With blazing hot temperatures all across Texas, it’s safe to say that summer is in full swing. In order to escape the sweltering heat, many people retreat to the lake to stay cool and have some fun. But that fun can come to a screeching halt if you are arrested for Boating While Intoxicated, or BWI. Much like DWI, BWI offenses can have life-altering consequences if you are convicted.

What is Boating While Intoxicated?

According to the Texas Penal Code Section 49.06, a person commits the offense of boating while intoxicated if the person is intoxicated while operating a watercraft. The penal code defines watercraft as “a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on the water, other than a device propelled only by the current of water.” A conviction will require that the state prove one of the following elements beyond all reasonable doubt:

It is not unlawful to consume alcoholic beverages while operating a boat or other watercraft, so long as you do not drink so much as to become legally intoxicated. Thus, it is perfectly legal for you to enjoy a cold beer or drink while on a boat.

How Do You Get Charged With a BWI?

Police generally patrol areas near a marina where boats are launched. Police are legally permitted to stop any watercraft solely for the purpose of conducting water safety checks to ensure boaters meet the necessary safety requirements. Once an officer is onboard a watercraft, he or she might smell alcohol or see evidence of alcohol consumption. If this happens, they will usually shift their focus to a BWI investigation.

Since many boaters are affected by the motion from being on the water, roadside sobriety tests used in DWI cases will not be as effective. Instead, officers employ a series of seated float sobriety tests.

What are BWI Field Sobriety Tests?

In 2009, the U.S. Coast Guard and The National Association of State Boating Law Administrators (NASBLA) funded a Validation Study, entitled “Validation of Sobriety Tests for the Marine Environment.” The objective of the study was to develop sobriety tests that can be administered in the seated position to assist water patrol officers to distinguish whether a boater is intoxicated.

This Validation Study used a combination of four seated tests—horizontal gaze nystagmus (HGN), finger to nose (FTN), palm pat (PP), and hand coordination (HC). However, the results of the Validation Studies failed to establish that the exercises were a reliable predictor of boating while intoxicated.

The manual for the seated battery tests sets forth that the tests are to be performed in a reasonably safe and stable environment. Moreover, the manual states that if one of the standardized field sobriety test elements is changed, the validity of the test is compromised.

Although officers may use the seated battery tests to detect BWI, many choose to use the standardized field sobriety tests designed for DWI. These include the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. Usually, an officer will detain the person he suspects is BWI and bring them to land. Once there, the officer will wait at least 15 minutes so that the suspect no longer feels the effects of being on a boat.

What are the Penalties for BWI?

Like a DWI, the penalties for BWI depend on a number of factors including:

  1. Whether you have priors for BWI or DWI (both BWI and DWI count as priors);
  2. Whether you were involved in an accident causing “serious bodily injury” to another; or
  3. If the accident caused resulted in a death.

First-Offense BWI

If this is your first BWI or DWI offense, then you will be charged with a Class B misdemeanor. The range of punishment for this offense is 3 to 180 days in jail, and/or up to a $2,000.00 fine.

Second-Offense BWI

If you have been convicted of a BWI or DWI in the past, another BWI will count as a 2nd offense. This is charged as a Class A misdemeanor, which carries between 1-365 days in jail, and/or up to a $4,000.00 fine.

BWI with Bodily Injury or Death

BWIs that involve serious bodily injury or death will be charged as felony offenses. Punishment can range anywhere from 6 months in State Jail to 20 years in prison.

License Suspensions

Similar to DWI offenses, there can be a driver’s license suspension associated with a BWI conviction. If you consent to the taking of a specimen and your BAC is over 0.08%, your license will be suspended for 90 days.

If you refuse to provide a specimen completely, then your license could be suspended up to 180 days. However, it is important to remember that license suspensions could be longer depending on prior cases or refusals.

What to Do When You’re Facing BWI Charges

A conviction for BWI can have serious repercussions. It is important that you speak with an attorney who can help navigate you through the treacherous waters that lie ahead.  

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