Boating Under the Influence (BUI)

With California's temperate climate and vast ocean to enjoy -not to mention our many lakes and rivers - boating is a year round recreation. And it's no secret that with recreational boating, drinking is often involved. Many people don't know that it is as unlawful to be under the influence while boating as it is while driving. Boating under the influence (BUI) is made unlawful under the California Harbors and Navigation Code; the elements of the offense track the driving under the influence statute found in the vehicle code. In fact, they are almost identical in substance if you substitute "vessel" (and other water devices) for "vehicle". Orange County BUI defense attorney William Weinberg is surprised that many of his clients who have been arrested for BUI do not realize that this charge a serious charge in California and demands an attorney's assistance.

As with driving, it is unlawful to operate a recreational vessel or water device with a BAC of 0.08 percent or more. A BUI is presumed if the operator's BAC is 0.08 percent or more; that is, a chemical test result of 0.08 percent or more makes the operator presumptively under the influence. This includes persons on water skis and jet skis. Yes, you can get a BUI if you are water skiing behind a boat and you, the skier, are under the influence.

But a BUI does not require that the operator have a BAC of 0.08 percent or more. If the operator's physical or mental abilities are impaired by a substance rendering the operator unable to operate the vessel or water device safely, a BUI arrest may be made. As with a DUI, this is left to the subjective determination of the arresting officer. In the same way, a BUI arrest can occur if the operator is under the influence of drugs, even prescription drugs, if the drug affects the operator's ability to operate the equipment safely.

When a person's BAC is under the presumption (less than 0.08%), the prosecution must prove that the operator was unable to operate the boat or water device safely due to the effect of alcohol or a drug. The prosecution will rely upon the arresting officer's statements, which usually includes observed symptoms (watery, red eyes, dilated pupils, slurred or inconsistent speech, swaying, and so on) as well as observations of the operator's dangerous operation of the vessel or device. Orange County BUI defense attorney William Weinberg will carefully review the officer's statements for contradictions, vagueness or other defense arguments.

The penalties for BUI are virtually the same as those for a DUI, and many people don't realize that a prior DUI will count as precedent on a BUI. In other words, a first BUI on top of a DUI conviction within the prior seven years will be considered a second under the influence offense charge, which carries harsher penalties. Conversely, a BUI conviction counts as a prior DUI on the defendant's DMV record. One important distinction though is that the DMV cannot suspend your license to drive following a BUI.

A first offense BUI with no prior BUIs or DUIs within the past seven years is a misdemeanor punishable by up to six months in county jail and up to $1,000 in fines. However, someone convicted on a first BUI is almost always sentenced to informal (summary) probation and ordered to attend DUI education.

A repeat BUI offender (which includes a first BUI but a prior DUI or DUIs within the past seven years) can be sentenced to one year in jail and $1,000 in fines. More likely though, a repeat offender will be sentenced to formal or informal probation and ordered to attend from 18 to 30 months of DUI education (the number of months of DUI education ordered is dictated by whether the conviction is a 2nd or 3rd BUI within the past seven years).

A misdemeanor BUI offense may be eligible for pretrial diversion, which if granted and successfully completed will result in the dismissal of the charge. That is one reason why it is very important to contact an experienced BUI defense attorney after a BUI arrest. Attorney William Weinberg has helped many defendants facing BUI charges in Orange County obtain a pretrial deferment and dismissal of the charge.

As with a DUI, certain circumstances can make a BUI a felony. A BUI with injuries may be charged as a misdemeanor or felony. How the prosecution charges a BUI with injuries will depend on the extent of the injuries allegedly caused by the operator under the influence and the operators criminal record. For example, if a person has one DUI on his record and he is alleged to have caused a serious injury to another due to his unsafe operation of a vessel or water device while under the influence, the prosecutor will almost certainly charge this as a felony. This is true, for instance, even if the operator injured someone while water skiing or sailing without any motor assistance.

If an operator causes the death of another person while boating under the influence, he or she will likely be charged with vehicular manslaughter or even 2nd degree murder. The manslaughter charge is often charged as a felony, although it can be charged as misdemeanor. Murder is always charged as a felony.

A BUI with injuries or death is a serious charge and a conviction can result in a prison sentence. The assistance of an experienced BUI defense attorney can mean a less severe sentence, often with no prison time ordered.

Attorney Weinberg will carefully review your case, free of charge, and assess your defense options. You may contact him at (949) 474-8008 or email him at bill@williamweinberg.com.