BUI Implied Consent – Boating Under the Influence – BUI Lawyer
Similar to when you drive your vehicle on a public road, the term BUI implied consent means in this situation that by operating a boat within the State’s boundaries, you have impliedly and automatically given your consent to give a sample of your breath, blood or urine for chemical analysis if a law enforcement officer decides to arrest you for something occurring as a result of you operating a boat.
A sample BUI implied consent statute reads that a person who operates a water device is considered to have given implied consent to chemical tests or analysis of his breath, blood, or urine to determine the presence of alcohol, drugs, or a combination of both, if arrested for an offense arising out of acts alleged to have been committed while the person was operating or directing the operation of a water device while under the influence of alcohol, drugs, or a combination of both.
A BUI test given must be administered at the direction of the arresting law enforcement officer. The person first must be offered a breath test to determine the alcohol concentration of his blood. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious or dead, or for any other reason considered acceptable by licensed medical personnel, a blood sample may be taken.
If the officer has reasonable grounds to believe the person is under the influence of drugs other than alcohol, the officer may order that a urine sample be taken for testing. If the breath analysis reading is eight one-hundredths of one percent or above by weight of alcohol in the person’s blood, the officer may not require additional tests of the person as provided in this chapter.
Typically, if you are rendered unconscious, your implied consent for law enforcement to require you to give a blood, breath or urine sample for either drugs or alcohol is not withdrawn. This allows the police to collect evidence that can be used against you following your detention, regardless of your awareness of being tested. One of the most important ramifications of this is that you might not later be able to claim you would have refused to allow a sample to be taken if the police obtain that sample from a blood draw while you are unconscious. If you are unconscious, the police can simply obtain the sample without anyone’s permission. In at least one state, this is not true.
If you are involved in a boating incident where a law enforcement officer requests that you undergo a breath, urine or blood test, and you refuse, different things occur as a result of this “legal mandate” for testing. This refusal can be used as evidence against you in virtually all cases. In other states, this refusal can also be used to increase criminal penalties, or the refusal itself can be a criminal offense carrying a jail sentence. In some states, there is an automatic monetary fine for any refusal.
BUI Drugs – Boating Under the Influence of Prescription Medicine
In some states, if you are taking a drug that has been prescribed for you, the legal standard to be considered BUI-BWI is higher. This is not true in other states. If you have any concerns or questions, consult with one of our BUI lawyers near you. Call anytime at 844-832-6384.
In those states with a different standard, the State must usually prove that you were acting in a manner that deviated from “use of your normal faculties.” A sample statute would read in part that such people will not be in violation of the BUI-BWI code section unless they were rendered incapable of operating (emphasis added), navigating, steering, driving, manipulating or being in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device safely as a result of using a drug other than alcohol that the person was legally entitled to use.
In some states, if you are involved in a boating incident where alcohol or drugs may have been involved, there are a couple of presumptions that might arise. In these “presumption” states, there is a presumption that if your blood alcohol is measured at a certain level within a couple of hours of being involved in the incident, your blood alcohol level was illegally high at the time of the incident. This presumption can be overcome by other evidence. A sample statute reads that it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of operation of a recreational vessel if the person had an alcohol concentration of 0.08 percent or more in his or her blood at the time of the performance of a chemical test within three hours after the operation.
The second presumption is one of likely guilt or innocence if the State can prove specific blood levels of alcohol or the simple presence of one of the proscribed substances. A sample statute reads in part that upon the trial of any criminal action, or preliminary proceeding in a criminal action, arising out of acts alleged to have been committed by any person who was operating a vessel or manipulating water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, the amount of alcohol in the person’s blood at the time of the test, as shown by a chemical test of that person’s blood, breath, or urine, shall give rise to the following presumptions affecting the burden of proof:
- If there was at that time less than 0.05 percent, by weight, of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense.
- If there was at that time 0.05 percent or more, but less than 0.08 percent, by weight, of alcohol in the person’s blood, that fact shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but the fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage at the time of the alleged offense.
- If there was at that time 0.08 percent or more, by weight, of alcohol in the person’s blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense. Presumption does not equate to absolute proof. Attacks against this kind of presumption (if they are similar to the same presumptions found in a DUI-DWI situation) would likely either have to be against the fact that you were not really operating the boat, or against the scientific accuracy of the test.
A good BUI attorney can help you navigate the legal waters and will find ways to challenge the State’s evidence against you. Call us at 844-832-6384 and get a FREE professional boating under the influence case review.