Boating Under the Influence (BUI) Defense Lawyer in Cape Coral, Florida (FL)

BUI Charges, Laws and Penalties in Fort Cape Coral, Florida

In Cape Coral, Florida, boating is extremely popular given the state’s seemingly endless sunshine and warm temperatures. While boating can be exhilarating, it can also be highly dangerous when alcohol or drugs are involved. According to the United States Coast Guard, roughly sixteen percent of boating-related fatalities occurred when a person was consuming drugs or alcohol while operating a boat. When a person drinks or consumes drugs while boating, it is referred to as boating under the influence, or BUI. Such impairment can lead to serious and sometimes fatal boating accidents. Without a doubt, the safe navigation and operation of a boat requires its operator to be sober and alert, and he or she is responsible for the safety of all on board.

BUI is extremely risky, as there are a number of factors that a boat operator must consider, including darkness, wave height, light, and submerged hazards such as rocks and trees. There are also a number of environmental factors that a boater must be aware of, which include sun and wind exposure. All of the aforementioned variables can dramatically affect the safe operation of a boat. Adding alcohol or drugs to the mix can be a recipe for disaster.

The effects of drinking or taking drugs while behind the wheel of a boat are the same as if a person is impaired while driving a motor vehicle. In fact, consuming alcohol or drugs while boating leads to impaired judgment, a diminished ability to perceive sound and light, and slower reflexes. Moreover, an impaired boat operator may also fail to understand the speed at which he or she is going, the distance between other boats and objects, and the speed of other boats in the water.

Florida’s BUI Statute

Pursuant to Florida Statutes Section §327.35, there are certain penalties associated with BUI. Specifically, BUI charges will be sought against a boater if:

• The boater has a blood alcohol level of 0.08 grams of alcohol per 100 milliliters of blood;
• The boater has impaired faculties due to consuming drugs, alcohol, or a combination of both, and as a result, is unable to safely operate a boat; or
• The boater has a breath alcohol concentration, or BAC, of 0.08 grams of alcohol per 210 liters of breath.

In order to convict a person of BUI, the prosecutor must establish at least one of the three elements above beyond a reasonable doubt. Keep in mind that police have the right to stop a boat operator who appears to be impaired by drugs or alcohol. The officer may even ask the boater to take a field sobriety test and/or portable breath test.

BUI Penalties in Lee County, Florida

The penalties associated with BUI are contingent upon the facts and circumstances of each case. Meaning, a first BUI conviction in Cape Coral, Florida may result in imprisonment for up to six months, a monetary fine of up to $1,000, and a probationary period for up to a year. Additionally, the offender may be required to perform fifty hours of community service.

The penalties associated with BUI become more serious with each conviction. For instance, a second BUI conviction can result in a prison sentence of up to nine months, a monetary fine of up to $2,000, and probation. If the previous conviction occurred within the preceding five years, then the accused must face a prison term of ten days.

With a third BUI conviction, when one of the prior convictions happened within the preceding ten years, the offender will be charged with a third-degree felony, which is associated with a prison term of not to exceed five years, a monetary fine of up to $5,000, and potential probation. If the third conviction occurred more than ten years than the previous one, the offender will be charged with a first-degree misdemeanor. A first-degree misdemeanor carries with it a prison term of up to one year, a monetary fine of up to $5,000, and potential probation. If a previous conviction happened within the ten year look back period, then the offender will face a thirty day jail sentence.

If a boater is charged with a fourth or additional BUI offense, then he or she will be charged with a third-degree felony, which is associated with a prison sentence of not to exceed five years and a maximum monetary fine of $5,000.

Pursuant to Florida’s BUI laws, a judge will issue an order to impound the operator’s boat following an arrest. Moreover, the offender may be required to attend a substance abuse program. As with any court-mandated program, the offender must bear the costs of said treatment, whether it is outpatient or inpatient.

Like with DUI manslaughter, if a boater is operating a boat while impaired and causes the death of another person, the judge will impose enhanced sentencing, which will include a term of imprisonment, monetary fines, and probation, as discussed below. The government may also seek enhanced penalties for an offender who was previously convicted of a DUI or BUI in other states.

Police may impose charges on the operator of a boat if they believe that they have probable cause to make an arrest due to suspecting that he or she is impaired, and due to said impairment, caused an accident. A person who is impaired when behind the wheel of a boat and if he or she causes an accident involving property damage or minor personal injury, then he or she can face a first-degree misdemeanor charge. The penalties associated with a first-degree misdemeanor charge in Cape Coral, Florida is a prison sentence of up to a year and a monetary fine of up to $1,000.

If a boater causes bodily injury that is serious due to BUI, he or she will be charged with a third-degree felony. In Florida, if a person is convicted of BUI involving serious bodily injury, he or she can be imprisoned for up to five years and face a monetary fine of up to $5,000. If a person dies as a result of a VUI, then the offender will be charged with a second-degree felony, which is associated with a prison term of up to fifteen years and a monetary fine of up to $10,000.

Should a boater who causes an accident while impaired and leaves the scene, then he or she will face first-degree felony charges. Specifically, the boat operator will face first-degree felony charges if he knew or should have known that an accident occurred. Florida’s BUI law does not require that the prosecution establish that the operator of the boat knew that someone perished or sustained serious injuries to be convicted of first-degree BUI. First-degree felony charges are associated with a thirty year prison term and a monetary fine of $10,000.

Aggravated BUI in Cape Coral, Florida

There are certain circumstances where the government can seek more severe BUI-related penalties. Specifically, when a boater’s blood or breath test reveals a BAC of 0.15%, or he or she was impaired with minors on board (those under the age of eighteen), the prosecution can seek aggravated BUI charges.

The prosecution can pursue harsher BUI-related penalties under certain circumstances. When a boater’s breath or blood test results reach 0.15% BAC or he or she was intoxicated with minors on board, the government can seek aggravated BUI charges.

An individual who is convicted of a first offense aggravated BUI may face a nine month prison sentence and be forced to pay a fine ranging from $1000 to $2000. A second offense conviction is punishable as a first-degree misdemeanor, which is associated with up to a one year prison sentence and a monetary fine ranging from $2000 to $4000.

Additional Consequences of a BUI in Cape Coral, Florida

Even minor boating accidents can prove fatal when alcohol or drugs are involved. Specifically, accidents that occur at low speeds can cause passengers to be ejected from the vessel. Individuals who sustain injuries or consume alcohol or drugs at the time of a crash may be unable to swim to safety. Those who do not wear a life jacket may be under the false belief that he or she will be able to access a floatation device in the event of an emergency. Sadly, this is not always the case. Unfortunately, a person can drown if he or she was ejected from a boat while not wearing a life jacket, despite how good of a swimmer he or she may be.

What is “Operation” under Florida’s BUI Law?

Under Florida law, the term “operation” is defined as a person who is at the helm of a craft or in command or charge of the navigation and safety of the boat and its passengers. Specifically, the operation of a boat could include having responsibility over the vessel, even if it is towed, pushed, or pulled by the power of another vessel or vehicle. What this means is that an impaired person does not have to be behind the wheel when charged with BUI. In other words, Florida law defines operator as to include the person in charge of the craft, even if he or she is not driving it.

This broad definition takes into consideration maritime traditions of having a captain who is in charge of a ship where his or her orders must be obeyed without question and who is in charge of the ship and its crew, even if he or she is not steering.

Mandatory Arrest and Detention

Under Florida’s BUI law, no individual can be released from jail until his or her blood alcohol concentration or breath alcohol concentration is below 0.05%, the person’s normal human functions have been restored, or eight hours have passed since the time of the arrest. The offender must be released from jail when he or she meets one of these criteria, no matter which one comes first.

Cape Coral Law Enforcement BUI Investigations

Police have a greater latitude to stop a boater than the operator of a motor vehicle. Specifically, law enforcement cannot just stop the driver of a motor vehicle on a whim. The officer must have a valid reason to stop the driver that comports with constitutional restrictions. The standard of proof that an officer needs to stop an operator of a motor vehicle is a “reasonable suspicion based on specific and articulable facts.” While this standard is not extremely high, it does afford the public protection from police actions that may be oppressive. Specifically, if the officer can articulate the nature of the violation, then he or she can lawfully stop a vehicle and speak to the driver. However, the officer cannot detain a driver for an indefinite period of time. Once the stop has completed, law enforcement must release the person. However, the officer is guided by what he or she hears, smells, or feels during a stop. For instance, if an officer smells alcohol on someone’s breath, further inquiry and investigation may be warranted.

The same safeguards for drivers of a motor vehicle do not apply to boaters. Specifically, an officer patrolling a waterway has the ability to stop a boat and speak with its operators. While the officer cannot stop the operator for an indefinite period of time, he or she can ask for a boater’s proof of insurance and identification and may conduct a safety check of a vehicle. Said safety check may include asking to see a boater’s fire apprehension apparatuses, flotation devices, and sounding devices. Once the officer obtains satisfactory proof of the above, then the inquiry and investigation must end. Just like an officer who conducts a motor vehicle stop, he or she can investigate further based upon what he or she feels, smells, or hears.

Keep in mind that law enforcement is not limited to stopping a boat for safety checks. Specifically, they can stop a boat for several reasons, including violating waterway regulations, recklessness, and speeding. If an officer senses that there may be some form of impairment, whether due to alcohol or drugs, he or she can investigate further. The officer may be able to smell alcohol on a boater’s breath, observe watery and bloodshot eyes, as well as notice that a boater is acting confused or is slurring speech when questioned.

The officer can also conduct a search of a vessel by looking for evidence of drinking such as empty beer cans that are in plain view. The officer will also examine other signs of impairment such as a boat operator who is angry, flippant, combative, or arrogant with police. If a person disrespects a police officer, then he or she may be subject to a more thorough investigation.

If a law enforcement officer suspects that a boater is under the influence, then he or she can ask the boater to perform a field sobriety test. At this point,. The officer also has the right to ask the boater to perform a breath test using a portable device. A rendering of 0.08% or higher gives the law enforcement officer probable cause to arrest a boater for BUI. A refusal to submit to a field sobriety test or breath test can give law enforcement probable cause to arrest the operator of a boat.

BUI Defenses in Cape Coral, Florida

An individual who was placed under arrest for BUI has certain rights. While an officer may have had proper cause to arrest a boater, the individual accused of BUI will not automatically be deemed guilty. A seasoned Cape Coral BUI defense attorney will challenge the conclusions and observations of the arresting officer under cross-examination. Additionally, the attorney will also seek to challenge the blood and breath tests. If the tests were not performed in a proper manner, the results can be deemed inadmissible in court.

The operator of a boat has constitutionally protected rights. A skilled Cape Coral BUI defense attorney will also contest the officer’s decision to stop the boat in order to suppress the observations, results of any conversations, and conclusions drawn based upon evidence that was not properly obtained by law enforcement. Winning a motion to suppress may result in a dismissal of the case or a reduction in charges.

Musca Law: Defending the Rights of Boaters in Cape Coral, Florida

BUI charges are serious criminal offenses that could negatively affect your future. Do not trust your defense to merely any Cape Coral BUI defense lawyer. Call Musca Law’s Cape Coral defense lawyers today at (888) 484-5057 to schedule a free consultation and to learn more about your legal rights and options. Don’t wait, as your life and liberty depend upon it.