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BUI Boating Under the Influence Defense Lawyers in Sarasota, Florida

Florida Statute § 327.35 – Florida Boating Under the Influence (BUI) Laws, Penalties, and Legal Defenses

 

Florida Statute § 327.35 makes it is a crime in Florida to operate a boat under the influence of alcohol or drugs. Just as Florida statutes provide for fines and other penalties for those who operate vehicles while impaired by alcohol or drugs, so too Florida law penalizes individuals who attempt to operate boats on Florida’s waterways at a time when they cannot safely do so because of the intoxicating effects of alcohol or drugs. Boating under the influence is not a “minor” crime, and individuals charged with this offense should explore whether they have one or more legal defenses to the charge before accepting the sometimes-harsh penalties that come with a conviction for boating under the influence.

Florida Statute 327.35 and Boating Under the Influence

Florida Statute 327.35(1)(a)-(c) defines boating under the influence as operating a boat or other similar vessel anywhere within the state when:

  • The operator is impaired by alcohol or any one of a number of designated drugs or substances to such an extent that the operator is not able to safely operate the boat, no matter what amount of alcohol or substance he or she has in his or her system.
  • The operator has a breath alcohol concentration of 0.08 grams of alcohol per 210 liters of breath.
  • The operator has a blood alcohol concentration of 0.08 grams of alcohol per 100 milliliters of blood.
  • A boat operator who meets any one of these conditions can be found guilty of boating under the influence and be sentenced according to the provisions contained within Florida Statute 327.35.

Penalties for Boating Under the Influence: Florida Statute 327.35(2)

In Subsection (2), the penalties for boating under the influence are spelled out:

On a first conviction, a person can be punished by a fine of at least $500 but no more than $1,000 and a term of imprisonment of up to six months.

On a second conviction, a person faces a fine of at least $1,000 but less than $2,000 and a term of imprisonment of up to nine months.

On a third conviction (where at least one prior conviction occurs within the preceding ten years), the person is guilty of a third-degree felony and can face up to five years in prison and a fine of up to $5,000. If no previous conviction occurred within the ten years immediately preceding the present offense, then the person can face a fine of between $2,000 and $5,000 and a term of imprisonment of up to 12 months.

On a fourth or subsequent conviction, the person has committed a third-degree felony, which is punishable by up to five years in prison and a fine of up to $5,000. The fine may not be any less than $2,000.

Prior convictions include previous convictions for boating under the influence, driving under the influence, DUI manslaughter, driving while impaired, and other similar offenses.

Florida Statute 327.35(3): BUI Resulting in Injury or Death

A person who commits the offense of boating under the influence and his or her impaired operation of a boat or vessel directly causes or leads to certain kind of crashes can face even steeper penalties. These penalties apply regardless of how many previous BUI convictions the person has at the time of the present offense:

  • If a crash results in damage to property or any injury to another person, the operator can face conviction for a first-degree misdemeanor and be punished by up to one year in jail and up to a $1,000 fine.
  • If a crash results in serious bodily injury to a person, then the operator has committed a felony of the third degree and can face up to five years’ incarceration in a state prison and up to $5,000 in fines.

If the crash resulted in the death of a person, it is considered a second-degree felony and is punishable by up to 15 years’ of imprisonment and up to $10,000 in fines. If a person knew or had reason to know that he or she had caused a crash and failed to stop to render aid after the crash, then the person is guilty of DUI manslaughter, a first-degree felony that can be punished by a period of incarceration of up to 30 years and up to $10,000 in fines.

It is not a defense if the operator claims that he or she had no reason to know that the crash resulted in injury or death. Knowing or having reason to know that an accident occurred is all that is necessary in order to trigger liability under the last provision discussed above.

Enhanced Penalties for Elevated Breath or Blood Alcohol Concentration and Children Present

Florida Statute 327.35(4) provides for enhanced penalties when a person’s breath or blood alcohol concentration is determined to be 0.15 grams of alcohol per 210 liters of breath or 100 milliliters of blood and who is operating a vessel on which a child under the age of 18 years is present. These enhanced penalties include:

On a first conviction, a fine of between $1,000 and $2,000 and imprisonment for up to nine months.

On a second conviction, a fine of between $2,000 and $4,000 and imprisonment for up to 12 months.

On a third or subsequent conviction, a fine of no less than $4,000.

Other Sentencing Provisions: Florida Statute 327.35(5)-(6)

On top of the fines and period of incarceration that can be imposed for a BUI conviction, the court must also impose the following terms and conditions upon conviction:

  • For a first BUI conviction, the person must be sentenced to no more than one year of probation and be ordered to complete 50 hours of community service.
  • For a second BUI conviction, if the previous offense occurred within the five years immediately preceding the present offense, the person must serve a term of confinement of at least ten days, 48 hours of which must be served at the same time.
  • For a third or subsequent BUI conviction, where at least one previous offense occurred within the 10 years immediately preceding the present offense, the person must serve 30 days in jail, 48 hours of which must be served at the same time.

The court is also directed to order the temporary impoundment of the vessel in which the person was boating while intoxicated. Finally, the court is to order the person convicted of BUI to complete a substance abuse program as a condition of any sentence imposed. This substance abuse program has the authority to require the person to also obtain a substance abuse evaluation and pursue treatment at a more intensive facility, if deemed appropriate. The person would be responsible him- or herself for paying the costs of any such treatment.

Mandatory Detention Following Arrest – Florida Statute 327.35(8)

A person who is arrested on suspicion of BUI is to remain in custody until:

  • The effects of the alcohol or drugs has worn off and the person’s normal mental faculties have been restored.
  • The person’s breath- or blood-alcohol level has dropped to below 0.05 grams of alcohol per 210 liters of breath / 100 milliliters of blood.

Eight hours have passed since the person was arrested.

Definition of “Operating” a Vessel

Florida Statute 327.02(33) defines “operate” in the context of a BUI charge to mean being in command or charge of, or actually controlling a vessel or boat on any waters of the state. It can also mean controlling or having responsibility for the navigation or safety of the boat or vessel while it is underway. “Operate” can also mean being responsible for steering a boat or vessel that is being towed or pulled by another boat.

Investigation of BUI Cases in Florida

Depending on where a boater is – on the ocean or on inland waters – any one of a number of law enforcement agencies can begin a BUI investigation. An investigation might begin based on an officer’s or warden’s observations of a boat being operated in an erratic or unsafe manner. This might occur, for example, if a boat is creating too much wake near the shore of a lake or if it is swerving back and forth along the water. Law enforcement may also stop a boat based upon the observations of other boaters or witnesses.

Once law enforcement officers have stopped a boater on suspicion of being under the influence, officers can request that the boater provide a preliminary breath sample for testing there on the water. The result of this test can provide officers will all the evidence that is needed to place the person under arrest if the result is over 0.08. Otherwise, the boater’s performance on certain sobriety tests administered by the officer, or the officers’ observations of the officers pertaining to the person’s demeanor and appearance, can sustain an arrest decision.

Boating Under the Influence FAQs

Does any “boat” or “vessel” fall under the provisions of the BUI statute?

Yes, almost any type of craft that is capable of transporting individuals on water will qualify as a boat or vessel for purposes of the BUI statute. The only vehicle that is explicitly exempted from the definition of a “boat” or “vessel” is a seaplane.

If I refuse a preliminary breath test, can I be arrested for BUI?

Yes. Refusing to take an officer’s preliminary breath test when offered can be considered along with any other evidence of impairment the officer may have observed. If the officer has seen you operating your boat in a careless or reckless manner, have difficulty standing still without falling over or following simple directions, the officer may have sufficient evidence to place you under arrest for BUI regardless of whether you take the preliminary breath test.

Can I be arrested for BUI if I am a passenger on a boat?

No, intoxicated passengers are not covered by Florida’s BUI statute. In order to be convicted of BUI, there must be evidence that shows you were “operating” the boat. The statute does provide for different ways in which a person might “operate” a vessel, but each of the methods described involves exercising some control over the boat.

Does a BUI conviction affect my driver’s license?

No, a Florida BUI conviction does not have any impact on your driver’s license. A driving suspension is not one of the penalties that are provided for in the BUI statute.

Will I go to jail if law enforcement suspects I am BUI?

Yes, law enforcement will most likely make an arrest if they believe there is sufficient information available to them suggesting that you are boating under the influence. You will be held in custody until your blood- or breath-alcohol concentration has decreased below 0.05, you no longer appear to be impaired, or until eight hours have passed, whichever occurs first.

Is BUI only limited to alcohol?

No. While a person can commit BUI if he or she is under the influence of alcohol, there are a variety of other impairing substances that can cause a person to become impaired and unable to safely operate a boat. While there may not be tests that can measure the concentration of such substances in a person’s body, a BUI conviction can still occur if law enforcement has evidence showing that a person was impaired by such a substance.

Is BUI a felony in Florida?

Depending on the circumstances involved in the arrest, a Boating Under the Influence charge in Florida could be a misdemeanor or felony. Felony convictions always result in more substantial fines and lengthier prison sentences. A BUI becomes a felony under Florida DUI statutes when there are operator has several DUI or BUI offenses on their record, serious personal injury to another, manslaughter, and/or if there are other special BUI enhancements or other crimes which were committed.  

Can I receive a BUI if I was not operating the boat at the time of the stop?

Yes. Boats do not require an operator to be “at the wheel” at all times to navigate a boat or water vessel. According to Florida Statute 327.35, a person is lawfully “operating” a boat if he or she is merely “in charge of in” or in “command of” a water vessel. This includes boats or water vessels that are “in tow” by another water vessel that is operated by another operator. In other words, law enforcement only needs to determine who is ultimately responsible for the water vessel to determine who to test for illegal operation a boat while impaired. Also, law enforcement does not need probable cause to stop and board any boat on Florida’s waterways.

Defenses Florida Defendants May Raise in a BUI Prosecution

A successful defense strategy in a BUI case is one that focuses on the evidence available to the prosecutor and seeks to undermine the credibility and reliability of such evidence or preclude its admission at trial altogether. Some of the defenses that may be able to be raised include:

  • The evidence of impairment or intoxication is weak: Absent the results of a breath or blood test, prosecutors must rely on the officers’ observations to argue that the person accused of BUI was intoxicated. Some of these observations can be quite subjective: slurred speech, red eyes, and trouble balancing may indicate impairment but may also indicate other, non-impairing conditions.
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  • The breath or blood test was not performed correctly: There is a certain procedure that law enforcement officers must follow in collecting a breath or blood sample for testing. This procedure exists to help ensure the results of such tests are accurate. If each step in the procedure is not followed, the results of the test may not be accurate. A judge or jury may choose to disbelieve the results of such tests and find the boater not guilty of BUI.

Officers improperly elicited statements from the accused: Officers can ask questions of boaters when initial contact is made in order to better determine if a law violation is occurring. However, once the officer has placed a person under arrest, officers cannot ask further questions of that person without first providing him or her with Miranda warnings. If officers question someone under arrest without first providing him or her with his or her Miranda warnings, then any answers or statements may be suppressed – that is, kept from being used against the accused.

About Florida BUI Defense Law Firm Musca Law

Even though a BUI conviction may not impact one’s driving privileges, the consequences of a BUI conviction are nonetheless severe. Mandatory fines and minimum jail sentences are just the start: a conviction for BUI can easily cost a person thousands of dollars in fines, court fees, and treatment costs. Not only this, but the penalties increase exponentially if someone is hurt or killed as a result of boating under the influence. Finally, in determining how many prior convictions a person has, consideration is given not just to prior BUI convictions but other driving under the influence convictions and related offenses as well.

A strong BUI defense begins with retaining the services of a law firm that is well-familiar with Florida’s BUI laws and the methods prosecutors use to secure convictions. That is Musca Law: Attorney John Musca and the legal team of Musca Law have devoted themselves to providing professional legal services to Floridians facing charges such as BUI. The firm’s success is reflected in its numerous awards and recognitions, including Attorney Musca’s perfect 10 out of a possible 10 score on the legal informational site Avvo.com. Boaters facing BUI charges can reach out to Musca Law 24 hours a day, seven days a week. If a boater accused of BUI cannot make it to one of Musca Law’s offices, our legal team can oftentimes meet with the boater at a more convenient location.  

Strong Legal Defense for Your Boating Under the Influence Charge

The repercussions of a BUI conviction far outlive a prison sentence and will have bearing on a person’s personal and professional life. Don’t be afraid to put the skills of an experienced Florida criminal defense attorney on your side. The legal team at Musca Law has the experience and resources required to help fight your conviction. Schedule a free consultation with our law firm today by calling (888) 484-5057.

 

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