Boating While Intoxicated

Fort Worth BWI Attorney

Were you arrested for BWI? Many people do not know that the penalties for boating while intoxicated are as severe as driving while intoxicated. Drinking a couple of beers with your friends at Lake Arlington is not a crime, although police and game wardens don’t always see it that way. It is simply not illegal to drink alcohol while operating a boat as long as you are not legally intoxicated. While it is certainly important to keep our lakes and waterways safe for everyone, sober people will often find themselves catching a criminal case. This is because sober, responsible boaters can easily fail the boating sobriety tests. One minute the game warden is coming aboard your vessel for what appears to be a routine license check, and before you know it you are being charged with a boating while intoxicated charge. If you have been arrested and charged with BWI, I offer a free consultation. Call me and let’s discuss your case and your defense. 

How does BWI stack up to DWI? 

Boating while intoxicated is similar to DWI in many ways. Since it is an alcohol-related crime, police are going to be conducting an investigation along similar lines. Police will ask you if you have been drinking and how much you’ve had to drink. They will attempt to get you to take the field sobriety tests—asking you to follow the pen with your eyes, walk in a straight line, and stand on one leg. (note: the field sobriety tests are not mandatory and you don’t ever have to take them). The sobriety tests for boating while intoxicated come from the National Association of State Boating Law Administrators. One difference is that instead of standing exercises, law enforcement investigating BWI will conduct seated sobriety tests. There are seated sobriety tests because being on the water will often compromise a person’s equilibrium. There are four seated boating exercises in the battery of tests:

  • Horizontal gaze nystagmus eye exam (HGN)
  • The finger-to-nose exercise
  • Palm pat exercise
  • The hand coordination exercise

Like DWI, law enforcement will try to get a sample of your blood or breath to establish that you are over the legal limit while operating the boat. IF you do not consent, they will get a warrant. The investigation is similar to a DWI investigation. However, there are many key differences that make a boating while intoxicated charge unique and complex. This is due to the fact that there are many problems when a person is on the water and in the sun that can complicate a boating while intoxicated investigation.  

What are the Penalties for Boating While Intoxicated?

There are many lakes in and around Fort Worth and Tarrant County. There are even more in surrounding Counties like Denton, Dallas, and Parker Counties.   Perhaps you were enjoying the weekend with family and friends. Maybe you were at Lake Arlington, Benbrook Lake, or Lake Worth with the motorboat, Sea Doo, or other watercraft. Here is the statute on BWI from the Texas Penal Code:

Section 49.06. Boating While Intoxicated.

  • A person commits an offense if the person is intoxicated while operating a watercraft.
  • Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

The penalties are almost the same for BWI as they are for DWI. A first time BWI is a Class B misdemeanor, which carries a potential range of punishment of between 72 hours and 6 months in jail, and up to a $2,000 fine. Like DWI, a boating while intoxicated will be charged as a third degree felony if you have two prior convictions for either DWI, DWI with a child passenger, or flying while intoxicated. Furthermore, sometimes police will enhance your BWI by charging you with a deadly weapon. That usually means that police observed you operating your watercraft so recklessly or in a manner that it became a deadly weapon. If so there will be an enhancement paragraph in the indictment or the information. What is a Watercraft? This term is defined in Section 49.01(4) of the Penal Code:

“Watercraft” means a vessel, one or more water skis, or aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water

Watercraft means a boat with a motor, essentially. A kayak or a canoe or an inner tube or a raft are not considered watercraft. So, if you go to the lake with your friends to fish and drink Coors Light in a raft all summer day, you don’t have to worry about BWI. Although, if you drink all day at the lake in a raft you still should concern yourself with public intoxication or certainly DWI if you decide to drive home. When looking to charge someone with BWI, what police are looking for is a boat with a motor, such as a motorboat, ski doo, or a jet ski.

What Does “Intoxicated” Mean?  

The meaning that “intoxicated” has under Texas law is the same definition in regards to boating while intoxicated arrests that it does for driving while intoxicated arrests. There are three ways that a person can be intoxicated under Texas law. Here is the definition from Section 49.01(2) of the Texas Penal Code:

            “Intoxicated” means:

  • not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
  • having an alcohol concentration of 0.08 or more.

So the prosecution must prove that you have either lost your mental faculties, your physical faculties, or establish that you have a blood alcohol concentration or above 0.08. And the prosecution must prove this beyond a reasonable doubt. Many times, the prosecution will intend to prove all three. For a conviction for DWI or BWI, they need to only prove one of these. Most cases in Texas have a blood test or a breath test. That is simply the reality of defending DWI and BWI these days. The stakes of the game are higher, and your lawyer must know how to discredit the number on that test. If your lawyer does not effectively challenge the result of that test, that is a critical mistake that can sink your case. One reason for this is that jurors watch law and order and CSI at home and how neat and tidy and infallible the science is that is presented in a courtroom. Jurors assume that courtroom science is accurate and precise. To win your case, your lawyer must get those jurors to question the blood result. Your lawyer must show there are many, many ways in which the test can go awry, and the results can be skewed. Crucially, your lawyer must convince jurors that even though the theory of the science may be sound, and the technique may be effective and trustworthy under perfect conditions, the person operating that machine is still a person, and people are prone to make mistakes, and these mistakes can compromise the result.                

What are Some of the Problems with Boating While Intoxicated?

The conditions on the water can be harsh. After a day in the boat with the sun beating down on you and the waves swaying your back and forth all day long, it is hard if not impossible to complete the battery of field sobriety tests. In short, boaters are at a real disadvantage. This can lead to sober, responsible boaters getting arrested. Most people who have been in a watercraft before are familiar with what it means to have “sea legs.” When you have sea legs, your equilibrium is disrupted. Your balance is not steady, and it is difficult to walk on flat ground upon return to shore. There is a period of adjustment. Police and game wardens are trained to wait 15 minutes before administering the tests, although sometimes that is not enough time for a person to reorient themselves.          

Was There Probable Cause to Stop You?         

One major difference between DWI and BWI is that police need probable cause to pull over a motorist driving a car on a street or highway. Probable cause means that a police officer needs a reason to stop a driver, such as speeding or failing to stop at a stop sign, or a tail light is out. There are many reasons to stop someone, but police must have a reason. The constitution prohibits police from pulling us over on a whim or a hunch. So, if there is no objective reason why you were stopped for DWI and your attorney can effectively demonstrate this to the judge, your case will go away right there. But this is not the case with a boating while intoxicated charge. Game wardens can board your vessel without probable cause in order to perform a license check. Tex. Parks & Wild. Code Ann. Section 31.124 gives certified marine officers the authority to board a vessel to ensure compliance with registration and safety.  However, there are only a limited number of reasons for the stop detailed in the statute. These are limited to inspection for certificates, licenses, and for other specific reasons such as checking for life preservers, fire extinguisher, lights, and sound producing devices. If you and your attorney suspect that you were stopped for some reason other than those outlined in the statute, a motion to suppress is appropriate. If you were arrested for boating while intoxicated, call me to discuss your case. I work in Tarrant, Dallas, Parker, as well as surrounding Counties.               

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