Georgia BUI - Boating Under the Influence
Having a few beers on a boat is a summertime tradition. Whether you are going out for a cocktail cruise during a full moon party at Sunset Cove at Lake Lanier in Gainesville, headed to the LaPrade’s Marina on Lake Burton for a steak dinner at the Chophouse or for another case of beer, or headed to Reynolds Plantation on Lake Oconee for a 5 star dinner after a fun day on the lake, an encounter with the Georgia DNR can put a serious damper on your summertime fun. Georgia has gotten dead serious about Boating Under the Influence after recent high profile boating accidents involving alcohol.
Georgia Boating Under the Influence law (commonly known as BUI) is very similar to Georgia DUI law. If arrested, you are subject to heavy fines, license suspension, and the possibility of jail time. Like Georgia DUI law, there are two main types of BUI infractions: BUI Per se and BUI Less Safe. A BUI Per se charge is filed when a violator is found to have a BAC of at least .08 within three hours of operating any moving vessel. In order to be charged with BUI Per se, the violator must submit to a state-administered test of their blood, breath, or urine. Without such a test, the state has no evidence with which to charge a BUI Per se. A BUI Less safe charge is filed when it is deemed by an officer that the violator, because of alcohol or drugs ingested, was less safe to drive. Under Georgia law, “drugs” include marijuana or controlled substances, as well as prescription and non-prescription drugs. Per se and Less safe charges function the same on your record.
OCGA 52-7-12 – Georgia BUI Statue
- If you are operating a MOVING vessel including moving water skis, moving aquaplane, moving surfboard, or similar moving device you can be charged with boating under the influence
- Vessel- every description of watercraft other than a seaplane or sailboard on the water used or capable of being used as means of transportation on water including inflatable rafts
- i.e., You can be charged with BUI in a moving sailboat, a kayak, a surfboard, waterskis, inflatable pool float – can you say shoot the Hooch
The Georgia Department of Natural Resources enforce Georgia BUI laws and they are serious.
BUI Implied Consent and the 10-Day Letter
As with driving in Georgia, boating in Georgia is deemed a privilege. And by taking advantage of this privilege every boater, under Georgia law, has given his or her implied consent to a state-administered chemical test of his or her blood, breath, or urine, for the purposes of determining if they are under the influence of alcohol or drugs. If suspected of a BUI, you may refuse the test at the risk of losing your boating privileges immediately for one year. If you have not had a BUI in five years and you opt to take the test, you may apply for a reinstatement of your privileges after 30 days, but reinstatement is not guaranteed. If you refuse the state-administered test, you can send a letter to the Georgia Department of Natural Resources requesting a hearing regarding the administrative suspension of your boating privileges, but the letter must be sent within 10 days of the arrest. A refusal of the implied consent pursuant to OCGA 52-7-12.5 can cause a ONE YEAR suspension of boating privileges if you do not timely request a hearing of the boating privilege suspension or if the suspension is affirmed and the administrative boating privilege hearing with the Georgia Office of Administrative Hearings.
The Initial Stop
Most BUIs occur after boating police make routine safety checks for life preservers and fire extinguishers, which they’re allowed to do at any time and without any justification. Routine safety checks do not allow officers to escalate the scope of their stop and begin a BUI investigation unless there is some evidence of alcohol or drug consumption like an odor of alcohol, empty alcohol containers, slurred speech, or red and glassy eyes. Much like when approaching or avoiding a roadblock, stay calm and move on. Say as little as possible, tell the Officer that you do not want to take his tests. You and your guests should refrain from any suspicious activity, and make sure to have your registration, fees, and numbers displayed, as well as the requirements for vessel length, capacity, and towing in order. No one every plans for a BUI, but there is no harm in preparation.
BUI Field Sobriety Testing
What kind of Field Sobriety Testing can you do in a boat? HGN, Finger Count, ABC. Despite the lack of scientific validation of these tests, many marine enforcement agencies routinely teach their officers to use these same highway-based Standardized Field Sobriety Tests (SFSTs) to screen boat operators, a purpose for which they were not validated. Field sobriety tests are based on observable changes in the human equilibrium caused by alcohol’s effect on sensors in the vestibule of the inner ear. Vestibular-based tests require, by definition, a stable, stationary platform such as the flat, paved apron of a roadway to accurately conduct the tests and assess the suspect’s relative balance. The inherently unstable nature of a floating platform like a boat defeats vestibular-based field test. Typically uneven terrain adjacent to most water bodies are unsuitable for legitimate, validated SFSTs.
Three validated Field Sobriety Tests are used for Georgia BUI investigations: Horizontal Gaze Nystagmus test, Finger to Nose test, Palm Pat test. The four finger count is also used but has not been validated.
In fact, the Horizontal Gaze Nystagmus (HGN) field sobriety test is the only truly validated SFST that can be administered to BUI suspects by marine law enforcement officer while afloat. The HGN test looks for jerking in the eyes that can correlate to a blood alcohol concentration. The three clues sought for each eye using two passes per eye are a Lack of Smooth Pursuit, Distinct and Sustain Nystagmus at Maximum Deviation and Onset of Nystagmus prior to 45 degrees.
In the Finger to Nose test, the BUI suspect is told to make a fist with both hands, extend the index fingers, and turn the palms forward. The BUI suspect is then told when the DNR officers says BEGIN, they should tilt their head back slightly and close their eyes. The DNR officer will demonstrate how head should be tilted back but will not close their eyes. The DNR officer will Inform the BUI suspect to bring the tip of the index finger to touch the tip of the nose. The arm is brought directly from the subjects’ side in front of the body touching the tip of the nose with the tip of the index finger. As soon you touch their nose, the finger must return to the side. The DNR officer will say RIGHT they must move the right hand index finger to their nose; and when the Officer says LEFT they must move the left hand finger to their nose. This is done 6 times with a 2 to 3 second pause between each command. The test is scored as follows:
In the Palm Pat test requires the subjects to place one hand extended, palm up, out in front of them. The other hand is placed on top of the first with the palm facing down. The top hand rotates 180◦ and pats the bottom hand, alternating between the back of the hand and the palm of the hand. The bottom hand remains stationary. The subject counts out loud, ONE-TWO, ONE-TWO, etc., in relation with each pat while increasing speed. The tests is scored as follows:
Punishment for BUI
Sentencing for a Georgia BUI is same as a motor vehicle DUI.
- BUI-1st in 10 years. Punishment : A minimum of 10 days in jail which may be suspended except for 24 hours jail time, a maximum of 12 months in jail, loss of boating privileges for 1 year; can reinstate boating privileges after 120 days; 40 c/s, DUI school, D & A Eval/Treatment.
- BUI-2nd in 10 years. A minimum of 90 days in jail which may be suspended except for 72 hours jail time, a maximum of 12 months in jail, loss of boating privileges for 1.5 year; 240 hours c/s.
- BUI-3rd in 10 years. A minimum of 120 days jail time which may be suspended except for 15 days , a maximum of 12 months in jail, loss of boating privileges for 5 years; early reinstatement of boating privileges after 3 years.
- BUI-4th in 10 years. A Felony require a minimum of 1 year in prison and a maximum of 5 years in state prison all of which be suspended except for 90 days in jail; 60 days c/s same as above.
Fortunately, a BUI does not effect you driving status in Georgia and functions as an entire separate charge from DUI.
Alternatives to a BUI
Are there any alternatives to getting a BUI other than a jury trial? Consider a plea bargain to Reckless Operation under O.C.G.A. 52-7-12.1. There is no No Contest Plea allowed to BUI. Suspensions of boating privileges are administrative and not based on criminal conviction of BUI.
We are here to help. For a free consultation regarding your Georgia BUI call or email now, at at (404) 333-0706 or [email protected], or contact us through our BUI Questionnaire.
