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 boating.

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 sobriety exercises.

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".