Many individuals enjoy recreational boating, but are unaware that boating while intoxicated (BWI) and boating under the influence of alcohol (BUI) are crimes.
Boating While Intoxicated: An Overview
A conviction for boating under the influence of alcohol or drugs carries serious penalties, including jail time and fines. Anyone facing a such a charge should consult with a New York criminal defense attorney experienced in defending similar cases.
In New York, BWI and BUI fall under the New York Navigation Laws § 49-A and § 49-B, which define being under the influence as having a blood alcohol content (BAC) of .10 percent for a recreational vessel and .04 percent for a public vessel. In the State of New York, no person intoxicated by drugs or alcohol should operate a vessel.
New York Navigation Law § 49-A paragraph 2 states:
(a) No person shall operate a vessel upon the waters of the state while his ability to operate such vessel is impaired by the consumption of alcohol. A violation of this subdivision shall be an offense and shall be punishable by a fine of not less than two hundred fifty dollars nor more than three hundred fifty dollars, or by imprisonment in a penitentiary or county jail for not more than fifteen days, or by both such fine and imprisonment. A person who operates a vessel in violation of this subdivision after being convicted of a violation of any subdivision of this section within the preceding five years shall be punished by a fine of not less than five hundred dollars nor more than fifteen hundred dollars, or by imprisonment of not more than thirty days in a penitentiary or county jail or by both such fine and imprisonment.
(b) No such person shall operate a vessel other than a public vessel while he has .10 of one per centum or more by weight of alcohol in his blood, breath, urine, or saliva, as determined by the chemical test made pursuant to the provisions of subdivision seven of this section.
(c) No such person shall operate a public vessel while he has .04 of one per centum or more by weight of alcohol in his blood, breath, urine, or saliva, as determined by the chemical test made pursuant to the provisions of subdivision seven of this section.
(d) No person shall operate a vessel while he is in an intoxicated condition.
(e) No person shall operate a vessel while his ability to operate such vessel is impaired by the use of a drug as defined by section one hundred fourteen-a of the vehicle and traffic law.
If you are arrested for BWI or BUI, you will be requested to consent to either a breath, blood, urine, or saliva test in order to determine the alcoholic or drug content of ones blood.
Boating While Intoxicated: The Investigation
Investigators employ many of the same tests used in DUI cases to investigate BUI / BWI, including chemical tests and field sobriety tests.
Legally speaking, a police officer may, without a warrant, arrest a person in case of a violation of any paragraph of subdivision two of New York Navigation law § 49-A, if such violation is coupled with an accident or collision in which such person is involved, which in fact had been committed, though not in the police officer’s presence, when he has reasonable cause to believe that the violation was committed by such person.
Every person operating a vessel on the waters of the state which has been involved in an accident or which is operated in violation of any of the provisions of this section which regulate the manner in which a vessel is to be properly operated while underway shall, at the request of a police officer, submit to a breath test to be administered by the police officer. If such test indicates that such operator has consumed alcohol, the police officer may request such operator to submit to a chemical test in the manner set forth in subdivision seven of this section. If such person having been placed under arrest or after a breath test indicates the presence of alcohol in the person’s system and having thereafter been requested to submit to such chemical test and having been informed that the person’s privilege to operate a vessel shall be immediately suspended for refusal to submit to such chemical test or any portion thereof, whether or not the person is found guilty of the charge for which such person is arrested, refuses to submit to such chemical test or any portion thereof, unless a court order has been granted pursuant to subdivision eight of this section, the test shall not be given and a written report of such refusal shall be immediately made by the police officer before whom such refusal was made.
Such report may be verified by having the report sworn to, or by affixing to such report a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law and such form notice together with the subscription of the deponent shall constitute a verification of the report. The report of the police officer shall set forth reasonable grounds to believe such arrested person to have been operating a vessel in violation of any paragraph of subdivision two of this section, that said person had refused to submit to such chemical test, and that no chemical test was administered pursuant to the requirements of subdivision eight of this section.
Any person whose privilege to operate a vessel has been suspended pursuant to paragraph (b) of this subdivision is entitled to a hearing in accordance with a hearing schedule to be promulgated by the commissioner of motor vehicles. If the department fails to provide for such hearing fifteen days after the date of the arraignment of the arrested person, the privilege to operate a vessel of such person shall be reinstated pending a hearing pursuant to this section. The hearing shall be limited to the following issues:
- did the police officer have reasonable cause to believe that such person had been operating a vessel in violation of any paragraph of subdivision two of this section;
- did the police officer make a lawful arrest of such person;
- was such person given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension of such person’s privilege to operate a vessel whether or not such person is found guilty of the charge for which the arrest was made; and
- did such person refuse to submit to such chemical test or any portion thereof. If, after such hearing, the hearing officer, acting on behalf of the commissioner of motor vehicles, finds on any one of said issues in the negative, the hearing officer shall immediately terminate any suspension arising from such refusal. If, after such hearing, the hearing officer, acting on behalf of the commissioner of motor vehicles finds all of the issues in the affirmative, such officer shall immediately suspend the privilege to operate a vessel in accordance with the provisions of paragraph (d) of this subdivision. A person who has had the privilege to operate a vessel suspended pursuant to this subdivision may appeal the findings of the hearing officer in accordance with the provisions of article three-A of the vehicle and traffic law. Any person may waive the right to a hearing under this section. Failure by such person to appear for the scheduled hearing shall constitute a waiver of such hearing, provided, however, that such person may petition the commissioner of motor vehicles for a new hearing which shall be held as soon as practicable.
Because the potential penalties of BUI / BWI are so severe, it’s critical to have excellent legal representation. A New York lawyer with experience defending boating under the influence cases can launch an aggressive defense and keep consequences to a minimum.
Boating While Intoxicated: The Punishment
Most BUI / BWIs are charged as misdemeanors.
If someone violates paragraph B, C, D, or E in subdivision 2 of the New York Navigation Law § 49-A, you are subject to punishment by imprisonment in a county jail for no more than ninety (90) days, or by a fine or no less than $350 and no more than $500, or both fine and imprisonment.
If you have been convicted within the previous 10 years of operating a vessel under the influence of drugs or alcohol, you will be convicted of a misdemeanor, punishable by at most one year imprisonment or by a minimum fine of $500 or maximum or $1500, or both fine and imprisonment. If convicted twice within the past 10 years, you will be guilty of a class E felony, punishable by a fine of no less of $500 or no more than $5000 or imprisonment prescribed by the penal law, or both fine and imprisonment.
If convicted of violating New York Navigation Law § 49-A, the ability to operate a vessel and registration of a vessel may be suspended for six (6) months if violate section A, or 12 months if one violates Section B, C, D, or E. If you are convicted of violating sections B, C, D, or E for the second time in 10 years, your ability to operate a vessel is suspended for 24 months.
