Boating Under the Influence

Understanding the law, consequences, and your rights

By S.M. Oliva | Reviewed by Canaan Suitt, J.D. | Last updated on November 8, 2023 Featuring practical insights from contributing attorney Kevin Leckerman

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Everyone knows there are laws against driving under the influence of alcohol. You may not know that there are also strict laws in every state against boating under the influence of drugs or alcohol.

And with good reason. According to the U.S. Coast Guard, alcohol is in the top ten known contributing factors of boating accidents in the United States. It’s the leading contributing factor in fatal boating accidents.

As with DUI laws, every state has slightly different laws prohibiting boating under the influence (BUI). This article gives the example of Pennsylvania BUI law, where there are five separate classifications of BUI, each with their own set of criminal penalties.

Regardless of where you live, if you’re planning to have drinks while out on the boat, you need to be aware of the risks and legal consequences in your state. If you’re facing BUI charges, contact a criminal defense lawyer as soon as possible for legal advice about your specific situation.

What is Boating Under the Influence (BUI)?

Just as you should not mix drinking with driving, you should not combine alcohol and operating a boat. Doing so results in impaired judgment, decreased reaction times, and a higher risk of injuries and even fatalities to yourself and others.

Drinking while boating can also result in serious legal consequences. As with DUI laws, there are two basic ways for prosecutors to establish a BUI:

  • Your blood alcohol concentration (BAC) was over the legal limit;
  • You were actually impaired by alcohol or drugs while operating a boat, even if your BAC was under the legal limit.

While every state makes boating under the influence illegal, penalties vary. Below you will find an example of BUI penalties taken from Pennsylvania.

What would be enough to give an officer a reason to stop a boater? 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… 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.

Kevin Leckerman

BUI Classifications

Here is a brief overview of each BUI classification in the state of Pennsylvania.

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/serious injury to another person.

Per Se BUI

A boat operator is considered “per se” if their blood-alcohol concentration (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.

High Rate of Alcohol BUI

This refers to cases where a person’s alcohol level 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.
  • A third offense brings a mandatory 90 days to five years of jail time.

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.

Controlled Substance BUI

While the BUI offenses listed above deal with alcohol, it is equally illegal to operate a boat or other watercraft under the influence of any amount of an illegal narcotic (such as marijuana).

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 a police officer for operating under the influence, don’t panic.

Several arguments can be made to prove your innocence and call into question the veracity of law enforcement’s evidence in a BUI case.

Challenging What Counts as “Erratic” Boating

“What would be enough to give an officer a reason to stop a boater?” asks Kevin Leckerman, a DUI defense attorney with Leckerman Law firm 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.”

Disputing Who Was Driving the Boat

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 in a BUI arrest.

Arguing that You Weren’t Intoxicated

“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.”

Get an Experienced Criminal Defense Lawyer

The consequences of a BUI conviction are severe and lifelong. If you’re facing charges, consider speaking with a qualified DUI lawyer as soon as possible. A defense attorney’s goal is to give you legal advice and help mitigate the negative consequences of a BUI as much as possible.

Look for an attorney with experience defending BUI cases specifically.

If you’d like more general information about this area of the law, see our DUI/DWI law overview.

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