Every state in the country has driving under the influence laws, known as DUIs, and most people are familiar with the general provisions. All states also have laws prohibiting boating under the influence. But boating isn't big everywhere, so these are less well known.
Since the state of Florida has more coastline than any other state in the continental U.S. (and plenty of lakes too), boating is a popular pastime. That makes it important for Florida boaters to understand the crime of boating under the influence (BUI) and the differences between the way BUIs and DUIs are enforced.
Florida BUI vs. DUI Charge: "Under the Influence"
What do DUI and BUI have in common? The last two letters of each abbreviation stand for "under the influence." It is illegal in Florida to drive while under the influence of alcohol and/or drugs, and also to operate a boat while under the influence of alcohol and/or drugs. And, in both cases, the tests for being under the influence are the same.
A person can be convicted of a DUI in Florida if they operate a motor vehicle while affected by drugs and/or alcohol to such an extent that their normal faculties are impaired. Alternatively, they can be convicted of a DUI if their blood or breath alcohol level (BAL) is 0.08 percent or above. This is called a DUI per se because the BAL creates a presumption of intoxication.
A person can be convicted of a BUI in Florida if they are operating a boat while affected by drugs and/or alcohol in either of the same ways. It's a BUI if their normal faculties are impaired, a BUI per se if their BAL is above the legal limit, 0.08 percent or above.
Driver or Operator of a Vessel
The only person who can get a DUI is someone who is actually driving the motor vehicle. Likewise, the only person who can get BUI charges is someone who is actually operating the vessel. This is where the first big difference between a DUI and BUI come in.
It is very easy to determine who is the driver of a vehicle: the person sitting behind the steering wheel. When the car is stopped by the law enforcement officer, there is very little doubt about who the driver is. However, it is not always as clear who is operating a boat.
More than One Person Can Be Charged With BUI Offense
A vessel doesn't always need someone concentrating on operating it like a car does. Two or more people can jointly operate the boat, taking turns or doing different tasks. Who can be arrested for a BUI? Either or both. The Florida legislature clarified that question by enacting Vessel Code Section 327.02(27) that defines the word operate to mean multiple things:
- Being in charge of, or in command of, or in actual physical control of, a vessel.
- To exercise control over, or to have responsibility for, a vessel’s navigation or safety while the vessel is underway upon the waters of Florida.
- To control or steer a vessel being towed by another vessel upon the waters of Florida.
Anyone doing any of these things while under the influence of alcohol or drugs can be charged with a BUI in Florida.
Consequences for Refusal to Test
A second difference between a DUI and a BUI in Florida involves the sanctions for refusal to take a chemical test. A person's BAL is ascertained through field sobriety tests like a breathalyzer or blood test. Florida law is clear that anyone driving in the state or operating a boat in the state is deemed to have consented to take a chemical test when arrested for a DUI or BUI. Refusal to take a chemical test – termed "refusal" – is an offense in and of itself in Florida.
However, the punishment for a DUI refusal is different than that for a BUI refusal. Refusal to take a chemical test for a DUI results in an administrative license suspension of one year if it's a first offense. The driver will have their license suspended for the refusal, in addition to any criminal penalties for the DUI.
However, Florida does not require someone operating a boat to have a license, so license suspension doesn't apply to a BUI. Instead, the punishment for a first refusal to take a BUI chemical test is a fine of $500.
Standards for Stopping Vehicle/Vessel
A police officer can't pull over a random car to see if the driver is drunk. Rather, a traffic stop is only legal if the officer has a reasonable suspicion that the driver was under the influence of alcohol or drugs. While reasonable suspicion is a lesser standard than probable cause, it requires that there are distinct factors the police can point to that suggest the driver was impaired when driving.
Compare this to stopping a vessel. Law enforcement has the right to stop and board a vessel for many different reasons like checking vessel registration and compliance with safety regulations. If, after boarding for one of these reasons, the officer notices alcohol or drugs, or other evidence that raises a reasonable suspicion of impairment, they have the right to ask the operator to take a sobriety test.
BUI Laws: Sobriety Testing on a Boat
Another distinction between DUI and BUI procedures is what types of sobriety tests are used. While asking someone to walk in a straight line on the side of the highway is perfectly reasonable, the same test may be totally impractical to perform on a moving vessel or a boat being rocked by waves. For that reason, law enforcement uses different sobriety tests for boats than for cars.
Generally, when an officer suspects the boat operator of being under the influence, the officer takes the boat operator to the patrol boat for sobriety examination. Often officers use seated field sobriety exercised specifically designed for BUI investigations. These examinations include seated hand coordination tests that echo the familiar walk-and-turn sobriety exercise used for DUIs, as well as the horizontal gaze nystagmus test and the finger to nose test. The boat operator must perform the testing while counting, requiring both physical and mental activity at the same time, which can be difficult when a person has been drinking.
Community Service Buy-Out
Penalties for a first offense DUI conviction and a first offense BUI conviction are quite similar. These offenses are classified as second-degree misdemeanors and carry fines of between $500 and $1,000 and a maximum of six months jail time, as well as probation. The offender is also required to attend a substance abuse educational class at their own expense. Subsequent convictions or aggravating circumstances carry more severe penalties.
Probation conditions for both DUI and BUI sentences usually include 50 hours of community service. Those convicted of a DUI are given the option of "buying" their way out of these hours if their circumstances make performance an undue hardship. The cost for this option is a $10 fine for every hour of community service the person is unable to complete.
Compare this to the person convicted of a first- or second-offense BUI. They can also be ordered to perform up to 50 hours of community service under the statutes. However, there is no buy-out option in case of undue hardship available in the BUI statute. Therefore, a boat operator convicted of a BUI can expect to complete their community service hours even if inconvenient to do so.
- 2019 Florida Statutes: Motor Vehicles Code Section 316.193
- 2019 Florida Statutes: Vessels Code Section 327.35
- Nolo: Florida BUI
- Sammis Law Firm: Boating Under the Influence
- JD Amoth Law: Florida BUI Attorney
- HG: Five Differences Between DUI and BUI in Florida
- Matthew Konaky Law: Difference Between DUI and BUI
- 2019 Florida Statutes: Vessels Code Section 327.02(27)
- Musca Law: Boating Under the Influence: BUI Field Sobriety Exercises
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.