With temperatures soaring to unseasonably warm highs, people will be flocking to Florida’s waterways to enjoy some time on their boats. The recreational boating industry in Florida could experience a tremendous boon to their bottom line when people can finally break free from the winter cold and virus season and begin enjoying the outdoors, especially on the water.
Recreational boating and consumption of alcohol seem to go hand-in-hand. The idea of being on the water, with the sun beating down and a gentle breeze blowing through one’s hair at the helm of a vessel while downing a couple of beers, seems like a perfect afternoon to many. If you plan on drinking while on the boat, it is best not to take control of the vessel. An afternoon of fun in the sun could turn tragic and deadly in a matter of seconds if the operator of the boat has been drinking. Recognizing this, the Florida Legislature expressed a preference for boaters to designate a “designated driver” so that others can enjoy the water while the person operating the vessel does so without drinking.
Boating and having a drink is not unlawful in Florida, inasmuch as operating a motor vehicle after having an alcoholic beverage is not unlawful. In fact, the laws are substantially similar. Florida Statutes 327.35 defines boating under the influence, or BUI for short, as an individual who is under the influence of alcoholic drinks or beverages, under the influence of a controlled substance, or under the influence of prescription medication.
A person is “under the influence” when, according to Florida law, his or her “normal faculties” are impaired. Florida’s DUI jury instructions give context to the terms “impaired” and “normal faculties.” Accordingly, impaired means that the person’s ability to drive is diminished in a meaningful way. “Normal faculties” are those abilities people use in their everyday lives to walk, talk, make appropriate judgments, judge distances correctly, respond to emergency situations, and otherwise perform the daily functions of a normal life.
Florida’s BUI statute also allows the prosecution to prove the person guilty by offering evidence of a chemical test from a biological sample taken from the accused. Law enforcement can take a blood sample or a breath sample to prove that the boater is under the influence. If the police take the accused’s blood, then the accused will be found guilty of operating a boat under the influence if the sample contains 0.08 grams of alcohol or more per every 100 milliliters of blood. Similarly, the accused will be guilty if the sample of breath taken contains 0.08 grams of alcohol or more for every 210 liters of breath.
Florida law imposes enhanced penalties upon boaters with chemical test results that are 0.15 BAC or higher. Enhanced penalties might be imposed by the court if the operator of the boat had a passenger onboard 18 years of age or younger as well. If the prosecution proves either of those two conditions beyond a reasonable doubt, then the court could punish the defendant by imposing a period of incarceration not to exceed nine months for a first conviction and one year for a second conviction. Additionally, the court could impose a fine between $1,000.00 and $2,000.00 for a first offense, $2,000.00 to $4,000.00 for a second offense, and no less than $4,000.00 for any additional offenses.
Comparatively, a conviction for a first offense BUI carries a potential jail sentence for no more than six months, along with a fine of $500.00 to $1,000.00. A second offense conviction for BUI could result in a period of incarceration not to exceed nine months and a fine between $1,000.00 and $2,000.00.
A third offense BUI could result in a third-degree felony conviction if the offense happens within ten years. Conversely, a conviction for a third offense BUI when the previous offense falls outside the ten-year lookback window shall be punished as if a second offense, except that the range of fines the judge can impose falls between $2,000.00 and $5,000.00.A fourth and subsequent conviction is a third-degree felony irrespective of when the previous conviction occurred.
Although the statute discusses subsequent offenses for BUI, Florida law allows convictions for driving under the influence, whether in Florida or another state, to be considered by the court as a previous offense.
Possible incarceration and fines are not the only sanctions a person convicted of BUI faces. The court must impose at least one year of probation. The defendant must report to the probation department at least once per month. Also, the probationer must attend a substance abuse educational program. The probationer must enter and complete any substance abuse treatment, whether inpatient or outpatient, as recommended by the substance abuse service provider.
A person convicted of a first offense must complete 50 hours of public service during the year of probation. Also, the court must impound the vessel for ten days.
The court must sentence the person convicted of BUI to at least ten days of incarceration if the previous offense falls within the previous five years. Florida law requires the convicted offender to serve at least 48 hours in jail consecutively. Additionally, a conviction for a second offense requires the trial judge to impound the vessel for no less than 30 days.
A third conviction within the last ten years requires the person convicted to serve at least 30 days in jail. The boat must be impounded by the court for at least 90 days.
With respect to jail time imposed by the court, Florida’s BUI statute allows the person convicted to receive credit for any days spent in a treatment program after the person was charged but before the conviction entered. Additionally, the sentencing judge has the discretion to order the person convicted to serve any or all of the incarcerated sentences in an inpatient treatment facility.
Police cannot release anyone arrested for BUI from jail unless certain conditions are met. The person can be released from custody when the arrestee’s BAC reaches 0.05 or lower, eight hours have passed since the arrest, or the person has regained his or her normal faculties.