BUI – Boating Under the Influence

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr.

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.

If you need assistance with a BUI or even a DUI, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

DUI SERIES: The Stop and Detection

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr., Esq.

This is the first part of our new DUI Series which will outline each segment of a DUI stop and arrest from start to finish. This is to better educate the public regarding DUI and to become more knowledgeable about the process and legal rights involved.

A DUI case has three detection phases – (1) Vehicle in Motion; (2) Personal Contact; and (3) Pre-arrest Screening. Field sobriety tests are conducted in the pre-arrest screening.

During the first phase, law enforcement is taught to observe the vehicle and try to find any cues or clues that would indicate to the officer that there is a driving under the influence taking place. There are a whole host of cues (24) which are divided into four separate categories as defined by the NHTSA. I will not detail every single one but just gloss over the basics.

The first category includes problems maintaining proper lane position such as, straddling a lane line, wide turning radius, zigzagging and weaving across lane lines.

The second category includes issues with speeding and braking – accelerating and/or decele
rating rapidly, jerky stops, and driving slower than ten m.p.h. below the speed limidui-defenset.

The third category includes vigilance problems – slowly responding to traffic signals, slow or failure to respond to officer’s lights, siren or hand signals, failure to signal or signaling inconsistent with driving actions, and so on.

The fourth category includes judgment problems – following too closely, unsafe lane changes, unusual behavior, turning abruptly or illegally, and appearing to be impaired.

After the officer has determined to stop the suspect, the officer then must observe how that suspect responds. This is determined by ten cues such as, difficulty with controls, exiting the vehicle, fumbling with license or registration, balance issues, leaning on objects, slurred speech, odor of alcoholic beverages from driver, and so forth.

The second phase now begins. This is the personal contact phase. At this point, the officer uses all of his senses and experience to find clues or cues of impairment: slurred speech, admission of drinking, alcohol containers, drugs, bloodshot eyes, etc. After this point, the officer then must decide whether to ask the driver of the vehicle to step outside of the car. Once the driver has stepped outside of the vehicle then the officer will conduct the third phase which is pre-arrest screening – the field sobriety tests. Field sobriety tests consist of three standardized tests: (1) Horizontal Gaze Nystagmus; (2) Walk and Turn; and (3) One Leg Stand.

Next up in our DUI Series – Field Sobriety Tests.

If you need assistance with a DUI or another matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.