Boating Under The Influence
Pennsylvania Boating Under the Influence
Pennsylvania Statutory law not only prohibits the operation of a vehicle while under the influence (DUIs), but it also prohibits the operation of “watercrafts” while under the influence. In Pennsylvania, no person can operate any watercraft while under the influence of alcohol or a controlled substance.
The Pennsylvania Fish and Boat Code defines a “watercraft” as any device capable of being used as a means of transportation on water or ice. A watercraft would include boats, motorboats, iceboats, all terrain or amphibious vehicles, and all other such devices. This definition of a watercraft does not include seaplanes, surfboards, or a commercial craft subject to Federal manning and inspection requirements. Depending on the circumstances, water skis may also be excluded from the term watercraft.
Similar to a Driving under the Influence (DUI) offense, an individual who operates a watercraft or boat while intoxicated can be given Boating under the Influence (BUI) offense. A law enforcement official, such as a waterway conservation officer (WCO) or personnel of the United States Coast Guard, may stop a boat or other watercraft if there is a reasonable basis or explanation for the stop. This means the officer must have a reasonable suspicion or probable cause to believe a crime had been committed.
In Pennsylvania, various law enforcement officials can stop a watercraft and search it, but a waterway conservation officer is generally the only law enforcement officer who can issue a BUI.
A waterway conservation officer who has a reasonable suspicion that a person is operating a watercraft while under the influence, may initially stop a watercraft and request that the operator submit to a pre-arrest breath test. A refusal of a pre-arrest breath test is not admissible in court and will not result in any suspension of boating or watercraft privileges.
When determining whether or not to consent to a pre-arrest breath test, keep in mind that a BUI may be issued when: (1) an individual is under the influence of alcohol or any controlled substance to a degree which makes the person unable to safely operate a watercraft; or (2) when the amount of alcohol in the blood of an adult is 0.10% or greater, or in a minor is 0.02% or greater. An adult is anyone over the age of 21 and a minor is anyone under the age of 21.
However, just because an adult’s blood alcohol content is below 0.10% does not mean they are “off the hook” for a BUI. When an operator has a blood alcohol content between 0.05% and 0.10% then the individual tested is not automatically presumed free of guilt. Rather, this information may be considered in court, along with other evidence, to determine whether or not the person was under the influence of alcohol.
Under Pennsylvania law, any individual who operates or is in actual physical control of the movement of a watercraft is deemed to have given consent to chemical testing of breath, blood, or urine to determine blood alcohol content. Waterway conservation officers can require individuals to submit to chemical testing. However, police officers, generally, do not have the authority to require the operator of a watercraft to submit to chemical testing.
Once an individual is charged with a BUI, the amount of alcohol or controlled substance in the individual’s blood, as shown by chemical testing, is admissible as evidence in court.
If an individual is arrested and refuses to be chemically tested then the testing shall not be conducted. However, unlike the refusal to submit to a pre-arrest breath test, this refusal to submit to chemical testing can be used as evidence in court. So, while no presumptions can be drawn from a chemical test refusal, it will be considered as a factor in court. In addition, when an individual refuses to consent to chemical testing, the boating or watercraft privileges of that person shall be suspended for a period of 12 months.
Furthermore, a water conservation officer may arrest an individual for a BUI even if the violation did not occur in the officer’s presence. For example, if an individual is taken to a hospital or medical treatment facility then that individual can still be arrested for a BUI, but only when probable cause is present. Probable cause is considered present when a person in the position of the arresting officer, viewing the facts and circumstances at the time, could have concluded that the individual was operating a boat or watercraft under the influence of alcohol or a controlled substance.
The fact that a person may be legally entitled to use alcohol or controlled substances is not a defense to a charge of BUI.
An individual’s first two convictions for a BUI are considered misdemeanors of the second degree and carry a fine of up to $500. The first BUI conviction carries a mandatory minimum of 48 consecutive hours of imprisonment. The second BUI conviction carries a mandatory minimum of 30 days in jail.
All third and subsequent BUI offenses are considered first-degree misdemeanors. Individuals with a first-degree misdemeanor BUI are given a fine between $2,500 to $10,000 and a minimum of 90 days imprisonment.
If an individual is convicted of homicide by watercraft while under the influence, the person has committed a felony of the third degree. The mandatory minimum imprisonment for BUI homicide is three years.
Contact my office for a free consultation if you or someone you know has been charged with Boating Under the Influence. Although these offenses may not be less common than a DUI offense in Pennsylvania, I have litigated these cases. When I worked as an Assistant District Attorney I prosecuted Boating Under the Influence cases that occurred on the Susquehanna river near Phoenixville, PA.