Boating Under the Influence (BUI)

Law enforcement officers have increased safety boat inspections and BUI investigations.

In Hillsborough County, the HCSO Marine Unit and the Florida Fish and Wildlife Conservation Commission (FWC) make arrests for Boating under the Influence (BUI) while conducting boat safety inspections.

The Marine Unit, part of the Hillsborough County Sheriff’s Office, enforces Florida boating laws by monitoring no-wake zones, looking for boaters under the influence of alcohol, and performing boating safety checks.

On the docket, the criminal charges for BUI might be listed as follows:

• 327.3512A – BOAT3054 (MF) BOATING UNDER THE INFLUENCE under Florida Statute Section 327.35(1);
• 327.3521A1 – (IN) BUI REFUSAL TO SUBMIT BREATH OR BLOOD ANALYSIS (CIVIL PENALTY);
• Boating Under the Influence Causing Property Damage or Injury, Florida Statute Section 327.35(3)(a)(b)(c)(1);
• Felony Boating Under the Influence, Florida Statute Section 327.35(2)(b)(1); or 327(2)(b)(3);
• Felony Boating Under the Influence, Section 327.35(3)(a)(b)(c)(2)

If you have been charged with BUI or boating under the influence, you can expect the case to be aggressively prosecuted.

The good news is that a BUI arrest does not always lead to a conviction. In many of these cases, the charges are dropped altogether or reduced to another far less serious charge than BUI, such as a civil infraction for “careless boating.”

If you were arrested in the Tampa Bay area for boating while under the influence (“BUI”) of an alcoholic beverage or impaired by prescription medication or illegal drugs, contact an experienced criminal defense attorney to discuss your case.

An arrest for boating under the influence or drunk boating (BUI) in Florida can lead to a criminal record, probation, possible incarceration, fines, court costs, community service, alcohol courses, and your boat being impounded.

To enhance the criminal penalties, any prior DUI or BUI conviction counts as a prior for any subsequent DUI or BUI. See Section 327.35(6)(i) and Section 316.193(6)(m).

Attorney for BUI in Tampa, FL

Law enforcement officers in Florida investigating BUI cases under Florida Statute Section 327.35(1) are forced to make difficult judgment calls when determining whether the boat’s operator is under the influence of drugs or alcohol.

Under the best conditions, well-trained and experienced BUI officers can make mistakes.

If you have been arrested for Boating Under the Influence of drugs or alcohol in Florida, contact an experienced Tampa DUI Attorney at Sammis Law Firm.

We represent clients charged with boating crimes in the greater Tampa Bay area, including Hillsborough County, Pasco County, Pinellas County, and Polk County.

Visit our offices in downtown Tampa, Clearwater, or New Port Richey. Contact us to discuss your arrest for boating under the influence.

Call (813) 250-0500.

The Per Se Legal BAC Limit for Operating a Vessel in Florida

We all know the per se BAC limit for anyone driving a vehicle on the roadway is .08. But did you know the same legal limit applies to anyone operating a vessel?

In other words, a boater is considered to be under the influence of alcohol on a per se basis if he or she has a blood or breath alcohol concentration (BAC) of .08 percent or above.

Florida’s BUI laws presume that anyone operating a vessel or boat with a blood- or breath-alcohol level at or above 0.08% is under the influence. For anyone under 21 years old, the legal limit is .02 or higher (sometimes called the “zero-tolerance policy”).

Several BUI enforcement officers with the Florida Fish and Wildlife Commission (FWC) have mobile breath test machines in their vehicles. The breath test machine used in Florida is known as the Intoxilyzer 8000.

Problems with BUI Enforcement in Florida

Law enforcement officers investigating a BUI case must often make a judgment call about whether to arrest a boater. Drinking alcohol and then driving a boat is not illegal.

The crime of BUI is committed only when the driver has consumed enough alcohol to be more than the legal limit of 0.08 (per se BUI) or when the driver’s normal faculties are impaired due to alcohol intoxication.

When making these difficult judgment calls, law enforcement officers often make mistakes.

From the BUI officer’s perspective, a boat is a vessel that requires safe operation. The safe operation of a boat is hampered when the boater is under the influence of alcohol or drugs (BUI).

The problem of drug or alcohol impairment is compounded for operators of boats because they are typically far less experienced on the water than driving a vehicle.

The lack of boating experience, combined with distractions that can occur while boating, including other boaters, weather conditions, and seasickness, can intensify the effects of drugs or alcohol while boating.

The marine environment can also intensify a boat operator’s impairment because of wind, sun, engine noise, motion, and vibrations.

Read more about BUI arrests at the Gasparilla Pirate Fest on January 28, 2023.

Elements of a BUI Criminal Charge

Although it is not illegal to consume an alcoholic beverage before operating a boat, it is illegal to operate a boat while under the influence of alcohol or drugs.

Under Florida law, Florida Statute Section 327.35(1), a BUI arrest can occur when either your blood alcohol concentration (BAC) is .08% or higher or the law enforcement officer suspects that your normal faculties are impaired due to intoxication or drug impairment.

The Coast Guard also enforces a federal law that prohibits BUI. Effective January 13, 1988, boating under the influence (BUI) became a specific federal offense.

Boating under the influence arrests made off the U.S. shorelines of Florida are under the jurisdiction of federal authorities.

Florida law enforcement officers typically make an arrest for Boating Under the Influence (BUI) closer to the shore or on lakes and rivers. That crime is prosecuted in Florida state courts.

Under either state or federal law, individuals charged with Boating Under the Influence (BUI) in Florida face stiff punishments and minimum mandatory sentences, including jail time, fines, boat impoundment, and forfeiture, and community service requirements.

Florida and federal laws against BUI pertain to all different types of boats, including canoes, rowboats, yachts, and large ships. In fact, the term “vessel” includes every description of watercraft, barge, and airboat, other than a seaplane on the water, which is used or capable of being used as a means of transportation on water.

BUI crimes can occur in foreign vessels operating in U.S. waters and U.S. vessels on the high seas. In Florida, Chapter 327, F.S., provides various penalties for vessel collisions, accidents, and casualties.

The standard operating procedures of the Hillsborough County Sheriff’s Office (HSCO), Number DTN 917.06 provides:

Maritime: If the subject to be tested was the operator or captain of a maritime vessel, or recreational boat, and has been charged with an alcohol related violation, the detainee shall be tested and processed in the same manner as a DUI detainee.

Enforcement of BUI Laws in Florida

Law enforcement officers with the Coast Guard, the Florida Fish and Wildlife Conservation Commission (FWC), sheriff’s deputies of the various counties in Florida, and any other authorized enforcement officer have the authority to:

• enforce boating safety laws’
• cause an inspection of a vessel; and
• require the removal of a boat deemed to be a hazard to public safety.

A law enforcement officer may stop any vessel to check for compliance with boating safety equipment requirements, whether numbered, unnumbered, or documented.

Law enforcement agencies have the right to conduct a stop of the boat to investigate whether the boat’s operator is under the influence of drugs or alcohol.

Read more about the enforcement of BUI laws in Pinellas County, FL.

Read more about the prosecution of BUI cases in Pasco County, FL.

Finding Legal Cause to Stop the Boat

BUI officers can conduct the stop when they have probable cause to believe a boat is violating a regulation or speeding.

In certain cases, the BUI officers can stop a boat for a random inspection related to an equipment check, fishing compliance, or safety registration.

Stopping the vessel for a safety inspection is authorized by section 327.56, Fla. Stat., although the officers are not allowed to board the vessel unless the operator cannot produce the safety equipment or where the placement of the safety equipment requires boarding.

The officer can ask the boat’s operator to perform a hand-held breath test or complete a series of sobriety exercises or chemical tests of the boater’s blood, breath, or urine.

Does a BUI Conviction Impact the Driver’s License or Driving Privileges?

No, a BUI conviction will never directly result in suspending or revoking the privileges to drive a motor vehicle. Likewise, the BUI conviction will not appear on your driving record.

But a BUI conviction might indirectly impact your driving privileges if you later get arrested for DUI because the prior BUI conviction counts the same as a prior DUI for enhancement purposes.

In other words, to apply any enhancement of criminal penalties and driver’s license suspension periods in a subsequent DUI case, a prior BUI conviction counts the same way a prior DUI conviction would.

Likewise, if you have previously been convicted of DUI, your BUI sentence can be enhanced as provided below.

Definition of Operate in the BUI Statute

Section 327.02(33), Florida Statutes, defines “operate” for purposes of Section 327.35 as follows:

“Operate” means to be in charge of in command of or in actual physical control of a vessel upon the waters of this state, to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state. (emphasis added)

Section 327.50(1)(b), Florida Statutes, deals with vessel safety regulations and provides, “For the purpose of this section, ‘underway’ means at all times except when a vessel is anchored, moored, made fast to the shore, or aground.

Further, The Convention on the International Regulations for Preventing Collisions at Sea and the OOW Maritime Dictionary commonly define “underway” as a vessel that is “not at anchor, or made fast to the shore, or aground.”

BUI Provisions and Penalties

Under Florida Statutes Section 327.35, Boating Under the Influence (BUI) is illegal in Florida.

At trial, BUI must be proven in one of two ways:

1. When the person who operated a boat within the State of Florida is under the influence of alcoholic beverages or a chemical substance when affected to the extent that the person’s normal faculties are impaired; or
2. When the person has a blood-alcohol level (BAL) of 0.08 or more grams of alcohol per 100 milliliters of blood; or
3. When the person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

The sentence can be enhanced if the boat’s operator has previously been convicted of BUI, DUI, DWI, or any other similar alcohol-related or drug-related offense) in the State of Florida or any other state.

Any conviction for BUI would include probation with a special condition that the defendant does the following:

• completes a substance abuse course;
• undergo a substance abuse evaluation and any recommended follow-up treatment; and
• perform at least 50 hours of community service; and
• immobilize the boat or vessel for at least ten (10) days.

The penalties for BUI are listed below:

.02 Legal Limit for Boating Under 21 Years Old

Florida law states that a boater under 21 years of age cannot legally operate a boat if he or she has a breath alcohol concentration (BAC) of what minimum amount or higher?

For persons under the age of 21 who operate a boat in Florida, the legal limit is 0.02%.

FWCDLE 108D Florida BUI Implied Consent Warning

In a BUI or DUI case, the Florida Fish and Wildlife Conservation Commission Division of Law Enforcement has developed form FWCDLE 108D (last revised on 09/05).

The form contains the implied consent warning for BUI cases. The form has a place for the defendant’s name and case number.

The officer is told to read only the paragraph applicable to the type of test you are requesting:

You are under arrest for operating a vessel or vehicle while under the influence of alcoholic beverages or chemical or controlled substance.

• I am now requesting that you submit to a lawful test of your BREATH for the purpose of determining its alcohol content. Will you submit to the breath test?
• I am now requesting that you submit to a lawful test of your URINE for the purpose of detecting the presence of chemical or controlled substances. Will you submit to the URINE test?
• I am now requesting that you submit to a lawful test of your BLOOD for the purpose of determining its alcohol content and the presence of chemical or controlled substances. Will you submit to the BLOOD test?

IF THE SUBJECT REFUSES TO SUBMIT TO TESTING, READ ONE OF THE FOLLOWING:

I am  [officer’s name] of the Florida Fish and Wildlife Conservation Commission (FWC).

• for a vessel – If you fail to submit to the test I have requested of you, it will result in a civil penalty of $500.00. Additionally, if you refuse to submit to the test I have requested of your and have been fined for refusal to submit to a lawful test of your breath, urine or blood, you will be committing a misdemeanor. Refusal to submit to the test I have requested of you is admissible into evidence in any criminal proceeding. Will you submit to the test? ___ Yes ____ No.

BUI Fines and Possible Incarceration

BUI is treated seriously, partly because Florida leads the nation in the yearly number of boating deaths. Studies indicate that one-third of all recreational boating fatalities involve the use of alcohol. In over half of these cases, the victim fell overboard or capsized the boat.

First BUI Conviction

• Fine of not less than $250 or more than $500.
• Imprisonment of not more than six (6) months.

Second BUI Conviction

• Fine of not less than $500 or more than $1,000.
• Not more than nine (9) months.

Third BUI Violation outside of 10 Years of a Prior

• Fine of not less than $1,000 or more than $2,500.
• Imprisonment not more than twelve (12) months

Third BUI Violation within 10 Year of a Prior (Felony in the Third Degree)

• Imprisonment of not more than five (5) years.

Fourth or Subsequent BUI (Felony in Third Degree)

• • Fine of not less than $1,000.

BUI Causing or Contributing to Property Damage

• A misdemeanor in the First Degree;
• Imprisonment of up to twelve (12) months.

BUI Causing or Contributing to Serious Bodily Injury to Another (Felony in the Third Degree)

Second Degree – BUI Manslaughter – BUI Causing or Contributing to Death can be charged as a Felony in the Second Degree punishable by up to fifteen (15) years in Florida State Prison.

First Degree- BUI Manslaughter – BUI Causing or Contributing to Death has the same elements as BUI Manslaughter in the Second Degree except that the operator of the boat also at the time of the accident, knew or should have known that the accident occurred (although it is not necessary that the operator know that the accident resulting in injury or death) and failed to give information or render aid.

Special BUI enhancement applies if:

The person is guilty of BUI and had a blood-alcohol level or breath-alcohol level of 0.20 or above, or if the boat operator had a passenger who was under the age of 18.

First BUI Conviction:

• Fine of not less than $500 or more than $1,000;
• Imprisonment up to nine (9) months.

Second BUI Conviction:

• Fine of not less than $1,000 or more than $2,000.
• Imprisonment up to twelve (12) months.

Third BUI Conviction:

• Fine of not less than $2,000 for a third or subsequent conviction.

Second Within 5 Years of a Prior

• Imprisonment of not less than 10 days (with at least 48 hours of the confinement being consecutive).
• 30 day Impoundment or immobilization of the boat or vessel

Third or Subsequent Conviction within 10 years of a Prior

• • Imprisonment of not less than 30 days (with at least 48 hours of the confinement being consecutive).
  • 90 day Impoundment or immobilization of the boat or vessel

Residential Alcohol Treatment In Lieu of Imprisonment

Florida law provides, the court has the power allow the defendant to serve all or any portion of a term of imprisonment to which the defendant has been sentenced pursuant to this section in a residential alcoholism treatment program or a residential drug abuse treatment program. Any time spent in such a program must be credited by the court toward the term of imprisonment.

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Florida’s “Kelly Johnson Act” of 1998

The “Kelly Johnson Act” of 1998 is an act relating to boating safety and emergency responses. The “Kelly Johnson Act” was named for the tragic boating accident on the St. Johns River in 1995. In that accident, Kelly Johnson was ejected from a boat and was killed.

In the “Kelly Johnson Act” of 1998, the Florida legislature redefined the term “operate” concerning vessels and added the language “to be in charge of” or “in command of” a vessel.

A review of the 1998 statutory definition also shows the inclusion of the following language:

“this definition shall not apply to a vessel owner or operator who designates a driver pursuant to s. 327.35.”

Under the current statutory definition of “operate,” however, this additional language has been removed.

The Florida Uniform Boating Citation

The attorneys at Sammis Law Firm represent clients after they receive a Florida Uniform Boating Citation. Many of these cases involve a citation issued by FWC.

The most common FWC Boating Citations include:

• boating under the influence of alcohol or controlled substances;
• willful or wanton reckless operation of a vessel;
• careless operation of a vessel;
• violation of navigation rules;
• manatee violation;
• speed / restricted area violation;
• registration certificate not on board;
• registration number not properly displayed;
• operation of an unnumbered or unregistered vessel;
• failure to transfer title/registration;
• expired registration;
• water ski violation;
• improper/insufficient safety equipment or lights;
• no boater I.D. card;
• FWC violation.

The Florida Uniform Boating Citation can allege violations of an ordinance or statute. A court appearance is required if the citation is for a criminal violation.

In addition to Boating Under the Influence § 327.35(1), Fla. Stat., other types of boating crimes include:

• Boating Under the Influence Causing Property Damage or Injury under § 327.35(3)(a)(b)(c)1, Fla. Stat.;
• Felony Boating Under the Influence under § 327.35(2)(b)1, Fla. Stat. or § 327.35(2)(b)3, Fla. Stat.;
• Boating Under the Influence Causing Serious Bodily Injury under § 327.35(3)(a)(b)(c)2, Fla. Stat.; or
• Reckless Operation of a Vessel under § 327.33(1), Fla. Stat.

Report of Disposition of the BUI Civil Penalty Disposition

In any BUI case involving an administrative suspension of the boat operating privilege, the court will be asked to complete a form known as the FWCDLE 108F (last updated on 06/07).

The form is the “ABSTRACT OF COURT RECORD AND REPORT OF DISPOSITION.”

Florida law requires the Court to complete the form within ten days after final adjudication and send the form to FWC Law Enforcement Records Section, 620 S. Meridian Street, Tallahassee, FL 32399-1600.

The form provides the following:

1. Action by the county court clerk if no hearing is requested. If no hearing is requested, then after 30 days, the court will sustain the civil penalty, and the defendant’s vessel operating privilege will be suspended by operation of law pending payment of the $500 civil penalty.
2. The court must determine whether the $500 civil penalty is sustained or dismissed if a hearing is requested. The Court Information is listed on the form, including the County, City, and Presiding Judge.
3. The form also provides a section for boat operation privilege action, which requires the court to determine which action applies:
   • suspended pending payment of the $500 civil penalty;
   • reinstated upon payment in full of $500 civil penalty; or
   • no affected – civil penalty dismissed.

2022 Statistics on Boating Under the Influence in Florida

At the Florida Impaired Driving Coalition(FIDC) meeting on August 11, 2022, Captain Rachel Bryant with the Florida Fish and Wildlife Commission (FWC) gave a presentation on “Boating Under the Influence Data” which claimed:

• In 2022, Florida had more than one million registered vessels, the largest number in recorded history.
• In addition to registered vessels, FWC estimates there are more than one million other types of vessels that do not require registration, including kayaks and stand-up paddleboards.
• Hillsborough County has the fourth-highest overall BUI arrest rate from 2018-2022.
• Manatee County was eighth for the overall BUI arrest rate from 2018-2022.
• For fatal vessel incidents in 2018-2021, 22% involved alcohol or drugs, while 78% involved other causes.

More BUI statistics were released by the National Association of State Boating Law Administrators (NASBLA), in partnership with hundreds of local, state, and federal law enforcement agencies, which participated in the fourteenth (14th) annual Operation Dry Water campaign from July 2 – 4, 2022.

Over the long weekend, 630 law enforcement agencies deployed 7,865 officers who made contact with more than 350,000 boaters while patrolling the waterways. As a result of those contacts, 794 people were arrested for boating under the influence (BUI).

Taking Blood after a BUI Crash

Pursuant to § 327.353, Fla. Stat., if a law enforcement officer has probable cause to believe that a vessel operated by a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, a law enforcement officer must require the person operating or in actual physical control of the vessel to submit to a test of the person’s blood. § 327.353 (1)(a), Fla. Stat.

This testing need not be incidental to a lawful arrest of the person, and the blood test is to be performed in a reasonable manner, but the law enforcement officer may use reasonable force if necessary to require the person to submit to the administration of the blood test. Id.

For the results to be admissible at trial, the officer must have a warrant for the blood draw, free and voluntary consent, or some other recognized exception to the warrant requirement.

Definitions for Florida’s Boating Under Influence (BUI) Statute

Adjudication – In Florida, any defendant that pleads guilty or no contest to boating under the influence (BUI) will be adjudicated guilty of the offense. Adjudication is mandatory under Florida Statute Section 327.36.

Probation – Under Florida law, all individuals that enter a plea of guilty or no contest to BUI must be placed on monthly reporting probation under Florida Statute Section 327.35(5).

Substance Abuse Course – DUI program-sponsored course and psychosocial evaluation must be imposed in all cases as a condition of probation under Florida Statute Section 327.35(5). Treatment may be waived by the court, but only after independent psychosocial evaluation and the court’s review of both evaluations under Florida Statute Section 327.35(5).

Community Service – The court must impose a minimum of 50 hours of community service for a first-time offender convicted of boating under the influence (BUI). Florida law does not have a buy-out provision that is expressly included in Florida’s DUI statute. See Florida Statute Section 327.35(6)(a).

License Suspension – A conviction for boating under the influence (BUI) does NOT provide for a driver’s license suspension.

Implied Consent – Florida’s implied consent statute applies to the breath test, urine test, or blood tests in BUI cases just as it does in DUI cases. See Florida Statute Section 327.35, 352.253, and 327.354.

1. The defendant must be told that the failure to submit to a lawful test after a BUI arrest will result in a $500 civil penalty.
2. The defendant must contest that penalty for refusing to take the breath, blood, or urine test within 30 days by requesting a hearing before a county court judge. Requesting a hearing on the $500 civil fine tools the time for payment.
3. Operating a water vehicle or vessel without paying the civil penalty is a first-degree misdemeanor.

Ignition Interlock Device – Florida law has no provision for an ignition interlock device in a BUI case.

Impoundment / Immobilization – The court must order the impoundment of the vessel used in the incident or any other vehicle registered in the defendant’s name.

Additional Resources

BUI Regulations from Florida FWC – Learn more about “Operation Dry Boat.” Boating Safety and Boating Under the Influence (BUI) information from the Florida Fish and Wildlife Conservation Commission, including state-specific boating safety information which must be incorporated into the boating safety course curriculum taught in Florida, such as vessel registration, boating accidents, reckless and careless boat operation, mandatory violator education, airboat regulations, vessel speed restrictions, water ski regulations, personal watercraft regulations, mooring to marker or buoys, boating safety regulation requirements, diver down flags, equipment and lighting requirements, vessel lighting, maximum loading and horsepower, manatee and seagrass awareness.

Boating Safety and BUI – United States Coast Guard, including information on alcohol effects while boating, dangers of BUI, BUI penalties and enforcement, and tips for avoiding BUI.

Boating Accident Statistics in Florida – Read the Boating Accidents Statistical Report 2013 from the Florida Fish and Wildlife Conservation Commission, Division of Law Enforcement.

The National Safe Boating Council, Inc. (NSBC) – Organized in September 1958 under the name National Safe Boating Committee.

HCSO Marine Enforcement and Patrol Section – The marine enforcement and patrol section of the Hillsborough County Sheriff’s Office navigates throughout the Bay, lakes, and rivers of Hillsborough County. In 2016, the section had over 3,500 patrol hours on the water, conducted 1,346 vessel safety inspections, and conducted 78 search and rescue missions.

This article was last updated on Thursday, June 15, 2023.