Boating While Intoxicated (BWI)
Drinking & Boating is a Crime in New York
Every year, hundreds of thousands of people travel New York’s waterways
with recreational and commercial boats and vessels. Each spring brings
with it even more recreational boats and vessels operating upon the various
waterways in New York State. There are more than 500,000 registered boats
in the state alone, plus many more non-mechanically propelled boats that
are not required to register.
What all operators of mechanically propelled boats, vessels and watercraft
must know is that operating a vessel under the influence of drugs or alcohol,
or boating while intoxicated, carries the same punishments as
driving while intoxicated. While they are not identical, there are similarities between New York’s
DWI and BWI laws. There is both a “per se” and “common-law”
boating while intoxicated offense.
"Per Se" vs. "Common Law" BWI Offenses
Boating while intoxicated “per-se” is based upon the operator
having a blood alcohol concentration of .08% or higher and has absolutely
nothing to do with the physical condition of the operator. In other words,
an experienced drinker who could flawlessly operate his or her vessel
and pass all physical coordination tests is guilty of BWI simply because
their blood alcohol concentration was at or above .08%.
The “per se” limit for one operating a public vessel is .04%.
As with “common-law” driving while intoxicated, “common-law”
boating while intoxicated is based upon the officer’s opinion that
the operator is intoxicated. Generally, the officer’s opinion is
based upon his or her observations of the operator (swaying, staggering,
bloodshot or glassy eyes, etc.) and the operator’s performance on
field sobriety tests.
BUI may also be a federal offense if committed on waters that are subject
the jurisdiction of the United States. Enforcement is carried out by the
United States Coast Guard.
New York BUI / BWI Checkpoints
Checkpoints and accident investigations are usually how one is caught for
boating while intoxicated. This is so because it is harder for police
to establish probable cause or reasonable suspicion to stop a boat than
it is to stop a vehicle. There are far fewer traffic control devices on
the water than there are on the roadways.
While there are hundreds, if not thousands, of
traffic infractions that could justify the police stopping a vehicle, there are relatively
few boating infractions that can justify the stop of a boat. Furthermore,
the vastness and openness of the waters make it very difficult for enforcement
of BUI or BWI statutes by roving patrols.
As stated in the Operation Dry Water BUI Checkpoint Plan of Operations:
Utilizing a BUI checkpoint will be more effective than normal patrol techniques.
It is difficult to establish probable cause for watercraft operators suspected
of being under the influence of alcohol due to the lack of traffic control
devices [i.e., center lines, speed limits, stop signs, etc.] as found
for vehicles. Due to the congestion of watercraft found in several areas
on the (waterway), erratic operation is not uncommon, making it difficult
to use this as a means to establish probable cause as in automobiles.
Due to the size of the (waterway) and number of watercraft using the waterway,
it is logistically impossible to contact the number of watercraft needed
to effectively address this enforcement issue. Utilizing checkpoints will
not only increase the number of contacts with watercraft operators, but
it will also provide a focal point for the media, residents, and non-residents
to show them that this problem is being addressed.
Sobriety Testing in BWI Cases
When one is suspected of boating while intoxicated or boating under the
influence, they are removed to land or a nearby “houseboat”
and asked to submit to the same field sobriety tests that drivers of vehicles
are—which may include the walk-and-turn, the one leg stand and the
horizontal gaze nystagmus. One area your defense attorney might attack
is the location where the field sobriety testing was done.
Field sobriety tests are difficult for sober people on land; imagine trying
to stand on one leg for thirty seconds on a moving boat. Even the slightest
of movement can affect the validity of such tests. As with motorists suspected
of or arrested for DWI, breath, blood, urine and saliva testing may also
be utilized when one is suspected of boating while intoxicated to determine
their blood alcohol concentration.
Schedule Your Free Consultation Today
Make no mistake about it – law enforcement agencies in New York vigorously
enforce state boating while intoxicated laws. In Westchester County, in
addition to the Westchester County Police Marine Unit, several other local
jurisdictions have their own marine or harbor patrol units that enforce
the BWI and BUI statutes.
If you have been charged with boating while intoxicated anywhere in the
New York downstate region—including Westchester, Dutchess, Putnam,
Orange and Rockland counties or the Bronx, Queens, Brooklyn or Manhattan—please
call Tilem & Associates, PC immediately at (888) 840-0043 for a
free telephone consultation.