Police are on an Increased Lookout for Boating While Intoxicated.
Many people will head out this holiday weekend to enjoy a day on the water before the end of the boating season. While caught up in the fun of boating and socializing with friends and family, many boat operators forget that the law treats Boating While Intoxicated (BWI) the same as Driving While Intoxicated (DWI). In my experience, most people the police charge with BWI were unaware that this was even a crime. This is a common misconception that lands many people in trouble each summer.
In the post below, I will discuss the penalties for BWI and how a person might avoid consequences.
What is the Law for Boating While Intoxicated in Texas?
In the state of Texas, the police can charge you with Boating While Intoxicated if you are intoxicated while operating a watercraft. Intoxicated means: Having lost the normal use of your (1) Physical Faculties, (2) Mental Faculties, or (3) having a BAC greater than 0.08. This is the identical to the standard the state uses for DWI.
A common misconception is that this law only applies to commercial boats. This is not accurate. In fact, the definition of watercraft “means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.” This definition encompasses ski boats, pontoon boats, fishing boats, sailing boats, and even your SkiDoo.
How do Police Catch People for Boating While Intoxicated?
Almost all counties and municipalities that border significant bodies of water have some officers dedicated to patrolling for intoxicated boaters. Patrols increase over holiday weekends. Officers also have the authority to stop and board vessels for routine safety inspections or for visible infractions.
While on board, these officers will usually check for alcohol violations. Clues that will make them suspicious include open containers (e.g. beer cans), a strong odor of alcohol, the driver’s slurred speech or lack of balance, and the driver’s admission to drinking. Usually, police do not bother passengers unless they are very highly intoxicated and in danger of harming themselves. Police do, however, focus on the boat’s operator and will investigate the driver more closely if they suspect that they are intoxicated.
If you are driving the boat and police decide that the you might be intoxicated, then they will take control and drive it to shore. They will then ask you to perform Standardized Field Sobriety Tests. The purpose of these tests are to gather evidence before making an arrest. You do not have to agree to perform these tests.
If the police arrest you for BWI, they will ask you to voluntarily provide a sample of your breath or blood for BAC analysis. You not have to agree to provide this sample. I discuss the pros and cons of refusing to provide this sample in a separate post.
What are the Penalties for Boating While Intoxicated?
Penalties for BWI range from as low as a Class B Misdemeanor to as high as a First Degree Felony depending on the facts of each case. You can find the penalties for BWI in sections 49.06 – 49.09 of the Texas Penal Code.
Class B Misdemeanor
The baseline charge for BWI is a Class B Misdemeanor. This charge is punishable by up to 180 days in the County Jail and up to a $2,000 fine.
Class A Misdemeanor
If your BAC is greater than 0.15, OR if you have one prior conviction for BWI or DWI on your record, then the charge increases to a Class A Misdemeanor. This charge is punishable by up to a year in the County Jail and up to a $4,000 fine.
Third Degree Felony
If you have two or more prior convictions for BWI/DWI on your record, OR you cause Serious Bodily Injury to someone while BWI, then the charge increases to a Third Degree Felony. This charge is punishable by between 2-10 years in prison and up to a $10,000 fine.
Second Degree Felony
If you cause Serious Bodily Injury to a firefighter or emergency medical services personnel while in the actual discharge of an official duty, OR if someone dies as a result of your BWI, then you face a Second Degree Felony Charge. This charge is punishable by between 2-20 years in prison and up to a $10,000 fine.
First Degree Felony
If your caused serious bodily injury to a peace officer or judge while the officer or judge was in the actual discharge of an official duty as a result of your BWI, then you face a First Degree Felony. This charge is punishable by between 5-99 years in prison and up to a $10,000 fine.
Other Consequences of Boating While Intoxicated
As you can see, BWI carries some significant criminal penalties. However, there are other effects of a BWI conviction that every person should know about.
First, as noted above, BWI convictions are cumulative. This means that if you have a BWI or DWI conviction on your record and then get arrested for another BWI or DWI, then the penalty range increases. What people often fail to understand is that It does not matter whether the first and second arrests are for the same offense. Police can use a previous BWI to enhance the punishment for a new DWI. They can also use a previous DWI to enhance a new BWI.
Second, the State will suspend your driver’s license. In fact, you face 2 separate driver’s license suspension periods. One occurs immediately after your arrest. The second occurs immediately after your conviction. Suspension periods vary depending on the individual’s history but range from 90 days to 2 years. These suspensions apply even though you were in a boat instead of your car.
Third, the Department of Public Safety (DPS) keeps records of your BWI conviction and will send them to various governmental agencies upon request. These agencies include:
- The State Board of Educator Certification
- The Texas Medical Board
- The Board of Law Examiners
- The Department of Family Protective Services
- The Texas Board of Nursing
As you can see, people holding professional certifications are especially vulnerable to the consequences resulting from a BWI conviction.
What Can I do to Minimize My Risk?
What can you do if you still want to drink and enjoy a weekend on the lake with friends and family?
Hire a Driver
My first recommendation would be to hire someone to drive the boat for you. Many capable people are available for hire each holiday weekend for this purpose. Often, adults between the ages of 18-20 will agree to take this as a summer job for extra cash. This option is often not very expensive and is even cheaper if everyone in the group chips in for the driver’s fee. Be sure, however, to verify that the driver has the correct license and has insurance before utilizing this option.
Choose a Designated Driver from your Group
Maybe hiring a driver is not an option because it’s too close to the weekend to find one. No problem, the good old fashioned Designated Driver (DD) is still an option. Just like in the old days before ride-sharing apps existed, one of the group might just have to bite the bullet and abstain from alcohol for the day. This is an especially convenient option if you have a licensed boater in your group that is under 21 years old. While it is not a legal requirement, its always good form treat this person to some free dinner and drinks after you make it safely ashore!
Strictly Limit Your Alcohol Consumption
As a last resort, you can legally consume some alcohol while operating a boat. The law simply says that a person cannot be intoxicated while operating a watercraft. Therefore, you can legally drink alcohol and operate a boat so long as you do not lose the normal use of your (1) Physical Faculties, (2) Mental Faculties, or (3) have a BAC greater than 0.08. Keep in mind that this only applies to people over 21 years old. People under 21 cannot have any alcohol in their system at all while driving the boat.
Be careful if you choose this option. In my experience, people tend to lose track of how many drinks they have actually consumed if they have been drinking over a long period of time. This is especially true for someone who is spending a whole day out on the lake. People often think that they have only had one or two drinks when in reality they have consumed far more and are over the legal limit without realizing it. A large portion of my BWI/DWI clients fall into this category.
I do not recommend this option. I only bring it up because it is your legal right to consume some alcohol and operate a boat so long as you do not become intoxicated.
Conclusion
My purpose here was to remind people that Boating While Intoxicated is a criminal offense and the State treats a BWI conviction just as seriously as a DWI conviction. If you plan to drink while out on the water this Labor Day weekend, please consider what I covered above and take precautions to avoid a BWI arrest.
Once final word of caution is to plan for the ride home. It won’t do you much good to avoid a BWI arrest only to have police arrest you for DWI shortly after leaving dock!
If you have already been arrested for BWI or DWI, then you still have options. Please call Carter Criminal Defense at 214-699-8864 today for a free consultation.