In the State of Texas, it is illegal to operate a watercraft while intoxicated by either alcohol or drugs. A watercraft is an aquaplane, one or more skis, a vessel, or any other device that can transport a person on the water. It is defined under the Texas Penal Code 49.01(4) and does exclude vessels that are propelled by the current of the water. Boating while intoxicated (BWI) can lead to an arrest and possible conviction if you are:
- Intoxicated and your mental and physical functions are impaired due to the consumption of either alcohol or drugs
- Over the legal limit when a BAC test is administered. If your BAC level is .08% or more, you would legally be considered BWI
BWI (Boating While Intoxicated) in Texas
A BWI in the State of Texas is as serious as DWI (Driving While Intoxicated), and if arrested with less than .15 BAC on your first offense will be considered a Class B Misdemeanor. This arrest, if you are convicted, will have you facing a fine of not more than $2,000 along with a possible jail sentence from three to one-hundred-eighty days in jail. You may also face a suspension of your driver’s license.
Penalties for BWI in Texas are dependant on several factors. These factors include:
- Whether or not as the operator of the watercraft, you have a prior BWI or DWI conviction on your criminal record
- Whether or not an accident has occurred causing serious injuries, or,
- Whether or not an accident occurred which caused a death
Penalties for BWI in Texas
Texas law defines the penalties for BWI under penal code 49.06(b). If it is your first time being convicted of BWI, the courts will determine your bond conditions according to facts related to your case. In most cases, a first-time offense of BWI is considered a Class B misdemeanor. A conviction of this offense carries a possible fine up to $2,000 and from 72 to 180 days in jail. (The statue requires a person with a first-time conviction of BWI spend at least three days in jail.)
If serious injuries occurred (intoxication assault) even as a first-time offender, you would be charged with a third-degree felony. This charge would carry a penalty of two to ten years in prison and up to $10,000 in fines.
If death occurred (intoxication manslaughter), you could be charged with a second-degree felony, which carries multiple years in prison as your sentencing. As intoxication manslaughter, this conviction could also mean you are facing thousands of dollars in potential fines.
It is considered a second BWI offense in Texas if you have a prior conviction of either a DWI or BWI on your record. A second BWI offense is regarded as a Class A misdemeanor and carries a possible fine up to $4,000 along with a jail sentence from 30 days to one year. ( Conviction for the second time of BWI, requires that you spend at least thirty days in jail.)
A third conviction of BWI is no longer considered a misdemeanor. A third BWI offense will be charged as a third-degree felony. If you are a third-time offender, you could be facing from two to ten years in state prison along with a possible fine up to $10,000.If you are arrested subsequent times for this offense, you will be facing much stricter restrictions.
For each of these classes, you face stricter punishments should someone have been injured because of your actions. If there were any injuries sustained from a first-responder related to your actions, you would also face much stricter sentencing.
Other Penalties Attached to BWI in Texas
Being charged with a second offense of BWI, DWI, FWI (Flying While Intoxicated), or Intoxicated Assault or Manslaughter can have you facing the installation of an interlock device on your vehicle.
You will not be allowed to operate a vehicle without this device installed. An interlock device is able to measure any presence of alcohol on your breath before you are allowed to start the vehicle. Any detection of alcohol and the device prohibits the vehicle from being started. The installation of the interlock device is dependant on the decision of the judge overseeing your case. Some judges feel these devices do not serve justice, while others may require it on even on a first-time offense.
Judges can also require that you abstain from consuming alcohol and the use of controlled substances unless you have a prescription for a drug. The court can furthermore enforce random drug testing to ensure you are complying with these requirements.
How is Intoxication Determined?
Under the laws in Texas, being intoxicated means that your blood alcohol concentration (BAC) is .08 or higher. Most people know what the legal blood alcohol concentration level is, but many do not realize that being intoxicated can also mean something else.
Being intoxicated under the law is defined as someone who does not have control of their physical or mental faculties as a result of consuming illegal substances or alcohol. Intoxication can be assessed regardless of one’s BAC’s reading.
Boating While Intoxicated in Texas
There are many beautiful waterways and lakes in Texas. Boaters need to be aware of the risks they are taking when they include alcohol in their boating activities. They are increasingly vulnerable to being unjustly arrested for BWI.
It is not illegal to have alcohol in your boat, which is a significant difference from your road vehicles. As long as the operator of the watercraft is not ‘intoxicated,’ they are allowed to drink and operate the vessel or other watercraft devices. It is common for people to enjoy a cold beer or a glass of wine as they enjoy the waters on a sunny, hot day.
Water patrols are employed to protect all the people on the waterways. Some patrols employ investigative tactics that cast a wide net, which catches sober and responsible boaters being wrongly accused of BWI. Many boaters have been arrested and detained even though they were drinking responsibly. Many attribute these increased arrests as a result of federal grant money given to the State to enforce water safety laws.
Law enforcement can legally stop any watercraft if they decide to perform a safety check. They are allowed to stop and board your vessel to check for necessary water safety equipment. They are permitted to verify you have the proper float devices or life vests, fire extinguishers, identification numbers for your watercraft, or an emergency horn. Once on board if they see any signs of alcohol consumption, they can immediately shift their focus to a BWI check.
When a person spends the day on the water, their appearance and even their behavior can be similar to that of someone who is intoxicated. You may display bloodshot eyes from too much exposure to the wind and sun, you may have facial redness from the sun, and could possibly have an unsteady walk due to wobbly sea legs. These are all signs, which law officers have been trained to look for when deciding whether or not an individual ‘appears’ intoxicated.
The roadside sobriety tests, which law enforcement uses for DWI cases, do not work well for boaters because of how being on the water for a length of time affects a person. There are a number of seated sobriety tests, or what is known as ‘float tests’ used to justify the arrest of someone for BWI. A float test is a tool created by the police department for police officers to use. The test is a seated sobriety exercise and has not been approved or suggested by either scientists or doctors.
- Float Test
The manual which water patrol uses to administer a float test tells them to ensure their subject is adequately stable and positioned in a seated position. They are then told to give the following directions:
- Sit straight at the front of the seat
- Place your arms along your sides
- Put your feet shoulder-width apart to provide a stable and comfortable position. They are then instructed to ask the subject if they are sitting comfortably and to wait for a response.
- They are to instruct the subject not to move their feet until instructed the test is complete. The subject is told to remain in position and do nothing until instructed.
- The manual then states the patrol is to ask their subject if they understand all these instructions.
The manual for a float test also acknowledges there are certain people for whom this seated battery may not be appropriate. People with certain disabilities, such as:
- Those with shoulder, elbow, or certain arm conditions may not be able to perform the float test.
- People who are missing a portion of their finger, or more than one finger, should not be asked to perform the float test.
The manual further states that the entire battery of tests are only valid if the test is predicated upon two important factors. First, the manual has to be followed precisely. The test is only an accurate test of impairment if the tests are administered in a standardized and prescribed manner. The standard clues then have to be used to assess the subject’s impairment, and standardized criteria are used to interpret the impairment.
Second, the manual states each subject has to be appropriately stable and seated. There are alternative positions permitted for the seated subject, such as crossing their ankles or sitting on their hands during the HGN administration. For the remaining tests, they must sit as requested in the above outline. The instructions for a valid float test exercise are:
- Take both hands and make a fist. Then extend your index finger from the fist and opening your hands, turn your palms forward. (The patrol should demonstrate the motion)
- While remaining in the position instructed to sit in, the subject should sit still while the patrol explains the rest of the test. This instruction is followed by asking if the subject understands this instruction. (Patrol is to wait for a response)
- The patrol will then instruct the subject that when they hear “Begin,” they are to tilt their head back approximately 45 degrees while closing their eyes. (The patrol should demonstrate the required action)
- Next, the patrol will instruct the subject that when they hear the word “Right,” they are to touch their right index finger to their nose when they hear the word “Left,” they must then use their left index finger to touch their nose.
- The patrol must ask the subject if they understand these instructions, wait for a response, and then proceed with the test.
The manual states the one administering the test should watch that the subject tilts their head back while their eyes are closed. They are also advised not to start the commands until the subject complies with all the rules. They are to inform the subject that their eyes are to remain closed unless instructed to open them.
There are a lot of ways in which a boater can fail the float tests. If the patrol observes any of the following, the boater will have failed the float test:
- They are unable to follow the instructions, and the patrol has to repeat them more than twice, or the boater did not comply with the instructions
- The boater starts the test at the wrong time and begins to tilt their head or close their eyes before patrol gives the instruction to begin
- If the boater opens their eyes during the test. This failure applies to the opening of eyes at any point before the instruction to open them has been given
- If the wrong hand is used to contact the nose
- If the wrong finger is used
- If there is any form of hesitation, for example, if the boater begins with one hand, and then changes to the other
- If the head is moved during the test. Moving the head backward, forward or from side to side after the test has started will constitute a failure of the test
- If the boater touches their nose with any part of the finger other than the area right below their fingernail
- Inability to touch the tip of the nose
- Failure to bring their hand down after contact with the nose is made
If authorities suspect you are intoxicated and operating a watercraft, they can either use the float test or take you to shore and request you perform field sobriety tests. They can also ask you to complete a portable breath test as used for DWI charges. If you are arrested and charged with BWI in Texas, you want an experienced Fort Worth DUI Defense Lawyer on your side. These charges are serious and can affect your criminal record.
What You Should Do When Charged with BWI
The first thing you want to do if charged with BWI in Texas is to contact Fort Worth DUI Defense Lawyer. You will need proper direction on what you should and should not do for the authorities. There are many errors found in BWI arrests, and without proper legal representation, not discovering these errors can be the difference between an acquittal and a conviction.
Law enforcement is trained to believe that if a boater is not able to follow simple instructions, such as those in the float test, they must be intoxicated. There are many environmental and personal complications that can affect the results of those tests, and an experienced lawyer will understand how to look for them and how to deal with them.
There is a lot at stake if you receive a conviction for a BWI. Having an experienced lawyer working your case from the start will help you obtain a more favorable outcome.
Defense to BWI in Texas
Being charged with a BWI does mean you will be convicted. Your lawyer can use a number of defense strategies, including:
- Your blood or breath tests are inaccurate
- The blood sample taken for testing was handled improperly
- Your constitutional rights can be challenged
- Your lawyer can use the ‘rising blood alcohol’ defense
- The field sobriety tests could have been inaccurately administered
- There was insufficient cause to detain or arrest you
An experienced lawyer, with knowledge of the Texas court and legal systems, can help you fight these charges and protect your future as well as your rights. Fort Worth DUI Defense Lawyer will not only understand the science behind rising blood alcohol and how chemical tests are conducted; they also know the logic behind the reliability of the float tests. Many of the BWI cases can receive a dismissal because of improper protocols, technical failures, or inconsistencies.
Rising Blood Alcohol Defense
The defense of ‘rising blood alcohol’ is based on the fact that it takes time for alcohol to be absorbed in your blood system. This absorption will depend on the types of food you have eaten and what kind of drinks you were consuming. Generally, it will take up to two hours for alcohol to enter your bloodstream.
Peak absorption levels are when the alcohol reaches your bloodstream. Your BAC will typically rise as more alcohol goes into your bloodstream. This means your BAC was actually lower while you were operating the watercraft than what the breathalyzer machine detected.
Your Fort Worth DUI Defense Lawyer can help prove your blood alcohol was rising at the time you were tested. Using an expert toxicology test can prove your BAC would have been lower than .08% when the law officials removed you from your watercraft.
The defense strategies for BWI are similar to those used for DWI. The first defense is to fight the field sobriety tests. When you had your last drink as well as any medications, you may be using can affect the test results. Another factor that can affect the test results is certain foods you may have been eating while enjoying a day on your boat. Some foods and medications are known to cause false signals on breath tests.
Difference and Similarities Between BWI and DWI under Texas Laws
There are five significant differences between a BWI charge and a DWI charge under Texas law:
- Law enforcement officials are allowed to stop a watercraft and conduct routine safety checks even if there is no suspicion of alcohol or drug use on the vessel. DWI cases need probable cause in order to stop a motor vehicle
- BWIs are most often cited after law enforcement has witnessed an action that the boater is violating another water rule. This violation catches the water patrol’s attention, much like a patrol car will observe unusual behavior of a motorized vehicle
- Just as you can be charged with DWI if you are under the age of 21 while intoxicated, you can also be charged with BWI if you are under the age of 21 and intoxicated
- You are allowed under the law to have an open container of alcohol while operating watercraft. When you are operating a motorized vehicle on the roadways, it is against the law to have an open bottle of alcohol
- Both a DWI and a BWI conviction carries steep fines and jail time. If you are charged multiple times, the penalties increase the same on either form of a conviction.
If you are facing BWI charges, you should be aware of certain factors that can add enhancements to your sentencing. Enhancements to your charges mean the courts can elevate your sentencing. Enhancements mean your fines and or prison time can be increased in severity. Injuries or death are two of the major reasons enhancements could be applied to your penalty phase. You will need competent help if charged with BWI. These charges are serious and have serious consequences.
In 2001, Texas added another possible consequence for a conviction of BWI. Most boaters are unaware that if convicted of BWI, it is possible to lose your driver’s license for up to 180 days. This penalty can be added if you have been convicted and were operating a watercraft with a 50 horsepower rating or higher. This additional consequence makes it even more important that you have proper legal representation to protect your rights.
Find A Fort Worth DWI Lawyer
If you are facing charges of BWI, you need legal representation to protect your future and your rights. Call the Fort Worth DUI Defense Lawyer at 817-470-2128 to schedule an appointment to discuss the best legal strategy for your defense. If you live in the Fort Worth, Texas area and are facing these serious charges, call now, to ensure you get the best defense possible.