The Penalties and Defenses for Boating Drunk in Pennsylvania
The state has five classifications for BUI
on September 7, 2018
Updated on February 8, 2021
Every Pennsylvania resident knows there are laws against drinking and driving a motor vehicle. But there also strict laws in the Commonwealth against boating under the influence of drugs or alcohol. In fact, there are five separate classifications of BUI under Pennsylvania law, each with their own set of criminal penalties.
Here is a brief overview of each BUI classification.
1. General (or alcohol) impairment BUI – This covers a person operating a watercraft “after imbibing a sufficient amount of alcohol” that they are “incapable of safely operating” the boat. Unlike other types of BUI, alcohol impairment is not tied to a specific blood-alcohol content. Rather, it is a catch-all offense that may be proven by other factors.
A first offense for an alcohol impairment BUI carries a maximum jail term of six months and a $300 fine. A second offense is considered a third-degree misdemeanor in Pennsylvania, which also carries a possible six-month jail term and a fine of up to $2,500. A third offense is a second-degree misdemeanor and may lead to a prison term of two years and a $5,000 fine. All of these penalty levels are enhanced if the BUI results in property damage or death or serious injury to another person.
2. Per Se BUI – A person is considered “per se” if their blood-alcohol content (BAC) is between 0.08 and 0.10 percent. However, the BAC measurement must be made within two hours of the person actually operating or having physical control of the boat.
Per se BUI is a third-degree misdemeanor starting with the first offense. The charge is elevated to a second-degree misdemeanor in subsequent cases.
3. High Rate of Alcohol BUI – This refers to cases where a person's BAC is between 0.10 and 0.16 percent. A first offense is a third-degree misdemeanor that carries an automatic 48-hour jail term. A second offense carries a mandatory jail term of between 30 days and six months, and 90 days to five years in the event of a third offense.
4. Highest Rate of Alcohol BUI – As you may have guessed, this refers to a BUI where the operator has a BAC in excess of 0.16 percent. The minimum jail term for a first offense here is 72 hours in jail. A third offense constitutes a first-degree misdemeanor and a prison term of between one and five years, in addition to a possible $10,000 fine.
5. Controlled Substance BUI – While the BUI offenses listed above deal with alcohol, it is equally illegal to operate a boat or other watercraft with any amount of an illegal narcotic (such as marijuana) in your system. And similar to an impairment BUI, you can be cited for a controlled substance BUI if the presence of any drugs, even those taken under a doctor's prescription, “impairs the individual's ability to safely operate or be in actual physical control of the movement of the watercraft.” A first offense for BUI carries a maximum jail term of six months.
Defense Arguments for a BUI Charge
If you’re stopped by police for operating under the influence, don’t panic. Several arguments can be made to prove your innocence and call into question the voracity of their evidence.
“What would be enough to give an officer a reason to stop a boater?” asks Kevin Leckerman, a DUI defense attorney with Leckerman Law in Philadelphia. The law says the operation must be erratic, but, he points out, “it’s not like a roadway where there’s clearly delineated areas for a boater to go in. How do you characterize what is erratic? It’s a major source of contention.”
Who was driving is another question worth raising, he says. Unlike a car, multiple people can easily operate a boat and drinking can more readily take place. Unless the police clearly capture a specific person operating while holding an intoxicant, mistakes can be made.
“Once the stop occurs, what officers typically look at are certain indicia of intoxication like staggering or swaying. When you’re on a boat, those are commonplace on a vessel moving with the waves. So that’s another area ripe for attack,” Leckerman says. A flushed face can arguably be due to sun exposure, he adds.
Field sobriety tests have holes, too. Walking a straight line would be next to impossible on water, Leckerman notes, “but even if they take you to dry land, if you’ve been on a boat all day, you might still be rocking. That can continue for hours. So being asked to do balance tests is going to be difficult. … Sea sickness can also cause nystagmus, so the Horizontal Gaze Nystagmus test has problems, too.”
As a result of these issues, Leckerman says, “If the officer is smart, they’ll seek an admission.” Instead, it may be in your best interest to talk with a qualified Pennsylvania DUI lawyer. If you'd like more general information about this area of the law, see our DUI/DWI law overview.