BOATING UNDER THE INFLUENCE (BUI)

AGGRESSIVE DEFENSE OF BOATING UNDER THE INFLUENCE (BUI)

Florida Boating Under the Influence (“BUI”) cases are treated seriously, in part, because Florida unfortunately leads the nation in the yearly number of boating deaths. Florida also has the second highest “alcohol” related boating accidents in the country based upon the U.S. Department of Transportation statistics.

Florida’s laws against boating while impaired by alcohol or other drugs are as strict as those for driving a vehicle while impaired. Florida law prohibits anyone from boating under the influence (BUI). That is, it is illegal to operate any vessel or to manipulate any water skis, sailboard, or similar device while intoxicated by alcohol or any combination of alcohol, a controlled substance, or drugs.

Florida law states that a person is considered to be “under the influence” if he or she has a blood alcohol concentration of 0.08 or higher, or is under the influence of alcohol and/or drugs to a degree which impairs his or her normal abilities. A blood alcohol concentration of 0.05 to 0.08 also may indicate a person is “under the influence” if accompanied by other competent evidence. (But there will be no presumption of impairment with a 0.05 to 0.08 as there is when over 0.08)

What should I do if I have been charged with BUI?

The first thing to remember is that you should never plead guilty to a BUI without first speaking to an highly trained, and experienced South Florida DUI/BUI lawyer. You only have a limited amount of time to hire a DUI/BUI attorney in South Florida, so it is imperative that you take immediate action. The law offices of Alan S. Bernstein P.A. has the requisite experience and training to help you fight your BUI and will work every angle possible to get your BUI case dismissed or reduced to a lesser charge to avoid harsh sanctions.

Law enforcement officers that make BUI arrests often have to make extremely difficult judgment calls when deciding whether the operator of the boat is under the influence of alcohol or drugs. Even the most experienced officers can make mistakes. While it is illegal to drive a motor vehicle while drinking, it is not illegal to operate a boat while drinking. It is also easy for officers to mistakenly overestimate the boat operator’s impairment due to their erratic boat driving since erratic boat driving can be caused by other factors such as other boaters, swimmers, or lack of familiarity with driving a boat.

In addition, a boat operator’s impairment may be intensified due to marine factors or weather conditions such as wind, choppy waters, fog, engine noise, or even sea salt.

If you have been flagged down as part of a BUI sweep or stopped for any other reason, remember that there are other factors that can complicate the officer’s opinion and mistaken decision to arrest you. Many times an officer will evaluate your physical condition and behavior to determine whether you are intoxicated. If you have spent a long day in the sun and on the water, chances are you may appear to the officer as being under the influence. Your red eyes, wobbly gait, and lightheadedness from dehydration can all be mistaken for alcohol consumption.

In fact, there are no field sobriety tests which have ever been validated for use in boating situations. The pitching and rolling of a boat's deck, and a boater's "sea legs" may prevent any accepted test from being more useful than the officer's educated guess about the sobriety of the boater.

BOATING UNDER THE INFLUENCE (BUI) PENALTIES

As Florida leads the nation in boat related fatalities, the punishments for being convicted of a BUI in Florida are harsh. The penalties for a BUI offender in Florida are as follows:

- Fines from $500 to $4,000

- Possible jail sentence

- Mandatory substance abuse education, evaluation and treatment.

- Mandatory 50 hours community service.

- Mandatory boating safety course.

- Impoundment or immobilization of your vessel for 10 days

- Suspension of boating privileges

BUI penalties are more severe if they also include any of the following:

A blood alcohol content (BAC) OF 0.15 or greater.
BUI with children or people under age 18 aboard.
BUI causing serious bodily injury or property damage.
BUI manslaughter.
Repeat BUI or DUI offender.

Any Florida BUI incident that caused serious injury or fatality could mean a prison sentence of up to 15 years. With an aggressive, experienced and skilled BUI Florida lawyer you can fight the charges against you. Contrary to what you may think, proving someone was boating under the influence is more difficult than proving someone was driving under the influence due to the nature of boating and the issue of proving who was actually driving. Unlike a DUI, you do not lose your driver’s license, but your boating privileges can be suspended.

For purposes of enhancement of criminal penalties and administrative driver license suspensions in a subsequent Florida DUI case, BUI counts as a prior conviction for driving under the influence (DUI). Likewise, if you have been previously convicted of DUI, your BUI sentence can be enhanced.

If you are facing the possibility of having your boating privileges revoked, fees, penalties and possible jail time, or if someone you know has been charged with a BUI in the counties of Broward, Dade, Palm Beach, Hendry or Glades, you need to speak to an experienced aggressive and highly skilled South Florida DUI/BUI criminal defense lawyer. Contact Alan S. Bernstein P.A. when your future and freedom are at stake, by email or by calling our office at (954) 925-311 or at (954) 347-1000 on nights and weekends

Enforcement of BUI Laws

Law enforcement officers with the Coast Guard, the Florida Fish and Wildlife Conservation Commission, sheriff’s deputies of the various counties in Florida, and any other authorized law enforcement officer, have the authority to enforce boating safety laws, and cause an inspection of a vessel.

A law enforcement officer may stop any vessel for the purpose of checking for compliance with boating safety equipment requirements, whether it is documented, numbered or unnumbered. Law enforcement agencies have the right to conduct a stop of the boat for the purpose of investigating whether the operator is under the influence of alcohol or drugs. They can stop a boat for random inspection related to an equipment check, fishing compliance or safety registration. This is unlike a DUI where the officer needs probable cause to stop the vehicle if he or she believes you have committed a traffic infraction, or reasonable suspicion to believe you have committed a criminal act or that you are ill.

WHAT IS THE DIFFERENCE BETWEEN A DUI AND BUI IN FLORIDA?

Probable Cause Requirement for stop Car/Vessel

As stated above, a law enforcement officer may stop any vessel for the purpose of checking for compliance with boating safety equipment requirements, whether it is documented, numbered or unnumbered. Law enforcement agencies have the right to conduct a stop of the boat for the purpose of investigating whether the operator is under the influence of alcohol or drugs. They can stop a boat for random inspection related to an equipment check, fishing compliance or safety registration. This is unlike a DUI where the officer only needs probable cause to stop the vehicle if he or she believes you have committed a traffic infraction, or reasonable suspicion to believe you have committed a criminal act or that you are ill.

Type of “Roadside” Sobriety Tests Used

Law enforcement officers often use different “roadside” sobriety tests for BUI than they do for DUI. Given the conditions of the boat, on the open water, and the weather, it would be unfair for police officers to ask individuals to perform the traditional roadside sobriety tests such as the One Leg Stand, the Walk and Turn, or the Finger to Nose, or the Stand and Balance tests while on an unsteady, rocking boat. They often have the person to the finger touch, and palm pat test and a finger to nose with a different standard of clues to look for regarding impairment.

Who is the operator of the Boat vs. Vehicle?

Unlike a motor vehicle, a boat can be operated without a driver. Unlike a BUI, it is usually very easy to tell who is driving with a DUI. (unless it is an accident and no one may identify the driver of a car) However, when it comes to Boating Under the Influence, it can be a little more difficult to determine who is operating the boat. What if there are more than one person on the boat and the officer did not see who was behind the “wheel”?

Penalties for Refusing a breath or Urine Test

If you are arrested for a DUI and refuse to submit to a blood, breath or urine test to measure your blood alcohol content, your driver’s license will be suspended for one year (provided that this is your first refusal). For second and subsequent refusals, your driver’s license will be suspended for 18 months and you will be charged with a first degree misdemeanor. You do not need a license to operate a vessel; as such, if you are arrested for a BUI and refuse to submit to a blood, breath or urine test to measure your blood alcohol content, you will be required to pay a $500 fine. For your second and subsequent refusals, you will be charged with a first degree misdemeanor—just like you would with second and subsequent refusals for a DUI.

327.35 Boating under the influence; penalties; “designated drivers”.

(1) A person is guilty of the offense of boating under the influence and is subject to punishment as provided in subsection (2) if the person is operating a vessel within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired;

(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or

(2)(a) Except as provided in paragraph (b), subsection (3), or subsection (4), any person who is convicted of a violation of subsection (1) shall be punished:

1. By a fine of:

a. Not less than $500 or more than $1,000 for a first conviction.

b. Not less than $1,000 or more than $2,000 for a second conviction; and

2. By imprisonment for:

a. Not more than 6 months for a first conviction.

b. Not more than 9 months for a second conviction.

(b)1. Any person who is convicted of a third violation of this section for an offense that occurs within 10 years after a prior conviction for a violation of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

2. Any person who is convicted of a third violation of this section for an offense that occurs more than 10 years after the date of a prior conviction for a violation of this section shall be punished by a fine of not less than $2,000 or more than $5,000 and by imprisonment for not more than 12 months.

3. Any person who is convicted of a fourth or subsequent violation of this section, regardless of when any prior conviction for a violation of this section occurred, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.However, the fine imposed for such fourth or subsequent violation may not be less than $2,000.

(3) Any person:

(a) Who is in violation of subsection (1);

(b) Who operates a vessel; and

1. Damage to the property or person of another commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

2. Serious bodily injury to another, as defined in s. 327.353, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

3. The death of any human being commits BUI manslaughter, and commits:

a. A felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.b. A felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if:

(I) At the time of the accident, the person knew, or should have known, that the accident occurred; and

(II) The person failed to give information and render aid as required by s. 327.30.This sub-subparagraph does not require that the person knew that the accident resulted in injury or death.

(4) Any person who is convicted of a violation of subsection (1) and who has a blood-alcohol level or breath-alcohol level of 0.15 or higher, or any person who is convicted of a violation of subsection (1) and who at the time of the offense was accompanied in the vessel by a person under the age of 18 years, shall be punished:

(a) By a fine of:1. Not less than $1,000 or more than $2,000 for a first conviction.2. Not less than $2,000 or more than $4,000 for a second conviction.3. Not less than $4,000 for a third or subsequent conviction.

(b) By imprisonment for:1. Not more than 9 months for a first conviction.2. Not more than 12 months for a second conviction.

For the purposes of this subsection, only the instant offense is required to be a violation of subsection (1) by a person who has a blood-alcohol level or breath-alcohol level of 0.15 or higher.

(5) In addition to any sentence or fine, the court shall place any offender convicted of violating this section on monthly reporting probation and shall require attendance at a substance abuse course specified by the court; and the agency conducting the course may refer the offender to an authorized service provider for substance abuse evaluation and treatment, in addition to any sentence or fine imposed under this section. The offender shall assume reasonable costs for such education, evaluation, and treatment, with completion of all such education, evaluation, and treatment being a condition of reporting probation. Treatment resulting from a psychosocial evaluation may not be waived without a supporting psychosocial evaluation conducted by an agency appointed by the court and with access to the original evaluation. The offender shall bear the cost of this procedure. The term “substance abuse” means the abuse of alcohol or any substance named or described in Schedules I-V of s. 893.03.

(6) With respect to any person convicted of a violation of subsection (1), regardless of any other penalty imposed:

(a) For the first conviction, the court shall place the defendant on probation for a period not to exceed 1 year and, as a condition of such probation, shall order the defendant to participate in public service or a community work project for a minimum of 50 hours. The court must also, as a condition of probation, order the impoundment or immobilization of the vessel that was operated by or in the actual control of the defendant or any one vehicle registered in the defendant's name at the time of impoundment or immobilization, for a period of 10 days or for the unexpired term of any lease or rental agreement that expires within 10 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant. The impoundment or immobilization order may be dismissed in accordance with paragraph (e) or paragraph (f). The total period of probation and incarceration may not exceed 1 year.

(b) For the second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 10 days. The court must also, as a condition of probation, order the impoundment or immobilization of the vessel that was operated by or in the actual control of the defendant 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. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant. The impoundment or immobilization order may be dismissed in accordance with paragraph (e) or paragraph (f). At least 48 hours of confinement must be consecutive.

(c) For the third or subsequent conviction for an offense that occurs within a period of 10 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 30 days. The court must also, as a condition of probation, order the impoundment or immobilization of the vessel that was operated by or in the actual control of the defendant or any one vehicle registered in the defendant's name at the time of impoundment or immobilization, for a period of 90 days or for the unexpired term of any lease or rental agreement that expires within 90 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant. The impoundment or immobilization order may be dismissed in accordance with paragraph (e) or paragraph (f). At least 48 hours of confinement must be consecutive.

(d) The court must at the time of sentencing the defendant issue an order for the impoundment or immobilization of a vessel. Within 7 business days after the date that the court issues the order of impoundment, and once again 30 business days before the actual impoundment or immobilization of the vessel, the clerk of the court must send notice by certified mail, return receipt requested, to the registered owner of each vessel, if the registered owner is a person other than the defendant, and to each person of record claiming a lien against the vessel.

(e) A person who owns but was not operating the vessel when the offense occurred may submit to the court a police report indicating that the vessel was stolen at the time of the offense or documentation of having purchased the vessel after the offense was committed from an entity other than the defendant or the defendant's agent. If the court finds that the vessel was stolen or that the sale was not made to circumvent the order and allow the defendant continued access to the vessel, the order must be dismissed and the owner of the vessel will incur no costs. If the court denies the request to dismiss the order of impoundment or immobilization, the petitioner may request an evidentiary hearing.

(f) A person who owns but was not operating the vessel when the offense occurred, and whose vessel was stolen or who purchased the vessel after the offense was committed directly from the defendant or the defendant's agent, may request an evidentiary hearing to determine whether the impoundment or immobilization should occur. If the court finds that either the vessel was stolen or the purchase was made without knowledge of the offense, that the purchaser had no relationship to the defendant other than through the transaction, and that such purchase would not circumvent the order and allow the defendant continued access to the vessel, the order must be dismissed and the owner of the vessel will incur no costs.

(g) All costs and fees for the impoundment or immobilization, including the cost of notification, must be paid by the owner of the vessel or, if the vessel is leased or rented, by the person leasing or renting the vessel, unless the impoundment or immobilization order is dismissed.

(h) The person who owns a vessel that is impounded or immobilized under this paragraph, or a person who has a lien of record against such a vessel and who has not requested a review of the impoundment pursuant to paragraph (e) or paragraph (f), 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 the owner resides to determine whether the vessel was wrongfully taken or withheld from the owner or lienholder. Upon the filing of a complaint, the owner or lienholder may have the vessel released by posting with the court a bond or other adequate security equal to the amount of the costs and fees for impoundment or immobilization, including towing or storage, to ensure the payment of the costs and fees if the owner or lienholder does not prevail. When the bond is posted and the fee is paid as set forth in s. 28.24, the clerk of the court shall issue a certificate releasing the vessel. At the time of release, after reasonable inspection, the owner or lienholder must give a receipt to the towing or storage company indicating any loss or damage to the vessel or to the contents of the vessel.

(i) A defendant, in the court's discretion, may be required to serve all or any portion of a term of imprisonment to which the defendant has been sentenced pursuant to this section in a residential alcoholism treatment program or a residential drug abuse treatment program. Any time spent in such a program must be credited by the court toward the term of imprisonment.For the purposes of this section, any conviction for a violation of s. 316.193, a previous conviction for the violation of former s. 316.1931, former s. 860.01, or former s. 316.028, or a previous conviction outside this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, driving with an unlawful breath-alcohol level, or any other similar alcohol-related or drug-related traffic offense, is also considered a previous conviction for violation of this section.

(7) A conviction under this section does not bar any civil suit for damages against the person so convicted.

(8) A person who is arrested for a violation of this section may not be released from custody:

(a) Until the person is no longer under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893 and affected to the extent that his or her normal faculties are impaired;

(b) Until the person's blood-alcohol level or breath-alcohol level is less than 0.05; or

(9) Notwithstanding any other provision of this section, for any person convicted of a violation of subsection (1), in addition to the fines set forth in subsections (2) and (4), an additional fine of $60 shall be assessed and collected in the same manner as the fines set forth in subsections (2) and (4). All fines collected under this subsection shall be remitted by the clerk of the court to the Department of Revenue for deposit into the Brain and Spinal Cord Injury Program Trust Fund and used for the purposes set forth in s. 381.79, after 5 percent is deducted therefrom by the clerk of the court for administrative costs.

(10) It is the intent of the Legislature to encourage boaters to have a “designated driver” who does not consume alcoholic beverages.

History.—s. 2, ch. 59-400; s. 5, ch. 63-105; s. 1, ch. 65-361; s. 1, ch. 71-81; s. 22, ch. 73-331; s. 5, ch. 83-187; s. 7, ch. 84-188; s. 7, ch. 91-255; s. 8, ch. 93-124; s. 456, ch. 95-148; s. 19, ch. 96-330; s. 98, ch. 97-264; s. 49, ch. 97-271; s. 10, ch. 98-308; s. 14, ch. 98-324; s. 47, ch. 2000-152; s. 11, ch. 2000-320; s. 28, ch. 2001-122; s. 4, ch. 2002-78; s. 6, ch. 2002-263; s. 35, ch. 2008-111; s. 7, ch. 2009-86; s. 6, ch. 2010-161.Note.—Former s. 371.51.

If you are facing the possibility of having your boating privileges revoked, fees, penalties and possible jail time, or if someone you know has been charged with a BUI in the counties of Broward, Dade, Palm Beach, Hendry or Glades, you need to speak to an experienced aggressive and skilled South Florida DUI/BUI criminal defense lawyer. Contact Alan S. Bernstein P.A. for a free consultation when your future and freedom are at stake, by email or by calling our office at

(954) 925-311 or at (954) 347-1000 on nights and weekends.