With Memorial Day this weekend, it's the time for my annual BUI update for 2015. This article is intended to give you the facts on BUI and hopefully either (a) keep you out of the law's way, or (b) help guide you on your next steps if you do find yourself in a bad situation this year. As you are reading, remember that you can always call us- 24/7- if you need emergency assistance or would simply rather talk about your specific situation.
BUI in Georgia- what is it?
BUI (Boating Under the influence) is Georgia's waterborne equivalent to a DUI charge. Under the law, it is illegal to operate any vessel including:
1. Any moving vessel (center consoles, cruisers, jon boats, bass boats, house boats, deck boats, etc.)
2. water skis
3. aquaplanes
4. jet skis
5. surfboards
6. "similar moving devices"
The Georgia House of Representatives recently passed a Bill to exclude tubes and similar floating devices from Georgia's BUI law, though it has not been officially signed into law yet. The controversy came after at least 1 arrest was made for "floating under the influence", an almost daily summer activity on the 'Hooch.
Under BUI laws, it's illegal to drive a vessel (or similar device) with an alcohol level of .08 or higher, or to operate while less safe due to alcohol, drugs or "vapors". The legal alcohol limit was lowered in 2013, from the old .10 standard. While most BUIs are alcohol related, there are the occasional drug or alcohol/drug arrests. If you are a minor (under 21) you have a zero tolerance or .02 limit while on the water. Remember too, that you can be arrested for BUI drugs even if you are lawfully prescribed a certain drug. A prescription is not a defense to DUI/BUI charges.
Reasons to Stop and Investigate BUI in Georgia
Under current law, DNR and other law enforcement don't actually need a reasonable suspicion you are doing anything wrong in order to blue light, stop you, and investigate you for BUI. That's right, law enforcement can simply see you and command you to pull over and comply with their investigation. Usually, these are done as "safety checks", so make sure you know where the required items are.
While the laws do not require a suspicion of criminal activity, most BUI officers will allege you were doing something unlawful that leads to their stop. Violating no wake restrictions are probably the most common reason we see for BUI stops, at least on Lake Lanier. Remember too, there is a newer law that requires all vessels, including jet skis, to slow to idle speed when they are within 100 feet of docks, piers, bridges, shorelines or people in the water.
Field Sobriety Tests
If you are stopped and the DNR ranger determines you could be BUI, they will always ask you to leave your boat and come with them on their boat to investigate. This is for safety reasons and similar to an officer asking you to step out of your vehicle, this is a reasonable request by the officer to ensure their safety. Do not refuse to leave your boat- it will only make a scene.
While blanket advice is rarely applicable, when it comes to boating sobriety tests, the answer is a polite "no thank you." These tests consist of rudimentary activities that, in my opinion, have way too subjective of a scoring scale to be a fair assessment of your ability to operate a boat. The most common tests are:
- The horizontal gaze nystagmus test (HGN Test): used in DUI as well, this is the only test grounded in scientific principle. When conducting this test, the officer will have you follow his finger as he passes it in front of your face for you to track with your eyes. Contrary to popular belief, you cannot fake or practice passing this test. Nystagmus is a naturally occurring muscle movement in your eyes and is involuntary at certain alcohol levels.
- The ABCs and 1-20 Count: Yes, your ABCs folks. "Say you ABCs without singing". That is an actual "sobriety test". Try it now- its actually pretty hard. Our brains have been hardwired since infancy to "sing" our ABCs, so saying them like a robot is a little weird… 1-20 and 20-1. While you count, the officer is looking for your speech tone to change, you to skip a number or two, or forget where to stop. While you may read this article and chuckle, asking what kind of drunk couldn't do that, try it on board a law enforcement vessel, knowing you are likely being arrested… You'd be surprised how many folks mess this up.
- Hand pat test: The hand pat test consists of clapping your hands while counting and speeding up the rhythm. To this day, I have to see the test to remember how exactly its supposed to be done. Enough said.
- Finger dexterity test: touching the pad of your thumb to each of your four fingers, counting 1,2,3,4,- 4,3,2,1. Seemingly simple enough, but a lot of people have trouble with it. The scoring criteria is not given to you, by the way.
- PBT- Portable Breath Test: if the DNR officer has one, he may ask you to blow into a handheld breath device. While a number does show up on the device - .06, .08, .22, etc. they will tell you the number isn't admissible in court. However, this result is usually the nail in the coffin for boaters being investigated.
Again, blanket advice: do not take these sobriety tests. You are in a poor testing environment, its nearly impossible to concentrate, you have no idea how your tests will be scored, and quite honestly, more people than not do poorly on these tests regardless. I have represented people from all walks of life who come in talking about how ridiculous the tests were. Simply decline: "no thank you."
Implied Consent BUI Law
Under implied consent law, you have given consent to testing of your blood or breath just by driving a boat. Even so, you have the right to refuse testing after you are arrested. If you do decide to take the breath test, they are usually given at the DNR shack if you are on Lake Lanier, then the results of that test will be admissible in your case and used to prosecute you if you test over the legal limit.
Rarely, DNR will request a blood test if they suspect you are under the influence of drugs, or almost always if you have been involved in an accident, especially if it causes injuries.
If you refuse to take the test, your privileges to operate your boat will be suspended for 12 months and will not be returned unless you beat your DUI completely. This, of course, leads a lot of people to take this test in order to help get their privilege back more quickly. Just remember, it's a tradeoff. If you test over the limit, that is the strongest evidence against you and will support a BUI without anything more. If you refuse, you have withheld their best evidence, but you can't operate a boat for a longer period of time while you fight your case. No part of a BUI charge affects your driver's license or right to drive in Georgia.
Court
BUI charges are misdemeanors in Georgia and when made on Lake Lanier, they will be prosecuted in the county where you were actually stopped. (Gwinnett, Hall, or Forsyth) Most BUIs seem to be made in Hall County, though that is just my casual observation. In addition to DNR, the county sheriff's offices have patrols sometimes out making BUI stops.
Since BUI charges are misdemeanors, in the three counties mentioned above, they are prosecuted in state court by the county's solicitor's office. BUI charges now mirror a DUI charge in punishment, meaning:
- Usually 1-2 days in jail on a first offense
- $700-$1000 fine to be expected on first offense
- Community service
- Alcohol and drug evaluation
- Risk reduction (DUI school)
- 12 months probation time
- Court ordered alcohol and drug testing (no alcohol consumption allowed while on probation)
- Monthly face-to-face meetings with your probation officer
Convictions
A BUI conviction in Georgia is forever. It will not be expunged, cleared, wiped away, or otherwise leave your record for the rest of time. The only exceptions are: (a) you are convicted of a lesser charge, your record will reflect the BUI dropped to the lesser charge or (b) if you are found not guilty of all charges at trial, you can apply to have your record sealed.
We Are BUI Attorneys
At Zeliff | Watson, we know BUI cases. We are well versed on all procedural aspects of defending a BUI case, as well as the science and statistics about testing in BUI situations. If you have a specific question, or have been charged with a BUI, give our office a call today to discuss your specific case. We can be reached 24/7 at: (770) 676-1340, by email at: Help@zwdefense.com, or you can text Mr. Watson at: 404 590 6642.