If you have been stopped and arrested on suspicion of BWI (boating while intoxicated) in or around Fort Worth or anywhere in Tarrant County, your boating license is at risk, and you may even face heavy fines and possible jail time. If your BAC test came back at or above .15, nearly twice as high as the BWI (and DWI) limit of .08, then the repercussions of a conviction can be even more severe.
Don’t take the risk of fighting your BWI alone. And don’t give up without a fight. We at Andrew Deegan DWI Attorney At Law routinely handle all manner of both DWI and BWI cases and win significantly improved outcomes for our clients. We stand ready to do the same for you!
Contact us anytime, 24/7/365 by calling 817-470-2128 for a free legal consultation and immediate attention to your BWI case!
The Seriousness Of Boating Under The Influence
There are a number of medium to large sized recreational lakes in and around Tarrant County, such as Lake Arlington and Eagle Mountain Lake, and there are several navigable rivers as well. Fishing and boating in this part of the country is a major pastime, proving you don’t have to live near the ocean to be a boating playground.
But all too often, the playground turns deadly. There are hundreds of fatal boating accidents across the US every year, and alcohol is the leading contributing cause to these fatalities (about one-sixth are caused by the use of alcohol while boating). And many injuries and property damage incidents are traceable back to mixing alcohol and boat navigation.
Thus, it isn’t surprising that police in Fort Worth and Tarrant County are quick to monitor the local waterways and stop any boats they deem “suspicious.” But that doesn’t give them the right to arrest you without probable cause or violate your Constitutional rights.
The dangers on the water are at least as high as on the road when it comes to DWI / BWI. In fact, many believe that BWI is even more dangerous overall. The risk of drowning or crashing into a dock, partially submerged object, or another vessel runs very high. For this reason, BWI is treated no less seriously by Texas law than is DWI. And when your BAC is at or above .15%, the potential penalties for BWI are serious enough to affect you for years or even the rest of your life. It pays to protect yourself with top-tier legal defense early in the process.
How Is BWI Defined?
The definition of BWI is not really any different than DWI aside from the fact that it occurs while operating a watercraft instead of a motor vehicle. The watercraft can be a motorboat, sailboat, rowboat, speed boat, water ski, aquaplane, or almost anything else used for water transport. Anything propelled by any means other than the bare current of the water can count as a “watercraft” for the purposes of BWI.
If you are under the legal drinking age of 21, you can get a BWI if any detectable amount of alcohol is found in your system (BAC of .01 or higher), but otherwise, the legal limit is .08%. For rare cases where a boat operator is using a commercial boating license, or at least has one, and gets a BWI - the limit is halved at .04%. But also realize that if a mental or physical impairment is proved, then you can be found guilty of BWI even a lower BAC than .08. Plus, BWI applies to intoxication with drugs - whether illegal, prescription, or over the counter, if it impairs your ability to safely operate the boat. You can also get a BWI for being intoxicated with both alcohol and drugs at the same time.
Possible Penalties For BWI at or Over .15
We’ll look here at the sentencing range for a BWI where you registered a BAC reading at or over .15. But we will also need to look at the penalties for other BWI crimes so as to put the .15 penalties into perspective.
When you get convicted of BWI .15, it counts as a Class-A Misdemeanor under Texas state law. It would only have been a Class-B Misdemeanor, most likely, had your BAC been over .08 but under .15. This means that your sentence for a first-offense BWI / DWI will be similar to that normally reserved for a second offense when your BAC is .15 or higher.
Specifically, you could get a fine of up to $4,000, jail time ranging from 30 days to 12 months, and a driver’s license suspension ranging from 180 days to 2 years. That’s the same as for a second BWI / DWI. By contrast, a first-time offense without exceeding the .15 mark could get you up to a $2,000 fine, from 3 to 180 days behind bars, and a license suspension ranging from 6 months to one year.
A third BWI or DWI offense (or any combination thereof) is punishable by up to $10,000 in fines, 2 to 10 years of incarceration in state prison, and a driver’s license suspension of up to 2 years. This is a third-degree felony, which therefore creates a very serious criminal record. Additionally, a third offense can involve paying a “surcharge” of $2,000 a year for three years straight on top of the other fines and fees.
Note that even a first-time BWI that causes serious bodily injury or death to another person (including a passenger on your own vessel) will involve seriously enhanced penalties. BWI causing bodily injury is classed as “intoxication assault” and is a third-degree felony. It can get you from 2 to 10 years in state prison and a $10,000 fine. BWI causing death is “intoxication manslaughter” and a second-degree felony. It is punishable by 2 to 20 years in state prison and a $10,000 fine.
Any previous DWI or BWI in the past 10 years before the new incident would count as a “prior” and thus increase the penalty. If the accident injures a police officer, EMP, or certain other protected classes of persons, the penalty is enhanced. And if it causes traumatic brain injury or a “vegetative state,” there are also severe penalty enhancements.
The takeaway is clear: a BAC of .15 greatly aggravates the possible sentence even for a first-time BWI. While there are some BWIs with even more severe penalties, passing the .15 threshold ranks among the worst situations for a defendant. That said, a skillful BWI defense attorney may be able to defeat the charge entirely or at least get it and the corresponding penalty reduced in a favorable plea deal.
Common Defense Strategies Against BWI
While common defenses against BWI are similar in most ways to those against DWI, one difference is the inability to use a lack of probable cause for the stop in BWI cases. Texas law says that police must have reasonable probable cause to stop a motor vehicle on the highways but not to stop a boat on Texas waterways. That’s a quirky incongruity to be sure, but there is no way to argue against it in court.
However, the reason for the stop may simply be to conduct a safety inspection. But once in the process of this inspection, if the inspecting officer notices anything he or she deems to indicate you may be intoxicated, you can be subjected to a breath test and/or field sobriety test. The FSTs would have to take place on shore, so the officer has the right to make you go back to shore to complete them.
If the officer stops you and smells alcohol, sees open canisters of beer on board, or notices any physical signs you may be intoxicated, he is free to start the BAC test process. As police have the right to stop and board any vessel on the water at any time to inspect it for life jackets, operator license, and other safety issues, it isn’t hard for them to get an opportunity to inspect you for BWI at the same time.
Additional differences include that it is not illegal to have an open container of an alcoholic beverage on board a boat. It may raise the suspicions of the officer, and so he or she may look for it. But it is not in itself proof of wrongdoing - but it does constitute a violation in regard to DWI. Also, you cannot use the defense that you were not presently operating the boat you were in at the time you were intoxicated. That can work with DWI - it’s not illegal to sit drunk in a parked car. But it IS illegal to sit idle while intoxicated in a docked or stopped boat.
There are a few defenses that can work with BWI, however, that wouldn’t precisely apply with DWI. For example, the reason you had bloodshot eyes and a reddened complexion might be that you forgot to bring your sunglasses or put on sunscreen. You may have been unable to walk straight in an FST because it was conducted on an uneven boat dock. And you may have been in a vessel that was propelled by nothing but the water current (like a canoe), which is not subject to BWI laws.
Finally, some defenses, like skewed BAC test results, wrongly conducted field sobriety tests, mouth alcohol throwing off breathalyzer test results, not being read your Miranda Rights when arrested, or lack of demonstrable impairment can apply quite well to both DWI and BWI defense.
Working To Minimize The Penalties
If it turns out that there is no way to 100% defeat the BWI charge by winning a dismissal or an acquittal, then the negotiation skills of your defense attorney come into play. With a .15 BWI, for example, he might be able to get an independent chemical test run that shows you were actually just below .15. Or, if the blood sample was not properly stored, the evidence could be thrown out - and even if other evidence proved intoxication, the .15 factor at least could no longer be proved.
A plea deal might also win a reduced charge to a simple BWI rather than a .15 BWI. And a good lawyer can work to get you community service in place of actual jail time. A minimum jail stay will apply, but getting the minimum instead of the maximum jail term makes a huge difference. There may also be room to negotiate toward the low end of the sentencing range as to any applicable fines.
When it comes to first-time offenders, you can generally avoid having to use an IID (ignition interlock device) on your motor vehicle; but for subsequent BWI and/or DWI offenses, an IID requirement cannot be avoided. But it may be possible to reduce the length of time that such a device must be used through negotiation.
However, some judges require an IID even for a first-time offense when it’s BWI. They don’t do that with DWI. This is because BWI is considered to be somewhat more serious of an offense. Whether or not an IID can be avoided, therefore, may vary based on which judge handles your case.
The loss of one’s driver’s license (not just boat license) is easily one of the most serious penalties of any DWI or BWI. It impacts your ability to get to and from work and everywhere else not within walking distance of your home. A good lawyer can help minimize your license suspension period and may also be able to secure you the use of a restricted license for driving to/from work and DWI Classes.
If you get DWI probation assigned to you, then your lawyer will help by doing everything possible to gain more lenient probation terms. We can also seek to shorten the length of probation to the minimum. For a first offense, it is desirable to get deferred adjudication probation instead of “straight probation” so you can get the charge dismissed in the end and then seek to seal the record with a non-disclosure order. It may be more difficult to win this benefit when the BAC was over .15, but it could still be possible.
Advice Following An Arrest For BWI .15
Be aware that the police officer has the right, under state law, to stop your vessel anytime if it is on the water. The officer needs to have no probable cause. He can stop the boat to inspect it for safety compliance. Therefore, do not resist the officer’s attempt to “pull you over” and inspect your vessel. Be polite to the officer as well. And remember, most Texas officers have hidden video cameras on their persons - you are likely being taped. The videotape can be used as evidence in a court of law.
Know your rights. Don’t believe it if the officer says you can’t have open canisters of beer on board. Demand you be informed of what you are being arrested for and be read your rights. Don’t accept abuse from the officer, but don’t resist him in any lawful action either. Try to politely answer all reasonable questions but without incriminating yourself.
If you are asked to go with the officer to shore for field sobriety tests, a breath test, or a blood or urine test, you must comply. You have the legal right to refuse tests, but not to refuse to go with the officer. And refusing tests can bring detrimental consequences in many cases. If placed under arrest, do not resist or the charge of resisting arrest could be added to the charge of BWI.
Once in jail, use your phone call to talk to family or friends and have them call a lawyer or to call the lawyer yourself. An attorney can recommend you a bail bondsman if you need one, and this can often get you a discount on the bail bond. So make contacting a BWI lawyer your top priority. Do NOT discuss the details of your case with anyone before talking to your lawyer!
You will have been given a temporary driver’s license by the arresting officer. It will contain a court date and other pertinent information. Be sure not to misplace this piece of paper, but if you do, your lawyer can work to get a new copy for you. You have only 15 days (not business days, actual days) from the arrest date to request a hearing with the DMV. After that point, you will lose your right to a hearing and your temporary license will expire 40 days past your date of arrest. If you need help setting up the hearing, talk to us, and we can set it up for you.
Texas’ Implied Consent Rule
You may feel tempted to refuse the chemical test, especially if you fear your BAC may not only be over .08 but over .15. But Texas has an “implied consent” rule that applies just as much on water as it does on pavement. This rule says that by getting a state-issued driver’s license and/or boating license and using them, you agree to submit to BAC chemical tests that police may ask you to take. These test can be for alcohol, drugs, or both.
Note that, in Texas, the police officer gets to decide which test to use. He or she can opt for a breath test or blood test. You do not have the right to decide this for yourself. However, you do have the right to request a blood test conducted by a physician of your own choice within 2 hours of the officer’s test. You do, however, have to pay for that extra test. The officer will make sure you get there in time to get the test done within two hours.
Typically, you cannot be forced to submit to a BAC test. But there are exceptions when serious bodily injury or death was caused by the BWI-related boating accident OR when you have a BWI / DWI prior on your record involving serious injury, death, or child endangerment. Also, if it is your third BWI / DWI, then the officer can force you to comply with the chemical test.
If you do refuse the test, the arresting officer is legally required to explain to you the legal consequences of that action. If he fails to do this, it could help cancel those legal consequences. Otherwise, the consequences include a minimum driver’s license suspension of 180 days, with up to a two-year suspension possible in some cases. Also, a BAC test refusal counts as a drug and alcohol-related “enforcement contact,” which could increase the duration of license suspension in a subsequent DWI or BWI.
The bottom line is that you run extra risks when you refuse a BAC test from an arresting officer. You are typically better off submitting to test requests and finding other ways to fight a BWI charge, even if it is BWI with a BAC at or over .15%. A good lawyer will know how to challenge the evidence of the prosecution and find exculpatory/mitigating evidence in your favor. There may be falsely high test results, wrongly conducted tests, breaking of protocol in storing blood samples, violations of your rights, or other factors that can help you win your case.
Find A Top-tier BWI Defense Attorney Near Me!
At Andrew Deegan DWI Attorney at Law, we have deep experience in handling cases for our clients charged with BWI with Blood Alcohol Concentration (BAC) at or over .15%. We have well seasoned legal skills that can get this charge dismissed or acquitted or that could get the charge and/or sentence significantly reduced.
Doing nothing or relying on an inexperienced attorney will spell sure disaster when facing such a serious charge. We know how to build you a strong defense and win the best possible outcome for your case.
For a free BWI consultation in Fort Worth or anywhere in Tarrant County, call us anytime 24/7 at 817-470-2128!