Summertime means hot temperatures and people flocking to Florida's waterways to enjoy their boats. The boating industry in Florida experienced a boom due to the coronavirus.  Recreational boating seems to attract alcohol consumption; however, if you intend on drinking while on a boat, make sure that you do not take control of the vessel.  Since boating can turn deadly in only a few seconds if the boat's operator has been drinking alcohol, the Florida Legislature mandates that boaters choose a "designated driver" to ensure the person operating the vessel is not drinking alcohol or using narcotics.  

Although boating and having an alcoholic drink is not illegal in Florida, operating a boat and over the legal limit after having an alcoholic beverage is illegal.  In fact, Florida's BUI and DUI laws are substantially similar.  Florida Statutes 327.35 defines boating under the influence, or BUI, as a boat operator under the influence of alcohol, a controlled substance, or prescription medication.  According to Florida BUI law, a person is deemed "under the influence" when the operator's "normal faculties" are impaired.  Florida's DUI jury instructions give context to the terms "normal faculties" and "impaired."   Accordingly, "impaired" means a person's capacity to operate a vessel is diminished.  "Normal faculties" are those activities that people use in their everyday lives such as walking, making appropriate judgments, talking, judging distances correctly, responding to emergency situations, and otherwise performing typical daily functions of life.

Florida's BUI Statutes authorize the prosecution to prove the boat operator's guilty by submitting evidence of a chemical test taken from the defendant. Law enforcement may take a breath sample or blood test to prove that the boat operator is under the influence. To be found guilty of operating a boat under the influence, the sample must contain 0.08 grams or more of alcohol per every 100 milliliters of blood. Similarly, the defendant may be guilty if their breath test shows a level of 0.08 grams of alcohol or more for every 210 liters of breath. 

Florida law also imposes harsher or "enhanced" penalties against boaters with chemical test results that reach a BAC of 0.15 or higher. Enhanced penalties may also be imposed if the operator of the boat was boating under the influence and had a passenger onboard 18 years of age or younger.  If found guilty, the defendant could be sentenced to up to nine months for a first conviction and a one-year jail sentence for a second conviction. Additionally, the court could impose a legal fine of between $1,000.00 and $2,000.00 for a first offense and $2,000.00 to $4,000.00 for a second offense, but no less than $4,000.00 for any subsequent offenses.

A first-time BUI conviction carries a jail sentence of up to six months and a fine of $500.00 to $1,000.00.  

A second BUI conviction could result in up to nine months in jail and a fine of between $1,000.00 and $2,000.00. 

A third BUI conviction may be charged as a third-degree felony in the state of Florida. When the previous offense falls outside the ten-year lookback window, a conviction for a third BUI shall be punished as if a second offense, except that the range of fines the judge can impose falls between $2,000.00 and $5,000.00. A fourth and subsequent conviction is a third-degree felony irrespective of when the previous conviction occurred. 

Although the Florida BUI Statutes discuss subsequent offenses for BUI, Florida law permits convictions for driving under the influence, whether in Florida or another state, to be viewed by the court as a previous offense. 

Possible imprisonment and fines are not the only penalties a person convicted of BUI faces in Florida. The court could impose at least one year of probation. The defendant would then be required to report to the probation department at least one time per month.  Also, the probationer could be required to attend a substance abuse educational program. The probationer would then enter and complete a substance abuse treatment, whether outpatient or inpatient, as the substance abuse service provider recommended.

A defendant convicted of a first offense must also complete 50 hours of public service during the year of probation. Also, the court will also impound the vessel for ten days with the costs billed to the defendant. The court must sentence the person convicted of BUI to at least ten days in jail if the previous BUI or DUI offense falls within the previous five years. Florida law also requires the convicted offender to serve at least 48 hours in jail consecutively. Additionally, a conviction for a second offense requires the trial judge to impound the vessel for no less than 30 days.

Within the last ten years, a third conviction requires the person convicted to serve at least 30 days in jail. The court must impound the boat for at least 90 days. 

With respect to jail time imposed by the court, Florida's BUI statute allows the person convicted to receive credit for any days spent in a treatment program after the person was charged but before the conviction entered. Additionally, the sentencing judge has the discretion to order the person convicted to serve any or all of the incarcerated sentences in an inpatient treatment facility. 

Police cannot release anyone arrested for BUI from jail unless certain conditions are met. The person can be released from custody when the arrestee's BAC reaches 0.05 or lower, eight hours have passed since the arrest, or the person has regained his or her normal faculties.

Musca Law

850 NW Federal Hwy #436
Stuart, FL 34994
(772) 227-1228
Open now:  Open 24 hours

6P8Q+73 Stuart, Florida