Washington State Boating Under the Influence ("BUI") Laws
Washington’s boating under the influence (“BUI”) law is governed by RCW 79A.60.040, which has many similarities and differences to Washington’s driving under the influence law ("DUI"). Because taking the boat out and having drinks on the water has become a way of relaxing for many, it is wise to be aware of the laws governing drinking on the water:
Although drinking alcohol is not illegal on the boat, the operator is required to be under the legal limit. The laws governing boating under the influence law have many similarities to the current DUI laws in Washington, but it also has some distinctly different aspects. RCW 79A.60.040. Somewhat mirroring the DUI laws RCW 79.60.040 reads:
(1) It shall be unlawful for any person to operate a vessel in a reckless manner.
(2) It shall be a violation for a person to operate a vessel while under the influence of intoxicating liquor or any drug. A person is considered to be under the influence of intoxicating liquor or any drug if:
(a) The person has 0.08 grams or more of alcohol per two hundred ten liters of breath, as shown by analysis of the person's breath made under RCW 46.61.506; or
(b) The person has 0.08 percent or more by weight of alcohol in the person's blood, as shown by analysis of the person's blood made under RCW 46.61.506; or
(c) The person is under the influence of or affected by intoxicating liquor or any drug; or
(d) The person is under the combined influence of or affected by intoxicating liquor and any drug.
The fact that any person charged with a violation of this section is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this section. A person cited under this subsection may upon request be given a breath test for breath alcohol or may request to have a blood sample taken for blood alcohol analysis. An arresting officer shall administer field sobriety tests when circumstances permit.
(3) A violation of this section is a misdemeanor, punishable as provided under RCW 9.92.030. In addition, the court may order the defendant to pay restitution for any damages or injuries resulting from the offense.
To What Vessels Does the Law Apply?
Both the state law and federal BUI regulations apply to all vessels, regardless of how small or however powered. In other words, the laws apply even to canoes, row boats and small inflatable boats.
What is the Penalty for a BUI?
A major distinction from DUI law is that the violation of the BUI law is a misdemeanor in the State of Washington. This means that the maximum time in jail is 90 days and the maximum fine is $1000 dollars. RCW 9.92.030. However, it should be noted that if the arrest is made by the United States Coast Guard a larger fine can be imposed for violations depending on the circumstances. US Coast Guard website. Additionally, a vessel operator under the influence of drugs or alcohol that causes death or serious injury can face a Class B and Class A felony. RCW 79A.60.050 and RCW 79A.60.060.
Will a BUI Affect a Drivers License?
Another notable difference between a DUI and a BUI is that there are no driver’s license sanctions for a conviction of a BUI. With the phasing in of mandatory vessel operators permits, boaters could potentially face losing their boater permit, but this has not been implemented as a penalty yet. This does not mean that it should be taken lightly by any means; it is still a criminal conviction and Law Enforcement has made recent efforts to aggressively seek out intoxicated boat operators.
Are Alcohol Tests Mandatory?
Breath and blood alcohol tests may be administered by officers, but unlike the DUI counterpart, there are no further legal penalties for refusing to take them. Due to the implied consent laws governing motor vehicle DUI’s, refusal to take the tests in a DUI situation results in automatic penalties (i.e. loss of drivers license for a year, increased mandatory jail time). For DUI’s, Law Enforcement officers are required to inform individuals of the consequences of refusing the alcohol tests. A refusal at this point results in more severe penalties and the refusal can be used against the individual in a criminal proceeding. Washington State has not implemented similar implied consent laws concerning BUI. This means that there is no additional legal consequence for refusal to take the alcohol tests, and a refusal cannot be used as evidence against the individual in a criminal proceeding.
However, if the BUI is enforced through the Coast Guard, a refusal can be used in evidence in an administrative proceeding, and the individual refusing the test will be presumed to be under the influence, effectively shifting the burden of proving innocence onto the individual. Further, a refusal to submit to testing can also be used as a factor for increasing the potential fine for the incident.
Do you have to take Field Sobriety Tests?
Additionally, field sobriety tests may be administered by officers “when the circumstances permit” (RCW 79A.60.040). Field sobriety tests administered to boaters face many difficulties and are therefore seldom used by law enforcement. The fact that a boat operator has been on the water and, most likely, out in the sun for a substantial period, greatly affects balance and coordination. The combination creates a situation where field sobriety tests could produce inconsistent results. These results are likely to be inconclusive in proving that a boat operator was legally unable to operate the vessel.
Taking Alcohol Tests, Drug Tests or Field Sobriety Tests – Practical Consequences:
Refusing to take alcohol or drug tests, or refusing to perform field sobriety tests may well result in unpleasant choices and consequences for the boater suspected of the BUI and his or her guests. If investigating law enforcement officers believe reasonable cause to exist to stop a boater for BUI they generally also have the authority to remove the boater and the boat from navigable waters. Coast Guard officers are provided such authority by federal regulations and the Coast Guard generally works in close cooperation with local law enforcement in BUI enforcement initiatives, especially for public events that attract boaters. As such, it is not uncommon for law enforcement officers to advise boaters that if the boater refuses to submit to the requested testing they will be arrested, removed from the boat on suspicion of BUI, and the boat will be detained or impounded. Note that if the boater takes the requested tests and any such tests are positive, the boater will most likely be arrested and charged with BUI, and the evidence against the boater will be much stronger. As to the disposition of the boat following arrest of its operator, if another person on board can demonstrate that he or she is not under the influence and otherwise qualified to operate the boat, that person may be put in charge of the operation of the boat rather than detaining or impounding the boat.
Even though the penalties for a BUI are not as severe as for DUI, being suspected of, or charged with, a BUI can certainly ruin a good day on the water, and lead to a lot of complication, trouble, substantial expense, fines and potential jail time. . While arresting officers cite a multitude of circumstances to support their assertions of reasonable cause for belief that a boat operator was under the influence, the most common reasons are probably excessive speed, other unsafe boat handling practices, and observing the operator drinking while operating the boat. Be safe on the water, observe no wake zones, and avoid a potential BUI by always having a designated operator, who does not consume alcohol or drugs, operate the boat at all times.
This information is published for the general knowledge of the public and by no means should it be considered legal advice provided by Mikkelborg, Broz, Wells and Fryer, PLLC. Note that different statutes and regulations may apply to commercial vessels, vessels subject to inspection, vessels involved in a serious marine incident, and to personnel operating vessels under the authority of a license issued by the U.S. Coast Guard.
