Sailing into trouble. A Boating under the influence charge has serious legal consequences

More than 19,000 boaters will make waves this summer on Kootenai County lakes and rivers, and many of them will enjoy alcohol as part of the outing.

It’s what many people do to relax and have fun on the water. Unfortunately, some will over-indulge and put themselves and others in harm’s way. Boating under the influence can have serious consequences.  In 2015, Kootenai County marine deputies responded to 17 boat crashes — two of which listed alcohol as the primary factor in the crash.

“Last July we had a boat collision and we found that the driver was intoxicated,” said Dale Johnson, a Kootenai County marine deputy. “I’ve also seen boats crash into docks and do serious damage to their boats and the dock.”

The patrols are intended to make sure everyone on the water makes it to dry land in one piece. While there are some bad sailors, the majority takes pride in their boats and operates them responsibly, said Johnson.

“The standard boater is very pleasant and they’re trying to follow the rules,” said Johnson. “We want people to have fun. If you’re going to consume alcohol though, have a sober driver. Be safe out there.”

Last year, Kootenai County had 80 percent of the statewide arrests, and most of those occurred in the summer months.

“July was our highest month of violations,” said Kootenai County Sheriff’s Lt. Stu Miller.  “We generally have active patrols on the water from Memorial Day through Labor Day.”

According to Staci Anderson, a criminal attorney and partner at the firm of Anderson, Palmer, George, Walsh & Taylor, while the law allows people to have open containers of alcohol in a boat, operators can be prosecuted if they are under the influence of alcohol, or alcohol combined with medications/drugs. Just like driving a car, you can be charged if your blood alcohol content is .08 or more, whether or not influence exists.  (For those under 21, the limit is just .02.)  If someone is injured in an accident as a result of a BUI, the crime is a felony.

“Because BUI includes being influenced by prescription medication, be very careful about mixing medications that interact badly with alcohol,” Anderson warns.

“If your blood alcohol concentration is less than .08, you can still be prosecuted for boating under the influence if the officers can find evidence that you have something other than alcohol in your system, like drugs,” said Anderson. “This includes prescription medication.  So be careful about mixing your medications that interact badly with alcohol.”

In Idaho, a boating under the influence conviction has consequences that are similar to a driving under the influence conviction, said Anderson. “But there are differences.”

“The biggest difference between a boating and a driving under the influence case is you do not lose your driving privileges,” said Anderson. “Losing their driving privileges is the biggest concern most people have when they are charged with a DUI. If you are convicted of boating under the influence, you can be fined up to $1,000, serve up to six months in jail, and you must take a safe boating course. Many people think they are going to lose their privileges to drive their car.”  

The court does have discretion of suspending boating privileges on Idaho’s waters for a violation of the Idaho Safe Boating Act for a period of two years.

Marine deputies often stop boaters for other violations like speeding, violating no wake zones, or operating without navigation lights.

“We can stop any vessel to check safety equipment,” said Johnson. “If we see evidence of drinking, we start checking to make sure everyone is OK.”  A little known rule as to operating a vessel under the influence is that an operator of a vessel is considered to be “in actual physical control” of the boat unless the boat is at anchor or docked.

Anderson, an experienced boater, answered a series of questions about the law regarding boating under the influence.

What are the laws regarding drinking alcohol and boating?

In Idaho, the laws are similar to driving a car while under the influence of alcohol.  Our boating laws are laid out in Title 67 of the Idaho Code. If you are 21, you are boating under the influence if you have a blood alcohol concentration of .08 or above. If you are under 21, a blood or breath alcohol concentration of .02 or above is illegal. Regardless of age, and even without a blood or breath alcohol determination, you can also alternatively be charged for Boating Under the Influence if the marine deputies think you are too intoxicated to safely operated the vessel.

If you’re pulled over on the water for suspicion of drinking, what should you do?

You have to submit to a lawful show of authority, such as the flashing lights on the deputy’s boat. Just like when you are on the road, you must stop your boat as soon as you can safely do so. Once you are stopped and the deputies start talking to you, they can ask you questions about your alcohol consumption if they have reason to believe that you are too

impaired by alcohol to be at the helm. However, you have the right not to answer questions other than to identify yourself. This includes where you have been, what you and how much you drank, if you have any drugs, or any other question.  If you answer, instead of exercising your right to remain silent, your answers can be used against you. Lying to the police can be a second crime.

How are you supposed to do field sobriety tests on a boat, which bobs and moves on the water?

Field sobriety tests are divided attention tests designed to gauge a person’s ability to safely operate a motor vehicle. The deputies use a modified set of tests that are designed to be administered while a person is safely seated on the boat. The eye test – or horizontal gaze nystagmus test – is administered on both the water and road.  On a boat a person is asked to count forward and backward from a certain number, estimate a span of time, or other such test that can be conducted from a seated position.  Other than the horizontal gaze nystagmus test, these other tests are not regarded as being as “scientifically valid” as the other National Highway and Safety Administration-approved tests that are done on pavement.

Can you request your attorney be present for any breathalyzer?

The short answer: No, you cannot ask for your attorney to be present when you are asked to take the breath test.  If you refuse to submit to the breath test there is a civil penalty of $200.  You can contest the imposition of that penalty, but you have to do so quickly.  You only have seven days from the time you are cited to request a hearing.  If you request a hearing, that hearing is held within 30 days. It is up to you or your attorney to show that the officer did not have a legal reason to stop your boat and ask you to take the test or that the request to take the test violated your civil rights.

What advice do you have for someone who is charged with this crime?

Contact an attorney who is experienced in defending boating under the influence charges. Like a regular DUI charge, boating under the influence cases require very specialized representation.  For the breath test results to hold up in court, there must be probable cause to detain you and ask you to take the breath test. The testing machine must be properly calibrated and maintained and the breath test must be properly administered. Your attorney should know what reports to request and how to evaluate the information received from law enforcement.

For more information: Contact Staci Anderson at  (208) 665-5778.

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