Boating Under the Influence (BUI): Harbors & Navigation Code 655

In California, boating under the influence (BUI) is mainly a misdemeanor. Individuals can be accused of violating subdivisions (b), (c), (d), or (e) of California Harbors and Navigation Code § 655. The subsection the person’s prosecuted under is tied to the conduct they allegedly engaged in.

The District Attorney’s Office must prove specific elements, depending on the charges filed against the defendant:

  • Subdivision (b): The individual was under the influence of alcohol and/or drugs while:
    • Operating any vessel (such as a boat), or
    • Manipulating
      • Water skis,
      • An aquaplane, or
      • A similar device
  • Subdivision (c): The individual had a blood alcohol concentration of 0.08 or more while:
    • Operating any recreational vessel (except for a commercial boat), or
    • Manipulating
      • Water skis,
      • An aquaplane, or
      • A similar device
  • Subdivision (d): The individual had a blood alcohol concentration of 0.04 or more while operating a non-recreational vessel (applies only to commercial boats).
  • Subdivision (e): The individual is addicted to using any drug, and they:
    • Operated a vessel, or
    • Manipulated
      • Water skis,
      • An aquaplane, or
      • A similar device

However, this subdivision does not apply to people participating in an approved narcotic treatment program.

Is My Driver’s License Suspended for a BUI?

Unlike with a DUI, where a hearing for suspension is required when charged with a CVC §§ 21352(a) or (b) violation, you are not subject to a DMV driver’s license suspension upon being charged with a BUI.

With a BUI, refusing a chemical test can lead to an enhancement charge resulting in higher fees and punishments. However, if you were not operating a mechanically propelled boat, you are not required to submit to a chemical test.

Non-mechanically propelled vessels include:

  • Canoes,
  • Surfboards,
  • Sailboats without a motor, and
  • Any floating device not requiring a motor.

If I Don’t Take a Chemical Test, Does that Mean I Can’t Be Convicted of a BUI?

Under § 655, the results of your blood or breath test will determine the presumption of impairment:

For instance:

  • If your BAC was under 0.05, the court does not presume that you were under the influence of alcohol.
  • If your BAC was 0.05 or more but less than 0.08, the court still does not presume that you were under the influence of alcohol. Yet, the DA’s office can present other evidence, such as your behavior, slurred speech, or performance on field sobriety tests, to rebut the presumption.
  • If your BAC was 0.08 or above, the court presumes that you were under the influence of alcohol.

Still, the BUI jury instructions state that for you to be considered to have been “under the influence,” the District Attorney must show that, as a result of consuming alcohol or drugs, your mental and physical abilities were so impaired, you were no longer able to operate a boat with the caution of a sober person using ordinary care under similar circumstances.

Thus, even without chemical test results, law enforcement officials will rely on other evidence to establish probable cause. For example, a police officer will use your demeanor during the BUI investigation to show that they were justified in arresting you for boating under the influence.

During the process, you have the right to plead the Fifth, which protects you from self-incrimination, and you do not have to say anything. If you answer questions or make any statements, whatever you say and how you say it can be used against you, including if your speech is slurred.

Other evidence the police officer will use to show that they had probable cause to arrest include:

  • Watery eyes,
  • Unsteady gait,
  • Odor of alcohol, and/or
  • Flushed face.

The officer might also direct you to participate in field sobriety tests or a preliminary alcohol screening (PAS). Both are optional, which means you have the right to decline them without facing any criminal consequences. Without field sobriety tests or PAS (breathalyzer) results, the officer will have probable cause based only on their observations of your body language and behavior.

Our team may be able to show that watery eyes and a flushed face result from non-alcohol-related factors, such as being out in the sun or participating in high-intensity activities. Each case is different, and we are determined to use every strategy to pursue a justifiable win.

What Are the Penalties for a BUI?

The punishments you could face for boating under the influence depend on your criminal history.

Potential penalties include:

  • First BUI violation (misdemeanor):
    • Summary probation,
    • Fines of not more than $1,000, and/or
    • County jail for not more than 6 months
  • Second or subsequent BUI violation (misdemeanor):
    • Summary probation
    • Fines of not more than $1,000,
    • County jail for not more than 1 year,
    • 18 months of a DUI program, and/or
    • 30 months of a treatment program.

A BUI is a second or subsequent offense if you were convicted of any of the following alcohol-related driving or boating crimes in the past 7 years:

Why Hire The Law Offices of Kirk Tarman & Associates?

A private criminal defense attorney will bring light to the situation by first attacking the validity of the BUI stop. A police officer cannot stop you without having reasonable suspicion to do so, as required by the Fourth Amendment of the U.S. Constitution. Our attorneys can show that nothing suspicious nor any law violations occurred requiring you to be detained or even amount to the probable cause necessary to trigger an arrest.

Our firm also works directly with ethanol experts who can testify on your drinking pattern. Their testimony can show that, when you were operating the vessel, your BAC could not have been 0.08 or more due to recent drinking and being within the absorption phase. Our experts can also testify about the reliability of breathalyzer results, the calibration logs, and the accuracy checks the DA’s office provides upon our request.

If you have been charged with a BUI in Rancho Cucamonga or anywhere in Southern California, contactThe Law Offices of Kirk Tarman & Associates at (909) 658-7341.