BUI Defense Lawyers in Jacksonville, Florida
Boating Under the Influence in Jacksonville, Florida
BUI, or boating under the influence, is a serious offense in the State of Florida. Florida and boating go hand-in-hand. Specifically, the State is a peninsula that is formed by the Gulf of Mexico to the west and the Atlantic Ocean to the east. Florida is replete with lakes, rivers, ponds, the Everglades, and streams. As such, boating, especially recreational boating, is a fundamental component of Florida’s economy.
Undoubtedly, boating is both relaxing and fun, however, it is not without its risks. Specifically, BUI is just as serious as DUI, and may result in serious injuries or death. According to the United States Coast Guard, about sixteen percent of boating-related deaths happen when someone is operating a boat while consuming alcohol, which makes alcohol a primary contributing factor in many deadly boating accidents. Boaters who consume alcohol are known to take risks and lower their guard. Boating requires the operator to be alert at all times, as he or she is ultimately responsible for the safety of those on board.
BUI is highly dangerous given the many variables that boat operators must consider, and of which they must be cognizant and vigilant. Such variables as wave height, wind direction, darkness, light, the depth of the water, and submerged hazards such as rocks and trees all figure into the safe and sober operation of a boat. Boaters must also consider such factors as fatigue, wind exposure, the vibration of the motor, and sun exposure and to what degree these affect the boat’s operator. When alcohol is added to the mix, it can be a recipe for disaster, as it can affect the operator’s judgment, concentration, the ability to perceive light and sound, and his or her reflexes. Altogether, a boater who has been consuming alcohol may have difficulty in deciphering how fast they are traveling, the speed of other vessels in the water, as well as the distance between objects, all of which are essential for safe boating.
Florida’s BUI Statute
Under Florida Statute Section 327.35, an operator of a boat is deemed under the influence when:
- His or her normal faculties are impaired due to consuming drugs and/or alcohol, and is thereby unable to safety operate a vessel; or
- 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 (BAC) of 0.08 grams of alcohol per 210 liters of breath.
When prosecuting BUI cases, the government must prove one of the three elements listed above beyond a reasonable doubt.
It is important to understand that law enforcement patrolling a body of water has the right to stop a vessel and make the operator take a portable breath test or submit to field sobriety exercises. Under Florida’s BUI law, the operator of a vessel is not necessarily the person behind the wheel. Specifically, the operator of the boat is deemed to be the individual who is in charge or who has command over the watercraft.
BUI Penalties in Duval County, Florida
The penalties an offender could suffer depend upon the facts and circumstances of each case. The punishment for a first BUI conviction in Florida may be a prison term of six months, monetary fine ranging from $500 to $1,000, and a probationary period not to exceed one year. Moreover, the offender will be required to undergo 50 hours of community service.
If a person is convicted a second time for BUI, the consequences are more severe. A second conviction for BUI carries with it a potential prison term for nine months and a monetary fine ranging between $1,000 and $2,000. The offender will also face probation for a certain period of time as determined by the presiding judge. If the previous BUI conviction occurred within the previous five years, then the offender will be sentenced to ten days in jail with at least 48 hours of the term to be served consecutively.
Upon a third BUI conviction, when one of the convictions happen within the preceding ten years, the offender will face the consequences of a third-degree felony charge. If convicted of a third-degree felony, the offender may face a maximum of five years in state prison, and a harsh monetary fine of up to $5,000. If the previous conviction occurred more than ten years following the previous conviction, then the offense is deemed a first-degree misdemeanor, which is punishable by a maximum one-year jail term and a monetary fine ranging between $2,000 and $5,000. If the previous crime occurred within the preceding ten years, then the offender will be required to serve at least 30 days in prison, with 48 hours of that sentence to be served consecutively.
A conviction for a fourth or subsequent offense is charged as a third-degree felony, regardless of when the previous conviction took place. A conviction for a third-degree felony is punishable by a jail term of up to five years and a monetary fine ranging between $2,000 and $5,000.
Florida’s BUI law requires the presiding judge to issue an order to impound the subject vehicle associated with the BUI arrest. The convicted offender must also undergo substance abuse counseling. Essentially, the offender must submit to a substance abuse evaluation and treatment as deemed necessary, which may include both inpatient and outpatient treatment. In Florida, substance abuse treatment is at the sole cost of the offender.
Florida law does not limit previous offenses to BUI-related crimes. Specifically, the prosecution has the discretion to pursue enhanced penalties for BUI when convicted offenders have previous convictions for DUI, DUI manslaughter, and other related offenses. Convictions in other states may also enable the prosecution to seek enhanced penalties against an offender.
BUI Boating Accidents in Florida
Even minor boating accidents can prove fatal. Accidents that occur at low speeds can cause a vessel to capsize, ejecting all those aboard into the water. People who have been consuming alcohol or those who sustained injuries may not be able to swim or at least keep themselves afloat so that they can be saved. Many people fail to wear life jackets when boating under the belief that they will be able to grab a life jacket or other flotation device should an emergency occur. Unfortunately, many people drown given the fact that they were not wearing a life jacket at the time of the accident.
Law enforcement can seek BUI charges against an operator of a boat if the officer has probable cause to believe that he or she was impaired, and due to that impairment, caused a crash or contributed to a crash. An individual who is facing BUI charges involving an accident that caused personal injury or property damage is charged as a first-degree misdemeanor, which carries with it a penalty of one year in jail and a monetary fine of $1,000. The punishment associated with BUI becomes more severe as the severity of the crime increases.
The offense of BUI that results in serious bodily injury constitutes a third-degree felony. In Florida, an individual who faces a third-degree felony may be sent to jail for five years, and be required to pay a monetary fine not to exceed $5,000.
An operator of a vessel commits a second-degree felony if he or she causes or contributes to a boating accident while impaired by drugs and/or alcohol, and a person died as a result. A second-degree felony known as BUI manslaughter in Florida is punishable by a fifteen-year prison term and a monetary fine not to exceed $10,000.
A boat operator could face a first-degree felony charge for BUI manslaughter if he or she does not make himself or herself known and fails to stop to render assistance to the other party or parties. The boat operator must know or should know that the accident occurred in order to be found guilty of first-degree BUI manslaughter in Florida. Under Florida’s BUI law, it does not require for the prosecution to establish that the operator of a vessel had knowledge that a person perished or sustained serious injuries in order to be convicted of first-degree BUI.
Aggravated BUI in Florida
Prosecutors in Florida can seek stiffer penalties for BUI charges under certain circumstances. Specifically, if a vessel operator’s breath or blood test reveal a BAC of 0.15%, or the boat operator was impaired and had minors (those under the age of 18) aboard the craft, the government can seek aggravated BUI charges.
An individual who is convicted of a first offense aggravated BUI faces nine months in prison and a monetary fine ranging between $1,000 and $2,000. A conviction for a second offense aggravated BUI is a first-degree misdemeanor where the judge can impose up to a one year jail sentence and a monetary fine ranging between $2,000 and $4,000. Third and subsequent offenses are first-degree misdemeanors. However, the maximum potential incarcerated sentence does not increase. The sentencing judge could impose a fine of $4,000.00.
What is “Operation” under Florida’s BUI Law?
The term “operation” under Florida law 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 of a vessel may also include having responsibility for the craft that is being pushed, towed, or pulled by the power of another vessel. Operation, therefore, does not necessarily mean that the person is behind the wheel at all times. Therefore, the operator can be someone who is in charge of the boat. In essence. he or she does not need to be behind the wheel to be deemed an operator for purposes of Florida’s BUI law.
Mandatory Arrest and Detention
Florida’s BUI statute is meant to safeguard the public from the dangers associated with an operator of a vessel who is impaired. As such, no individual can be released from jail after being arrested until eight hours have passed since the time of the arrest, the person’s normal human faculties have been restored due to metabolizing alcohol, or the accused’s BAC or blood alcohol concentration has dropped below 0.05%. When a person meets any one of these criteria, he or she must be released from custody.
Law Enforcement BUI Investigations
Florida law enforcement officers have significant latitude to encounter boaters than motorists. Specifically, officers cannot stop a driver of a motor vehicle unless they have “reasonable suspicion based on specific and articulable facts.” Otherwise stated, the officer must have some facts which he or she could describe in order to justify stopping a motor vehicle.
The above standard is not high, but it does protect the public from oppressive law enforcement actions. One of the most common reasons to stop an automobile is a traffic infraction. If an officer can articulate the nature of the violation, then he or she can lawfully stop the vehicle and speak with its operator. The officer, however, cannot detain the driver for an indefinite period. Once the reason for the stop is complete, the officer must enable the driver to continue on. Further intrusion may be justified if the officer sees, smells, hears, or feels something during the encounter that raises red flags. In essence, the officer’s perception could justify the further intrusion.
Operators of vessels do not share the same protections. A law enforcement officer in Florida has the right to stop a vessel and speak with its operator. Notwithstanding those broad powers, the officer, just like with a motor vehicle, cannot stop the boater indefinitely. He or she is limited to requesting to see proof of licensing, flotation devices, insurance, fire suppression apparatuses, and sounding devices. During this time, if the officer perceives something concerning during a safety check, he or she can probe further.
Officers or game wardens are not limited to conducting safety checks. They could observe reckless operation, speeding, or a violation of waterway regulations in order to commence an investigation. If the officer notices evidence of alcohol consumption by the operator, he or she has the right to investigate further. If the detaining officer smells alcohol on the operator’s breath or notices bloodshot or watery eyes, slurred, slow and deliberate speech, confusion, or other signs of intoxication, he or she can look for evidence of alcohol consumption such as empty beer cans in the boat that are in “plain view.”
The investigating officer may also look for additional signs of impairment, such as an angry, flippant, or cocky attitude with police. The more difficult a boat operator is with police, the more the police can dig deeper to determine whether he or she is impaired by alcohol or drugs.
If the officer is under the suspicion that the operator is impaired, he or she can require the operator to submit to field sobriety tests. The officer can also demand that the operator take a breath test on a portable device. A reading of 0.08% or higher gives the officer probable cause to arrest the operator for intoxication. If the operator refuses to submit to a portable breath test, he or she could also be placed under arrest. In addition, the operator’s performance on the field sobriety tests could also result in the conclusion that his or her faculties are impaired.
BUI Defenses in Florida
A person who is arrested for BUI in Florida has certain legal rights. While the officer may have had probable cause to effectuate an arrest of an operator, he or she may not be deemed automatically guilty of the crime of BUI. A seasoned Florida BUI defense lawyer in Jacksonville will challenge the observations and conclusions of the arresting officer during trial under rigorous cross-examination. Moreover, a skilled Jacksonville defense attorney understands the limitations of portable breath tests, blood tests, and breathalyzer tests. The test results are not admissible if the officer did not follow the proper procedures for obtaining said results.
The operator of a boat also has constitutional rights as well. A knowledgeable Florida BUI defense attorney will seek to suppress evidence such as any conversations and conclusions drawn that were obtained illegally by the police. In essence, a skilled Jacksonville BUI defense attorney may file a motion to suppress evidence that was unlawfully obtained by police, including their observations of the boating operator’s behavior. Prevailing in a motion to suppress may result in a reduction or dismissal of the charges.
Musca Law: Defending the Rights of Boaters in Jacksonville and Throughout Florida
BUI charges are serious criminal offenses that could negatively affect your future. Do not trust your defense to merely any Jacksonville lawyer. Call Musca Law’s Jacksonville BUI lawyers today at (888) 484-5057 to schedule a free consultation.