What is Boating While Intoxicated?

In Texas, it is illegal to operate a watercraft (boat, Jet Ski, motorized ski-board, Sea Doo) with a blood alcohol content of 0.08 or higher or when you have lost your normal physical or mental faculties.

Keep in mind that in a BWI case, a watercraft is any motorized craft that a person can be carried on over water. This excludes crafts like rowboats, Kayaks, inner tubes and canoes if they are propelled by human power (without the use of motors).

In Texas, a BWI arrest is very similar to a DWI arrest. Other than involving water craft instead of a vehicle, the major difference between BWI and DWI defense is the justification for the stop. Texas law does not require that a peace officer have reasonable suspicion or probable cause to stop a watercraft operating on the waters of Texas. For a vehicle stop probable cause is required but officers may board your watercraft at any time for safety and security reason, such as operator license or flotation device check.

Could it happen to me?

Consider the various circumstances of a BWI arrest. While the police officers are checking for life jackets they may smell alcohol on your breath. The police always seem to read more into the picture than merely you and your friends enjoying the lake with a few beers. Drinking a few beers while boating is not illegal, yet that evidence alone may compel the police to investigate you for BWI.

Surprisingly, you might find yourself face to face with a BWI charge. After all, the officers see that you have bloodshot eyes. They notice your red face and the odor of beer on your breath. However, your eyes are bloodshot because you have been on the water all day or you forgot your sunglasses. Your face might be red because your sunscreen wore off. Officers typically mistake these as signs of intoxication.

Then you will be asked to perform sobriety tests. You may be tired from boating and water skiing all day, thus impairing your walking ability. If the officer conducts your test on an uneven pier, the test will be more difficult. [I advise that you refuse the SFST and the breath test under almost all circumstances.]

The situation above is just one boating while intoxicated scenario, but it highlights just some of the problems that may result in a bogus arrest and conviction. You must hire a skilled attorney who is versed in BWI cases. The law offices of Jamie Balagia will look for flaws like the ones described above or any of the countless other pitfalls that may make up the difference between a conviction and an acquittal. What are the penalties for a BWI? They are the same as for DWI:

First conviction carries a fine up to $2,000 and/or jail time up to 180 days

Second conviction carries a fine up to $4,000 and/or jail time up to one year

Third conviction carries a fine up to $10,000 and/or jail time of 2-10 years.

The jail time and fines can be probated and the judge can require you to perform other probation related conditions such as classes, treatment, volunteer hours, MADD programs, etc.

Do they use field sobriety tests in BWI cases?

BWI cases provide special challenges for law enforcement and defense counsel alike. Attorneys representing people charged with BWI should be certified in the standardized field sobriety tests (SFST) and breath testing device used in BWI cases and should consider retaining an expert in these fields.

Our investigators (former police officers) carefully evaluate the administration of the SFST. The testing protocol requires the tests to be administered on a smooth, flat, level surface. Additionally, while administering the horizontal gaze nystagmus (eye test) exam, the suspects head is supposed to remain still.

Obviously, both of the cited criteria are jeopardized if the tests are administered while on the water. If, however, the tests are administered on dry land shortly after the suspect had been boating, defense counsel should explore how long he had been on the water, what his "normal" balance would be under similar circumstances, and investigate the possibility that the suspect was suffering from "sea legs" during the performance of the test. An expert in this area can assist counsel in preparing an attack to the tests administered in any particular BWI case.

Also, a BWI conviction can be used to increase the penalty range on a subsequent DWI conviction. For more information on DWI and BWI law see my Web site at dwidude.com. If you get arrested for BWI or DWI contact my offices for a free consultation to discuss your boating while intoxicated case with a qualified attorney.