Beautiful waterways and lakes are a constant attraction to boating enthusiasts. It is common for a boater to load their cooler with alcoholic beverages and head to the lake or the coast with friends to have a good time. The law does not prohibit a boater from consuming alcohol while boating or using other watercraft. However, there is a limit to how much you can drink to avoid getting legally intoxicated. If you are found operating a boat with a blood alcohol concentration of 0.08% or more, you will be arrested and charges brought against you.

In Texas, boating while intoxicated is a priorable offense, meaning that if you are facing your third offense of BWI, you must have been convicted of two others before. The penalties for boating under the influence are severe and keep getting harsher with repeat offenses and convictions. If you are facing third BWI charges, the lawyers at Fort Worth DWI Defense Lawyer will fight the allegations against you.

Why You Need a BWI Lawyer

The complexity of the law is one of the most important reasons why you need legal representation when facing charges in court. There have been many cases of individuals arrested for BWI, yet they were not. When this happens, and even when you are lawfully arrested for having violated the law, you will need legal representation to avoid the harsh penalties.

The state of Texas has law enforcement officers that patrol the waters to protect every person using them. However, some investigative tactics used in Texas by officers patrolling the waters often lead to responsible and sober boaters being accused falsely of BWI. Because of the need for enforcing safety laws in the water, there has been an increase in water patrols. This has resulted in the wrongful detention of many boaters boating and drinking responsibly.

The law enforcement officers now use various seated sobriety tests or float tests that serve as justification for arresting a person on charges of boating under the influence. These sobriety tests are created explicitly by the officers for themselves and have not been scientifically tested. This, as earlier mentioned, is the reason for the multiple wrongful dentations.

Facing Boating Under the Influence is frustrating because, most times, it is not expected. For this reason, you need an experienced lawyer that can analyze the evidence against you and the process used to gather that evidence. Your lawyer will also poke holes in the prosecution case legally that can result in your acquittal, and avoidance of wrongful conviction.

Determining 3rd BWI Offense

According to PEN 49.06 in Texas, a person is charged with this offense if they are found operating a watercraft intoxicated. A watercraft, as defined by the law, is any device that is used for carrying or transporting people on the water. These include aquaplanes vessels and other devices propelled by water currents.

For a person to get convicted of a third BWI offense, the prosecutor must prove the elements or facts of the offense. These are:

  • That the defendant has two prior convictions of either BWI or DWI or a combination of both.
  • The accused was impaired while operating the watercraft by alcohol or drugs, interfering with their cognitive abilities
  • That the accused had a blood alcohol concentration of 0.08% at the time they were operating the watercraft

When these three elements are determined, you could get convicted of this offense.

Overview of 3rd BWI Offense Charges

When you are arrested and charged with a third BWI, it means that you have two prior convictions. In Texas, however, the prior convictions do not have to be on BWI. When you have been convicted of driving while intoxicated twice, a subsequent charge for boating under the influence is counted as a third offense. This means operating a motorcycle, a vehicle, or a boat while intoxicated goes to your record. And another subsequent offense is counted as an addition to the prior one.

For instance, if your first DWI was while riding a motorcycle, if you are charged with driving a vehicle while intoxicated, it will be your second DWI offense, not the first one because it’s the first one with a car.

Whatever you were charged with operating while intoxicated twice before, another offense operating a boat while intoxicated will count as your third offense.

When faced with your third BWI, the prosecutor will bring felony charges in the third degree against you. The penalties for a third offense are more severe compared to the previous two. These penalties will include jail time as well as fines. However, the specific penalties typically depend on how strong the evidence is against you. And if any factors are aggravating the offense.

How Law Enforcement Officers Charge You with a BWI

The patrol officers usually are concentrated around the marina where boat owners launch or trailer them. The patrol officers are permitted by the law to stop any boat or other vessels to carry out a safety check. This is intended to ensure safety requirements are met, such as having life vests enough for all onboard, emergency horn, among others.

When the patrol officer smells or sees evidence of alcohol, he or she may decide to investigate if you are overly intoxicated. This can also happen if the patrol officers find you in the middle of the water body partying or an accident has occurred.

If you are just coming back from boating, your behavior or appearance can seem like that of an intoxicated person also. When the officer notices your eyes are bloodshot, your gait is unstable, or any other sign, they may assume intoxication and carry out more investigation.

It is important to note that field sobriety tests carried out if one is suspected of driving while intoxicated does not apply to boaters. However, water patrol officers have come up with various sobriety tests to determine your impairment. Later in this article, we will highlight the multiple tests you may be subjected to, before getting arrested.

When Arrested for a Third BWI

When the officers patrolling the waters stop you for a routine check and realize you are overly intoxicated, they will carry out various float tests. If they are convinced that more tests must be carried out, you will get arrested for them to carry out further checks. The officers often depend on chemical testing to collect proof of your intoxication, especially when breathalyzer tests seem unreliable.

Submitting to a chemical blood test is, however, not mandatory in Texas. However, your refusal will result in various consequences. For instance, if you were arrested for boating under the influence offense, your driver’s license can get suspended automatically. This means, not only will your privileges for boating be suspended, but your driving privileges will also be affected.

But, if you want to fight against the suspension of your driving rights, you have a right to a hearing. Upon receiving the notice to suspend your license, the Texas DMV gives you fifteen (15) days from the date of arrest to request a hearing. If you miss this opportunity to fight for your license, it will then be suspended automatically.

It is important to note that the police can seek a warrant and have your blood drawn for a chemical test. A warrant is usually obtained from the judge, but the police must show probable cause supporting the request.

When the warrant is issued, and the chemical test shows that you were beyond the legal limit of intoxication, charges will be brought against you for a 3rd BWI. Blood testing is typically considered more reliable than other tests. This means a high recording will strengthen the prosecutor’s case against you. For this reason, you will need an experienced attorney to fight the allegations on your behalf.

Your attorney in fighting these allegations, especially if you are charged due to the blood test results, will focus on attacking the result’s validity. Some of your Attorney’s arguments will include:

  • The chemical testing machine was not well calibrated or cleaned
  • the blood was sourced from the wrong place
  • During the process, the officers broke the chain of custody
  • There was no preserved blood sample to enable future testing

If your lawyer is able to convince the court of any irregularities with the blood testing, the results may not be used as evidence. This means that your charges may be dropped, or you get charged with a lesser offense.

Aside from using blood tests to determine your alcohol concentration, the police can use a breathalyzer test to check on your level of intoxication. However, breath tests do not analyze the blood directly. This makes results obtained from the breath sample less accurate than those from the blood. Irrespective of the level of accuracy of the breath results, if they indicate that you are intoxicated, you can be charged with a third BWI.

Getting an attorney to fight these allegations against you is crucial because he or she can challenge the charges. Some of the defenses your attorney may use in this case include:

  • The police deviated from the standards of carrying out a breath test
  • You had just consumed foods or drinks that had alcohol in them leaving alcohol molecules in your breath
  • You suffer from particular health issues or are on prescription medicine
  • The breathalyzer machine was not well calibrated or maintained

Taking a breathalyzer test is not mandatory. However, refusing to take it will lead to various consequences. Just like in refusing to submit to a blood test, your driver’s license will be suspended when you refuse a breathalyzer test.

3rd BWI Offense Resulting in an Accident

As earlier stated, when you have two prior Driving While Intoxicated or Boating Under the Influence convictions, a charge on a third one is a felony. Additionally, if you caused an accident while boating, the charges against you become aggravated. The penalties that you will face are typically based on whether there was property damage or the accident resulted in death or injuries.

If your accident resulted in property damage, you might face additional charges of criminal mischief or reckless damage to your third-degree felony offense. Criminal mischief is a wobbler, meaning it can be charged as either a felony or a misdemeanor. How significant damage to property is, determines the type of charges. This means, when arrested on a third BWI charge, you may be faced with another felony charge due to the property damage.

When you get convicted of this offense, aside from the standard penalties of jail time and fines, you could be asked to compensate for the damaged property.

3rd BWI Resulting in Significant Injuries

A third BWI charge is severe. The offense is made even more critical when it leads to others suffering significant injuries. When your passengers or people in another boat you collided with are exposed to near-death experiences or suffer significant disfigurement, these are serious injuries.

When charged with this offense causing significant injuries, you are likely to face additional charges of intoxicated assault. This offense is categorized as a third-degree felony. If you are convicted, you are likely to be imprisoned for two to ten years. Also, the judge may ask you to pay the victims restitution.

When a 3rd BWI Results in Death

If due to your third BWI offense, a person died either instantly or later, you could be charged with a criminal offense. The prosecutor, in addition to charging you with a third-degree felony, he or she will charge you with intoxicated manslaughter. If convicted of this offense, you may be imprisoned for two to twenty years.

Things You Must Remember about Boating While Intoxicated in Texas

  1. Compared to driving while intoxicated, the law does not prohibit a person from drinking while operating a boat
  2. Unlike in DWIs, where a police officer cannot stop you without a valid reason, a water patrol officer can stop you without reason. This is permitted by the law and does not require you to have committed any offense.
  3. Both driving while intoxicated and boating while intoxicated carry steep penalties. The penalties also increase with any subsequent offense or presence of any aggravating factors.
  4. Just like DWI offenses, BWI offenses are also cited if you are in violation of other boating rules, and by doing that, you caused the officer to focus on you.
  5. Similar to DUI offenses, a person below the age of 21 is not supposed to drink while operating a watercraft or boat. If found, he or she will be charged with boating while intoxicated.

Penalties for a Third BWI Offense

Various factors determine the penalties one would receive for committing this offense. One of these factors is if you have a prior conviction of either BWI or DWI. Or a combination of both. If, while committing this offense, an accident occurred that resulted in significant injuries or fatalities, the penalties are steeper.

Penalties for BWI are similar to those of DWI. A third offense is typically prosecuted as a third-degree felony. A conviction on this offense will see you face imprisonment of between two and twenty years. Additionally, the judge can order you to pay a fine of $10,000 or less. Another consequence of this offense is getting your driver’s license suspended for six months to one year.

When there are other aggravating factors, these penalties will increase. For instance, when the victim suffered catastrophic brain trauma or the person was a police officer, a firefighter, or any other officer of the peace. These will increase the penalties you will face.

A conviction on this offense will also result in other collateral consequences. These will include increased premiums for your car insurance, challenges in getting jobs or college admissions, student loans, and even finding housing.

The Challenge of Sobriety Tests Administered before an Arrest on BWI Charges

As earlier stated, most of these sobriety tests are not scientifically tested. But, many patrol officers use them to determine if one is impaired or if there is a need for further investigation. These tests are similar to those carried out in the field when arrested on suspicion of DWI. However, the tests in boating are carried out when the suspect is seated; hence the name seated float sobriety tests.

In all these tests, two studies only are the ones that have been carried out. However, only one study examined how to perform seated sobriety tests on a watercraft or boat. The government funds these studies to produce solutions in law enforcement.

One of the studies known as the Yorktown BWI recognized there was a need to examine how the tests were useful in a marine environment. The survey realized that the stressors in a boating environment are different from those found on the highway.

Some of the stressors with boaters include boat motion, heat, glare, vibration, and spray. These stressors usually result in poor performance of boaters in these tests irrespective of whether they are sober or intoxicated.

Based on this study, 32% of the arrests were false. This rate of false arrest is very high because it translates to mean that for every three arrests made, one person was innocent. This error rate is very high, meaning the test is not an effective way to determine sobriety.

The other study is known as the validation study. This study was also funded by a government agency aimed at developing seated sobriety tests. These tests were to help patrol officers differentiate BAC levels of either below or above 0.08% because of environmental conditions. These conditions typically made it difficult to determine how impaired the boater is.

Unlike the field sobriety tests in DWIs, no standardized seated sobriety tests have been developed yet. In carrying out the validation study, the researchers combined four tests. These were the Horizontal Gaze Nystagmus, palm pat, finger to nose, and hand coordination.

Unfortunately, both these studies were unable to come up with seated tests that are reliable in determining intoxication by a boater. For instance, in the validation study, the finger to nose test resulted in 65% reliability, the palm pat 57%, and the hand coordination test 52%.

The recommendations from the study, however, indicated that the tests must be administered in a stable and safe environment. Any slight boat movement was concluded to affect the results of the test negatively. Also, some individuals will not be suitable if living with particular disabilities. These include:

  • Individuals having shoulder, elbow, or arm problems may not perform these tests accurately.
  • Individuals that have part of their index finger missing cannot do a finger to nose test.

The studies further indicated that for the seated sobriety tests to be validated, they must be based on two facts. First, the manual for carrying out the tests must be followed without any alteration. Validation of these tests only applies when:

  • The administering of the tests is standardized
  • The clues of the standardization are what is used in assessing the performance of the suspect
  • And in interpreting the performance of a suspect, the officer must employ the standardized criteria.

The studies emphasize the importance of standardizing the tests. They indicate that when an element is changed, there will then be a compromise on the validity of the results.

Secondly, to ensure validity, the study manual indicates that the subject being administered for the tests must be in a stable position. The officer conducting the test is expected to instruct the suspect to:

  • Sit in a straight position at the edge of their seat
  • Put their arms on their side
  • Position their feet apart the level of shoulder width to ensure comfort and stability
  • Move their feet until the conclusion of the test or until they are told so

The officer must also ensure that the suspect understands all the instructions.

Although the results from these seated sobriety tests are not validated or cannot be used to conclude a boater is impaired, the patrol officers will still arrest you when you fail. However, the results are not what will be used in court as evidence against you. The arrest by the patrol officers triggers further investigation where you will be asked to submit to a chemical blood or breathalyzer test. When the results from these tests indicate you had a BAC of 0.08% or over, you will be charged with a BWI.

Find a Fort Worth BWI Attorney Near Me

Most people are taken by surprise when arrested and charged with operating a boat while intoxicated. Probably because the law does not prohibit drinking while operating a watercraft makes boaters think they are in control. However, when arrested on a 3rd BWI offense, the penalties are severe. You can, however, fight to lessen the penalties or get acquitted with the help of an experienced DWI lawyer. Talk to Fort Worth DWI Defense Lawyer to get the best defense for these charges. Reach us at 817-470-2128, and we will help defend you against these charges.