Boating Under the Influence (BUI) – Overview (Harbors & Navigations Code Section 655)

Boating under the influence (BUI) is prohibited in California pursuant to Harbors & Navigations Code Section 655. Just like driving under the influence under Vehicle Code section 23152, BUI is based on the measurable amount of alcohol and/or drugs in your blood at the time you are operating a boat or other vessel. BUI isn’t as common as being charged with a DUI, but it is still a crime carrying serious consequences.

BUI Applies to More than Just Boats

California Harbors and Navigation Code 655 uses language similar to California Vehicle Code section 23152 regarding “driving under the influence” to prohibit “reckless or negligent” operation of certain watercraft. Harbors and Navigation Code 655 (b) states that you may not operate the following while under the influence of alcohol and/or drugs:

• Boats,
• Water skis,
• Aquaplanes, or
• Any similar equipment (for example: a Jet Ski, kiteboard or sailboard).

However, it is not unlawful to have an open alcoholic beverage aboard a watercraft (unlike having an “open container” in a motor vehicle). Provided that alcohol is being consumed only by adults 21 years of age or older, and you are not operating a boat or other watercraft under the influence, it is perfectly legal to drink alcohol on a boat.

Prosecution for Boating Under the Influence

BUI is prosecuted in the same manner as driving under the influence (Vehicle Code section 23152). You are guilty of violating the law if you are either:

1. Operating a vessel under the influence of alcohol or drugs, or a combination of both; and
2. Operating a recreational vessel with a Blood Alcohol Content (BAC) of .08 percent or more; or
3. Operating a commercial vessel with a BAC of .04 percent or more.

The prosecution can rely on the following in order to convict you of this crime:

• Your operation of the vessel based on the officer’s observations;
• Your appearance at the time of your arrest;
• Your performance on field sobriety tests, and
• Your BAC level as indicated by chemical test of your breath or blood.

Defenses to Boating Under the Influence

There are several defenses to boating and drinking that a California criminal defense attorney may be able to argue on your behalf. Some of these defenses include the following:

1. The “rising blood alcohol” defense;
2. An inaccurate chemical test result; and
3. Insufficient probable cause to detain or arrest you.

Sentencing and Punishment for Boating Under the Influence

Although a charge for boating under the influence may be prosecuted similar to a charge of DUI, if you are convicted of BUI, sentencing and punishment differs to a degree from that of DUI.

A first offense misdemeanor BUI conviction is punishable by up to six months in jail, a maximum $1,000 fine, or both, similar to a misdemeanor DUI. Penalties for misdemeanor BUI increase if you have a previous alcohol or drug-related DUI conviction on your record within the past seven years. 

An aggravated BUI causing injury is punishable as either a misdemeanor or as a felony and can result in a minimum of 90 days to up to three years in jail, $250 to $5,000 in fines, or both a jail sentence and fine. A BUI resulting in death is punishable as “nautical” manslaughter, similar to vehicular manslaughter while intoxicated under Penal Code sections 191.5.

The court may also order that you enroll in and complete up to an 18-month alcohol education class in addition to any other boating and drinking punishment.

Your underlying BUI sentence may be enhanced if you:

• Refuse to provide a mandatory chemical test; or
• Flee the scene of A BUI-related accident.

However, unlike a DUI, your driver’s license cannot be suspended as a result of a BUI conviction.

Boating Under the Influence – Prosecution (Harbors & Navigations Code Section 655)

Boating and drinking is prosecuted in the same manner as Driving under the Influence (CVC 23152(a) and (b)). In order to convict you under California’s BUI laws, prosecutors will rely on:

1. The way in which you operated a boat (a “vessel”) or maneuvered on water skis, an aquaplane, or similar equipment. That is, your erratic operation of the vessel was enough to attract the attention of a marine patrol or U.S. Coast Guard;

2. Your physical appearance (red or watery eyes, slurred speech, unsteady balance, etc.), otherwise known as “objective signs and symptoms of intoxication”;

3. Your performance on field sobriety tests (FSTs). While you may refuse to take an FST, you risk having your boating privileges suspended or revoked; and

4. The results of a chemical blood or breath test. If your Blood Alcohol Content (BAC) is .08 % or higher in California, you are presumed to be in violation of the law.

Simple BUI

If the prosecutor charges you with BUI under California Harbors and Navigation (H&N) Code 655(b) (known as “simple BUI”), all of the following must be proven beyond a reasonable doubt in order to find you guilty of this crime:

• That you operated a vessel or other watercraft; and
• You did so while you were under the influence of alcohol and/or drugs.

Certain presumptions apply to this offense. First, if the results of your chemical breath or blood test indicates a BAC less than 0.05%, you are presumed not to have been under the influence of alcohol at the time of your arrest.

Next, if your BAC falls within a range of 0.05% to 0.07%, the law states that “this fact shall not give rise to any presumption that you were under the influence of an alcoholic beverage, but the fact may be considered with other competent evidence in determining whether you were under the influence of an alcoholic beverage at the time of the alleged offense.”

Last, if your BAC was 0.08% or higher, it is presumed that you were under the influence of alcohol at the time of your arrest.

BUI with a BAC of 0.08% or higher

If the prosecutor charges you under H&N Code 655(c) boating under the influence with a BAC of 0.08% or greater, the following must be proven beyond a reasonable doubt in order to convict you of a BUI:

1. You operated a vessel or other watercraft; and
2. You did so with a BAC of 0.08% or greater as measured by a chemical blood or breath test.

BUI Causing Injury

If the prosecutor charges you with California BUI causing injury under H&N Code 655(f), the following must be proven beyond a reasonable doubt for the court to determine that you are guilty of this crime:

1. You were under the influence of alcohol, drugs or a combination of both;
2. You did so while operating a vessel or other watercraft; and
3. You caused someone to suffer injury.

Nautical Manslaughter while Intoxicated

Similarly, if the prosecution charges you with operating a vessel causing manslaughter while intoxicated (Penal Code Section 192.5), the prosecutor must prove all of the following beyond a reasonable doubt:

1. That you committed a simple BUI or a BUI causing injury; and
2. That your conduct involved the commission of another act, not amounting to a felony, of either ordinary or gross negligence; and
3. That your negligence caused the death of another.

Boating Under the Influence – Defenses (Harbors & Navigations Code Section 655)

There are a variety of defenses that a California BUI defense attorney from Wallin & Klarich can raise on your behalf, depending on the circumstances of your case.

1. Rising Blood Alcohol Content Defense.

Your Blood Alcohol Content (BAC) rate may continue to rise from the time you were operating a boat to the time when you provided a chemical test of your blood or breath. It is therefore possible you were not over the legal BAC limit at the time you were operating a boat or arrested for boating and drinking. This is known as the “rising blood alcohol” defense.

Alcohol is absorbed into the bloodstream over time. On average, alcohol takes about one hour to absorb into your system after you stop drinking, although your gender, age and weight can increase or decrease your particular absorption rate. Alcohol absorption into the bloodstream may also be affected by a number of variables, including:

• Whether you ate while drinking alcohol;
• Whether you drank on an empty stomach;
• What type of alcohol you were drinking;
• How fast or slow you were drinking; and
• Your “blood-to-breath partition ratio.”

Your blood-to-breath partition ratio is the relationship between the alcohol measured in your breath and the alcohol measured in your blood.

If your BUI lawyer can establish that your BAC level was still rising by the time you submitted to a blood or breath chemical test, you may have a defense that you were not BUI while you were operating a vessel.

2. Inaccurate Chemical Test Result.

If your BAC was at or above a 0.08% (or 0.04% if you are a commercial operator, such as captain of a ferry), your BUI lawyer may be able to challenge the results of your chemical blood or breath test.

There are a variety of circumstances that may cause a false high reading for both types of tests. Generally speaking, chemical testing is not 100% reliable all of the time. Your test may be susceptible to a number of errors, including, but limited to the following:

A. How recently the breath testing machine was calibrated.

The results of these tests can often be challenged if the device used to measure your BAC did not meet required breath testing calibration standards pursuant to California Code of Regulations. Breath testing equipment must be properly maintained in order to work properly. Part of this maintenance includes verifying the device’s accuracy. Improperly maintained equipment may cause results to be found inadmissible at trial.

B. What you had in your mouth prior to your breath test.

Breath sprays, mouthwashes and dissolving breath strips all contain alcohol in the form of  ethanol, in concentrations up to 26%. If you used any of these products just prior to giving a breath test, you test may give what is known as a “false positive.”

C. Whether the breath or blood test was contaminated or mishandled in any way.

Impurities (such as dust, sand or dirt) that may have fallen into your sample may affect the accuracy of a chemical test. Also, if your sample was dropped or stored improperly, or if your blood sample ferments or coagulates, these factors may contribute to contamination and may cause your chemical test to become invalid.

D. Whether your blood sample was improperly drawn.

A blood sample may only be drawn by a licensed physician or nurse, laboratory technician or certified paramedic. A blood test drawn by someone other than those authorized per California law are subject to being excluded as inadmissible evidence.

3. Lack of Probable Cause

California protects your constitutional right to remain free from unlawful searches and seizures. This means that the law enforcement agency that stopped you must have had a lawful reason to do so. This also means that the officer who arrested you for BUI must have had probable cause to do so.

If your attorney believes you were the subject of an unlawful stop, he or she may be able to file a Motion to Suppress Evidence pursuant to Penal Code section 1538.5. Your California BUI attorney may be able to prove that the officer wasn’t justified in stopping you and collecting a BAC blood, breath or urine sample from you.

The general theory behind a motion to suppress evidence is that the prosecution should not benefit from an illegal stop for lack of probable cause. If your motion to suppress evidence is successful then this means that the illegally seized evidence will not be able to be used against you in court.

Boating Under the Influence – Sentencing and Punishment (Harbors & Navigations Code Section 655)

You may be eligible for probation if you are convicted of a BUI-related offense. If you are granted probation, the judge determines the length of your probation as well as any conditions you must comply with while serving your probation.

Just like a DUI conviction, as a mandatory consequence of your conviction for a BUI-related offense, the court will require that you enroll in and successfully complete an alcohol and/or drug education program in addition to imposing any of the other penalties required by the law.

The length of the program is determined by your BAC and previous criminal history of DUI/BUI-related convictions. Generally, the maximum length of an alcohol education program is 18 months.

If you are not granted probation, you can be sentenced according to the severity of the crime and the number of previous under the influence-related convictions on your criminal record.

Simple BUI

A first time conviction for simple BUI is a misdemeanor punishable by up to six months in jail and/or a fine of up to $1,000 (Harbors & Navigations Code section 668(e)). Probation is typically available on a first offense.

Subsequent BUI Conviction within Seven Years

If you are convicted of BUI a second time within seven years of a first offense conviction, you may be punished by up to one year in jail, by a fine of up to $1,000 or by both that fine and imprisonment (Harbors & Navigations Code section 668(f)).

This law also applies if you are convicted of DUI under Vehicle Code sections 23152 or 23153, or a vehicular manslaughter charge (Penal Code sections 191.5 through 192.5) as a previous offense.

Furthermore, a drunk boating conviction within the previous 10 years can count against you in a future prosecution for DUI pursuant to California Vehicle Code section 23620.

BUI Causing Injury

Boating under the influence causing bodily injury to any other person is a California “wobbler” offense – which means the prosecutor has the option of charging you with either a misdemeanor or a felony, depending on:

• The severity of injury involved; and
• Your prior criminal record.

A misdemeanor conviction for BUI causing injury is subject to a minimum of 90 days to one year in jail. A felony conviction is punishable by 16 months, or two or three years in jail. In either case, a fine not less than $250 and up to $5,000 applies, in addition to or in lieu of jail time (Harbors & Navigations Code section 668(g)).

Nautical Manslaughter While Intoxicated

If you negligently kill another person while boating under the influence, depending on whether the circumstances involved ordinary or gross negligence and/or the commission of another crime, you face as much as 10 years in prison (Penal Code section 192.5).

Additionally, a person who flees the scene of the crime after committing manslaughter while intoxicated is subject to a charge of “hit and run” under Vehicle Code section 20001(c)), punishable by an additional and consecutive five years in prison.

BUI and Minors

Similar to minors caught driving under the influence, California has a “zero tolerance” policy for minors who commit a drunk boating offence. If you are under the age of 21 and have any measurable amount of alcohol in your system, it is unlawful for you to operate a boat, water skis, an aqua plane, or any similar equipment.

Under Harbors & Navigations Code 655.6, a minor with a BAC of .01% or more is guilty of an infraction and may be penalized as follows:

• Up to a $100 fine for a first offense;
• Up to a $200 fine for a second offense within one year of a first violation; and
• Up to a $250 fine for a third or subsequent offense within one year of any previous violations.

Minors in violation of California’s zero tolerance policy may also be ordered to complete a minimum of 12 hours of alcohol education in addition to the fines above.

Boating Under the Influence – FAQ’s (Harbors & Navigations Code Section 655)

The following Frequently Asked Questions (FAQ’s) will help you to better understand how California law prohibits boating under the influence.

1. Is there a difference between BUI and DUI sentencing?

Boating under the influence (BUI) is similar to DUI in most respects. You can be prosecuted for drunk boating if you are either under the influence of alcohol, drugs, or a combination of both, or if your Blood Alcohol Content (BAC) measures .08% or more (.04% for an operator of a commercial vessel). The biggest difference between these crimes is that a subsequent conviction for BUI may consider the past seven years of your record, where as a DUI charge looks back 10 years.

2. Can I lose my driver’s license for BUI?

No. A prior BUI conviction can be used to enhance the penalties for a subsequent DUI conviction (which includes license suspension) but the DMV cannot suspend your driver’s license upon a BUI conviction itself.

3. How can law enforcement know if I am operating a boat under the influence?

Just like suspicion of DUI, law enforcement patrolling the water will look for signs of erratic boat or equipment operation. Excessive speeding, dangerous stunts, slipping, falling, stumbling, near or actual capsize and willful disregard for the safety of others are just some of the signs that could trigger your detainment for BUI.

4. Is it illegal to drink alcohol on board a boat?

Generally, no. Unlike California law prohibiting open alcoholic containers inside a motor vehicle, it is perfectly legal for adults 21 years of age or older to have open access to alcohol aboard a vessel or watercraft. However, you can get into trouble if you operate watercraft while under the influence.

5. Does a BUI count against me in the future if I get a DUI?

Yes. A BUI can be charged as a prior offense in a future DUI prosecution under California Vehicle Code section 23620. Just like a previous DUI conviction, California law permits any previous BUI conviction within the previous 10 years to count against you for the purposes of increasing your sentence upon a future under the influence-related prosecution.

Contact Wallin & Klarich Today

If you or someone you know has been charged with Boating under the Influence (BUI), you should contact one of our experienced criminal defense attorneys at Wallin & Klarich today. Wallin & Klarich has over 30 years of experience successfully defending our clients charged with under the influence crimes.

We will examine all of the evidence against you to determine whether the prosecutor’s case is likely to hold up. We may be able to get the charges against you reduced or dismissed. We can help you avoid the more serious consequences of a BUI conviction.

With office locations in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, an attorney from Wallin & Klarich . We will explore every available option to help you to get the best possible result in your case.

Call us today at (877) 4-NO-JAIL (877-466-5245) for a free telephone consultation. We will get through this together.

Sources:
1. Harbors & Navigations Code § 655
2. Harbors & Navigations Code § 655.1
3. Harbors & Navigations Code § 655.5
4. Harbors & Navigations Code § 668
5. Penal Code § 191.5
6. Penal Code § 192.5
7. Vehicle Code § 20001
8. Vehicle Code § 23152
9. Vehicle Code § 23153
10. Vehicle Code § 23136
11. AlcoMeters: “Boating Under the Influence”; Dui tips bui
12. Breathtesting.net: “Breath Testing Calibration”;
13. California Department of Parks and Recreation: “Boating Safety & General Information”;
14. California State Parks, Division of Boating and Waterways: “ABC’s of California Boating”;
15. Findlaw.com: Boating Under the Influence;
16. Reference Guide to State Boating Laws
17. U.S.C.G. Boating Safety Resource Center: “Boating Under the Influence Initiatives”;
18. Cinquegrani v. Department of Motor Vehicles, 163 Cal.App.4th 741 (2008).
19. “Slalom on waterskis”. Via Wikipedia – Slalom on waterskis</>
20. “Lazzara 80 Sky Lounge enclosed bridge photo D Ramey Logan” by WPPilot – Own work. Licensed under Creative Commons Attribution-Share Alike 3.0 via Wikimedia Commons –