An arrest for boating while intoxicated (BWI) in Texas is a serious offense under any circumstance. If you have a prior BWI conviction, you probably understand what is at stake. The Texaslegal system isn’t forgiving. We are home to tough cops, tough prosecutors, tough judges/jurors, and tough sentencing. The penalties are a lot more severe when it comes to a second BWI offense. Officers start building the case against you from the moment they suspect that you might be boating while intoxicated. Any delay in preparing your defense gives the state additional advantages. Witnesses get lost, and evidence disappears over time, so it’s important to retain a BWI defense attorney as soon as possible. If you’ve been charged with a second offense BWI and are facing enhanced penalties, contact Andrew Deegan Attorney at Law to discuss your case.

This page discusses a second BWI in Texas, its implications, and what your options are if you’re charged with the offense.

How You Get Charged with a Second BWI

Law enforcement patrols usually assemble near a marina where watercraft are launched or trailered. The officers have the legal permission to stop any watercraft for the purpose of conducting a safety check to ensure that all the necessary safety requirements are met. This includes checking the emergency horn, fire extinguisher, adequate life vests, and proper placement of identification numbers. If the officer comes to aboard a watercraft and smells alcohol or sees open containers, the officer may immediately shift his/her focus to boating while intoxicated investigation.

After several hours on the water, it’s possible that your behavior or appearance can be similar to and be confused with signs of intoxication- bloodshot eyes from sun and wind, facial redness due to sun exposure, and wobbly sea legs. These are common signs that boaters can and do experience after spending a better part of the day on the water despite not being intoxicated. And due to the motion effect of being on the water, roadside sobriety tests for the purposes of DWI are not used on boaters.

Understanding What “Legally Intoxicated” in Texas Means

In Texas, you’re considered to be legally intoxicated if:

  • You have a blood alcohol concentration (BAC) of .08 or higher
  • You’ve lost the normal use of physical or mental faculties due to the consumption of alcohol, a drug, a controlled substance, or a combination of these substances.

For example, a police officer observed Francis operating his boat erratically on a lake. He gives Francis a breathalyzer test, which showed that Francis’ BAC was 0.12, and a field sobriety test that he failed. In this case, Francis was legally intoxicated on two grounds: His Bac exceeded the legal limit of .08, and he did not have normal use of physical or mental faculties, as shown by the erratic operation of his boat and the failed sobriety test.

Elements of a Second BWI Offense

Under section 49.06 of the Texas Penal Code, a person is considered to have committed the offense of BWI if he/she is intoxicated while operating a watercraft. To arrest or charge you with a BWI, the law enforcement officer will have to prove that your BAC was 0.08 or higher, and they found you physically or mentally impaired by the alcohol. Also, if your BAC was lower than 0.08, but the officers find evidence of controlled substances in your system, then you can also be charged with a BWI.

The officers will have to prove that you were operating a watercraft. It’s worth noting that itis not illegal to drink while riding a personal water vessel in Texas. The law only prohibits operating the watercraft while intoxicated. A watercraft is a type of motorboat operated by a person(s) sitting, kneeling, or standing on the vessel rather than inside the vessel. Watercraft include boats, jet skis, wet bikes, vessels, aquaplanes, or any personal device used for transporting or carrying people on the water. There is an exception for vessels that are propelled by the water’s current. 

Does Police Need Probable Cause to Stop You on the Water?

One major difference between BWI and DWI is that law enforcement officials do not need reasonable suspicion or probable cause to stop you on the water. In DWI cases, probable cause means that an officer must have a reason to stop a motorist driving a car on a street or highway, such as failing to stop at a stop sign or speeding. Police are prohibited from pulling a driver for no substantial reason. So, if the officer had no objective for pulling a driver over, the case could be dropped right there.

If you’re on a watercraft, a game warden can make contact at any time to perform a safety check. Under Tex. Parks & Wild. Code Ann. Section 31.124, marine officers have the authority to board a watercraft to ensure compliance with safety and registration rules. However, an officer cannot stop you for any other reason apart from what is stated in the statute. A side note to this is that the BWI statute does not require the boater to be in a “public place.”

Enhancement of Second BWI Charges

If you have been convicted of boating while intoxicated in the last 5 years, you will face a harsher sentence than you did for a first-time conviction. A first-time BWI offense is a Class B misdemeanor, but when you’re convicted for the secondtime, the offense becomes a Class A misdemeanor. And for the purpose of enhanced penalties, any form of “while intoxicated” conviction can be used to enhance the penalty of another. For instance, if you have a conviction of operating an amusement ride while intoxicated two years ago, and you’re then charged with BWI, you’ll face the enhanced penalties of a Class A misdemeanor because of your prior convictions.

BWI Field Sobriety Tests (SFSTs)

If acertified marine officer detains you for suspected BWI, he or she may decide to administer the field sobriety tests. The officer may choose to conduct tests while on the water known as a “seated batter,” tests are done ashore, or both sets of tests. The seated battery tests include the finger-to-nose test, the horizontal gaze nystagmus test (HGN test), and the palm pat test. In the finger-to-nose test, you’ll be required to tilt your head back while you put your finger on your nose. In the HGN tests checks, you’ll move your gaze from one side to the other so the officer can check for involuntary eye-jerking movements. In the palm test, you’ll be requested to pat one extended palm with the other, all the while rotating the movement to 180 degrees. All these tests are meant to reveal signs of intoxication and impairment. Even one small mistake on your part could be construed as afailure and could be used against you for further investigation or BWI charges. Performing one test or part of a test correctly gives you no advantage; the game warden is looking for errors.

The officer may also conduct roadside field sobriety tests. These are typically done ashore after a 15-minute break to shed your “sea legs” andallow your body to stabilize on land. Passing these is often difficult, especially after having been on the water for an extended period of time. Several studies have shown that marine settingshave specific stress factors that can interfere with a person’s ability to pass these tests. Such stressors as boat motion, heat, glare, and water spray compromise the validity of these tests for valid evidence. What’s more, there’s no scientific data that supports a 15-minute break from the water to land as enough time to recover from these stressors and completely stabilize. As such, it may be wise to refuse to take these tests during a suspected BWI incident. But if you submitted to them, you should immediately consult with a Fort Worth BWI defense lawyer.

Second BWI with Blood Test in Texas

You can be arrested for BWI if the police have enough direct evidence to show that you’re intoxicated. The officer may choose to administer blood tests to determine if you have any alcohol or drugs in your systems. After a BWI stop, an officer may ask you to consent to chemical testing. While breathalyzer testing is often easier to administer, they don’t always provide accurate results. As such, police may choose to request a blood test if they have a reasonable belief that you’re intoxicated or if a breath test is not reliable for your situation. Blood tests are designed to analyze your blood sample and search for the presence of drugs or alcohol in your body. The test can search for several different substances. And since the process directly tests your blood, there’s very little room for error.

When requested for a blood test in a Texas BWI investigation, you do not have to consent to it. You have the right to refuse chemical testing. However, it’s also important to understand that refusing a blood test can have negative implications. Furthermore, the game warden can obtain a search warrant signed by a judge to obtain a blood sample.After your arrest, policewill seize your boating license, and it will be subject to immediate suspension. You will have to request an administrative hearing to challenge the suspension of your license. What’s more, a judge has the discretion to suspend your license for up to 1 year for your second BWI with a blood test. You need a skilled and experienced BWI/DWI defense attorney to protect your legal rights as soon as possible.

What About Intoxication Caused by a Medication?

The use of a drug or controlled substance cannot be used as a defense to a charge of BWI. If the substance impairs your normal use of your physical or mental faculties, you can be charged with BWI. So, you can still be charged with a second BWI regardless of whether you were impaired by a prescription or over-the-counter medication. For example, Andrew was recuperating from surgery, and after long weeks of not being able to leave his home, he finally felt well enough to get out on his speedboat. Unknown to him, the prescription painkillers he was taking dulled his senses, and he accidentally bumped into another boat. And if he has a prior BWI conviction, officers could charge him with a second BWI.

Fighting Blood Test Results

Cases of BWI and blood testing can be extremely difficult, so the best thing to do is hire a knowledgeable and experienced attorney. Since blood tests are usually correct, it takes creativity and hard work to identify mistakes and errors. Blood tests may not be reliable for the following reasons:

  • Blood testing equipment is not properly maintained or cleaned
  • There was a disturbance in the chain of custody
  • Your blood sample was mishandled and was contaminated or misidentified
  • An extra sample of your blood was not stored for future testing
  • Your BAC was on the rise at the time of blood sample collection
  • There were other problems with the way the blood test was conducted.

An experienced Tarrant BWI defense attorney can challenge the evidence in court or have it suppressed,so it is not used against you.

Second BWI with Breath Test

When administered properly, breath tests can give police insight into your level of impairment. However, these tests can only be used to analyze for the presence of alcohol in the body. Traces of illegal or prescription drugs will not show on a breathalyzer. When police suspect that you’re boating while intoxicated, they may ask you to consent to breathe tests, which can be conducted right on the scene or at the police station. If you comply, you will have to blow into a breathalyzer device in order to provide a sample of your breath. The breathalyzer will determine the weight of alcohol to the volume of your breath. The device will then convert those measurements into a comparable BAC. The final results will tell police the concentration of alcohol in your blood.

If you don’t want to submit to the breath test, there’s an option to refuse. But refusing testing can be used to insinuate intoxication, and it also carried potentially negative consequences.Additionally, if you’re arrested, police will seize your license. If you fail to request an administrative hearing within 15 calendar days, your license will be automatically suspended. And since this is your second BWI, your license can be suspended for up to 12 months.

Fighting Breath Test Results

A BWI arrest does not have to mean a BWI conviction. Breath tests are not always accurate.There are many things that can undermine the validity of breath test results. Proving that the breath test results are invalid can be instrumental in your second BWI defense. You need to work with a lawyer who understands which specific issues can help invalidate your breath test results.If you’ve been arrested for a second BWI, your attorney can argue that:

  • The device wasn’t calibrated or maintained properly.
  • Police left the device in a hot vehicle or direct sunlight, which compromised the results.
  • The breathalyzer test was not administered correctly,and the officer did not comply with the standard procedure.
  • Your health condition affected the result.
  • You consumed foods or products that contained trace amounts of alcohol and triggered a false positive.

It’s important to thoroughly investigate your breath test and bring up any issues that may invalidate the results. The less reliable the state’s evidence is, the easier it will be to fight the charges and secure a positive outcome in your case.

Penalties for BWI Second Offense

The penalties for a BWI second offense are basically the same as a second DWI conviction. The penalties include a jail sentence of 30 days to 1 year and/or a fine not exceeding $4,000. In addition, you may face up to 2 years of probation and have to complete a substance abuse evaluation, intervention class, and 80 to 200 hours of community service. If your sentence is probated, you will have to spend 3 days in the county jail, if your first BWI offense occurred over 5 years ago, or 5 days in the county jail if your prior conviction is within 5 years.

A second BWI may have an immediate impact on your driver’s license. If you refuse to submit to field sobriety tests, blood tests, or breath tests after your stop, you face immediate driver’s license suspension. You would face automatic license suspension if you were operating a boat or personal watercraft with an engine of at least 50-horsepower. If you committed your first BWI offense over the past 10-year period, then your driver’s license suspension may range up to 12 months, as provided by Tex. Transp. Code Ann. § 524.022(a) (2016). To challenge the suspension, you have 15 days to request an Administrative License Revocation (ALR) hearing.

The criminal record that a second BWI establishes will also have other collateral consequences, including difficulty obtaining jobs, educational loans or scholarships, admissions to higher education institutions, affordable housing, or an increase in your vessel’s insurance premiums.

Second BWI with Accident

If your second BWI involves an accident, you may be charged with a felony. BWI crashes causing injury or death are always charged as felonies. Conversely, BWI accidents causing property damages are wobblers, meaning they can be charged as misdemeanors or felonies.

  • Property Damage

If your second BWI results in property damages, you may be charged with criminal mischief or reckless damage. Criminal mischief can be a felony, while reckless damage is a misdemeanor. Basically, the charge will depend on the type and value of the damaged property.

  • Bodily Injury

If your second BWI results in serious bodily injury to another person during the course of riding your watercraft, you may be charged with intoxication assault. Under the Texas Penal Code, a serious bodily injury is any injury that causes serious permanent disfigurement, loss of any bodily member or organ, or a substantial risk of death. Intoxication assault is a third-degree felony but can be enhanced to a second-degree felony if:

  • The victim suffered a traumatic brain injury that resulted in a vegetative state, or
  • The victim is a peace officer, emergency services personnel, or firefighter.

If convicted of intoxication assault, you’ll face 2-10 years in state prison and a fine of up to $10,000.

  • Death

If a person is killed through an accident or mistake during your second BWI, you may be charged with intoxication manslaughter. Despite its relation to the BWI charges, intoxication manslaughter is a separate charge. It is a strict liability offense, which means that the prosecutor does not have to prove that you had any specific intent. A conviction is based on the prosecutor’s ability to show that you were operating a boat while intoxicated and accidentally caused another person’s death. Intoxication manslaughter is a felony in the second degree, punishable by up to 20 years in prison and fines of up to $10,000.However, it can be upgraded to a first-degree felony if the victim is a firefighter, peace officer, or emergency services personnel on official duty. What’s more, you will face an additional count of intoxication manslaughter for each resultant death.

Find a Fort Worth 2nd Offense BWI Lawyer Near Me

When facing the additional consequences related to the enhanced penalties of a second BWI offense, the best thing you can do to obtain the best possible outcomes is to enlist the help of an experienced defense lawyer. You need an expert with a mastery of criminal defense and BWI/DWI defense. You can count on me to build a strong defense and fiercely challenge your 2nd BWI charges. As a forensic lawyer-scientist, I know how to implement legitimate science and find issues in your chemical test results. With years of successful trials and positive results, I am prepared to put my expertise to work in front of a jury. I can also fight to retain your driving privileges.

If you’d like to discuss your case, contact me at 817-689-7002 to schedule a free case review.