HARBOR & NAVIGATION CODE 655:
(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.
(c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.
(d) No person shall operate any vessel other than a recreational vessel if the person has an alcohol concentration of 0.04 percent or more in his or her blood.
(e) No person shall operate any vessel, or manipulate water skis, an aquaplane, or a similar device who is addicted to the use of any drug. This subdivision does not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.
(f) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or under the combined influence of an alcoholic beverage and any drug, and while so operating, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, water skis, aquaplane, or similar device, which act or neglect proximately causes bodily injury to any person other than himself or herself.
Many people assume DUI laws in the state of California only apply to driving cars and other vehicles on the road. Contrary to popular belief, DUI laws also apply to persons operating boats and other aquatic vehicles in California's lakes and rivers. A driving under the influence charge for a person operating a motorboat is often referred to as a “BUI”, or boating under the influence. Waterways in popular recreational areas are regularly patrolled by local sheriff and police departments to locate persons operating motorboats under the influence.
Statutory Authority for BUIs
The law governing the unlawful operation of a boat while under the influence is found under California Harbors and Navigation Code section 655. Under Harbors and Navigation code 655(b), it is illegal to use any type of vessel (including water skis or wakeboards) while being under the influence of drugs or alcohol. The code further prohibits (in section 655(c) ) operating these vehicles when your blood alcohol content (BAC) is at least .08%. Due to the existence of these two laws, one can be cited for a BUI simply by having a BAC of .08% or higher, or even where they have a lower BAC (i.e. at least .05%)but conduct themselves in a manner suggesting that they are dangerously under the influence. Minors (under 21) may not operate motorized vessels or other vehicles if their BAC is .01% or higher.
This Harbors and Navigation Code also covers persons operating vehicles in a commercial manner. Operators who are engaging in commercial activities (i.e. operating a company owned freight boat) are subject to an even harsher standard. This class of operators can be cited for BUI if they have a BAC of at least .o4%. This is a very low threshold considering that typical person weighing anywhere from 130 pounds to 230 pounds can reach the .o4% limit if they consume just one 12 oz. beer in an hour's time.
Harbors and Navigation Code section 655 also prohibits the act of operating a vessel while under the influence and “proximately caus[ing] bodily injury” to other people or even one's self. This provision is listed under section 655(f).
The consequences of a BUI conviction can be severe. The offense will appear on your criminal record as a misdemeanor. A defendant can receive up to a year of county jail time, fines amounting to one thousand dollars, or a combination of jail and fines. The stakes go up for persons convicted under H&N code 655(f) (where bodily injury is caused) because that section is punishable as a felony and can require fines of up to $5,000 and a year or more in state prison. Similarly, where the injury caused by an intoxicated operator results in death, the defendant operator can be sentenced to ten years in state prison.
Just as with DUI laws, the BUI statute imposes increased penalties if an operator refuses to submit for chemical testing when requested by law enforcement. Enhancements also exist for defendants having prior convictions for operating under the influence in a boat or road vehicle. The effects of a BUI can also carry over to your driver's license as the DMV has the authority to revoke or suspend a license for up to 5 years. The defendant can also berequired to take a class in boating safety.
Defenses to BUI
Not all hope is lost when someone is cited for a BUI. It should be noted that the law does not prohibit drinking while operating a boat, or even having open containers in a vessel. What the law actually prohibits is operating a vehicle while being “under the influence.” Often it is a fine line between having a “few drinks” and being under the influence. Because of this, it is important to seek the assistance of an attorney for BUI charges to determine if the charges were properly imposed. Some of the common defenses to this charge include:
- Most of the defense's that apply to Driving Under the Influence would also apply. For example, rising blood alcohol, any issues with the blood or breath tests, etc.
- Not operating a vehicle covered by H&N Code sec. 655 – this code section only applies to vessels that are propelled by a motor. Therefore, if you were cited while using a rowboat, raft, or wind propelled boat, you cannot be found guilty under this section.
- Not under the influence – As previously stated, a person may drink alcohol while operating a motorized boat as long as the drinking does not lead to intoxication. Often officers may mistake persons for being under the influence because they may exhibit physical signs that appear to be the results of over indulging in alcohol. However, as anyone who has spent significant time on a boat knows, sometimes being involved in boating activity itself (without drinking) can lead to symptoms which may mirror alcohol consumption such as dizziness, flushed skin color or bloodshot eyes, tiredness, and unstable walking. Officers may even see someone driving a boat with an alcoholic beverage in hand exhibiting some of these symptoms. This alone does not mean that they are in violation of the BUI law.
- Faulty Identification – When the police accuse someone of a crime, they must have adequate proof that the person arrested is the person who committed the offense. The conditions common to areas of boating activity can lead the police to seek out the wrong person. Environmental factors such as sun glare and the activities of nearby boaters or water skiers canobstruct the officers' line of sight and lead them to mistakenly believe a boater is engaging in illegal activity.
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