With the beautiful waterways, lakes, and rivers in the Lone Star State, many enjoy celebrating holidays or spending a relaxing weekend boating or fishing. It is commonplace and perfectly legal for such outings to involve the consumption of a cold beer, wine, or drink. Unlike driving in a car, it is not unlawful for boat operators and riders to consume alcoholic beverages so long as the operator does not drink much to the extent of becoming legally intoxicated. Boat operators who are impaired pose a serious danger to themselves and others. And while water safety patrols are certainly necessary to ensure that all people on the water are safe, some of the tactics they employ during investigations cast such a wide net that many responsible and sober boaters find themselves facing false accusations of boating while intoxicated (BWI). Boaters who drink and boat responsibly also become subjected to wrongful arrests because of increased water patrols.

Being charged with BWI is stressful and can adversely affect your life if convicted. A skilled and experienced Fort Worth BWI defense lawyer can help you understand how to fight the charges and protect your freedom. Contact me today at 817-689-7002 for a free, confidential consultation and case review.

Requirements for Boat Operation in Texas

To operate a boat in Texas, a person must qualify according to age and must have taken a boater education course. For individuals born in or after September 1993 and want to operate a wind-blown vessel over 14 feet, any vessel over 15 horsepower, or personal watercraft, they’re required to complete a boater education course approved by Texas Parks & Wildlife Department. After successfully completing the course, you’ll be given a Boater Education Card/Certificate. You must have this card with you every time you’re operating a boat, failure to which you’re subject to fines.

Almost anyone can operate a water vessel in Texas provided he/she is 13 years or older and has completed the boater education. Individuals younger than 13 years of age may also operate a water vessel, but under the supervision of a person who:

  • Can lawfully operate the vessel
  • Is 18 years or older
  • Is on board when the vessel is operated by the child who is younger than 13 years of age

Having a boating license is not mandatory for the operation of a water vessel, but there are prerequisites needed in order for a person to lawfully operate a watercraft.

What is Boating While Intoxicated in Texas?

Boating while Intoxicated (BWI) is governed by Texas Penal Code Ann. § 49.06. This statute makes it illegal for a person to be intoxicated while operating a watercraft. As defined by Texas Penal Code Ann. § 49.01(4), a watercraft is a vessel, aquaplane, water ski, or any other device used for carrying or transporting people on water that is propelled by more than the water current. This includes a yacht, speedboat, skiff, fishing boat, rowboat, canoe, jet ski, catamaran, paddleboat, or raft.

You’re considered to be legally intoxicated if you have a breath or blood alcohol content (BAC) of 0.08% or higher and do not have the normal use of physical or mental faculties. You can also be charged with BWI if the blood test shows that you have a drug or a controlled substance in your system, and you have been impaired by them. Law enforcement will have to prove that you were the one operating a watercraft while intoxicated. While it’s not unlawful to drink while riding a boat, it’s illegal to operate the watercraft while impaired.

BWI vs. DWI in Texas

The crimes of Driving While Intoxicated and Boating while Intoxicated share some similarities, but have some major differences. Like DWIs, many BWIs are cited after the boater violated another boating rule, which caught the officer’s attention. Also, a BWI conviction carries steep penalties that increase with any priors or enhancements.

Unlike DWIs, police don’t need probable cause to stop your boat. In the case of DWIs, probable cause means that law enforcement must have a reason to stop a driver, such as having a tail light out, failing to stop at a stop sign, reckless driving, or speeding. Police cannot just pull over a motorist on a whim or a hunch without having reasonable suspicion that a crime is or has been committed. As such, a case may be dropped if there was no objective reason why the police stopped a motorist for DWI. But when it comes to BWI charges, game wardens can stop or board your vessel at any time, even if you’re not acting strangely, to conduct a routine safety check.

Under Tex. Parks & Wild. Code Ann. Section 31.124, marine officers have the authority to board a water vessel to ensure compliance with safety and registration requirements. However, the stop should be limited to inspection for licenses, certificates, life preservers, lights, fire extinguishers, and sound-producing devices. A side note to this is that the BWI statute does not require the boater to be in a public place, as in the case with the DWI statute.

How Officers prove Intoxication in BWI Cases

The field sobriety tests used in DWI cases cannot be performed on water. So law enforcement officers use an array of “Seated Battery of Standardized Field Sobriety Tests” to determine intoxication. This set of six tests comprises:

  • Finger to Nose Test: the subject is asked to close their eyes, tilt their head back, and bring the tip of their finger to the tip of their nose. The officer instructs the subject on which finger to use.
  • Finger Count Test: The subject is asked to extend one hand and count while touching the tips of their fingers with the tip of their thumb.
  • Time Estimation Test: The subject is asked to estimate the passage of 30 seconds with their eyes closed and head tilted back.
  • Hand Coordination Test: The subject is asked to place their left fist on their chest and the right fist on the left. Then they’re asked to move them one after another and take 9 steps forward and 9 steps back.
  • Palm Pat Test: Involves putting one palm facing up and the other facing down on top of the other. This is followed by a 180-degree rotation while keeping the bottom hand steady. The test also involves counting.
  • Horizontal Gaze Nystagmus Test: Involves the officer observing a suspect following an object moving horizontally with his/her eyes.

If you have trouble doing any of these abnormal tasks, you’ll be taken to shore for additional testing. You’ll be given 15 minutes to lose your sea legs before being asked to stand on one leg and walk on a straight line. But no matter how well you perform on these tests, the officers will request a breath or blood test, which complicates the case even further.

Consequences of a BWI Conviction

The consequences of a BWI are the same as the penalties you face for a DWI conviction. The penalties depend on a number of factors, including prior BWI or DWI conviction, and if there was an accident. The penalties become harsher with each subsequent offense, which can include any “while intoxicated charge.” This means that a conviction for flying while intoxicated, boating while intoxicated, driving while intoxicated, or operating an amusement ride while intoxicated will enhance the penalty of your BWI. Typically, first and second BWI offenses are misdemeanors, while a third offense is a felony.

First offense BWI conviction (Class B misdemeanor): penalties include 72 hours to 180 days in jail, a $2,000 fine, and a 1-year driver’s license suspension. If your BAC is 0.15% or above, you’re charged with a Class A misdemeanor, which carries 1 year in county jail and a $4,000 fine.

Second offense BWI conviction (Class A misdemeanor): A second BWI carries a maximum of $4,000 in fines, 365 days in jail, and a loss of driver’s license for 2 years.

Third offense BWI conviction (Third-degree felony): Three-time offenders face up to $10,000 in fines and 2 to 10 years in prison.

It’s important to keep in mind that these penalties are the worst-case scenario. The actual penalties you may face will depend on the circumstances of your case and how well your attorney is able to mitigate the facts. More damaging are the consequences you face in society after a conviction. A criminal record can cause an increase in car insurance premiums, loss of a job, and difficulty obtaining admission to higher education institutions, scholarships, loans, and housing. A conviction can also compromise your reputation and alter the quality of your life. An experienced Fort Worth BWI defense lawyer can beat a BWI conviction or reduce the penalties.

Commercial Boating with a BAC of .04 or More

You can be guilty off BWI if you operate a commercial vessel with a BAC of .04 or higher. This usually applies to operators of tour boats, fishing boats, passenger ferries, and/or fishing boats. The tougher approach to BWI committed by commercial boater is similar to DWI when committed by drivers of commercial vehicles.

Example: Alex owns a fishing boat that he uses to take tourists out of fishing expeditions. One afternoon, a customer catches a big fish and celebrates with a bottle of champagne. Everyone in the boat shares the drink. A short period after taking two glasses of champagne, Alex’s BAC rises to 0.06. If law enforcement officers suspect reckless operation of the vessel, Alex could be arrested and found guilty of operating a boat with a BAC of 0.06.

BWI Causing Property Damage

Texas takes any incidence of BWI seriously. If you cause an accident with property damage while BWI, you can expect additional penalties. In addition to the standard license suspension, jail time, and fines, the nature of property damage will determine what enhanced charges you’ll face. If the property damage was minor, you will likely be charged with a misdemeanor with mandatory fines, jail time, and court costs. Your driver’s license may also be suspended for 2 years. Upon conviction, addiction counseling and community service may be included as part of your sentencing. You can also be charged with reckless damage, which is a Class C misdemeanor. And if the damage was extensive or had a high value, you may face criminal mischief charges, which can be misdemeanor or felony.

BWI Causing Bodily Injury

If your Fort Worth BWI involves an accident that causes serious bodily injury to one or more people, you may be charged with intoxication assault. This offense is a third-degree felony and usually involves injuries that cause loss of any body organ, serious permanent disfigurement, or substantial risk of death. Serious bodily injury leaves the victim with prospects of long-term or permanent disability. The prosecution can press second-degree felony charges against you if:

  • the injured person was a firefighter, law enforcement officer, or emergency responder in the line of duty or
  • The injured person suffered a traumatic brain injury that left him/her in a vegetative state.

If convicted for intoxication assault, you’ll face:

  • fines of up to $10,000,
  • a prison sentence ranging between 2 and 10 years, and
  • community service, substance abuse counseling, and supervised probation.

If the offense was enhanced to a second-degree felony, you could receive a prison sentence ranging between 2 to 20 years and/or a fine of up to $10,000. The judge may also order you to complete a rehab or substance abuse education program. Depending on the circumstances, it’s possible to plead down intoxication assault to a simple BWI if the injuries were minor or they were caused by the victim’s negligence. In addition to fines and incarceration, your driver’s license can be suspended for 90 days to 1 year for a first offense and 180 days to 2 years for a second or subsequent offense within 10 years of the previous offense.

BWI Causing a Fatal Accident

If someone dies as a result of an accident you’ve caused while boating drunk, you’ll be charged with intoxication manslaughter. Under Texas Penal Code Ann § 19.04, manslaughter is defined as causing the death of an individual due to reckless behavior. A person acts recklessly when he is aware of but consciously disregards a substantial risk that the result will occur. The risk must be of such nature and degree that its disregard would be considered a gross deviation from the standard of care that an ordinary person would exercise in the same circumstances. As such, there is no requirement for the defendant to have acted with premeditation. The only requirement to prove is that the defendant exhibited recklessness. In the case of BWI, getting drunk and operating a water vessel is regarded as recklessness.

Despite its relation to BWI charges, intoxication manslaughter is prosecuted separately as a strict liability offense. A conviction is based on the prosecutor’s ability to prove that you were intoxicated and cause another person’s death while operating a water vessel. Intoxication manslaughter is a second-degree felony, punishable by fines not exceeding $10,000 and up to 20 years in prison. If the accident killed an emergency services personnel, peace officer, or firefighter, you will face a first-degree felony charge, which is punishable by a potential 99-year prison sentence.

Your Driver’s License is at Stake

While a boating license is not mandatory, all boaters who operate a water vessel with a BAC of 0.08 or above face driver’s license suspension. After the arrest, the police will confiscate your driver’s license and give you’re a temporary permit that expires after 40 days. The license suspension is administrative and occurs independently of criminal charges. However, you have the right to challenge the suspension by requesting an Administrative License Revocation (ALR) hearing within 15 days of your arrest. The sooner you retain an experienced Fort Worth BWI lawyer, the better you end up. Give me a call as soon as possible after your arrest, and I can help you request the hearing and provide representation to prevent the suspension of your license.

Failure to request a hearing during the 15-day period will result in an automatic ALR suspension, which starts on the 41st day after your BWI arrest. And if the judge decides against you, you have the right to appeal or apply for an occupational license that allows you to continue to drive to work or run necessary errands. The ALR hearing is not only important in preventing the suspension of your license, but it also provides an avenue for your BWI lawyer to properly investigate and collect more information about your case.

Possible Defenses to BWI

A charge does not mean that you’re guilty, and you’ll be convicted. There are a number of legal defenses that a Fort Worth BWI defense lawyer could present on your behalf. Not surprisingly, these defenses are similar to typical DWI defenses. The most common BWI defenses include (but not limited to):

You were not actually intoxicated

If you’re charged with boating while intoxicated, you’ll want to argue that your ability to operate a water vessel was not actually affected by alcohol. If a breath or blood test is conducted, you’ll also want to question the administration and results of the test that showed you had a particular BAC. Let’s say you’re charged with BWI because of your boating pattern. Maybe you forgot to turn on your lights, drove your boat too fast, or were just showing off. The fact is that sober boaters also engage in this type of behavior. Competition, miscalculation, and distraction are innocent explanations for why law enforcement may have suspected you.

Also, the arresting officer may testify that you appeared drunk – that you had an unsteady gait or watery eyes. But spending a day on the sun in the water and the waves swaying your back and forth all day long can cause these symptoms and an unfair arrest. As a boater, you’re familiar with the concept of having “sea legs” and a disrupted equilibrium. It becomes difficult to steadily walk on a flat ground upon your return to the shore, which can make you look drunk – even if you did not have any alcoholic beverage or did not have very much to drink. Similarly, being dehydrated, exhausted, or sunburned can lead to poor performance on BWI field sobriety tests.

Even breath or blood tests can show an inaccurate BAC. The reason for these “false positives” can be:

  • The testing device wasn’t calibrated, cleaned, or serviced properly.
  • The breathalyzer test was not administered correctly as per the standard procedure.
  • Police left the device in a hot vehicle or direct sunlight, which compromised the results.
  • Your health condition affected the result.
  • You had been vomiting, regurgitating, or smoking prior to the test.
  • You had eaten something that contained trace amounts of alcohol and triggered a false positive.
  • The person who drew your blood wasn’t properly trained.
  • There were other problems with the way the blood test was conducted.
  • An extra sample of your blood was not stored for future testing.
  • Your blood sample was mishandled, contaminated, or misidentified.
  • There was a disturbance in the chain of custody.
  • Your BAC was on the rise at the time of blood sample collection.

An experienced Fort Worth BWI defense lawyer can thoroughly investigate your tests, challenge their validity, or even have them considered inadmissible.

You’ve Been Arrested for BWI, Now What?

The first step you should take is retaining a skilled Fort Worth BWI defense lawyer with comprehensive experienced in handling these types of cases. Errors in BWI arrest procedures and testing can make the difference between a conviction and an acquittal. Just like DWI, boating while intoxicated is an opinion crime, which is based on an officer’s suspicion and a series of exercises that have no scientific basis. Law enforcement officers are trained to believe that a boater is intoxicated if he/she cannot follow the instructions that the officer reads from a cheat sheet. There’s a lot at stake if the prosecutor file DWI charges against you. That’s why you need an attorney who will help you navigate the murky waters of the legal process while aggressively defending you in the courtroom.

Find a Fort Worth BWI Defense Lawyer Near Me

The incredible stress caused by a BWI arrest and charge can be mitigated if you have a solid plan of action. Choosing the right BWI attorney can mean the difference between having your charges dropped and spending years behind bars. As a leading Fort Worth DWI/BWI attorney, I am passionate in defense of the accused. I have decades of proven experience and a reputation for obtaining exceptional results. I will devote my resources and capabilities to fight on your behalf and defeat a boating while intoxicated charge. Call my office today at 817-689-7002 or fill out the online contact form for a no-fee, no-obligation consultation.