Reasonable Suspicion, Probable Cause, Proof Beyond a Reasonable Doubt and Boating Under the Influence

South Florida has one of the most active boating communities in the country.  From West Palm Beach to Miami alone, there are literally thousands of marinas and boat slips housing tens of thousands of vessels.  From fishing boats to luxury yachts, on any given day there are hundreds, if not thousands, of boats cruising our waterways.  Many South Florida boat owners use their vessels for business, but most use their boats for recreation and leisure.

 

For many, there is quite literally nothing better than taking the boat out on a weekend and enjoying a day on the water with friends, family, and a cold cocktail.  There is nothing illegal about being on a boat and consuming alcohol.  However, Florida law enforcement is very strict – some might say draconian –  when it comes to patrolling our waterways and targeting folks who are partying out on the water.

 

Just as there are DUI laws – driving under the influence of a motor vehicle – there are also BUI laws – boating under the influence. And there are more differences between the two charges than the simple fact that one happens in an automobile and the other in a boat.

 

According to Florida law, the legal limit for BUI – as well as DUI – is 0.08 for anyone 21 years of age or older.  The legal limit for minors in either case is 0.02.  But on the road, a vehicle driver cannot have an open container of alcohol whereas on a boat the operator and other occupants can do so.

 

Another difference is in the manner of testing.  In a DUI investigation a driver is asked to perform physical “sobriety tasks” which test balance, coordination, and the ability to understand instructions.  In the very recent years law enforcement has recognized that when one is asked to perform those tasks on the water that there is not a steady foundation on which balance can be accurately determined independent of the boat’s movement.  So, they have devised sitting tasks primarily involving the operator’s hands to investigate possible impairment.

 

In a DUI investigation a driver’s license is at stake when a driver refuses to submit to a breath test, assuming the breath test is offered as a result of a lawful arrest.  In a BUI, however, a driver license is not impacted by a refusal.  Rather, one might face a $500.00 fine for a refusal.  In the case of a minor a fine is not the sanction, and instead he or she would be looking at performing community service and attending boating safety classes for the refusal.  In either case, those imposed sanctions relate only to the refusal.  Additional sanctions are potentially in play within the criminal case itself.

 

To Stop, Inspect, Board, and Search a Boat – or Not

 

South Florida BUI Defense Attorney

In order to stop a motor vehicle on suspicion of a DUI, a law enforcement officer must have a “reasonable suspicion” that the operator is impaired.

 

Reasonable suspicion must be more than a hunch that a driver has been drinking alcohol. An officer has to look at facts and circumstances that show the probability that a driver is impaired by alcohol. Driving erratically, swerving and weaving between lanes are signs that an officer may use in order to justify pulling someone over for suspicion of drunk driving. Officers may also utilize other minor infractions such as failing to yield to a turning vehicle, not making a full stop at a stop sign, or minor equipment infractions in order to justify a traffic stop. They cannot simply pull someone over because they THINK that driver may be drunk.

 

When it comes to BUI, however, there are no lanes, stop signs, or traffic lights on the waterways and a whole slew of laws which govern what a marine officer can and cannot do. While an officer still needs reasonable suspicion in order to stop an operator if he suspects the operator is boating under the influence, most officers can, and will, stop a boat for practically any reason.  There are more than four major law enforcement departments patrolling South Florida waters and none of them will hesitate to stop you in order to “check for safety equipment” or to “make sure you have the proper registration and permits” or to make sure your equipment “complies with safety and pollution laws”.

 

But what about boarding a vessel or even searching one?

 

Technically, an officer cannot board or search your vessel without a warrant or voluntary consent.   However, there are certain agricultural and environmental laws which, in fact, DO allow Florida Fish and Wildlife Conservation officers – who are officers of the law – to board, inspect, and search a vessel without a warrant or the operator’s consent.  The other departments know this and use this statute to their advantage when stopping vessels.

 

If an officer believes the vessel was used for fishing prior to the inspection, he or she can open and inspect all containers except those in “sleeping or living areas.” During these inspections, an officer will ask to see your life jacket, fire extinguisher, registration, and so on.

 

By asking for these things, the officer is able to observe you and get an idea if you’re intoxicated. At that point, if he/she believes you are boating under the influence, the officer can investigate further.

 

If such further investigation establishes that “the operator, in the view of a reasonable law enforcement officer, based on training and observations, believes that he or she has probably committed the crime of BUI,” then there exists the “probable cause” that would justify an arrest.

 

Afterwards, the prosecution, in order to obtain a conviction and a resulting sentence, must prove the allegations to the exclusion of every reasonable doubt.  That is a much higher standard than probable cause, which itself is a higher standard than reasonable suspicion.

 

Marine law enforcement know that most boat owners and operators do not fully understand the laws that govern our waterways and take advantage of that every day.

A BUI might not seem as serious as a DUI, but you still shouldn’t take the charges lightly. If convicted, you could potentially face fines, jail time, and other sanctions.

 

That’s why it’s essential to consult with an attorney who understands BUI and the laws that govern our waterways to fight for your rights.

 

 

 

About the Author:

Attorney David W. Olson is the founder of the Law Offices of David W. Olson in West Palm Beach. He has been practicing criminal law and successfully representing clients throughout the State of Florida for over 30 years. Throughout his legal career, Mr. Olson has been honored numerous times for both his dedication and excellence in criminal law. He proudly holds the Martindale-Hubbell AV Rating, as well as being recognized as a Top 100 Trial Lawyer (2013), in the Nation’s Top One Percent of attorneys (2015), and as a 10 Best Member of the American Institute of Criminal Law Attorneys (2015). He has even received commendations from members of congress and other public officials for the fantastic work that he’s done. Mr. Olson graduated from the University of Florida’s Fredric G. Levin College of Law in 1981 and has been a member of the Florida Bar since 1983.