Lest you think Florida is only concerned with protecting its well-traveled roadways from impaired drivers, our state also wants to be sure we can all safely enjoy the numerous waterways of The Sunshine State. To that end, Florida has a Boating Under the Influence (BUI) Law on the books, and it is regularly enforced as well. The law is Florida Statutes Section 327.35.
To be charged with BUI, an officer has to believe there is probable cause that you have enough alcohol or drugs in your system so that your normal faculties are impaired or your BAC Level is 0.08 or higher. This is the same for a DUI. A review of the statute would tell you that the penalties for a BUI are almost identical to those for DUI’s, but there are some key differences. You should be aware of those differences.
Why Did You Pull Me Over?
To pull over a motor vehicle, the officer must have witnessed the operator committing or have cause to believe the operator committed a civil or criminal traffic violation, other criminal act, has a warrant for their arrest, or is operating a vehicle without a valid driver’s license.
If you are operating your vessel erratically, recklessly, or carelessly, you’re of course asking to be stopped for a visit with any law enforcement officer who witnesses the conduct. But, that officer, which includes officers from the Florida Department of Environmental Protection (Park Patrol), Florida Fish and Wildlife Conservation Commission, and the U.S. Coast Guard, as well as all county and city law enforcement divisions, is not limited to stopping a boat for obvious acts of misconduct. A vessel can be stopped to check equipment, conduct routine safety checks, confirm fish catch limitations on sizes, quantities, and species are being followed, or a host of other reasons that have nothing to do with any obvious wrong doing by anyone on the boat. If during this contact they suspect the operator of being impaired, then the investigation can turn into a BUI.
A DUI charge will be placed against the person actually driving or in actual physical control of a motor vehicle. However, operating a boat on the open water does not necessarily mean someone has to be at the wheel, so to speak, at all times. There is no driver’s license requirement to operate a vessel in Florida waters. Adults may choose to let young children or inexperienced adults operate a vessel under loose supervision at best, or they may leave the wheel unattended for stretches to get another drink, use the facilities, etc. It is during these stretches when tragedy can strike and identifying who was at fault can become problematic.
This is why Florida Statutes Section 327.02(27) defines the term “Operate” as “to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.”
Depending on the circumstances of your case, your defense to the charge may hinge on the whether you were actually operating the vessel or not. Please contact our office for a free, confidential consultation so we can discuss the specifics of your case with you.
Field Sobriety Tests? Out Here?
All of the tests normally used by an officer in the field during a vehicle stop obviously won’t work on a boat rocking on the waves. Nevertheless, officers still have a number of tests they can ask you to perform to assist them in their determination of whether or not you are impaired. Also, depending on where you are stopped, the officer could have you step off of your vessel onto a dock or shore area to conduct the total range of land based tests you might face in a DUI. However, it is important to remember there is no penalty for refusing to do these physical tests, If you have physical limitations that would make it difficult if not impossible to do these tests when sober, then you should give some thought to whether you want to perform them at all.
Chemical Testing and License Suspensions
If you are arrested for BUI, Florida Statutes Section 327.352 applies the same principal behind Florida’s “Implied Consent Law” for operating motor vehicles in the State to your decision to operate a vessel. You have agreed to consent to perform chemical BAC Level testing if lawfully requested to do so. If properly advised of the law and consequences of refusing to submit to breath, blood, or urine testing your refusal to do so will have consequences.
For a first refusal, you will be required to pay a civil fine of $500.00. You will not be able to operate a vessel again, legally, until the fine is paid. For a second refusal, if properly noticed by a law enforcement officer, a second refusal is a criminal misdemeanor offense and subjects you to possible incarceration of up to 12 months in jail. Notice what doesn’t happen. Unlike a DUI, there is no license suspension for refusing to submit to chemical testing. This is because unlike driving a motor vehicle, there is no requirement that you have a “boater’s license” to legally operate a vessel in Florida. Therefore, there is no justification to suspend your driving privileges. Also, the fine can be contested. Call us today if you have any questions about your BUI charge.