During these summer months, more people will be enjoying the beautiful waterways that Florida has to offer. Southwest Florida offers boaters some of the most scenic boating opportunities in the country including Naples bay, Estero bay, 10,000 Islands and of course the Gulf of Mexico. Boats and other watercraft such as jet skis, paddleboards and kayaks will be used to enjoy this “boater’s paradise” we live in. It can be easy to forget the risks involved when you find yourself operating a boat or other watercraft when alcohol is involved.
Sadly our Boater’s Paradise leads the county in the highest annual number of boating deaths. Florida Fish and Wildlife Conservation Commission publishes an annual study relating to boating accidents in Florida. See link to 2016 study here: http://myfwc.com/media/4215201/2016-Introduction.pdf
The study shows that in 2016 there were 56 fatal boating accidents resulting in 67 fatalities. In 24% of the fatal accidents, alcohol was determined to play a role. Due to the dangers inherent when boating and excessive drinking mix, Florida Law enforcement agencies are aggressive in targeting potentially impaired boaters. This is even more so during summer months when most of these accidents occur.
Below are some common questions I have often been asked relating to Boating Under the Influence Charges (BUI).
Question 1. “Do I have to be breaking to the law for Law Enforcement to stop me on the water?”
Answer: Like many answers under the law, it depends. Unlike traffic stops on land which require the officers to have a reasonable suspicion of criminal activity, or a belief that the driver has either committed a law violation or the driver is “ill tired or impaired”. Florida Fish and Wildlife officers and other Law Enforcement agencies on the water do not need that basis to stop vessel. They can stop any vessel pursuant to a safety inspection. Often times these safety inspections turn into BUI investigations once any evidence of alcohol consumptions is observed. There is however an exception to typical safety inspections.
Last year the Legislature enacted Florida Statute 327.70 (2)(b), which provides that if a Law Enforcement agency has inspected a vessel and issued a valid safety inspection decal which is displayed, then a Law Enforcement officer may not stop the vessel unless there is another valid basis. The Language of the statute is included below.
Florida Statute 327.70 (2)(b) If a vessel properly displays a valid safety inspection decal created or approved by the division, a law enforcement officer may not stop the vessel for the sole purpose of inspecting the vessel for compliance with the safety equipment carriage and use requirements of this chapter unless there is reasonable suspicion that a violation of a safety equipment carriage or use requirement has occurred or is occurring. This subsection does not restrict a law enforcement officer from stopping a vessel for any other lawful purpose.
This law was enacted to stop repeated boarding of vessels under the guise of “a safety inspection”. Many times the same boaters were being harassed and stopped by officers who knew very well from previous encounters that the vessel was in full compliance with safety requirements.
Assuming you are in full safety compliance and are able to obtain and display a valid inspection decal from a Law enforcement agency. This will assist you in avoiding being stopped for safety inspections in the future. Law Enforcement will have to have some other basis to stop your vessel.
*NOTE* An exception to the above law relates to the Coast Guard. If you are stopped by the Coast Guard, other more broad laws apply to their agency. The Coast Guard has greater stopping powers then standard Law Enforcement Officers like Florida Fish and Wildlife and other local law enforcement agencies.
Question 2. What Law controls BUI’s in Florida?
Answer: Florida Statute 327.35, provides that it is illegal to operate any vessel while under the influence of Drugs or Alcohol to the extent your normal faculties are impaired, and/or you have a blood/breath alcohol level of .08 or greater. Here is a link to the full statute: F.S. 327.35
Question 3. Can I get arrested for a BUI on a paddleboard?
Answer: Yes, In Florida it is illegal to operate any vessel while under the influence of alcohol to the extent your normal facilities are impaired. “Vessel” is defined in Florida Statute 327.02 (43)
“(Vessel) is synonymous with boat as referenced in s. 1(b), Art. VII of the State Constitution and includes every description of watercraft, barge, and airboat, other than a seaplane on the water, used or capable of being used as a means of transportation on water.”
Due to the very broad interpretation of the definition of “vessel” it is possible to be arrested for BUI even on a Paddleboard. Vessel also includes jet skis, rowboats, kayaks and even canoes. If you are arrested for a BUI it is important to immediately contact an attorney that is experienced in defending Boating under the Influence charges. There are many defenses to BUI, but only a firm that is experienced in handling these specialized cases will be able to fully inform you of your rights and defenses.
Question 4. What are the consequences of a BUI?
Answer: The penalties vary substantially if convicted of a BUI.
- Fines range from $500.00 -$1,000.00 for a 1st On a 2nd conviction they range from $1,000.00-$2,000.00.
- Jail ranges from No jail to up to 6 months for a 1st conviction
For as 2nd conviction the range is from No Jail up to 9 months.
If an accident is involved penalties increase further.
- 50 Community service hours are also mandatory on any first BUI conviction. The possibility for addional community service hours increases due to the facts of individual cases.
- Impoundment of your vessel is also a possible penalty in any BUI conviction
A person who is convicted for a third conviction within ten years of any previous conviction will face a third degree felony charge. BUI penalties dramatically increase the more convictions a person obtains.
Addional information of BUI penalties is found in Florida statute 327.35
See link to statute here: FS. 327.35
If you refused to provide a breath sample you could also be charged with a separate civil infraction with carries a mandatory $500.00 civil penalty.
It is important to note that the Coast Guard also enforces federal law which prohibits BUI. If you are arrested for boating under the influence off the coast of Florida, you are under the jurisdiction of federal authorities as well. Additional more serious federal penalties may also apply.
If you have been charged with Boating under the influence (BUI) in Florida, you should immediately contact an Attorney who is experienced and knowledgeable in defending BUI cases.
By: Thomas R. Gorman, Esq, 7/13/2017
Thomas is an Attorney with the Law Office of Donald P. Day
To schedule an appointment with our office call (239) 529-6053 today to discuss your BUI case today.