Boating Under the Influence: BUI Field Sobriety Exercises
Law enforcement officers treat boating under the influence, or BUI, as a very serious crime in Florida. To be sure, BUI is equally as dangerous as driving a motor vehicle under the influence. Any boater who drinks and operates a vessel in Florida waters places himself or herself, along with the passengers in the boat and everyone else on the water, in grave danger of sustaining a severe injury or death in a boating accident. Consequently, law enforcement officers vigilantly search for boaters who could be operating their vessels under the influence on Florida waterways.
Law enforcement officers must establish probable cause for BUI before the officer has the authority to arrest the boat operator. The standard of probable cause is not high. Essentially, the officer has probable cause to arrest a boater for BUI when the officer possesses sufficient evidence for a reasonable person to conclude that the subject under investigation probably committed a crime. This standard is far below the familiar standard to convict a person of a crime in the United States beyond a reasonable doubt.
Officers on the water may stop a vessel to check for the presence of safety gear, sounding devices, fire extinguisher, proof of registration, flotation devices, and other safety equipment. However, the officer cannot prolong the encounter just to investigate something that the officer does not observe before he or she completes a safety check. Law enforcement officers only need reasonable suspicion to open an investigation into a boater the officer thinks could be under the influence.
Reasonable suspicion is a lower standard of proof than probable cause. Reasonable suspicion is more than a hunch. Instead, the investigating officer has reasonable suspicion when there is objective evidence to suggest that the person under investigation has committed, is in the process of committing, or will commit a crime in the near future. The standard is certainly less than precise.
The officer must establish a reasonable suspicion that the boater was under the influence before beginning field sobriety tests. Law enforcement officers in Florida can reasonable suspicion by noting the manner in which the driver operates the boat, how the driver reacts when the officer asks non-investigatory questions such as inquiring about safety equipment, asking the boater to retrieve the fire extinguisher, asking for proof of registration and then asking for identification, asking to retrieve flotation devices, and asking to pull the boat over to a safe location like a dock or marina.
The officer will pay very close attention to how the boater reacts emotionally to the encounter, how the boater moves, whether the boater has an accurate memory of where items are stowed, and the manner of the boater’s speech. The officer will also look around, under the authority conferred upon the officer by the plain view doctrine, to see if any cans of alcohol are visible, the presence of trash or other dangerous items, and look for other signs of intoxication as well in the same manner in which an officer might do roadside at a car stop. The officer will be on the watch for the smell of alcohol present on the boater, bloodshot and watery eyes, slurred speech, and difficulty with mental processes.
After making the initial observations of the boater, the officer can ask the operator to perform field sobriety tests or field sobriety exercises. Obviously, the traditional field sobriety exercises that the officers use during a car stop when the officer suspects the driver of being under the influence is of little utility to the officer. The officer cannot ask a boater to perform a nine-step walk and turn test, one-legged stand test, or the standing finger to the nose test when the vessel is bobbing up and down in the wakes of other boats or in the waves. The officer could ask the operator to perform field sobriety exercises adapted for using in BUI investigations.
If the officer suspects that the operator is or has been boating under the influence, then the officer can ask the boater to step board the patrol boat for further examination. The officer can ask the boater to be seated in the patrol boat to perform seated field sobriety exercises designed for BUI investigations. Seated field sobriety examinations include the horizontal gaze nystagmus test, the finger to nose test, the palm test, and hand coordination test. Scientific researchers designed the hand coordination test to mimic the familiar nine-step walk and turn exercise. Each test is known as a divided attention test, meaning that the officer asks the suspect to perform a relatively simple task physically while counting. Thus, the brain is divided between the physical and mental exams, which is hard to do when someone is under the influence.
The officer can develop probable cause to arrest either before or after the field sobriety exercises are concluded. There is a chance that the operator could pass the field sobriety exercises and win his or her release, although the likelihood is slim.
The officer must consider detaining the suspect for lengthy periods without probable cause. In other words, the officer must be mindful of taking the suspect’s liberty away without probable cause to arrest. For example, if the officer takes the suspect out of his or her vessel and transports him or her, handcuffed, to a location to perform field sobriety exercises, a judge might determine that an arrest was made by the officer without probable cause and violated the suspect’s rights.
The officer must be wary of when he or she asks questions of the suspect. The officer must give the suspect the Miranda warnings before asking any questions of a person in custody, that is under arrest, if the officer asks any questions. There is no need to give the Miranda warnings if the officer does not ask the suspect anything. A judge has the authority to suppress any statements made by the suspect in response to an officer’s questions while under arrest if the officer failed to give the suspect the Miranda warnings.