Boating Under the Influence (BUI) Defense Lawyers for Fort Myers, Florida (FL)
BUI Charges, Laws and Penalties in Fort Myers, Florida
Recreational and commercial boating is very common in Florida, and is a way of life for many across the state. According to the Florida Fish and Wildlife Commission, it estimates that water-related activities such as tourism linked to fishing, recreational boating, hunting, and viewing wildlife, brings in about $20 million in revenue each year. Moreover, these activities, which do not include commercial fishing, federally-funded positions, and merchant mariners, add over 300,000 jobs in the state each year.
Water draws individuals to it, where luxurious homes dot the coastline, and where residential communities are developed around ponds, lakes, rivers, and streams. Given Fort Myers’ connection with boating and water, it is not surprising to know that boating under the influence, or BUI, is a serious problem that is accompanied by serious repercussions.
Boating Under the Influence is Dangerous in Fort Myers
Fort Myers is known around the world for its laid-back atmosphere and vibrant nightlife. This leads people to consume alcohol and go boating, thinking that after having a few drinks it is completely safe. Given the thrilling and relaxing nature of boating, it sometimes influences people to believe that nothing bad could happen. However, statewide statistics demonstrate that many people underestimate the hazards associated with boating, even when they have not consumed alcohol or drugs.
Consuming alcohol affects boaters in the same way as it affects operators of motor vehicles. It causes a person to have a decreased ability to react in a timely fashion, concentrate deeply, and respond quickly to hazards. Boaters who have been drinking, just like when people drink and drive a motor vehicle, have difficulty perceiving the actual speed at which they are traveling, and also have trouble appreciating the speed of other vessels in the water. Even though on the open waters there is a lot of space, boats, unlike motor vehicles, cannot stop in a rapid fashion. Therefore, an impaired boater may not understand the distance that it takes to avoid striking another object such as another boat, jet ski, swimmer, or other type of vessel.
BUI Law in Lee County, Florida
Operating a watercraft, boat, or other type of vessel when impaired by drugs, alcohol or both is in violation of Florida Statutes §327.25. Akin to driving a motor vehicle, it is not illegal to consume alcohol and operate a boat. Otherwise stated, Florida does not have a per se law that makes it illegal to consume alcohol and engage in boating. Alternatively, §327.35 provides that an individual who is operating a boat or who has control over a boat is guilty of BUI when one of the following is present:
- The individual’s normal faculties are impaired by drugs, alcohol, or both;
- The individual’s breath alcohol concentration is 0.08 grams in 210 liters of breath; or
- The individual’s blood alcohol concentration is 0.08 grams per 100 milliliters of blood.
With regard to the above, the prosecution must prove beyond a reasonable doubt that the boater is guilty of BUI in order to win a conviction.
Fort Myers BUI Penalties
As with any crime, the penalties for BUI in Fort Myers are contingent upon the nature and circumstances surrounding the offense. The maximum punishment for BUI, minus any aggravating factors or enhancement, is a jail term of six months, which carries with it a monetary fine of up to $1,000. This offense is also associated with a period of probation for a maximum of one year. The person convicted of BUI must also perform 50 hours of community service during the offender’s one year of probation.
Enhancements to the crime occur when there are subsequent BUI convictions. Specifically, the maximum term of imprisonment for a person who is charged with a second BUI is nine months, with a monetary fine levied of up to $2,000. A period of probation also applies when a person is convicted of a second BUI. Keep in mind that the judge must sentence the recidivist to ten days in a county jail for a second BUI if the prior conviction occurred within five years of the instant conviction. The offender is able to serve the ten-day sentence on the weekend as long as 48 hours of the term is consecutively served.
The maximum potential penalties increase to a possible felony conviction, depending upon when the previous two convictions occurred. For instance, if one of the prior two convictions occurred within the past decade before the instant conviction, then the offender will be found guilty of a felony in the third degree. A third-degree felony carries with it a prison sentence of five years, coupled with a maximum monetary fine of $5,000. However, the crime becomes a first-degree misdemeanor if the prior two convictions occurred outside of the ten-year lookback period. The maximum sentence in Florida for a misdemeanor in the first degree is a one-year jail term and a maximum monetary fine of $5,000. The offender must also serve 30 days in jail for a conviction of a third-degree felony, with 48 hours of imprisonment that must be consecutively served.
A fourth or subsequent BUI offense constitute third-degree felonies, and there is no limitation on the age of the prior convictions. Otherwise stated, Florida law allows for a lifetime lookback. This results in the offender having to serve up to a five-year prison term, and a fine that is levied of up to $5,000.
Keep in mind that Florida law allows the Fort Myers prosecution to pursue enhanced criminal penalties in a BUI case where the accused was previously convicted of DUI, or driving while impaired.
Additional Penalties for BUI in Fort Myers
Jail time is the most severe penalty a person could face following a BUI conviction. Components of the punishment scheme, as provided above, include fines, community service, probation, and alcohol education courses. The judge, in his or her discretion, can also order the BUI offender to attend drug or alcohol treatment programs, whether inpatient or outpatient, depending upon the facts and circumstances of the case. The offender must foot the bill for said treatment, notwithstanding the fact that the judge ordered him or her to do so.
Fort Myers Aggravated BUI
Florida’s DUI law is nearly identical to its BUI law. As in DUI prosecutions, the Fort Myers prosecution can charge a person with aggravated BUI if the individual is found to have a BAC of 0.15% or more, or if minors (children under eighteen) are onboard the watercraft when the operator was found by law enforcement to be boating while impaired by drugs or alcohol.
The penalties associated with operating a boat while impaired by alcohol at a level of 0.15% or greater is a nine-month sentence, along with a maximum monetary fine of $2,000. A second offense aggravated BUI conviction elevates the offense to a misdemeanor in the first degree, which carries with it a prison term of up to one year and a maximum monetary fine of $4,000. Any additional offense is associated with a one-year prison term as a first-degree misdemeanor and a monetary fine of not less than $4,000.
Boating Accidents Involving Alcohol in Fort Myers
Even the smallest collision or incident on the water could prove fatal. Any crash between two vessels can cause a passenger or passengers to be thrown overboard or could lead to the vessel capsizing. Many people have the mistaken belief that they could swim to safety if they are ejected from a boat. But when an individual is thrown overboard in a violent and unexpected manner, the situation can become deadly. Consequently, the swimmer could be disoriented, intoxicated, injured, or enter the water without a life jacket. The operator of the boat could be held liable for any resulting injuries or the death of a passenger who went overboard without a proper flotation device.
A boater could face BUI accident charges if law enforcement has probable cause to believe that the operator was the cause of an accident due to alcohol or drug impairment. Specifically, if a person causes property damage due to BUI, he or she could be charged with a first-degree misdemeanor, which is associated with a maximum one-year jail term and a monetary fine of up to $1,000. The penalties increase based upon the severity of the incident. The operator of a boat could face third-degree felony charges, which carries with it a five-year prison term and a maximum $5,000 fine if he or she is impaired and causes serious bodily injuries to another person, including a passenger on his or her boat.
If an impaired boater causes a person to die, this is known as BUI manslaughter, which is a second-degree felony in Florida. A second-degree felony conviction is associated with a maximum prison term of fifteen years and a maximum monetary fine of $10,000. A BUI manslaughter charge is elevated to a first-degree felony if the operator failed to stop and render aid to the injury victim or did not identify himself or herself as the operator of the boat involved in the accident. The state, in this instance, does not need to establish that the operator of the vessel knew that a person died in order to secure a first-degree felony conviction. Conversely, the prosecution must prove beyond a reasonable doubt that there was an accident and the operator of the vessel did not stop and identify himself or herself. A first-degree felony is associated with a thirty year prison term and up to a $10,000 monetary fine.
“Operation” of a Vessel Defined
BUI and DUI laws in Florida are extremely similar. However, they are different in one very crucial way. In Florida, the state’s BUI laws do not require the prosecution to establish that the operator of the boat was behind the wheel or at the helm of the boat when stopped by law enforcement or when some other event happens. In essence, the state’s BUI laws are broader than its DUI laws since maritime traditions of a captain are always responsible for the safety of the crew and responsible for the safe passage of the ship.
Law Enforcement in Fort Myers BUI Cases
An individual who is arrested by a Fort Myers law enforcement officer for being suspected of BUI cannot be released from jail until he or she meets certain statutory elements for release. Specifically, the person arrested will be released when eight hours have passed, the individual’s normal faculties have been restored, or his or her BAC drops below 0.05%. Until such time, the person will remain behind bars in order to prevent harm to the public.
Law enforcement in Fort Myers have wide latitude to encounter boaters on the water. Specifically, they may stop a boater in order to perform a safety and registration check. The officer could use the safety check as a pretext for a more comprehensive and intrusive search. However, the officer cannot detain the boater for an unreasonable amount of time. In essence, the officer must release the boater once he or she renders a determination that all safety devices are on board and that the boat is properly registered.
Notwithstanding, the officer can observe things that are out in the open during a stop. For example, the officer may find that the boat operator is confused, slurring speech, and smells like alcohol, or there is another sign of impairment. Moreover, the officer could notice that there are alcohol containers out in the open on the boat. This could give the officer the right to conduct a more intrusive search, which may include asking the boater to submit to a field sobriety test and a portable breath test. Failing these tests allows the officer to have probable cause to arrest the individual for operating a boat under the influence.
Defenses to Fort Myers BUI Charges
Taking a boat onto the open waters in Florida is not necessarily an indication that the operator of the boat has waived his or her legal rights. The prosecution has the burden of proof beyond a reasonable doubt to secure a conviction for BUI in Fort Myers. Meaning, the boater is not automatically guilty of this offense.
A seasoned Fort Myers BUI defense lawyer will examine the facts of the case and determine the best defense strategy possible. For instance, the defense could attack the prosecution’s assertion that the person charged with BUI was operating the vessel, as defined under Florida law. In essence, a person on a boat may be highly intoxicated, but if he or she is not the operator of the vessel, then the state has not met its burden of proof in establishing guilt. There is no law in Florida that prohibits a passenger on a boat from drinking and being intoxicated.
Moreover, the observations of the officer may be subject to a vigorous attack. Despite the efforts of police, they are not always correct in their assumptions. They may be quick to judge a situation and fail to conduct a more thorough investigation, or they failed to perform a sufficient investigation that could have better assisted them in determining that the individual is guilty of a crime. Examples of an insufficient police investigation are unlawfully detaining a boat without evidence to do so, or conducting a field sobriety test that was unfair (because of water conditions, injury or disability), or not properly interpreting the results of a field sobriety test. An officer may also fail to follow established procedures such as a blood or breath test.
Musca Law’s Fort Myers BUI Defense Lawyers are Ready to Help you Now
If you are facing charges for boating under the influence, our Fort Myers defense attorneys are ready to help you launch the strongest defense case possible. The repercussions of a BUI charge can negatively impact a person’s life for years to come. That is why it is critical that you contact a seasoned Fort Myers BUI defense attorney who can help you fight for your legal rights and interests.
Contact Musca Law to discuss the facts and circumstances of your case. Call (888) 484-5057 to schedule a complimentary consultation and to learn how our experienced Fort Myers BUI defense lawyers can fight for you.