Boating Under the Influence Defense Attorneys in Naples, Florida
Boating under the influence, or BUI, is a serious crime in Florida. Florida and boating are inextricably intertwined. With a state that is a peninsula formed by the North Atlantic Ocean on the east and the Gulf of Mexico to the west, along with lakes, ponds, rivers, streams, and the Everglades, boating, especially recreational boating, is an essential component of Florida’s economy. Freshwater fishing, saltwater fishing, recreational boating, sightseeing, hunting, and wildlife viewing create almost 300,000 jobs and contributes over $20 billion annually to the local economy, according to estimates from the Florida Fish and Wildlife Commission. Additionally, people build homes near bodies of water, which helps maintain steady growth in the state’s construction industry and contributes to steady growth in the travel and hospitality industries as well.
Why is Boating While Intoxicated Dangerous?
Boating is relaxing and fun, but it could also be dangerous. In fact, BUI is as dangerous as driving a car while intoxicated. According to the U.S. Coast Guard, around sixteen percent of boating fatalities occur when someone is drinking alcohol, which makes alcohol the number one contributor to fatal recreational boating accidents. Boaters who consume alcohol tend to take risks and lower their guard. Safe vessel operation and navigation require the operator to be alert at all times because he or she is responsible for the safety of those on the vessel.
BUI is dangerous because of all of the variables boat operators must consider, and of which they must be cognizant and vigilant. Variables like wind direction, wave height, light, darkness, submerged hazards like trees and rocks, and the depth of the water all figure into safely operating a boat soberly. Additionally, boaters must consider environmental factors like the vibration from the motor, fatigue, sun exposure, and wind exposure and to what degree those variables will affect the boat operator. Adding alcohol to the mix is a recipe for a tragic ending for what was supposed to be a good time.
The effects of alcohol do not discriminate between motor vehicle operators and boaters. Alcohol consumption will impair judgment, reduce concentration, slow reflexes, and diminish the ability to perceive through sight and sound. Boaters who have been drinking have a difficult time appreciating the speed at which they operate, the speed of other craft in the water, and the distances between objects, all of which are critical to boating safely.
Florida’s BUI Statute
The Florida legislature enacted §327.35 of the state statutes to punish people who boat while intoxicated by either drugs, alcohol, or a combination of the two. Under §327.35, a boat operator is guilty of boating under the influence when:
- The boat operator’s normal faculties are impaired by the consumption of alcohol, drugs, or both, and is, therefore, unable to operate the craft safely; or
- The boat operator has a blood alcohol level of 0.08 grams of alcohol per 100 milliliters of blood; or
- The boat operator has a breath alcohol concentration of 0.08 grams of alcohol in 210 liters of breath.
The government must prove one of the three prongs of BUI listed above beyond a reasonable doubt to win a conviction for BUI. Law enforcement officers patrolling the water have the authority to stop a craft and make the operator submit to field sobriety exercises or take a portable breath test. The operator is not necessarily the person behind the wheel. Under Florida law, the operator of the boat is the person who is in charge of or has command over the vessel.
BUI Penalties in Florida
The penalties an offender could suffer upon a conviction for BUI varying depending on the circumstances of the incident. The penalty for a first conviction for BUI in Florida carries with it a maximum of six months’ incarceration in the county jail, a fine between $500.00 and $1,000.00, with a probation sentence not exceeding one year. Furthermore, the offender must perform fifty hours of community service.
The possible penalties become more severe with each subsequent conviction. A second conviction for BUI carries with it a fine between $1,000.00 and $2,000.00 and a maximum jail sentence of nine months. The offender must be placed on probation as well. If the previous conviction occurred within the previous five years, then the offender must receive a minimum ten-day jail sentence. At least 48 hours of the jail term must be served consecutively.
Upon a third conviction for BUI, when one of the convictions occurs within the last ten years, the offender faces a third-degree felony. A conviction for a third-degree felony in Florida carries with it a potential maximum committed sentence not to exceed five years in the state’s prison, and a fine up to $5,000.00. However, if the previous conviction was outside the ten-year lookback time frame, then the crime is a first-degree misdemeanor and is punishable by a maximum one-year period in the county jail and a fine between $2,000.00 and $5,000.00. If the previous offense happened within the previous ten years, then the offender must serve at least 30 days in a jail or state penitentiary, with 48 hours of that sentence to be served consecutively.
A conviction for a fourth or subsequent offense, the accused faces a third-degree felony irrespective of when the previous conviction occurred. A conviction for a third-degree felony may be punished by a period of incarceration up to five years and a fine between $2,000.00 and $5,000.00.
Florida’s BUI law requires the sentencing judge to issue an impound order of the vessel that the offender operated when arrested for BUI. Also, the convicted offender must complete a substance abuse program. The convicted offender shall submit to a substance abuse evaluation and such treatment as deemed necessary. The necessary treatment could include both outpatient and inpatient treatment. As with all court-ordered programs, the offender must shoulder the burden of paying for the program.
Florida law does not limit previous offenses to boating under the influence crimes. Prosecutors can seek enhanced penalties for BUI when offenders have previous convictions for DUI, DUI Manslaughter, driving while impaired, or like offenses. Additionally, prosecutors could use convictions the accused has in other states to seek enhanced penalties for subsequent offenses in Florida.
BUI Boating Accidents in Florida
Even minor boating accidents are potentially deadly. Crashes at low speeds could capsize a vessel and throw all aboard into the water. People who have been drinking or injured in the crash might not be able to swim or at least keep themselves afloat so they could be saved. Some people do not wear life jackets when boating. They believe there would be sufficient opportunity to grab a floatation device in the event of an emergency. Sadly, people drown because they are not wearing an approved flotation device while boating.
Law enforcement officers can charge a boat operator with BUI causing an accident if the officer believes subjectively he or she has probable cause to suspect the operator of the craft was impaired and, as a result of that impairment, caused an accident or contributed to an accident. A person accused of BUI involving an accident that either caused property damage or personal injury could be charged with a first-degree misdemeanor. The maximum penalty for a first-degree misdemeanor in Florida is a one-year jail sentence and a fine of $1,000.00. The penalties become increasingly harsher as the severity of the crime increases.
The crime of BUI causing serious bodily injury is a third-degree felony. In Florida, a person convicted of a third-degree felony could face up to five years in the state’s prison, along with fines up to $5,000.00.
A boat operator commits a second-degree felony if he or she causes or contributes to a boating accident while impaired, and someone died as a result. A second-degree felony called BUI Manslaughter in Florida may be punished by a fifteen-year term of incarceration in the state penitentiary and a $10,000.00 fine.
Boat operators could face a first-degree felony for BUI Manslaughter in Florida if the offending boat operator refuses or fails to make himself or herself known and stop to render aid. The boat operator must know or should know, that the crash happened to be guilty of first-degree BUI Manslaughter in Florida. Florida’s BUI law does not require the state’s attorney to prove that the boat operator knew that someone died or was seriously injured in the accident to be found guilty of first-degree BUI.
Aggravated BUI in Florida
State prosecutors can seek stiffer penalties for BUI charges under certain circumstances. When a boat operator’s blood or breath test results reach 0.15% BAC or the boat operator was intoxicated and had children under eighteen on board, the government could take out charges for aggravated BUI.
A person convicted of a first offense aggravated BUI faces nine months in jail and a fine between $1,000.00 and $2,000.00. A conviction for a second offense aggravated BUI becomes a first-degree misdemeanor. The judge could impose up to one year in the county jail, along with a fine between $2,000.00 and $4,000.00. Third and subsequent offenses are first-degree misdemeanors. However, the maximum potential incarcerated sentence does not increase. The sentencing judge could levy a fine of $4,000.00.
What is “Operation” under Florida’s BUI Law?
Operation is a term of art in Florida law. “Operation” means to be at the helm of the craft or to be in command or charge of the navigation as well as the safety of the boat and its passengers. The operation could include having responsibility for a vessel that is being towed, pushed, or pulled by the power of another craft. Operation does not mean that the person is actually at the wheel at all times. Thus, Florida law defines operation and operator broadly to encompass the person in charge of the boat and not just the person steering the vessel. The broad definition takes into consideration maritime traditions of having a captain who must be obeyed without question and is in charge of the ship, especially the safety of the ship and its crew, even if he or she is not steering.
Mandatory Arrest and Detention
Florida’s BUI statute is designed to protect the public from the dangers presented by an intoxicated person. Consequently, no person may be released from custody following an arrest until eight hours have passed since the time of apprehension, the person’s normal human functions have returned after metabolizing alcohol, or the arrestee’s blood alcohol concentration or breath alcohol concentration have dropped below 0.05% grams of alcohol found in 210 liters of breath or in 100 milliliters of blood.
The person must be released when he or she meets one of these criteria, no matter which one comes first.
Law Enforcement BUI Investigations
Law enforcement officers have greater latitude to encounter boaters than motorists. Officers in Florida — or anywhere else in the U.S. — cannot stop the driver of a motor vehicle upon a whim. Instead, the officer must have a reason that satisfies constitutional restrictions. The standard of proof needed for a police officer to stop a car is usually described as “reasonable suspicion based on specific and articulable facts.” In other words, the police officer must have some facts which he or she could describe if asked to justify pulling the car over.
The standard is not high, but it does afford the protection of the public from oppressive law enforcement engagement. One of the most common justifications for stopping a car is a traffic violation. If the officer can articulate the nature of the violation, then the police officer can stop the car and speak with the driver. The officer cannot keep the driver from moving for an indefinite period. Once the reason for the stop is complete, the officer must allow the driver to move on. The officers need not ignore what he or she sees, smells hear, or feels during the encounter. The officer’s perception could justify the further intrusion.
Boaters do not share those same protections. A law enforcement officer patrolling the waterways in Florida has the authority to stop another craft and speak with the operator. Notwithstanding those broad powers, the officer cannot detain the boater indefinitely. The officer is limited to asking to see proof of boat licensing, insurance, flotation devices, sounding devices, and fire suppression apparatus. Once the officer obtains satisfactory proof of the necessary safety measures, then the encounter must end. Similar to a car stop. However, the officer need not ignore what he or she perceives during the safety check.
Officers or game wardens are not limited to conducting safety checks. They could observe a speeding boat, reckless operation, or a violation of the regulations of the waterway to initiate an investigation.
If the officer observes evidence of alcohol consumption by the operator, the vessel once stopped, then he or she may investigate further. The officer could perceive the smell of alcohol coming from the operator’s breath, observe bloodshot and watery eyes, slurred, slow and deliberate speech, along with confusion, or other evidence of intoxication while just asking about safety equipment. The officer could also look around for evidence of drinking like empty beer cans on deck and in “plain view.”
The investigating officer will look for other signs of impairment. The demeanor of the operator is a very strong indicator of intoxication. Someone angry, flippant, arrogant, or cocky with the police instead of polite and understanding is more likely to be drunk than not. Most assuredly, if the operator acts disrespectfully toward the police, then the police will find a reason to dig deeper.
If the officer suspects that the operator is impaired, then he or she could order the operator to perform field sobriety tests. The officer should ask the boater to pull off to a stable and safe location to perform the tests. Additionally, the officer can demand that the operator takes a breath test on a portable device. A reading of 0.08% or above on the PBT gives the officer probable cause to make an arrest. Refusing to take a PBT will also provide the officer with probable cause to make an arrest. Additionally, the operator’s performance on the field sobriety tests also could lead the officer to conclude that alcohol impaired the faculties normally possessed by the operator of the boat.
BUI Defenses in Collier County, Florida
The person arrested for BUI in Florida has rights. Although the officer might have developed probable cause to effect an arrest, the person is not automatically guilty of the crime. A skilled BUI defense attorney in Naples will attack the observations and conclusions of the police officer at trial under rigorous cross-examination. Additionally, a skilled and seasoned BUI defense lawyer will understand the limitations of PBT tests, breathalyzer tests, and blood tests. The test results are worthless if the officer did not follow the correct procedure for obtaining the results.
The boat operator under arrest has constitutionally-protected rights as well. A knowledgeable Naples criminal defense lawyer will contest the officer’s assertions that the officer’s decision to stop the boat to suppress the observations, results of any conversations and conclusions drawn based on the evidence illegally obtained by the police. Winning a motion to suppress might result in a dismissal of the case or a reduction in charges.
Musca Law: Defending the Rights of Boaters in Florida
BUI charges are serious criminal offenses that could negatively affect your future. Do not trust your defense to merely any Naples lawyer. Call Musca Law’s Naples BUI lawyers today at (888) 484-5057 to schedule a free consultation.