Many people are familiar with DUIs but did you know that Florida Statutes Section 327.35 codifies BUIs or boating under the influence? BUIs are extremely similar to a DUI in most respects. To be convicted of a BUI, you must have your “normal facilities” impaired or have a BAL of .08 or higher; exact same for a DUI. However, being on a boat raises a host of additional or separate issues than with motor vehicles. “Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, operate a vessel, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.
First, when can an officer stop your boat? For motor vehicles an officer may only stop a vehicle based upon probable cause for a traffic infraction or reasonable suspicion of a crime. However, an officer can stop a boat at any time for the purpose of ensuring compliance with fishing and vessel regulations. Typically, boaters will be stopped for fishing or safety inspections.
In a DUI investigation you will be requested to perform field sobriety exercises. These consist on three standardized exercises: (1) Horizontal Gaze Nystagmus (HGN); (2) Walk and Turn; and (3) One Leg Stand. In order for these exercises to be performed properly, they must be conducted on a level dry surface. Therefore, an officer will either give you “seated” field sobriety exercises or ask you or have someone else drive the boat to a location where they can perform the three DUI standardized exercises.
The consequences of a first time BUI are:
- Up to six (6) months in jail;
- Probation not to exceed twelve (12) months;
- Fine from $500 to $1000;
- Fifty (50) hours of community service;
- Substance abuse evaluation, followed by any recommend treatment;
- Ten (10) day vessel impound; and
- Victim impact panel.
In a BUI, if you refuse to blow you do not have to worry about your license being suspended like you would in a DUI case by the DMV. There is a penalty for refusing a BUI breath test of $500. A second or subsequent refusal to provide a breath sample may be charged as a criminal offense. Even if you blow under a .08 you can still be prosecuted under the “normal facilities” impaired theory. Also keep in mind, you will not be asked to blow until you have already been arrested.
Lastly, you can be charge for a BUI even if you are not at the helm. According to the Florida Standard Jury Instructions for BUI, the term “operate” is broadly defined as follows:
“…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.”
With all of this being said, it is important that if you have been arrested for a BUI that you need to contact an attorney that is knowledgeable about the subject matter and not just someone that practices DUIs.