DUI & DWI

Boating While Intoxicated (BWI) in New York: Laws & Consequences

By Teo Spengler, J.D.

September 30, 2020

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Everyone knows it is illegal to drive a car while intoxicated. Boating while intoxicated (BWI) is also illegal in every state, including New York. Like driving while impaired (DWI) laws, BWI laws are enacted to prevent accidents and help keep boaters and others in the water safe. Just like police officers can stop cars to check for drunk driving, law enforcement officials can stop boats and other watercraft to check on the driver's sobriety. Anyone who boats in New York should understand the BWI laws and the consequences for violating them.

It is illegal to operate a boat in New York while intoxicated by drugs or alcohol. Intoxication means that the operator's ability is not just impaired, but substantially impaired by the substance. This is the basic BWI statute. A first offense is a misdemeanor, punishable by up to a year in jail and a fine of $500 to $1,000.

Basic BWI Laws in New York

New York laws about boating while under the influence of alcohol or drugs are found in the Navigation Laws Section 49-A. These laws look very much like the New York provisions making it illegal to drive under the influence that are set out in Vehicle & Traffic Laws Section 1192. They make it illegal to operate a vessel while impaired or intoxicated, and include "per se" intoxication rules.

Section 49-A describes the different crimes that a person might be charged with if operating a boat under the influence of alcohol or drugs. Some are violations, or infractions, some are misdemeanors and some are felonies.

An offense, also called a violation, is the least serious type of crime in New York and is punishable by no more than 15 days in jail. Misdemeanors are more serious. For a misdemeanor conviction, a person can be sentenced to up to one year in jail. Felonies are the most serious crimes in New York and apply to any crime carrying a penalty of more than a year in prison.

Impairment by Alcohol When Boating

Section 49-A (2)(a) makes it illegal for anyone to operate a vessel in the state while their ability to do so is impaired by alcohol. Any extent of impairment is sufficient. This behavior is termed boating while impaired by alcohol or BWAI.

To convict a boat operator under this provision, the prosecutor must prove impairment. They might do so by offering witnesses to the erratic boat operation, including the law enforcement officers who cited the operator. Law enforcement can also testify to the operator's performance during the sobriety tests performed.

This is the only illegal activity described in the BWI statute that is not a misdemeanor for a first offense. A violation of this subdivision falls into the offense category of crime in New York. A first offense is punishable by a fine of between $300 an $500 and/or imprisonment for a maximum of 15 days. The potential consequences go up if there are multiple offenses. The court can punish a second offense with a fine up to $750 and imprisonment up to 30 days. A third offense within 10 years is a misdemeanor and can be punished by a fine of $1,500 and/or imprisonment of up to 180 days in jail.

Impairment by Drugs When Operating a Boat

It is also illegal in New York for someone to operate a boat while their abilities are impaired to any extent by a drug. This is set out in Navigation Law 49-A(2)(e). The term drug as used here means illegal drugs, but also legal drugs, prescription drugs and even over-the-counter drugs like cough medicine. Even if it is legal to use a drug, it is illegal to operate a boat after using it if it impairs a person's abilities. This crime is called boating while impaired by drugs, or drug-BWAI.

Boating While Intoxicated in New York

It is illegal to operate a boat in New York while intoxicated by drugs or alcohol. Intoxication means that the operator's ability is not just impaired, but substantially impaired by the substance. This is the basic BWI statute. A first offense is a misdemeanor, punishable by up to a year in jail and a fine of $500 to $1,000.

To convict a boat operator under these BWI provisions, prosecutors must prove substantial impairment. They might do so by offering witnesses to erratic boat operation, including the law enforcement officers who cited the operator. Law enforcement can also testify to the operator's performance during the sobriety tests performed.

Per Se BWI Laws in New York

Just like there is a legal blood alcohol limit for driving under the influence of alcohol, there is a similar legal limit for operating a boat. The law makes it illegal for anyone to operate a vehicle in the waters of New York with a blood alcohol concentration (BAC) of 0.08 percent. For operators of public vessels, the law sets the legal BAC limit at 0.04 percent.

These are called "per se" boating while intoxicated laws. Per se means "of itself" in Latin. If a prosecutor establishes that the boat operator had a BAC over the legal limit, no further evidence of impairment is required. The BAC evidence is enough, in and of itself, for conviction of a BWI.

BAC Testing in the State of New York

A person who operates a boat or other vessel in New York waters is required by state law to take a breathalyzer test if stopped by law enforcement on suspicion of BWI. A breathalyzer test involves exhaling into a machine that measures blood alcohol concentration. If this test shows that the operator has alcohol in their system, the officer can request the operator to take a chemical test.

These tests, usually administered at the police station, are much more accurate than the hand-held breathalyzer. They include a blood test, urine test, saliva test or breath test. If the operator refuses to submit to a chemical test, their license to operate a vessel is immediately suspended on a temporary basis pending a hearing. They are entitled to an administrative hearing on refusal if they request it. If they waive a hearing or lose at the hearing level, their license is suspended for at least six months, and they can be assessed a fine up to $200.

Consequences of Multiple Violations

The consequences are the same for convictions of a BWAI involving drugs, a regular BWI or a per se BWI. A first-time conviction is a misdemeanor that can be punished by a term of up to one year in jail and a fine of $500 to $1,000. A second conviction within 10 years can be treated as a Class E felony with a sentence of up to four years in prison and a fine between $1,000 and $5,000. A boat operator getting three BWI convictions within 10 years will be charged with a Class D felony and face up to seven years in prison and a fine between $2,000 and $10,000.

What counts as a prior conviction? Any one of these BWI offenses will count as a prior for any other. For example, if a person was convicted of drug-BWAI one year, a per se BWI the following year would be a second conviction. A per se BWI after that would be a third. And prior offenses also include most DWI offenses. New York counts these driving offenses as priors for boating offenses: drug-DWAI, combination-DWAI, regular DWI, per se DWI (0.08 percent BAC) and aggravated per se DWI (0.18 percent BAC.) And under New York law, any BWI can also count as a prior for a DWI.

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