Driving while intoxicated (DWI) and driving under the influence (DUI) are better-known offenses than boating while intoxicated (BWI). But given the numerous lakes and rivers in Texas, in addition to its expansive coastline, everyone living in or visiting Texas should be familiar with its BWI laws. Here's an overview of the Texas law making it illegal to operate a watercraft while intoxicated, including the penalties involved for conviction of this offense.
Boating Laws in Texas
To drive a car or fly a plane in Texas, a person must qualify for and obtain a license, but to operate a boat on Texas waters, no license is required. Even so, the state still puts a few hoops in place that boaters must jump through.
More than half a million boats are registered in Texas. To operate one, anyone born after 1993 must complete a Boater's Education Course approved by the Texas Parks and Wildlife Department. When they pass the course, boaters are issued a card certifying that they took and passed the class. They must carry this certification with them whenever they operate a boat.
In addition, the boater must be at least 13 years old. A person under the age of 13 may only operate a boat in Texas if an adult is on board and supervising them, and this adult must have a Boater's Education Certification card with them.
Boating While Intoxicated
The crime of boating while intoxicated is set out in Texas Penal Code Section 49.06. That statute makes it a crime to operate a vessel, including a motorboat, sailboat, jet ski, motorized ski-board or Sea Doo, in Texas while intoxicated. A person is considered intoxicated for a BWI if their abilities are impaired from alcohol or drugs or if their blood alcohol concentration (BAC) is 0.08 percent or above.
Drugs in this context are not limited to illegal drugs like cocaine or heroine. Drugs that impair a boat operator's faculties can also include prescription medications like opioids and even over-the-counter medications like cough medications or allergy medications. The test is whether the drug has made the person dizzy or drowsy or otherwise has caused their faculties to be impaired.
Either being impaired or having a BAC over the legal limit is considered a separate and independent type of intoxication. An impairment DWI does not require proof of the person's BAC. And having a BAC of 0.08 percent or above is a "per se" BWI, meaning that no further proof of impairment or intoxication is required.
Getting a BWI in Texas
Although fewer people know about BWIs than the more common DWI, it is an easier ticket for law enforcement to issue in Texas. For a DWI, officers must have probable cause to stop a vehicle in the first place. But that isn't the case for a BWI. Law enforcement has the right to stop and board any boat on the water to check that the boat has the safety equipment required by law, like life jackets and fire extinguishers. Once on board, law enforcement personnel may smell or spot evidence of alcohol or drug use and begin a BWI investigation on the spot.
Drinking on a personal watercraft is not illegal in Texas, so open containers or breath that smells like beer is not the same red flag it is in a car. Rather, law enforcement is looking for intoxication. Law enforcement on a boat may ask about drug use or the extent of alcoholic beverage consumption, or they can draw their own conclusions from the behavior of the boat operator. They can also ask the operator to perform sobriety testing just like when police officers stop the driver of a car.
On the water, however, different sobriety tests are administered because the water motion and breeze can make it impossible to perform classic field sobriety tests like walking in a straight line. The BWI tests are seated float tests, administered to a boat operator who is seated rather than standing. There is no standardized battery of sobriety tests for use on the water, but law enforcement often uses tests like horizontal gaze nystagmus and finger-to-nose coordination tests.
Chemical Testing in Texas
If the boat operator performs on sobriety tests in a way that makes law enforcement believe the operator to be intoxicated or impaired, they can be arrested and taken in for chemical testing. This can include breath testing, blood testing or urine testing. These will establish the boat operator's BAC for purposes of an alcohol BWI or the type of drugs in the operator's system for purposes of a drug BWI.
In Texas anyone operating a boat is deemed to have consented to chemical testing for alcohol or drugs in their bloodstream if they are arrested for a BWI. Refusal to submit to testing will result in license suspension. Since Texas does not require, or even offer, a boating license, the person's driver's license is suspended for up to 180 days.
Penalties for a Texas BWI Offense
The penalties for a charge of boating while intoxicated depend in part on the boat operator's prior record. A first offense carries the least sanctions. It is charged as a Class B misdemeanor, and the judge can send the operator to jail for 72 hours to 180 days and impose a fine of up to $2,000. The operator can face a driver's license suspension of six months up to one year.
A second offense is more serious and is charged as a Class A misdemeanor. It can mean jail time of between 30 days to one year and a fine of up to $4,000. A third offense is a felony, and a person convicted of a third offense will face between two years and 10 years in a state penitentiary, as well as a fine of up to $10,000. Any subsequent offense is also a felony.
BWIs and DWIs Will Both Count as Priors
As is apparent, the more prior convictions a person has, the more severe the criminal penalties are. Because of this, it is important to realize that a prior offense can be a BWI or it can be any similar offense. In Texas, it is illegal to drive a motor vehicle while intoxicated, fly a plane while intoxicated, operate a boat while intoxicated and assemble or operate an amusement park ride while intoxicated.
A conviction of any of these is treated as a prior offense for a current BWI conviction. So someone who has two DWI convictions and then gets arrested for a BWI is charged with a third offense.
Intoxication Assault and Murder
What happens when a boat operator's intoxication causes serious bodily injury to another person? It will surprise nobody to hear that the operator faces serious charges. This is charged as a third-degree felony.
The injured individual could be a passenger on the BWI boat or a passenger or operator on another boat, a swimmer, surfer or bystander. If they suffer serious injury because of the drug or alcohol impairment or intoxication of a boat operator, the operator faces felony charges. The crime is called intoxication assault. Even if this is a first offense BWI, the operator faces a fine of up to $10,000 and a prison sentence of between two and 10 years.
If the injured person dies, it is termed intoxication manslaughter, a second-degree felony. For this offense the operator can be sent to prison for up to 20 years. Both the penalties for intoxicated assault and intoxicated manslaughter increase if the person injured or killed was a peace officer, firefighter or emergency medical personnel in the line of duty.
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.