The Difference Between a DUI and BUI under Florida Law
An ice cold beer on a hot afternoon on the water is a beautiful thing! But if you’re the owner or operator of that boat and you’ve been drinking, you may want to think twice before starting up your engines… here’s why:
RANDOM VESSEL INSPECTIONS – What kind of suspicion does the officer need in order to stop, inspect, board or search your vessel?
Stopping the Vessel– NONE! Unlike driving a car, where a police officer needs “Probable Cause” to pull you over if he suspects you of DUI, an officer does NOT need probable cause to stop your boat for if only to make sure your boat complies with regulations. The officer does this by
- checking for the correct safety equipment,
- fishing permits,
- registration certificates and
- bag limits.
Random “spot checks” are not considered a serious invasion of your privacy.
Boarding the Vessel – boarding your boat to do an inspection? If it’s for safety reasons, there must be someone aboard whose safety may be at risk. No one can board your boat to do an inspection if you are the owner or operator and you’re not on board. If you are aboard, the officer may board to do an inspection with your consent or if he believes there’s a violation.
He also can board if you’re can’t show him the boat’s registration.
The Coast Guard can make an “administrative” boarding and bring Florida police with them. The police can then make an arrest for a criminal violation without needing “reasonable suspicion” for the stop.
Police on a roving random patrol can stop and board any boat at any time on any waters with no probable cause or reasonable suspicion to believe there was a crime or border crossing.
Searching the Vessel – the police must have probable cause before searching further.
However, an officer who believes a boat was used for fishing before the inspection can open and inspect all containers except those that are found in “sleeping or living areas” of the boat. During such inspections the officer will ask to see your life jacket, fire extinguisher, registration, etc. By asking you to produce things for inspection, the officer gets a pretty good indication of your sobriety while he observes you looking for each item and bringing it to him. If he believes you are BUI, he can investigate further. Anything he sees in plain view is not considered a “search.”
Who Is The Operator? – Unlike a car a boat can be “operated” without a driver. Who gets charged with a BUI if no one is at the Helm but everyone on board is intoxicated? If the officer can’t tell who is in charge,
- The owner of the boat is considered the “operator”, or
- The person who rented or borrowed the boat, or
- The person giving orders to the others on board; or
- Anyone in control of the boat.
Incapacity of the Operator – it’s unlawful for the owner or person in charge of the boat to allow the boat to be operated by anyone who is physically or mentally incapable of operating the boat. Disabled people who have drivers’ licenses are allowed to operate a boat.
Designated Driver – must be someone who has NOT been drinking. This doesn’t protect the person who turned over the controls. That person is still considered an “operator.”
Boating Safety ID Cards – There’s no “boat operator” license, similar to a Florida Driver’s License. However, the law requires everyone under 22 years old to have a photo ID and a Boaters Safety ID card to operate a boat having a 10hp motor or more.
U.S. COAST GUARD And Other Federal Agencies– If a U.S. Coast Guard officer has reason to believe a boater is BUI, that Coast Guard officer can hand that boater over to the local police. The law enforcement officer handing the boater over can include officers from the USCG, Customs, Border Patrol, FBI, DEA, ATF, etc. Those officers have arrest authority throughout the U.S. and on U.S. flagged boats anywhere in the world.
WATERS OF THE STATE OF FLORIDA –Florida waters are very broadly defined; it covers any waters within Florida and any waters if the boat was leaving Florida or coming to Florida. Florida’s territorial boundaries are measured 3 nautical miles into the Atlantic or Gulf Stream and 9 nautical miles out into the Gulf of Mexico.
a. Refusing Breath, Blood or Urine Test –
- Civil Penalties for 1st refusal = $500 fine. Failure to pay within 30 days is a 1st degree misdemeanor; punishable by up to one year in jail, one year probation and $1000 fine.
- Criminal Penalties for 2nd Refusal – 1st degree misdemeanor to refuse a breath, blood or urine test if the officer believes you are BUI and you’ve been previously been fined for a prior BUI refusal. BUI refusals are very different from DUI refusals. BUI refusals don’t count towards later DUI refusals and vice versa.
- Impounding or Immobilization – Just vessels are impounded for BUI convictions, not your car.
- Drug Evaluation and Treatment – For a BUI conviction the operator is required to complete a drug evaluation and treatment as a condition of probation. It doesn’t affect his driver’s license.
- Community Service Hours – a 1st time BUI must perform 50 hours of community service, and cannot “buy-out” his time.
- Mandatory Adjudication – Judges are forbidden to accept a plea to a lesser offense from a person charged with a serious BUI offense. For BUI violations, a judge can’t accept a plea to a lesser offense if the operator has a 0.16 BAC or higher.
- Leaving the Scene – 3rd degree felony to leave the scene of an accident if there is an injury to a person; 2nd degree misdemeanor if there is only property damage.
b. Criminal Penalties for BUI – A person will be found guilty ofBUI if that person is under the influence of alcoholic beverages or a chemical or controlled substance to the extent that their normal faculties are impaired, or have a blood or breath-alcohol level of 0.08 or above.
- First-time offender – $1000 fine, up to 6 months in jail, probation up to 1 year, drug evaluation and any treatment recommended, 50 hours of community service, and the vessel impounded for 10 days.
- Second conviction- $2,000 fine, up to 9 months in jail. If the second conviction occurs within 5 years after the date of 1st conviction, mandatory jail term of 10 days. As a condition of probation, 30-day vessel impoundment or immobilization of any one vehicle registered in the defendant’s name for a period of 30 days (though, this impoundment or immobilization can be dismissed if it would cause a hardship to a third party).
- Third conviction – If the 3rd conviction is within 10 years of a prior conviction, it’s a 3rd degree felony; minimum mandatory 30 days imprisonment. As a condition of probation, 90-day vessel impoundment or immobilization of any one vehicle registered in the defendant’s name for a period of 90 days (though, this impoundment or immobilization can be dismissed if it would cause a hardship to a third party).
If the third conviction is outside of 10 years from a prior conviction, fine of $5,000 and up to 12 months imprisonment.
- If boater commits a fourth offense, regardless of timing, that person has committed a third degree felony. Any fine imposed will not be less than $2,000
Penalties are greater if damage is done to the property or person of another, and are far greater if someone dies as a result of a person operating a vessel under the influence (BUI manslaughter).
- BUI Manslaughter – 2nd degree felony: up to 15 years in jail and $10,000 fine.
- BUI Manslaughter, if the boater fails to give information or render aid – 1st degree felony: up to 30 years in jail and $10,000 fine.
ZERO TOLERANCE FOR BOATERS UNDER 21–
- PBT’s – preliminary breath tests with a portable breath/alcohol analyzer are presumed accurate and results are admissible in BUI prosecutions.
- Penalties – It is illegal for someone under 21 to operate a vessel with a BAC of 0.02 or higher. When an officer believes that someone under 21 is BUI, the laws of implied consent apply. That officer may ask the individual to submit to a test to determine their breath-alcohol level (BAC).
i) If someone under 21 refuses, the officer warns that person that refusal will result in 50 hours of public service, and that they will not be allowed to operate a vessel until those hours have been completed.
ii) If convicted of BUI, a person under 21 is subject to 50 hours of community service, will be prevented from operating a vessel until those hours of community service are complete, and will be required to complete a boating safety course.
FIELD SOBRIETY EXERCISES
- General Observations – The best boating field sobriety test is the boating safety inspection. The officer can move the operator all around the vessel by choosing the order in which equipment is requested; he can ask for items first at the helm, then the bow, then back to the stern and up front to the bow again. By the time the officer finishes asking the operator to retrieve items for inspection, he could easily describe the signs of impairment the operator demonstrated.
- Moving the Boater Ashore to Perform Field Sobriety Exercises- The officer will watch the operator closely as the operator moves the boat to a nearby dock or marina.
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Law Offices of Richard G. Salzman, P.A.
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