphabet/Counting exercises

• The pitching and rolling of a boat deck makes balance-based tests inherently unreliable

• "Sea legs" phenomenon can affect balance even for sober boaters

• Environmental factors (sun exposure, dehydration, wind, waves) can mimic signs of impairment

DUI: Standardized Field Sobriety Tests (SFSTs) approved by NHTSA are used, though their reliability can still be challenged.

Defense Opportunity: The lack of validated sobriety tests for boating creates significant opportunities to challenge the officer's determination of impairment.

3. Identifying the Operator

BUI: It can be difficult to determine who was operating the vessel, especially if:

• Multiple people were on board

• The officer did not witness the operation

• People switched positions before the stop

• The vessel was found unattended or drifting

DUI: Usually clear who was driving the vehicle, especially in traffic stops.

Defense Opportunity: Challenging operator identification is a common and often successful defense strategy in BUI cases.

4. Open Container Laws

BUI:

• Passengers may legally consume alcohol on a vessel

• Only the operator must remain unimpaired

• No "open container" prohibition on boats

DUI: Open containers of alcohol in the vehicle are generally prohibited and can result in separate charges.

5. Penalties for Test Refusal

BUI (Under Trenton's Law):

• First Refusal: First-degree misdemeanor charge + $500 civil penalty

• Subsequent Refusals: First-degree misdemeanor

• NO driver's license suspension for the refusal itself (though conviction will suspend license under Lucy's Law)

DUI:

• First Refusal: 1-year driver's license suspension (administrative)

• Second Refusal: 18-month suspension + first-degree misdemeanor charge

6. License Requirements

BUI:

• You do not need a license to operate most recreational vessels in Florida

• Boating safety education required for persons born on or after January 1, 1988

DUI:

• Valid driver's license required to operate a motor vehicle

7. Driver's License Consequences (NEW UNDER LUCY'S LAW)

BUI:

• As of July 1, 2025, BUI convictions now result in driver's license suspension

• This is a dramatic change aligning BUI with DUI consequences

DUI:

• Always resulted in driver's license suspension

CHALLENGING YOUR BUI CASE: EFFECTIVE DEFENSE STRATEGIES

1. Challenging the Legality of the Stop (POST-BOATER FREEDOM ACT)

Most Powerful Defense Since July 2025:

Under the Boater Freedom Act, officers must have probable cause of a primary offense before stopping your vessel. We can challenge:

• Lack of Probable Cause: Did the officer have a legitimate reason to believe a primary violation (like BUI) was occurring?

• Pretextual Stops: Was the stop really about a primary violation, or did the officer use it as a pretext for a safety inspection?

• Invalid Safety Stops: Did the officer stop you solely for safety equipment inspection without any primary violation?

If the stop was illegal, ALL evidence obtained must be suppressed, potentially resulting in dismissal of all charges.

2. Challenging Impairment Determination

Environmental and Physical Factors:

• Sun exposure causing dehydration, fatigue, and disorientation

• Seasickness or motion sickness symptoms mimicking intoxication

• "Sea legs" affecting balance and coordination

• Wind and wave action impacting stability

• Engine noise causing disorientation

• Glare from water affecting eyes (red, watery appearance)

• Sunburn causing flushed appearance

• Fatigue from physical activity (swimming, water sports)

• Medical conditions (inner ear problems, arthritis, past injuries)

Field Sobriety Test Reliability:

• No field sobriety tests have been validated for use on boats

• Boat deck movement makes balance tests inherently unreliable

• Officer's subjective interpretation is highly challengeable

• Video evidence often contradicts officer's testimony

3. Challenging Breathalyzer Results

• Maintenance and Calibration: Were proper maintenance records kept? Was the device properly calibrated?

• Operator Certification: Was the officer properly trained and certified?

• Observation Period: Was a proper 20-minute observation period maintained?

• Mouth Alcohol: Could residual alcohol in the mouth have affected results?

• Medical Conditions: GERD, diabetes, or other conditions affecting results

• Radio Frequency Interference: Marine radios and equipment can interfere with breath testing devices

• Salt Air and Moisture: Marine environment can affect device accuracy

4. Challenging Operator Identity

• Were you actually operating the vessel?

• Did the officer personally witness you operating?

• Were there other people on board who could have been operating?

• Is there physical evidence proving who was operating?

• Are witness statements consistent and credible?

5. Constitutional Violations

• Fourth Amendment: Illegal search and seizure

• Fifth Amendment: Failure to provide Miranda warnings before custodial interrogation

• Fourteenth Amendment: Due process violations

6. Challenging Blood Test Results

• Chain of Custody: Can the state prove continuous possession of the sample?

• Consent or Warrant: Was there valid consent or a proper warrant?

• Qualified Personnel: Was the blood drawn by authorized medical personnel?

• Contamination: Was the sample properly stored and handled?

• Lab Procedures: Were proper testing protocols followed?

• Fermentation: Did the sample undergo fermentation in storage?

7. Alternative Explanations

• Lack of familiarity with boat operation

• Crowded waterways requiring evasive maneuvers

• Avoiding swimmers, other boats, or obstacles

• Equipment malfunction (steering, throttle)

• Weather conditions (wind, current, waves)

• Inexperienced passengers affecting boat balance

8. Accident Reconstruction

For BUI cases involving accidents:

• Independent accident reconstruction expert testimony

• Challenging the state's version of events

• Proving alternative causes (equipment failure, environmental factors)

• Demonstrating lack of impairment despite accident

9. Rising BAC Defense

• Were you tested long after you stopped operating the vessel?

• Was your BAC still rising when tested?

• Could you have been under 0.08% while actually operating?

• Expert testimony on alcohol absorption and elimination rates

10. Discovery Violations and Brady Material

• Brady Violations: Failure to disclose exculpatory evidence

• Incomplete Discovery: Missing police reports, videos, witness statements

• Destruction of Evidence: Loss or destruction of potentially favorable evidence

WHY YOU NEED AN EXPERIENCED BUI DEFENSE ATTORNEY:

The Stakes Have Never Been Higher!

With Lucy's Law, Trenton's Law, and the Boater Freedom Act all taking effect in 2025, Florida's BUI legal landscape has fundamentally changed. These new laws create both:

• Increased Risks: Harsher penalties, driver's license suspension, and criminal charges for test refusal

• New Defense Opportunities: Restrictions on vessel stops create powerful suppression arguments

What Makes BUI Defense Different

BUI cases are significantly more complex than DUI cases:

1. Technical Expertise Required: Understanding maritime law, vessel operation, environmental factors, and the unique challenges of waterborne investigations

2. New Legal Landscape: The 2025 laws are untested in court. You need an attorney who understands how to apply these new laws to your advantage

3. Challenging Stops Under Boater Freedom Act: This requires sophisticated Fourth Amendment litigation and understanding of probable cause standards

4. Scientific Evidence: Challenging breath, blood, and field sobriety testing requires understanding of forensic science and marine environmental factors

5. Accident Cases: Often require expert witnesses in accident reconstruction, biomechanics, and maritime operations

Our Approach

At the Law Offices of Alan S. Bernstein, P.A., we provide:

Immediate Action:

• Comprehensive case evaluation within 24-48 hours

• Preservation of critical evidence (GPS data, vessel data, witness information)

• Strategic advice on administrative proceedings

Thorough Investigation:

• Independent accident reconstruction when needed

• Expert witness consultation

• Detailed review of all police reports, videos, and evidence

• Examination of officer training and certification

• Analysis of testing equipment maintenance and calibration

Aggressive Litigation:

• Motion to Suppress Evidence: Challenging illegal stops under the Boater Freedom Act

• Motion to Dismiss: Attacking insufficient evidence or procedural defects

• Motion to Exclude Evidence: Challenging unreliable field sobriety tests, breathalyzer results, and blood tests

• Discovery Motions: Compelling production of all evidence, including Brady material

Strategic Negotiation:

• Pursuit of reduced charges (Reckless Operation, Moving Violation)

• Alternative sentencing options

• Diversion programs where available

• Protecting your driver's license

Trial Preparation:

• Comprehensive witness preparation

• Expert witness testimony

• Demonstrative evidence and exhibits

• Cross-examination strategies for law enforcement witnesses

FREQUENTLY ASKED QUESTIONS

Q: Will I lose my driver's license for a BUI?

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A: YES. As of July 1, 2025, under Lucy's Law, a BUI conviction results in suspension of your driver's license, not just your boating privileges. This is a major change from prior law.

​

Q: Can I refuse a breath test?

A: You can refuse, but under Trenton's Law, refusal is now a first-degree misdemeanor criminal charge (up to 1 year in jail and $1,000 fine), plus a $500 civil penalty. Prosecutors will also use your refusal as evidence of "consciousness of guilt."

​

Q: Can officers stop my boat randomly?

A: NO. As of July 1, 2025, under the Boater Freedom Act, officers cannot conduct random safety stops. They must have probable cause of a primary violation (like BUI or reckless operation) before stopping your vessel. This creates significant new defense opportunities.

​

Q: Are the field sobriety tests on a boat reliable?

A: NO. There are no field sobriety tests that have been validated for use in boating situations. The unstable platform of a boat deck, combined with environmental factors and "sea legs," makes these tests inherently unreliable. This is a strong defense point.

​

Q: Can passengers drink alcohol on a boat?

A: YES. Unlike in vehicles, passengers may legally consume alcohol on boats in Florida. Only the operator must remain unimpaired.

​

Q: Do I need a lawyer if this is my first offense?

A: ABSOLUTELY. Even a first offense can result in:

• Criminal conviction on your permanent record

• Loss of your driver's license (under Lucy's Law)

• Up to 6 months in jail

• Up to $1,000 in fines

• Mandatory substance abuse treatment

• 50 hours community service

• 10-day vessel impoundment

• Employment and housing consequences

An experienced BUI attorney can often get charges reduced or dismissed, protecting your future.

​

Q: Will a BUI affect a future DUI case?

A: YES. Any BUI conviction counts as a prior conviction for enhancement purposes in a future DUI case, and vice versa. The penalties for second and subsequent offenses are significantly harsher.

​

Q: How long do I have to contest my case?

A: Time is critical. Evidence must be preserved, witnesses must be interviewed while memories are fresh, and strategic decisions must be made immediately. Contact an attorney within 24-48 hours of arrest.

​

Q: What if I wasn't actually driving the boat?

A: This is a common and often successful defense. The state must prove beyond a reasonable doubt that you were operating the vessel. If there were other people on board or if the officer didn't personally witness you operating, this creates reasonable doubt.

​

Q: What if the stop was just for a "safety check"?

A: This is now an illegal stop under the Boater Freedom Act (effective July 1, 2025). Officers cannot stop vessels solely for safety equipment inspections. If your stop was illegal, all evidence must be suppressed, potentially resulting in dismissal.

WHAT TO DO IF YOU'RE STOPPED FOR BUI

During the Stop

1. Remain Calm and Courteous: Your behavior will be noted in the officer's report

2. Provide Required Documentation:

   • Vessel registration

   • Personal identification

   • Required safety equipment when asked

3. Exercise Your Rights:

   • You have the right to remain silent

   • You are NOT required to answer questions about alcohol consumption

   • You are NOT required to perform field sobriety tests

   • Politely decline: "I'd prefer not to answer questions or perform tests without my attorney present"

4. Do NOT:

   • Admit to drinking or drug use

   • Estimate how much you've had to drink

   • Make any statements about where you've been or what you've been doing

   • Consent to searches beyond what's required by law

   • Argue with officers or become hostile

5. Document Everything:

   • Mental notes of conditions (waves, wind, sun exposure, time of day)

   • Names and contact information of any witnesses

   • Any physical issues you have (injuries, medical conditions, fatigue)

After Arrest

1. Contact an Attorney Immediately: Call (954) 925-3111 or (954) 347-1000 (evenings/weekends)

2. Preserve Evidence:

   • Do not delete photos, videos, or GPS data from your phone

   • Write down everything you remember while it's fresh

   • Get contact information for all passengers and witnesses

3. Do NOT:

   • Discuss your case with anyone except your attorney

   • Post about your case on social media

   • Contact the alleged victim(s) in accident cases

   • Destroy or alter any evidence

4. Follow All Court Requirements: Failure to appear can result in additional charges and warrant for your arrest

THE FLORIDA BUI STATUTE - SECTION 327.35

[The complete statute text follows, but has been reviewed for accuracy against the 2025 amendments]

Summary of Key Statutory Elements:

Subsection (1) - Defines the offense: Operating a vessel with:

• BAC of 0.08% or higher (blood or breath), OR

• Normal faculties impaired by alcohol or drugs

Subsection (2) - Basic penalties for first and second offenses (misdemeanors)

Subsection (2)(b) - Third and subsequent offenses (felonies)

Subsection (3) - Enhanced penalties for BUI causing property damage, injury, or death

Subsection (4) - Enhanced penalties for BAC of 0.15% or higher, or minor passenger

Subsection (5) - Mandatory substance abuse evaluation and treatment

Subsection (6) - Mandatory probation, community service, and vessel impoundment requirements

Subsection (7) - Civil liability not barred by criminal conviction

Subsection (8) - Release conditions (must be sober or 8 hours must pass)

Subsection (9) - Additional $60 fine for Brain and Spinal Cord Injury Program Trust Fund

Subsection (10) - Legislative intent encouraging "designated drivers" for boaters

TIME IS CRITICAL - CONTACT US TODAY

If you or someone you know has been charged with BUI in Broward, Miami-Dade, Palm Beach, Hendry, or Glades counties, your freedom, driver's license, and future are at stake.

The 2025 law changes make experienced legal representation more critical than ever:

• Driver's license suspension under Lucy's Law

• Criminal charges for test refusal under Trenton's Law

• New defense opportunities under the Boater Freedom Act

• 4-year mandatory minimums for BUI manslaughter

• Enhanced felony penalties for repeat offenders

Don't face these charges alone. Don't plead guilty without first exploring all your options.

Contact the Law Offices of Alan S. Bernstein, P.A.

 Office: (954) 925-3111
Evenings & Weekends: (954) 347-1000
Email: alanbernsteinlaw@gmail.com

Free Consultation Available

We have the experience, training, and aggressive approach necessary to:

• Challenge unlawful vessel stops under the Boater Freedom Act

• Suppress unreliable evidence

• Expose weaknesses in the state's case

• Negotiate favorable resolutions

• Win at trial when necessary

Your defense starts now. Every day matters. Call us today.

OUR COMMITMENT TO YOU

When your future and freedom are at stake, you need more than just a lawyer—you need a dedicated advocate who understands:

✓ The complexities of maritime law
✓ The 2025 law changes and how to use them to your advantage
✓ The science behind breath and blood testing
✓ How to challenge field sobriety tests on water
✓ The unique environmental factors affecting BUI cases
✓ How to protect your driver's license under Lucy's Law
✓ Effective suppression arguments under the Boater Freedom Act

We fight every angle possible to get your BUI case dismissed or reduced to avoid harsh sanctions.

Don't let a day on the water ruin your life. Contact us today for aggressive, experienced BUI defense.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

 

Law Offices of Alan S. Bernstein, P.A.
2131 Hollywood Blvd, Suite 201
Hollywood, FL 33020

Also serving West Palm Beach by appointment*