Boating Under the Influence in California: What You Should Know

Boating is a popular leisure activity in California, and enthusiasts regularly take to the state's numerous waterways, from the Pacific Ocean to its many lakes. However, operating a boat does not exempt anyone from California's stringent impairment laws. A boating under the influence (BUI) charge is not much different from a driving under the influence (DUI) charge and its penalties can be equally severe.

In California, boating under the influence (BUI) is in a different category than the DUI laws, which govern both motorized and unmotorized vehicles. California Harbors & Navigation Code Section 655 states that operating certain equipment on the water under the influence of alcohol or drugs is illegal, including:

• Motorized boats, including sailboats with motors.
  
• Aquaplanes.
  
• Jet skis.
  
• Water skis.
  
• Inner tubes pulled by a boat.
  

The blood alcohol concentration (BAC) limit for both BUIs and DUIs under California law is 0.08 percent. However, when it comes to commercial watercraft, such as ferries, tour boats or fishing boats, the legal limit for impaired driving is 0.04 percent, and for those under 18, the BAC limit is 0.02 percent. These limits do not apply to rowing, kayaking or canoeing.

​Read More​: Underage DUIs in California: Legal Consequences for a DUI Under 21

According to the Aizman Law Firm in Encino, California, a BUI charge is usually a misdemeanor. The penalty for a first offense is up to a year in jail, a $1,000 fine or both. However, drivers can lose their boating license for anywhere from six months to five years, depending on the circumstances. The penalty for a misdemeanor charge with injury is a 90-day mandatory minimum jail sentence and a $5,000 fine.

If a boat operator has a previous drunk driving or BUI conviction and receives probation for a BUI misdemeanor, that driver must serve a minimum jail sentence of 90 days. A boat operator causing injury with a felony charge faces a penalty of 16 months to three years in county jail. If a driver faces a non-injury BUI charge within seven years of a prior, non-aggravated BUI, that driver must serve a minimum of five days in jail. Finally, if a boating operator causes death due to impairment, they face up to 10 years in prison.

​Read More​: California DUI Law: What are the Penalties & Fines? (With Chart)

In California, it is illegal for drivers and passengers to have open containers of alcohol or drugs in a vehicle while it is in operation, according to the Alexander Law Group. But this is one area where the law differs for boaters. Both the boat operator and passengers can drink alcoholic beverages, as long as they don't reach the legal BAC limit.

However, while drinking is legal on boats, law enforcement will look for open containers in the event of a potential BUI charge. If harbor patrol sees a boat operator and passengers drinking, it may further scrutinize the behavior of those on board, particularly if there are noticeable signs of drunk and disorderly conduct, according to LA DUI Attorney.

​Read More:​ California Open Container Law: Rules, Violations & Next Steps

While a driver's physical appearance and a field sobriety test can reveal signs of impairment, California requires boat operators to take a chemical test. Refusal to take the test can result in additional charges and penalties such as a fine, jail time or both.

Law enforcement uses breath tests slightly differently in boating impairment cases than it does in DUI cases. If a driver tests 0.05 percent BAC or lower, they won't face a BUI charge unless they operate a commercial craft. Law enforcement may use other evidence to support a BUI charge if a driver shows between 0.05 and 0.08 percent BAC.

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Some states treat a BUI differently from a DUI in that a BUI does not affect the status of a defendant's driver's license, but that is not the case in California, where it is virtually the same as a DUI. Someone charged with a BUI can have their license suspended or permanently revoked. For example, if a boat operator has a BUI and gets a California DUI within seven years of the first charge, California considers it a second DUI offense, and the operator faces stiffer penalties.

California also requires operators under the age of 35 in 2020 to carry the California Boater Card, which shows that they have passed the National Association of State Boating Law Administrators (NASBLA) test and boater safety education exams. The age requirement for boater cards increases every year, and by January 1, 2025, all boat operators must carry the card, according to Boat-ed.com. The card is proof that they can legally operate a motorized boat or personal watercraft. Unlike a driver's license, a boater card never needs renewal and cannot be revoked, even in the event of a BUI.

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If a boat operator feels they received a BUI charge in error, their attorney may contest the charge. Harbor patrol or the coast guard usually stops a boat when it sees an operator driving recklessly or if the boat is missing safety gear. While an open container can draw suspicion of BUI, it is not in itself a valid reason for stopping a craft; having open containers on a boat in California is legal. If law enforcement does not have probable cause for stopping a vessel, this may invalidate a BUI charge.

Additional factors can result in the poor operation of, or bad behavior on, a craft or recreational vessel, including sun and heat exposure that results in fatigue. A lack of solid footing while onboard a vessel may be due to waves and not to impairment. Wet or moving surfaces can cause field sobriety tests to register false positive results. Breath tests are also not fail-safe and can render false positives due to seasickness or bad food.

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