Boating Under the Influence

Similar to Driving Under the Influence in a vehicle, it is a misdemeanor for one to operate a vessel while under the influence of alcoholic beverages, chemical substances, or a controlled substance, to the extent that his or her normal faculties are impaired. Under this type of allegation, the proof would be through a physical inability to perform field sobriety exercises designed specifically for a boating under the influence allegation, without the benefit of breath or blood testing.

It is also a crime to operate a vessel if an individual’s blood alcohol level is .08 or above. Much like a DUI, a first time Boating Under the Influence (BUI) is a sort of hybrid misdemeanor with penalties not fitting neatly into the typical first degree or second-degree misdemeanor packaging. For a standard first offense BUI, an individual is subject to a fine between $500 and $1000 as well as imprisonment of no more than 6 months. Should an individual with a first time BUI receive a probation sentence, they would be subject to no more than 12 months of restriction.

Though BUI penalties will vary based on an individual’s prior history and the severity of the BUI alleged, the following chart depicts the possible penalties you can be subjected to for boating under the influence in Tampa.

1. First Offense
   1. Jail sentence up to 6 months
   2. Fine of $500 to $1000
   3. Possible 12 months probation
   4. Minimum of 50 Public Service Hours
   5. 10-day vessel impound not concurrent with incarceration of defendant
   6. substance abuse evaluation and any necessary treatment
2. First Offense with BAL above .15
   1. Jail sentence up to 9 months
   2. Fine of $1000 to $2000
   3. Possible 12 months probation
   4. Likely increase in Public Service Hours over the normal 50
   5. 10-day vessel impound not concurrent with incarceration of defendant
   6. substance abuse evaluation and any necessary treatment
3. First Offense with Serious Bodily Injury (Third Degree Felony)
   1. Prison up to 5 years in Florida Department of Corrections
   2. Additional penalties found in other less serious boating under the influence charges
4. Second Offense within 5 years
   1. Mandatory 10 days county jail. Jail sentence could be up to 9 months or up to 12 months if blood alcohol level above .15
   2. Fine of $1000 to $2000 or $2000 to $4000 if blood alcohol level above .15
   3. 30-day vessel impound not concurrent with incarceration of defendant
5. Third Offense within 10 years (Third Degree Felony)
   1. Mandatory 30 days county jail
   2. Fine up to $5000 but not less than $2000 (Fine not less than $4000 if BAL above .15)
   3. 90-day vessel impound not concurrent with incarceration of defendant
   4. Fourth Offense (Third Degree Felony)
   5. Prison up to 5 years in Florida Department of Corrections
   6. Fine not less than $2000 and up to $5000 (Fine not less than $4000 if BAL above .15)
   7. Mandatory 30 days county jail
   8. 90-day vessel impound not concurrent with incarceration of defendant

In Florida, despite a boating under the influence allegation subjecting you to implied consent, just as if you were driving a car, if you are convicted of boating under the influence, your driver’s license will not be directly affected. In other words, a conviction of a boating under the influence charge will not result in your driver’s license being suspended. However, a boating under the influence conviction can be used to enhance a later received driving under the influence charge. For example, if you are convicted of a BUI and are convicted of a DUI within five years of the BUI conviction, the BUI conviction can be used to subject you to a five-year driver’s license suspension as opposed to a one-year suspension as if the DUI were treated as a first time DUI. While not involving a driver’s license, in the same way a prior BUI can enhance a DUI penalty, a prior DUI can enhance a potential penalty for BUI.

Because the field sobriety exercises we all think of (one leg stand, walk and turn, etc.) must be performed on stable ground and require law enforcement to remove an individual to land, possibly affecting a de facto arrest, law enforcement scurried a few years ago to standardize field sobriety exercises in a seated position, called the “seated battery of standardized field sobriety exercises.” The exercises involved for a boating under the influence charge are horizontal gaze nystagmus, palm pat, finger to nose, and newly added hand coordination test requiring an individual to make a fist and place it against their chest. The person then places their right fist against their left fist and is instructed to alternate their positions while counting one to four. At the count of four, they are instructed to clap their hands three times and then return their fists to the position they were in when they started clapping. From there they are instructed to reverse their fists, counting five through eight, eventually placing their hands on their lap. Confused yet? Us too. Imagine doing that after being in the Florida sun all day with law enforcement breathing down your neck. This exercise is meant to closely mimic a walk and turn exercise were the person pulled over for driving under the influence.

As with a DUI, BUIs can often be defending by making a showing that a person is not impaired. Should the individual perform well on field sobriety exercises, proof of impairment will be compromised for the State. If there are eyewitnesses who can say the individual only drank a certain amount, or nothing at all, depending on the witness’ own sobriety, they may have material information that can help the defense.

Who was the boat “operator?” Depending on the scenario, it may be difficult for law enforcement to discern who the actual boat operator was. Men that are of a similar build with bathing suits that look alike may be hard to tell apart. When an individual is wearing a sun shirt, buff, or hood with sunglasses and perhaps others in the boat are wearing similar apparel, this too may cause an identity issue.

As with any crime, the penalties a prosecutor seeks can depend on many variables associated with the BUI. If you have been charged with Boating Under the Influence in Tampa, Florida contact our Tampa BUI attorney Jason Mayberry today at 813-444-7435 and allow our experience to help you.