Each Memorial Day, a small barrier island, known
as Dog Island, off the coast of Carrabelle, Florida hosts a loosely
organized and somewhat rowdy event known as the "White Trash
Bash." Since there are no bridges to Dog Island, party-goers
and revelers alike arrive mostly by boat. As one would imagine,
large quantities of alcohol are consumed by many, including some
who are operating jet skies, yachts, and other powered vessels.
This year, the White Trash Bashers arrived to find a few folks
they probably thought were not on the guest list, to wit: officers
from the FWC. At least twelve unlucky bashers found themselves
winding down the party at the Franklin County Jail accused of
boating under the influence (BUI).
While the crime of driving under the influence (DUI)
has received quite of bit of notoriety from groups such
as MADD, SADD, and politicians seeking re-election, not
much attention has been paid to the crime of BUI. In reality,
there is not much difference between the two offenses when
it comes to sentencing day. Both offenses carry mandatory
penalties and mandatory adjudication which means a criminal
record that stays with the offender for the rest of his
life. One convicted of boating under the influence can never
have his record sealed or expunged. Both offenses are known
as crimes of enhancement which means subsequent offenses
are treated more severely. Moreover, the offenses are interchangeable
when it comes to enhancement sentencing. In other words,
one previously convicted of a first offense BUI can expect
to be treated as a second offender for his first DUI and
expect a mandatory jail sentence.
Perhaps the main difference between DUIs and BUIs is the fact
that one's driver's license is not suspended as the
result of a BUI conviction. Also, a refusal to submit to a breath,
blood, or urine test as a result of a BUI arrest does not result
in a suspended driver's license. If one is asked to take
a breath test following his or her arrest for BUI, failure to
do so will result in a civil fine of $500. Under Florida law,
that fine may be contested within 30 days and failure to pay it
simply means one cannot operate a vessel in Florida waters until
the fine is paid. However, one who refuses to submit to a breath
test for the second time following a DUI or BUI arrest will find
himself charged with a misdemeanor which can carry a jail sentence.
The crime of boating under the influence occurs when one is
operating a vessel in state waters when (a) his or her normal
faculties are impaired by alcohol or controlled substances, or
(b) his or her breath alcohol level is .08 or above or (c) both.
When one refuses to submit to a breath test, the State is merely
deprived of an alternate theory of prosecution (.08 or above).
One may still be convicted on the opinion testimony of a law enforcement
officer that his normal faculties were impaired by alcohol while
Typically, law enforcement officers use a series of tests known
as "field sobriety exercises" to establish that one's
normal faculties are impaired. These tests might involve reciting
the alphabet, touching a finger to the nose, or some other task
used to test manual dexterity.
There is no Florida law that requires one suspected of driving
or boating under the influence to submit to these tests and there
is no fine or license suspension if one refuses to perform field
However, refusal to submit to the tests generally does not prevent
a law enforcement officer from making the arrest. In other words,
while refusing to submit to field sobriety exercises and refusing
to submit to a breath test may result in a not guilty verdict
in a close case, one may still find himself spending the mandatory
eight hour period in jail that Florida law requires following
an arrest for BUI.
It seems every time I attend some sort of social function, I
am questioned at length about how one might avoid a DUI conviction.
"Should I take the test?" they ask. "What should
I do if I get pulled over?" I believe the same advice I
give on how to avoid a DUI conviction applies to BUIs. It's
pretty simple. Don't drink and boat, and keep your mouth
shut. As my good friend and mentor, the Honorable J. Lewis Hall
used to say, "Even the fish doesn't get into trouble
until he opens his mouth".