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Boating Under the Influence: Recent Updates to the Law

Boating Under the Influence: Recent Updates to the Law

The world of Boating Under The Influence (BUI) recently received some new legislation thereby creating new law which came into effect last month and while the changes are for all intents and purposes, minor, they appear to be paving the way for future changes. The changes that are in the here and now are as follows.

Related PodcastWhat does the Law Say About Boating and Drinking?

Gross Misdemeanor

BUI is now a gross misdemeanor.  By contrast, a misdemeanor is a crime where upon conviction the maximum punishment is 90 days in jail and/or a $1,000.00 fine.  A misdemeanor is the least serious of all crimes.  A Gross Misdemeanor, is reflection of an act being serious enough that it is not as minor as a simple misdemeanor, but also not serious enough to be a felony.  However, it is serious enough that the maximum is 364 day of jail and/or a $5,000.00 fine.   So with the stroke of a pen, and without there being any real “BUI problem” the seriousness has increased as has the potential for 9 months more jail time upon conviction.  However, while there is an increase in the seriousness level, there is no mandatory jail time required upon a BUI conviction, nor is there mandatory fine upon a conviction. It is likely they will arrive in the near future.

Refusal Carries A Fine Up To 1,000.00

Traditionally a refusal to provide a breath or blood sample in a BUI arrest/investigation is not admissible as evidence against you as “consciousness of guilt.”  This has not changes, so refusals to provide breath or blood ARE NOT admissible in a trial to show consciousness of guilt.  However, upon an arrest, and without a finding of guilt by a court, a boat operator who does refuse a test (not a portable test, but a formal “voluntary” blood draw or breath test request) is now subjected to a $1000 civil fine for refusing.  The civil fine means, it is equal to a traffic violation in terms of seriousness, but carries a fine equal to that of a misdemeanor without a conviction!

THC Limit Is 5 Ng & Implied Consent For DUI Is Creeping In

Recently Title 46 of the Motor Vehicle Act, specifically RCW 46.20.308 and RCW 46.61.502 / 504, all were amended to impose a THC legal limit of 5 monograms.  This exact same langue was added to the BUI statute.  Therefore the legal boating limit is .08 for alcohol and the legal THC and Boating limit is now 5 ng.  However, since these breath and blood tests are “voluntary” the only mechanism to get you to provide a sample is by the search warrant requirements.

As a result of this the legislature also began to incorporate parts of the Motor Vehicle Act from RCW 46.20.308 into the statute. Specifically, the language known as “Implied Consent” to provide a breath/blood sample upon arrest when arrested for DUI.  This appears confusing due to the fact that there is no license, like a vehicle license; needed/required to operate a boat, yet they have now created a statute that has similar warnings about a breath/blood test and licensing.  In the motor vehicle world the language warns a driver of the consequences to their driver’s license, but how does that language “work” when there is no license?  Are they on the horizon?  Or is this simply the legislative lack of foresight that we so often see in the area of alcohol related crimes?  Time will tell.

Warrant Reminder For Blood & Breath

The amendments remind (or perhaps aim to solidify) officer’s that they may seek a warrant, which is odd because police have always had the authority to seek a warrant upon probable cause, and do not need statutory permission to seek and obtain a warrant.  A warrant is a judicial order and are not compelled nor granted by statue, so the additional language is confusing.

Can A Passenger Create A BUI For Owner?

Finally the last change reads as follows:

If ((an infraction is issued under this chapter because a vessel does not contain the required equipment and if the operator is not the owner of the vessel, but is operating the vessel with the express or implied permission of the owner, then either or both operator or owner may be cited for the infraction)) a vessel does not contain the safety equipment required under this chapter and the rules of the commission, and the operator is not the owner of the vessel but is operating the  vessel with the express or implied permission of the owner, then either the owner or the operator, or both, may be cited for the applicable infraction or charged with the applicable crime.

A close reading of this should be done by every boater, because if you read it again and then again, you will likely ask yourself the same question I am: Does Sec. 6 create a situation and a criminal offense of BUI IF an owner be cited for BUI if a passenger is operating the vessel?  This factually sounds crazy and for all intents and purposes stupid but this appears to be the case.


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