Boating Under the Influence Defense Lawyer in Clearwater, Florida
Boating is extremely popular in Florida given the state’s warm temperatures and seemingly endless sunshine. While boating can be both fun and relaxing, it can also be dangerous when drugs and/or alcohol are involved. Per the United States Coast Guard, about sixteen percent of boating deaths happened when someone was consuming alcohol or drugs. BUI, also known as boating under the influence, can result in a person having decreased reflexes and judgment, which can lead to a serious and potentially deadly accident. Undoubtedly, the safe operation and navigation of a boat requires the operator to be alert given the fact that he or she is primarily responsible for the safety of those on board.
BUI is highly risky given all of the variables that the operator of a boat must consider, including wave height, wind, light, darkness, submerged hazards such as trees and rocks, and the water’s depth. Boaters must also keep in mind the environmental factors associated with boating, which include wind exposure, sun exposure, and fatigue, all of which can drastically affect the operator of a boat. Accordingly, adding alcohol and/or drugs to the mix can be a recipe for disaster.
The effects of alcohol do not discriminate between those who operate a motor vehicle and those who operate a boat. Specifically, the consumption of alcohol leads to reduced concentration, impaired judgment, slower reflexes, and a diminished ability to perceive sound and sight. In fact, a boater who is operating under the influence may have difficulty in understanding the speed at which he or she is going, the speed of other boats in the water, as well as the distance between objects, all of which are critical to safe boating.
Florida’s BUI Statute
Under Florida Statutes Section §327.35, there are certain penalties associated with BUI. Specifically, a boater will be charged with BUI if:
- He or she has impaired faculties due to consuming drugs, alcohol, or a combination of both, and is therefore unable to safely operate a vessel;
- He or she has a blood alcohol level of 0.08 grams of alcohol per 100 milliliters of blood; or
- He or she has a breath alcohol concentration, or BAC, of 0.08 grams of alcohol per 210 liters of breath.
The prosecution must prove at least one of the three elements of BUI provided above beyond a reasonable doubt. Keep in mind that law enforcement has the right to stop the operator of a boat who appears to be under the influence of drugs and/or alcohol. The officer may ask the boater to submit to a portable breath test and/or field sobriety test.
BUI Penalties in Pinellas County, Florida
The punishment associated with a BUI depends upon the circumstances of the incident. The penalties for a first BUI conviction in Florida is associated with a prison term of up to six months in prison, a monetary fine between $500 and $1000, and a probation period not to exceed one year. Additionally, the offender will be required to perform fifty hours of community service.
The possible penalties of a BUI become enhanced with each conviction. Specifically, a second conviction for BUI is associated with a $1000 to $2000 fine and a prison sentence of up to nine months. The officer must also face a period of probation as well. If the previous conviction happened within the previous five years, then the accused must face a prison term of ten days.
Upon a third conviction for BUI, when one of the convictions occurred within the previous ten year period, the accused will face third-degree felony charges. A third-degree felony charge carries with it a prison term of up to five years and a monetary fine of up to $5000. If the crime of BUI was committed outside of the ten year lookback period, then it will be charged as a first-degree misdemeanor, which is associated with a prison term of up to one year and a monetary fine ranging between $2000 and $5000.
Upon a third BUI conviction, when one of the convictions happens within the preceding ten years, the individual will be charged with a third-degree felony. A third-degree felony is associated with a jail sentence of up to five years as well as a monetary fine of up to $5000. If the offense was committed outside of the ten year lookback period, then it is charged as a first-degree misdemeanor, which carries with it a prison term of up to one year and a monetary fine ranging from $2000 to $5000. If a previous offense occurred within the preceding ten years, then the offender will be placed in jail for at least 30 days.
If a person is convicted of BUI for a fourth or additional offense, then he or she will face a third-degree felony charge, regardless of when the previous conviction occurred. A third-degree felony charge is associated with a prison term of not to exceed five years and a monetary fine of up to $5000.
Under Florida’s BUI law, the presiding judge will issue an order to impound the boat that the offender operated at the time he or she was arrested for BUI. In addition, the offender may be required to submit to a substance abuse program, the treatment of which could involve both inpatient and outpatient services. As will also court-mandated programs, the offender must bear the costs associated with said treatment,
If someone has been convicted of DUI or DUI manslaughter, Florida law calls for enhanced penalties for a person who commits BUI. In addition, the prosecution can seek enhanced penalties if the offender has previously been convicted of a DUI or BUI in other states.
BUI Boating Accidents in Clearwater, Florida
Even boating accidents that are minor can be fatal. Crashes that happen at low speeds could cause a boat to flip over and eject all passengers on board. Individuals who are injured or consuming alcohol and/or drugs at the time of an accident may not be able to swim to safety. Those who do not wear a life jacket may falsely believe that he or she can access a floatation device in the event of an emergency. This is not always the case. Sadly, people drown because they are not wearing an approved flotation device while boating.
Police officers can charge the operator of a boat with a BUI if they believe that they have probable cause to suspect that he or she was impaired, and as a result of said impairment, contributed to or caused an accident. A person who causes property damage or personal injury will face a first-degree misdemeanor charge. The penalties associated with a first-degree misdemeanor charge in Clearwater is up to one year in prison and a monetary fine of up to $1000. The penalties become harsher as the severity of the offense increases.
If a BUI involves serious bodily injury, then the crime can be charged as a third-degree felony. In Florida, if a person is convicted of a BUI involving serious bodily injury, he or she could face a prison sentence of up to five years and a monetary fine of up to $5000. If someone perishes as a result of a BUI, then the accused will be charged with a felony in the second degree, which is punishable by up to fifteen years in prison and a $10,000 monetary fine.
Should a person cause a boating accident and flee the scene, then he or she will be charged with a first-degree felony. Specifically, the boat operator will face first-degree felony charges if he knew or should have known that an accident occurred. Florida’s BUI law does not require that the prosecution establish that the operator of the boat knew that someone perished or sustained serious injuries to be convicted of first-degree BUI.
Aggravated BUI in Clearwater, Florida
The prosecution can pursue harsher BUI-related penalties under certain circumstances. When a boater’s breath or blood test results reach 0.15% BAC or he or she was intoxicated with minors on board, the government can seek aggravated BUI charges.
An individual who is convicted of a first offense aggravated BUI may face a nine month prison sentence and be forced to pay a fine ranging from $1000 to $2000. A second offense conviction is punishable as a first-degree misdemeanor, which is associated with up to a one year prison sentence and a monetary fine ranging from $2000 to $4000.
What is “Operation” under Florida’s BUI Law?
In Florida, “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 the responsibility over the vessel, even when it is being pushed, towed, or pulled by the power of another craft. This means that a boater does not necessarily have to be behind the wheel when facing a BUI. Accordingly, Florida law defines operator and operation to include the person who is in charge of the boat and not just the individual who is steering the boat.
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
Under Florida’s BUI law, no person can be released from jail until the individual’s blood alcohol concentration or breath alcohol concentration has dropped below 0.05% grams of alcohol found in 210 liters of breath or in 100 milliliters of blood, the person’s normal human functions have returned following the metabolization of alcohol, or eight hours have passed since the time of the arrest. The accused must be released from jail when he or she meets one of these criteria, no matter which one comes first.
Clearwater Law Enforcement BUI Investigations
Law enforcement has greater latitude to stop a boater than an operator of a motor vehicle. Specifically, law enforcement cannot stop a driver of a vehicle on a whim. The officer must have a valid reason to stop a boater that comports with constitutional restrictions. The standard of proof that an officer needs to stop an automobile is a “reasonable suspicion based on specific and articulable facts.”
The standard related to motor vehicle operators is not high, however, it does afford the protection of the public from law enforcement actions that are deemed oppressive. One of the most typical reasons that a person is stopped by police is due to a traffic violation. If the officer can articulate the nature of the violation, then he or she can lawfully pull the vehicle over and speak with the driver. The officer cannot keep the driver detained for an indefinite period of time. Once the reason for the stop is complete, the law enforcement officer must release the person and move on. The officer, however, will not ignore what he or she hears, feels, or smells during a stop. Specifically, the officer’s perception can justify further investigation and inquiry.
Boaters, unfortunately, do not share the same safeguards as those who operate a motor vehicle. In fact, a law enforcement officer who is patrolling a waterway has the broad authority to stop a vehicle and speak with its operator. Like with regular vehicle stops, an officer cannot stop a boater for an indefinite period of time. The officer, in this instance, is limited to asking for a boater’s proof of insurance, identification, fire apprehension apparatuses, sounding devices, and flotation devices. Once the officer obtains satisfactory proof of the necessary safety measures, then the stop must end. However, the officer, just like in a motor vehicle stop, need not ignore what he or she perceives during a safety check.
Keep in mind that officers are not limited to conducting safety checks of boats. They can stop a boat for a variety of reasons, including speeding, recklessness, and violating a waterway regulation. If a law enforcement officer senses that there may be alcohol impairment, he or she can inquire and investigate further. The officer could smell alcohol on the boater’s breath, observe watery, bloodshot eyes, slurred and slow speech, as well as confusion, all of which evince that a boat operator is under the influence of drugs and/or alcohol.
The officer could also search for additional evidence of drinking such as empty wine bottles on deck that are in plain view. The investigating officer will also examine whether there are additional signs of intoxication, such as if a boat operator is flippant, angry, combative or cocky with police. If a person acts disrespectfully with police, then the police may have a valid reason to conduct a more thorough investigation.
If a law enforcement officer suspects that a boater is impaired, then he or she can request that the boater submit to a field sobriety test. At this juncture, the officer should request that the boater pull over in order to allow the operator to perform this test. In addition, the officer can ask that a boater take a breath test from a portable device. A rendering of 0.08% or higher gives the law enforcement officer probable cause to arrest a boater for BUI. A refusal to submit to a field sobriety test or breath test can give law enforcement probable cause to arrest the operator of a boat.
BUI Defenses in Clearwater, Florida
An individual who is arrested for BUI has certain rights. While the arresting officer may have had probable cause to arrest the boater, the individual accused of BUI is not automatically deemed guilty of BUI. A skilled Clearwater defense lawyer will challenge the observations and conclusions of the arresting officer under rigorous cross examination. Additionally, the seasoned Clearwater BUI defense attorney will also challenge the blood and breath test results. Specifically, if these tests were not conducted properly, then they can be deemed inadmissible in court.
The boat operator under arrest has constitutionally-protected rights as well. A knowledgeable BUI 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 Clearwater, Florida
BUI charges are serious criminal offenses that could negatively affect your future. Do not trust your defense to merely any BUI defense lawyer. Call Musca Law’s Clearwater BUI lawyers today at (888) 484-5057 to schedule a free consultation.