Boating Under the Influence


SHORSTEIN, LASNETSKI, & GIHON
helps people defend against Boating Under the Influence allegations.

A Boating Under the Influence arrest can have serious consequences.  Treated in much the same way as a traditional DUI, Boating Under the Influence can affect all aspects of your life including employment opportunities, your driving privilege, your finances, and your freedom.  Give the experienced Jacksonville criminal defense attorneys of SLG Law a call today to discuss your BUI case.  

What is a Boating Under the Influence? 

Boating Under the Influence is defined in Florida Statute 327.35.  In order for you to be convicted of a Boating Under the Influence, the State must prove:
1.   You operated a vessel, and

2.   While operating the vessel, you
a.   were under the influence of an alcoholic beverage, a chemical substance, or a controlled substance to the extent that your normal faculties were impaired, or
b.   had a blood or breath alcohol level of .08 or more

What is a "vessel?"

A "vessel" is defined as a boat and includes every description of watercraft, barge, and airboat, other than a seaplane, on the water used or capable of being used as a means of transportation on water. 

What are "normal faculties"? 

"Normal Faculties" is defined to include, but not be limited to, the ability to:
see
hear
walk
talk
judge distances
drive an automobile
make judgments
act in emergencies, and
in general, to normally perform the many mental and physical acts of our daily lives 

How do you know if my normal faculties are impaired?

Police officers used field sobriety exercises to help them determine whether a persons normal faculties are impaired.  The officer then makes a judgment call and bases his or her arrest on their opinion that your normal faculties are impaired.  This is why it is important to know why the officer is having you do the field sobriety exercises.

In addition to the field sobriety tests and when you refuse to take the field sobriety exercises, the officer will list other "signs of impairment" to enhance his finding of probable cause that your normal faculties are impaired.  You will see the following buzz words or phrases in almost every DUI arrest report:

Odor of Alcoholic Beverage
Bloodshot, watery eyes
Flushed Face
Slurred Speech
Thick tongued
Unsteady
Fumbled for license
Droopy eyes
Lethargic


Officers know that these words, or some combination of these words, must be in the police report to establish probable cause.  There may be many different causes for each of these observations that are not related to impairment.  These observations are also the officers opinion. 

The fact of the matter is that there is no way to know if one's normal faculties are impaired.  There is no magic test.  That is why, under Florida law, if you provide a breath or blood sample, that is .08 or higher, the State does not have to prove that your normal faculties are impaired.  They can simply rely on those results.  Without a breath or blood sample, the State would have to prove to the jury that your normal faculties were impaired through the testimony of the officer on his or her observations, or rely on a video recording if one is available, or rely on other evidence or witness testimony to prove that your normal faculties were impaired. 

What are field sobriety tests?

When you are stopped while on a boat, the officers will often use tests that don't require balance.  However, they may also take you to dry land to perform the same field sobriety tests performed in DUI investigations.

Field Sobriety Tests consist of standardized and non-standardized tests that officers use to form an opinion on whether your normal faculties are impaired or not.  One problem with these tests is that officers are only looking for and marking down what you do wrong and ignoring what you do right.  The results of each test are open to interpretation.  Officers use their interpretation of these tests as evidence against you.  In fact, they won't even call them tests.  They call them field sobriety exercises.  This doesn't sound so pass or fail to a jury when a BUI case goes to trial. 

Some of the tests are standardized, meaning that the way it is performed by an officer in Jacksonville should be the same way it is performed in Orlando, or Alaska, or Hawaii, or anywhere else.  If the officer deviates from the standardization, the results may not be admissible.  If there is a video, the jury would be able to see how well or poorly you did for themselves.  If there is no video, the jury will hear the officers version of how well or poorly you did through his or her colored lenses. 

There are three standardized tests and two optional tests. 

STANDARDIZED TESTS:

HGN TEST

The HGN test is designed to determine whether a person is impaired by alcohol be testing the muscles in their eyes when those muscles are strained.  The officer will have you stand with your hands to your sides, keep your head still and follow a pen with your eyes only.  He or she will have you follow the pen with your eyes to the left, to the right, up and down.  The officer is looking for twitching in the eye, dilation of the pupils, and other indicators of impairment by alcohol or drugs.  Only certain officers specially trained as drug recognition experts, will be able to testify that they believe you were impaired based on the results of this test, but it can be used in a probable cause determination.

The other importance of this test is that the officer will testify whether you were able to maintain your balance, whether you swayed, whether you followed instructions, and whether you moved your head during the test. 

ONE LEG STAND TEST

The One Leg Stand test consists of standing with your feet together and arms to your side.  You would decide which leg you were going to raise and then you would raise that leg six inches off the ground for 30 seconds while looking down at your foot.  If you raise your leg too high or not high enough, the officer may consider that a sign of impairment.  If you sway, put your foot down, fail to look at your foot, or use your arms for balance, the officer will consider those signs of impairment. 

WALK AND TURN TEST

The Walk and Turn Test consists of helping the officer place a long yellow tape down on the ground.  The officer then asks you to stand with one foot on the tape and to place the other foot directly in front of that foot.  The officer tells you to place your hands down by your side and to remain in that position while he gives you instructions.  The officer will instruct you to place the back foot directly in front of the front foot with your heal touching your toe.  The officer will instruct you to take 9 heal to toe steps on the line keeping your arms to your side and not using your arms for balance.  On the 9th step, you are to take several small steps to turn and take 9 more steps heal to toe back to where you began. 

If you do not touch your heal to your toe on each and every step, the officer will mark that on his or her field sobriety report.  If you slightly step off the line, the officer may mark that as well. If you do not take exactly 9 steps up and 9 steps back, the officer will use this in his or her determination on whether you are impaired.  If you do not take several small steps during your turn, the officer will also notate that.  If you use your arms for balance, this too will be written down as evidence of impairment. 

NON-STANDARDIZED TESTS:

FINGER TO NOSE TEST

The Finger To Nose Test consists of standing with your feet together, arms to your side and your head back.  The officer will say "right" or "left" and you are instructed to life the index finger on the hand that the officer calls and to touch the tip of your finger to the tip of your nose.  You will also be instructed to remove your finger after you touch your nose and place your hand back down by your side.  The officer will do this six times.  If you don't touch the tip of your finger to your nose, this will be marked on the field sobriety report.  So, for example, if you touch the pad of your finger to the tip of your nose, this would be evidence of impairment.  If you touch the tip of your finger to any place on your nose that is not the tip, this also would be used against you as evidence of impairment.  The officer would also notate if you forget to remove your finger from your nose, use the wrong hand, your eyes do not remain closed, you sway, or you use your arms for balance, all as evidence of impairment. 

RHOMBERG ALPHABET TEST

The Rhomberg Alphabet consists of standing with your hands to your side, with your head back and eyes closed and you will be asked to recite the alphabet slowly and without singing.  The officer is looking to see if your eyes remain closed, whether you sway, whether you use your arms for balance, and whether you get your alphabet wrong or sing it. 

RHOMBERG BALANCE TEST

The Rhomberg Balance Test consists of standing with your hands to your side, with your head back and eyes closed and the officer will ask you estimate 30 seconds in your head and to tell the officer when you think 30 seconds have elapsed.  During this test, the officer is looking to see if you sway, whether you keep your eyes closed, how close or off you are on the time estimation, and whether you use your arms for balance. 



Do I have to submit to the Field Sobriety Exercises?

You are not required by law to submit to field sobriety exercises.  Your license cannot be suspended simply for refusing to submit to these exercises.  However, your refusal to submit to the exercises could be used against you in court.  In other words, the prosecutor can tell the jury that you refused the exercises because you knew you were impaired.  Of course, you, and your attorney, would be able to rebut this claim and explain why you refused, which could be because the officer wasn't treating you fairly, you have medical issues, you don't trust the exercises, someone you trust told you not to, or any other valid reason. 

How will you defend my BUI case?

The consequences of a BUI are serious and expensive. The criminal defense attorneys of Shorstein, Lasnetski, and Gihon will represent you throughout the criminal process

Many people who are arrested for a BUI have never been to jail before.  It is a scary and confusing process.  The Judge and prosecutor move through the docket at a rapid pace and nobody wants to take the time to listen or to explain anything. When you retain the criminal defense attorneys of Shorstein, Lasnetski, & Gihon,  we take the stress and uncertainty out of the process. We will fully explain the process throughout the entire case.  We inform you of what's going on and will always be accessible to you for questions.  

The first thing we will do is obtain discovery (police reports, video, etc.) and determine whether there are any legal issues that warrant a motion to suppress, motion to dismiss or any other legal motion that should be filed.  We will also investigate the factual issues that are to your benefit.  Even if you think there is no defense, there may be fatal legal or factual flaws in the case.  If the Judge grants a Motion to Suppress or Dismiss, that could result in the State not having enough evidence to proceed and they may have to drop the case.  

In most cases, we can go to court hearings on your behalf without you having to appear, spending hours in court, and missing work or having to secure child care. When you are in court,  we will be there to speak on your behalf and to make sure your voice is heard and that you understand everything that is going on.

Finally, we will be there to represent you at trial or to negotiate a beneficial sentence taking into account what is important to you.  

What are the consequences of Boating Under the Influence?

First Offense
Up to 6 months in jail
$500 - $1000 fine
50 community service hours
10 day vessel impoundment/immobilization

Second Offense Outside 5 Years
Up to 9 months in jail
$1000 - $2000 fine
30 day vessel impoundment/immobilization

Second Offense Within 5 Years

Mandatory 5 days in jail up to 9 months in jail
$2000 fine
30 day vessel impoundment/immobilization


Third Offense Outside 10 Years
Up to 12 months in jail
$2000 - $5000 fine
90 day vessel impoundment/immobilization

Third Offense Within 10 Years

Mandatory 30 days jail up to 5 years in prison
90 day vessel impoundment/immobilization

Fourth or Subsequent Offense
Up to 5 years in prison
At least $2000 fine

Double Blow and Accompanying Minor Enhancements

If you blow a .15 or higher, or if you have a minor in the vessel with you, the possible jail time and fines are increased as follows:
First Offense
Up to 9 months in jail
$1000 - $2000 fine

Second Offense
Up to 12 months in jail
$2000 - $4000 fine

Third or Subsequent Offense
at least $4000

*   The possible consequences for Boating Under the Influence with property damage or injury or death are much more severe.  Give us a call to discuss your particular case.

These are only a small sampling of issues and laws pertaining to BUI cases in the State of Florida.  Call us for a free consultation on your BUI case so we can answer all of your questions.  Put the power of four prior prosecutors with big firm experience, and small office care to work for you. 

Call Shorstein, Lasnetski & Gihon now at
904-642-3332 (Jacksonville).
Experienced Criminal Attorneys

 
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