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Georgia Boating Under the Influence Cases

Boating under the influence can be very serious, and it includes the same risks of injury and death that are associated with driving under the influence.  The court consequences can be very serious as well, although BUI does not currently bear any driver's license consequences.

The Basics

The conduct involves the operation, navigation, steering, or driving of any moving vessel or the manipulation of any moving water skis, moving aquaplane, moving surfboard or similar moving device.This conduct occurs while the person is under the influence of:alcohol to the extent that it is less safe for the person to engage in such conductany drug to the extent that it is less safe for the person to engage in such conducta combination of alcohol and any drug to the extent that it is less safe for the person to engage in such conductalcohol and has a BAC of .10% or greater (for 21 years of age or over) or .02% or greater (for under 21 years of age)The code section OCGA 52-7-12 still includes a provision relating to mere presence of marijuana in the person's system.  This subsection is unconstitutional for the same reasons as in DUI cases.  The Love case litigated several years ago by Jessica Towne and David Clark resulted in that finding.The code section also includes similar language to the DUI statute seeming to set a different, i.e. higher, standard for prescribed medications.  The case law has collapsed the distinction between these two standards for DUI cases, and the same analysis would probably apply in boating cases.It should be particularly concerning that this statute embraces many things which most people would not consider to be boating, such as water skiing.  And, if water skiing qualifies, various other towed items, such as bananas, toboggans, or tubes, may qualify as well if the person is doing anything, dragging feet, pulling up on the float, or other actions, which might be considered as directing or manipulating the item.

The Stop

The first issue is whether the officer had articulable suspicion to stop the vessel.  There is very little case authority on this issue.  An officer seeing a boat operator with a beer can in his hand when the boat is being operated safely does not give articulable suspicion to stop the vessel.  Officers will sometimes take the position that they are authorized to stop the vessel pursuant to the general authority of OCGA 52-7-25 to stop and board a vessel to inspect the vessel and determine compliance with the article -- Article 7 of Title 52.  There is almost no guidance on the limitations of this statute.  It is almost certainly the case that boaters' constitutional rights do not end when they embark on a boat trip.  The Georgia Court of Appeals has gone so far as to state that DNR rangers can stop any boat without articulable suspicion.

Implied Consent

Any person who operates a vessel on the waters of this state is presumed to have consented to a state chemical testing.  When an officer confronts a person with a charge of BUI, the officer is required to read an implied consent notice to the person in order to trigger the state chemical test.  It is the officer's choice of which test.  Generally, this means blood, breath or urine testing, or some combination of these tests.  If the person is unconscious or dead or otherwise incapacitated, the officer can proceed with testing without the implied consent notice, if there is probable cause to make the charge.Nolo Contendere PleasNolo contendere means "no contest."  By entering such a plea, the person does not admit the conduct, but the person agrees to be treated as if they were guilty in order to dispose of the case.Persons under the age of 21 years are barred by statute from pleading nolo contendere to BUI.  OCGA 52-7-12(l).The only possible advantage of nolo contendere to any person, regardless of age, would be where the operation of the vessel may have resulted in injury or death to another person or damage to property.  A nolo contendere plea in that situation would not be treated as an admission in civil case related to the conduct.

Related Charges

A person can also be charged with reckless operation related to a water vessel, which is very similar to the traffic offense of reckless driving.Where a person is BUI or is engaged in reckless operation of vessel and a death results, a charge of Homicide by Vessel may attach.  This is a felony charge which carries up to fifteen (15) years in the state prison system.Similarly, there is also a feticide by vessel charge which applies when the conduct results in the death of a fetus which is sufficiently developed to be referred to as "quick."Where the person's operation causes serious injury to another person, there is a misdemeanor charge of serious injury by vessel, which mirrors the traffic charge of serious injury by vehicle.

Administrative Procedure

Where an officer charges a person with BUI, homicide by vessel, serious injury by vessel,  there is a form that can be completed by the officer to request an administrative suspension of the person's privilege to operate a vessel on the waters of Georgia for a period of twelve months.The administrative suspension only applies to persons operating a motorized vessel having 10 or more horsepower or a sailboat more than 12 feet in length.When a person is charged with an offense which would trigger the suspension or is served with a notice of the request for suspension, it is very important that an appeal be made within ten business days.  An appeal will trigger a referral of the case to an administrative hearing officer.At the hearing, the officer will be required to show a lawful arrest for the underlying charge, that this was a vessel for which an administrative suspension would apply, that the proper implied consent notice was read, and that the person refused the testing or tested over the applicable legal limit.An administrative suspension can be from one to five years depending upon the person's history for these types of offenses, and may require completion of the DUI Alcohol or Drug Use Risk Reduction Program (DUI School).

Punishment for BUI

BUI is a misdemeanor and carries up to twelve months in jail and $1000 fine ($1,500 for a second or greater offense).A first offense has a minimum fine of $500.  The jail time is typically ordered to be served on probation, but judges have discretion to require incarceration for some or all of the period.

What to do if Stopped for BUI

Respectfully decline to participate in any field sobriety exercises or evaluations.  These evaluations have not been sufficiently validated for use in a marine environment.  These are voluntary exercises, whether the officer tells the boater that or not.  Decline to blow into a handheld breath alcohol testing device.  This is a voluntary test.  You are not required to give a sample.  Do not answer questions about drinking, use of drugs, or consumption of prescription medication.  Just say, I prefer not to answer that question.  Say as little as possible.  The officer will be listening to your voice and wants to be able to describe your manner of speaking as slurred or slow or mumbled or some similar description which suggests impairment.

Refusing field sobriety evaluations or the handheld alcohol test or not answering questions may result in your arrest, but the likelihood is that with any amount of alcohol in your system, taking these tests are extremely unlikely to result in the officer making a decision not to charge you.  Submitting to these exercise just gives the officer more evidence with which to convict you.For most recreational boat users, an administrative suspension of boating privileges is of limited consequence.  If the boater has any alcohol or drug in their system, submission to a state chemical test will capture that evidence and allow it to be used against the boater in court.Unless the boater depends on the ability to use a boat to earn income, it will probably make sense for the boater to refuse the state chemical test.  If you make the decision to take the state test, make it clear that after taking the state chemical test that you want an independent blood test at a facility of your choosing.  Your choice of facility must be a reasonable distance from the arrest location but does not have to be the closest facility.

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.

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