Boating Under the Influence
Summer is here and with it comes heightened enforcement of boating laws in the waterways and along the beaches. In 2015, Pinellas County ranked fifth in the state for boating accidents, while Florida leads the nation overall. In 2015, alcohol was a contributing factor in 30 boating accidents, 21 boating injuries and 11 boating deaths in Florida. According to the U.S. Coast Guard 2015 Recreational Boating Statistics, alcohol use is one of the leading known contributing factors in fatal boating accidents, and the leading factor in 17% of deaths.
Vessel Stops - The Law has Changed
In Florida, it is not illegal to have an open alcohol container on a boat. However, it is a criminal offense to be operating a vessel while impaired or operating a vessel with a .08 BAC or above. In previous years, law enforcement did not require “probable cause” to stop you and inspect your boat. They could simply stop boaters for a routine equipment and safety inspection. These inspections can often lead to investigations for boating under the influence. In 2016, Governor Rick Scott approved House Bill CS 703 which requires law enforcement to have “probable cause” before stopping and inspecting a vessel if it displays a recent safety inspection decal issued by law enforcement on a previous stop. The bill, which went into effect on July 1, 2016, provides that law enforcement officials must issue an inspection decal to an operator of a vessel if a determination is made that the vessel meets the “safety equipment carriage and use requirements.” The decal must be placed by the vessel operator within six (6) inches of the vessel’s registration decal and above the waterline. It is important to note that this law applies only to local and state law enforcement and not to United States Coast Guard officials. If your boat does not have such a decal, you are subject to random safety, equipment and fishing regulation checks just as you were prior to the 2016 amendment to Florida law.
Targeted Enforcement of Boating Under the Influence
Aside from routine safety equipment inspections, we have also found that Florida Fish and Wildlife Officials frequently monitor “No Wake” zones and stop vessels that are being operated too fast in these areas. While this type of infraction is rather innocuous and generally not an indicator of impairment, such a violation provides law enforcement with probable cause to detain the offender which may then be parlayed into an investigation for Boating Under the Influence. Common areas that law enforcement officials target include Honeymoon Island / Caladesi in Dunedin, Clearwater Pass, John’s Pass, Weedon Island, Maximo Channel and Marina, Maximo Park, Placido Bayou, Sun-Lit Cove, North Yacht Basin, Central Yacht Basin, Bayboro Harbor, Big Bayou, Bayou Bonita, Little Bayou, Frenchman Creek, Boca Ciega Bay, Coffee Pot Bayou and Shell Key. Likewise, vessel operators frequently experience a heightened law enforcement presence at local restaurants and resorts that serve alcohol including Shepard’s Beach Resort, Gator’s Café & Saloon, the Wharf; and The Getaway Tampa Bay.
The Effects of Alcohol While on the Water
Many individuals do not realize the effects that alcohol may have on them in combination with the sun and being on the water.
- Balancing on a boat can be difficult even without consuming alcohol. Alcohol impairment exacerbates this condition and frequently results in significantly diminished stability and equilibrium.
- Alcohol can cause people to become less inhibited. This can lead to increased speed on the water, increasing the chances for an accident.
- Alcohol slows your reaction time. Your ability to respond to other boaters on the water may be decreased.
- The sun can cause dehydration. Thus, boaters often feel more impaired despite consuming less alcohol.
- “Boater hypnosis” – caused by hours of exposure to boating stressors (noise, vibration, sun, glare, wind and motion of the water) produces fatigue which slows reaction time. Consuming alcohol while on the water for extended periods of time can add to the fatigue.
- Given that the Clearwater / St. Petersburg area has a high volume of tourists visiting on vacation, many vessel operators on the waterways may have limited or no experience operating a boat or jet-ski.
All these factors can increase the likelihood that an individual is perceived to be impaired by alcohol while boating.
Tips for Avoiding a Boating Under the Influence Investigation or Arrest
No one plans on being arrested for a “Boating Under the Influence” charge. However, it is well known that boating and the consumption of alcohol often go hand in hand. In fact, Boating Under the Influence defense attorney Timothy Sullivan once had a juror joke during jury selection of a Boating Under the Influence trial that he thought it was mandatory to be impaired if you are out fishing! Nevertheless, there are steps that you can take that will reduce the chances of subjecting yourself to a Boating Under the Influence investigation or arrest.
- Be mindful of all navigational laws including “No Wake” zones;
- Before going out for a day of boating, make sure that your vessel is properly equipped with all necessary safety equipment including personal flotation devices (PFD’s) for each person aboard, a visual distress signal, a sound producing device (bell, horn, whistle, etc.), a fire extinguisher, and appropriate vessel lighting (if being operated between sunset and sunrise).
- Dispose of any empty containers in appropriate receptacles throughout the day so that there is not an accumulation of empty alcohol containers aboard.
- Wear sunscreen. Aside from the dermatological benefits, a “red face” may be misinterpreted by law enforcement as an indicator of alcohol impairment.
- Have plenty of water with you to stay hydrated.
- Wear clothing to protect your eyes from the sun to reduce fatigue, such as sunglasses and a hat.
Penalties for Boating Under the Influence
Many of the penalties associated with a “Boating Under the Influence” offense are similar to those of a “Driving Under the Influence Offense.” If convicted, the boater faces penalties that include a fine, community service, probation, investigative costs, attendance at a “substance abuse course” specified by the Court and an impound of the vessel. However, if the boater has previously been convicted of a “DUI” related offense, then the penalties increase and the boater is treated as a “Multiple Offender.” If the individual had previously been convicted of a “DUI” or a “Boating Under the Influence” offense in the five years that preceded the arrest for the new “Boating Under the Influence” offense, then the court must impose a ten (10) day county jail sentence if the individual is convicted of the new offense. Likewise, if the individual had two prior convictions, one of which occurred within the ten years preceding the new arrest, then the court must impose a thirty (30) day jail sentence if the individual is arrested for the new offense. In addition, a conviction for Boating Under the Influence would result in an additional fine that is payable to the Brain and Spinal Cord Injury Program Trust Fund. It is important to note that there is not a driver’s license revocation if the boater is convicted of “Boating Under the Influence.”
Avoiding a Boating Under the Influence Conviction
One way to avoid a conviction for Boating Under the Influence is if the attorney handling the charge can convince the State Attorney’s Office to amend or reduce the charge from “Boating Under the Influence” to “Reckless Operation of a Vessel.” This is often seen as a fair middle ground where the facts and circumstances are mitigated. In those cases that are appropriate for reduction, our team of experienced Boating Under the Influence defense attorneys will prepare persuasive correspondence to the assigned assistant state attorney in support of our request that they modify the charge. Some of the factors that we may point to include:
- The lack of a lawful basis to the detain the Defendant;
- Our client’s lack of any prior alcohol related offense, if appropriate;
- The lack of a boating accident;
- Our client’s non-impaired appearance on video;
- The lack of any open or empty alcohol containers on the vessel;
- The failure of law enforcement to properly administer field sobriety exercises; and
- In cases where the Defendant has refused to submit to breath testing, the lack of any scientific or forensic evidence with which to prove that the vessel operator was above the legal limit.
What to do if you are stopped by Law Enforcement
Many people stopped by law enforcement while on a vessel are of the mistaken belief that they do not have any rights and acquiesce to any requests made by the police officials. You should know that you continue to have many of the same rights that you enjoy while in your motor vehicle. For example, you have the right to remain silent. If the law enforcement official asks if you have consumed any alcohol, you have the right not to answer him or to otherwise incriminate yourself. If the officer asks you to perform a series of field sobriety tasks, either on the vessel or at shore, you have no legal obligation to cooperate and perform these tasks. While it is true that your refusal to submit to sobriety testing may later be used against you in court, if you take the tests, and perform poorly, that will also be used against you in court. Lastly, unlike the scenario of Driving Under the Influence, where a refusal to submit to a breath test results in a suspension of your privilege to drive, a refusal to submit to a breath test in the context of a “Boating Under the Influence” charge only results in a civil penalty of $500. This civil penalty can be challenged in court.
What to do if you are arrested for Boating Under the Influence
If you are arrested for the offense of boating under the influence in the Clearwater or St. Petersburg area you should contact an experienced Pinellas County criminal defense attorney. We are former state prosecutors that can help.
The Law Offices of Russo Pelletier & Sullivan, P.A.
Attorneys at Law
9721 Executive Center Drive North
Suite #120
St. Petersburg, FL 33702
Contact our office to discuss your options for the charge of "Boating Under the Influence".
(727) 578-0303
Free consultations
Visit our Criminal Defense website: www.defensehelp.com
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