If you are celebrating on a lake or river in Texas while enjoying alcohol beverages, you should be aware of Boating While Intoxicated laws. Many people are surprised to learn that Boating While Intoxicated (BWI) can be treated just as seriously as Driving While Intoxicated (DWI) in Texas. Marine safety officers patrol recreational bodies of water in the same way that police officers patrol streets and highways and are explicitly trained to look for intoxicated boaters.
Under Texas law, a watercraft is defined as a vessel, one or more water skis, an aquaplane or other device used for transporting or carrying a person on water, other than a device propelled only by the current of water. The definition of intoxication is the same as DWI and related cases and defines “intoxication” as a loss of the “normal use” of mental or physical faculties (due to the ingestion of drugs or alcohol), or an alcohol concentration of .08% or more. The punishments for BWI charges are similar to DWI cases. Under Texas Penal Code 49.06, a first-time charge of BWI is punished as a Class “B” misdemeanor with a maximum of 180 days in jail and a fine of up to $2000, plus a minimum three days in jail (interestingly, unlike DWI cases, a first time BWI is not increased to a Class “A” misdemeanor if you have an alcohol concentration of .15 or higher). Subsequent offenses are punished similarly to subsequent offenses for DWI and get significantly more severe with each offense.
There are several important differences between Texas DWI and BWI cases that are important to note. First, unlike in a car, it is legal to consume alcoholic beverage while operating a boat as long as you do not become intoxicated. Second, marine safety officers are permitted to conduct water safety checks of vessels and occupants without reasonable suspicion (unlike DWI investigations where officers must generally have reasonable suspicion to detain a driver and undertake a DWI investigation). The validity of these stops of boats and water vessels – arguably in violation of the Texas and United States Constitutions – has been appealed but Texas Court of Criminal Appeals has held that the State’s interest in protecting its citizens and enforcing boating safety justifies limited water safety checks. Texas law specifies the scope of the water safety checks in the Texas Parks and Wildlife Code.
Although water safety checks are supposed to be narrow in scope and for a defined set of purposes, the reality is that once a marine safety officer is on board your boat, a water safety check can quickly turn into a BWI investigation. Unfortunately, many of the symptoms of being out on the water in the wind and sun, can be confused with signs and symptoms of intoxication normally seen in a DWI case, and it is easy for a marine safety officer to believe the operator of a boat is intoxicated when that is not the case.
Investigating a BWI case presents unique challenges to marine safety officers. Anyone who has been on a boat for any length of time will be familiar with “sea legs” – the illusion of motion felt on dry land after being on a boat. This can totally invalidate the standard balance tests (known as the Standardized Field Sobriety Tests) used in DWI investigations as it would be virtually impossible to pass the tests with a poor sense of balance. As a result, law enforcement has developed a set of highly questionable tests knows as Marine Field Sobriety Tests that are administered while a suspect is seated. These include the eye test used in DWI cases and a series of tests, like the backwards count of palm pat test that are to be performed while a suspect is seated.
These tests should be aggressively challenged. First of all, the tests must be done in the exact manner prescribed by the manual marine safety officers are supposed to follow. This is because the tests were “validated” in studies that supposedly prove their effectiveness. As a result, they have to be done in the exact same manner that they were done in the studies, otherwise they should not be admissible in court. A skilled criminal defense attorney should be ready to cross examine law enforcement on the way that the tests were administered in order to show that the officers deviated from the tests. In both BWI and DWI cases, it is extremely common for the arresting officer to be poorly trained and bungle the administration of the sobriety tests. It is critical that your attorney in a boating while intoxicated case understand the tests better than law enforcement.
If you are arrested for BWI, you will usually be asked to give a specimen of breath or blood to determine your alcohol concentration. If your result is .08% or higher or you refuse to provide a specimen, you will have a case against your Texas Driver’s License (or your ability to obtain one if you do not have one) known as an Administrative License Revocation (ALR) case. This case will be very similar to a ALR case stemming from a DWI case and you will have 15 days to make the request to fight the suspension of your driver’s license. This case takes place is a separate court with a separate judge and prosecutor than the BWI case, and the cases generally have no effect on one another.
Contact A Houston Expert Boating While Intoxicated (BWI) Attorney Today
Getting charged with Boating While Intoxicated (BWI) can quickly turn an enjoyable day into a nightmare but an experienced DWI/BWI attorney can help get you the best possible result and protect your Texas driving privileges. If you have been charged with BWI anywhere in the Greater Houston Area, attorney Jose Ceja is an excellent choice. Contact us today to schedule a free consultation.