The state of Florida has many miles of coastline and boating is a common and popular pastime. Those considering drinking or using drugs while boating will do well to get an overview of Florida's laws about boating under the influence (BUI) and the penalties for violating them. Penalties range from fines to up to 30 years in prison, depending on the circumstances, the person's prior criminal history, and the damages and injuries resulting from the incident. The laws are quite similar to Florida's driving under the influence (DUI) laws, but there are important differences.
Boating Under the Influence
Florida's laws about boating under the influence are found primarily in the state's Vessel Code Section 327.35. These Florida statutes make it illegal for anyone to operate a vessel in Florida waters while under the influence of alcohol, drugs or a combination of alcohol and drugs.
Being under the influence of drugs, in this context, include, but are not limited to, illegal drugs like cocaine or heroin. Prescription drugs like opioids are also included as drugs, as are over-the-counter medications like cold syrups if they contain ingredients that can impair someone's driving abilities. Although it is legal to use these drugs, it is not legal to operate a boat while impaired by them.
A person can be convicted of boating under the influence if they operate a vessel in Florida waters while affected by drugs, alcohol or a combination of the two to such an extent that their normal faculties are impaired. This is the basic BUI charge. In order to convict the person of this type of BUI, the prosecutor must convince a jury beyond a reasonable doubt that the person operating the vessel was under the influence. To do that, they can present whatever evidence is available, including the testimony of law enforcement and other witnesses as to erratic boat operation, evidence of alcohol or drugs aboard the boat, or evidence of the operator's behavior after stopped by law enforcement.
Per Se Boating Under the Influence
A prosecution for BUI can also rely on the operator's blood or breath alcohol level (BAL). This involves using a chemical test to measure the percentage of alcohol in someone's blood or breath. The most common test is the breath test, taken with a breathalyzer device. Law enforcement officers have the boat operator blow into this machine and, with the breath sample, the machine calculates the BAL.
Under Florida law, if someone has a BAL of 0.08 percent or higher, they are presumed to be intoxicated for purposes of the BUI charge. This means that the prosecutor does not need to introduce any other evidence of impairment than the BAL to show intoxication. The boat operator can offer evidence that they were not intoxicated, but they have the burden of proof to overcome the legal (per se) presumption that they were.
Zero Tolerance Laws
In Florida, drivers and boaters under the age of 21 are subject to the zero tolerance law. This law makes it illegal for these young people to drink alcohol and operate a motor vehicle or a vessel. There is a special BAL limit of 0.02 percent that applies to boat operators under the age of 21. If a chemical test reveals a BAL over this limit, there is a presumption that the person violated the zero tolerance law.
Violation of the zero tolerance law is a civil offense in Florida, not a criminal one. The penalty for a young driver who violates the zero tolerance law is an administrative suspension of their license. Boat operators do not need licenses in Florida, so license suspension is not possible. Instead, boat operators found to violate the zero tolerance law are ordered to participate in a public service project for 50 hours during which time the person cannot operate any vessel. In addition, the person must complete an approved boating safety course.
Note that a person under the age of 21 can be prosecuted for a regular BUI if their BAL is over the legal limit of 0.08 percent. Likewise, they can be prosecuted for aggravated BUI if there is a minor in the boat or their BAL is 0.15 percent or greater.
Implied Consent Laws
If a person takes a chemical test that determines that their BAL is over the legal limit, they are presumed under the law to have operated the vessel while intoxicated. This per se BUI is much easier to prove than a regular BUI, so why would anyone agree to a chemical test?
In Florida, every person who decides to operate a boat in Florida is deemed to give their consent to taking a chemical test to determine their blood alcohol level if they are arrested for a BUI offense. The main types of chemical tests used in Florida are breath tests, blood tests and urine tests. Blood tests are considered the most accurate method of determining BAL, and urine tests the least accurate. But the most common type of chemical test for BAL in Florida is the breathalyzer – the machine that a person blows into to determine their BAL.
A person refusing to take a chemical test is guilty of an offense called refusal. A first offense refusal in Florida results in a fine of $500. A second or subsequent refusal is charged as a separate misdemeanor. Any refusal can be raised at the criminal BUI trial to suggest consciousness of guilt.
Operating a Vessel
If a police officer stops a driver for a DUI, the issue of who is driving the vehicle is rarely in question. The driver – the person behind the wheel – is the person operating the car or truck. Everyone else is considered to be a passenger and cannot be arrested for a DUI. It can be more difficult to ascertain whether someone is operating a vessel, however.
The statutes define vessel for the purpose of the BUI laws as being synonymous with boat. This includes every type of "watercraft, barge and airboat, other than a seaplane on the water, used or capable of being used as a means of transportation on water." That means fishing boats, kayaks, sailboats and commercial boats are all included. Sometimes more than one person share the task of operating the boat, working together or taking turns.
The term "operating a boat" is defined to include many different ways of engaging in controlling a boat. Under Florida's Vessel Code 327.02(27), the word operate means:
- Being in charge of, or in command of, or in actual physical control of, a vessel upon Florida waters.
- Exercising control over or having responsibility for a vessel’s navigation or safety while the vessel is underway upon Florida waters.
- Controlling or steering a vessel being towed by another vessel upon Florida waters.
So, if two people share the task of controlling a boat, both may be considered operating it for BUI purposes. In addition, if someone is supposed to be in charge, but steps away from the helm, they can still be considered to be operating the boat.
Simple vs. Aggravated BUI
As is the case with DUI offenses, the penalties for a Florida BUI vary, depending on a number of factors. Each of these factors will usually increase the potential punishment for the offense.
Aggravating factors include prior BUI convictions or prior DUI convictions. Both count as prior convictions for each other. It is also an aggravating condition if the operator's BAL was 0.15 percent or greater, or if a passenger on the boat was under the age of 18. When the BUI caused or contributed to an accident that caused property damage, injury or death, the charges can be serious felonies with many years of jail time.
Punishment for Simple BUIs
Simple, first-time BUIs are second-degree misdemeanors. The penalties for a simple BUI - without any aggravating conditions - include fines of between $500 and $1,000 and up to six months in jail and/or probation, the total time of jail and probation not to exceed one year. Probation usually includes a mandatory 50 hours of community service and impoundment or immobilization of the vessel for 10 days. Substance abuse classes are usually a mandatory part of every BUI sentence.
Simple second convictions are also second-degree misdemeanors. The punishment includes a fine between $1,000 and $2,000 and a maximum of nine months in jail. If the boat operator's first offense occurred less than five years before the second offense, the law imposes a minimum jail sentence of 10 days. In addition, the person's vessel will be impounded or immobilized for 30 days.
Third-offense BUIs can still be misdemeanors if the prior offenses occurred more than 10 years before the third offense. In that case, the offense can be punished by up to a year in jail and between $2,000 and $5,000 in fines. In addition, the vessel at issue is impounded or 90 days. But if third-offense BUIs occur within 10 years of the prior BUI, the crime is a third-degree felony, not a misdemeanor. Punishment can include at least 30 days and up to five years in prison and $5,000 in fines.
Punishment for Aggravated BUIs
The BUI charges against someone are more severe if one of the aggravating circumstances is present. A first-offense BUI where the operator had a BAL of 0.15 percent or higher carries a punishment of up to nine months in jail and fines of at least $1,000 and no more than $2,000. These potential punishments also apply if the vessel has a minor passenger aboard.
A second-offense BUI involving either a BAL of 0.15 percent or a minor as a passenger can be punished by fines of between $2,000 and $4,000 and up to 12 months in jail. A third-offense BUI with either of those aggravating circumstances will face a minimum fine of $4,000.
A first-offense BUI that causes property damage or minor injuries to another person is a first-degree misdemeanor, which carries a jail sentence of up to one year with potential fines of up to $1,000.
When a BUI Is a Felony
When a BUI operator causes serious injuries to another person, it is a third-degree felony. The boat operator can receive up to five years in prison with fines capped at $5,000. If the accident causes the other person to die, it is a first- or second-degree felony and can carry a prison sentence of up to 30 years and $10,000 maximum in fines.
- Florida Statutes: Vessel Code Section 327.35
- Nolo: Florida BUI
- Sammis Law Firm: Boating Under the Influence
- JD Amoth Law: Florida BUI Attorney
- Matthew Konaky Law: Difference Between DUI and BUI
- HG: Five Differences Between DUI and BUI in Florida
- Florida Statutes: Vessel Code Section 327.55
- Florida Statutes: Vessel Code Section 327.02(27)
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.