OPERATION OF A VESSEL WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS - NEW YORK NAVIGATION LAW SEC. 49-a

Hundreds of thousands of people travel New York’s waterways with recreational and commercial boats and vessels. Each spring brings with it even more recreational boats and vessels operating upon the various waterways of New York State. Indeed, there are more than 500,000 registered boats in New York plus many more non-mechanically propelled boats that are not required to register. What all operators of mechanically propelled boats, vessels and watercraft must know is that operating a vessel under the influence of drugs or alcohol (Boating While Intoxicated) in New York carries the same severe punishments as Driving While Intoxicated. (See generally NY Navigation Law § 49-a and NY VTL § § 1192, 1193)

While they are not identical, there are similarities between New York’s DWI and BWI law. For example, as with New York’s DWI statutes, there is both a “per se” and a “common-law” Boating While Intoxicated offense. Boating While Intoxicated “per-se” (Navigation Law § 49-a(2)(b) is based upon the operator having a .08 or higher blood alcohol concentration and has absolutely nothing to do with the physical condition of the operator. In other words, an experienced drinker who could flawlessly operate his or her vessel and pass all physical coordination tests is guilty of BWI simply because their blood alcohol concentration was at or above .08. (Note: the “per se” limit for one operating a public vessel is .04. (See Navigation Law 49-a(2)(c)).

As with “common-law” Driving While Intoxicated (NY VTL § 1192(3)), “common-law” Boating While Intoxicated is based upon the officer’s opinion that the operator is intoxicated. (Navigation Law 49-a(2)(d)). Generally the officer’s opinion is based upon his or her observations of the operator (swaying, staggering, bloodshot or glassy eyes, etc) and the operator’s performance on field sobriety tests such as the walk-and-turn, one-leg-stand and the horizontal gaze nystagmus test.

There is also a Boating While Impaired statute (Nav. Law § 49-a(2)(a)) which closely mirrors New York’s Driving While Ability Impaired statute (VTL § 1191(1)) in that they are both less serious, non-criminal violations.

Checkpoints and accident investigations are usually how one is caught for BWI. This is so because it is harder for police to establish probable cause or reasonable suspicion to stop a boat than it is to stop a vehicle. For example, there are far fewer “traffic” control devices on the water than there are on the roadways. While there are hundreds, if not thousands, of traffic infractions that could justify the police stopping a vehicle, there are relatively few boating infractions that can justify the stop of a boat. Furthermore, the vastness and openness of the waters make it very difficult for enforcement of BUI or BWI statutes by roving patrols. As stated in the Operation Dry Water BUI Checkpoint Plan of Operations:

Utilizing a BUI checkpoint will be more effective than normal patrol techniques. It is difficult to establish probable cause for watercraft operators suspected of being under the influence of alcohol due to the lack of traffic control devices [i.e., center lines, speed limits, stop signs, etc.] as found for vehicles. Due to the congestion of watercraft found in several areas on the (waterway), erratic operation is not uncommon, making it difficult to use this as a means to establish probable cause as in automobiles. Due to the size of the (waterway) and number of watercraft using the waterway, it is logistically impossible to contact the number of watercraft needed to effectively address this enforcement issue. Utilizing checkpoints will not only increase the number of contacts with watercraft operators, but it will also provide a focal point for the media, residents, and non-residents to show them that this problem is being addressed.

(See Operation Dry Water DUI Checkpoint Plan of Operations)

When one is suspected of Boating While Intoxicated or Boating Under the Influence they are removed to land or a nearby “houseboat” and asked to submit to the same field sobriety tests that drivers of vehicles are (i.e., Walk-and-Turn, One Leg Stand and the Horizontal Gaze Nystagmus). One area your attorney might attack is the location where the field sobriety testing was done. Field sobriety tests are difficult for sober people on land; imagine trying to stand on one leg for thirty seconds on a moving boat. Even the slightest of movement can affect the validity of such tests. As with motorists suspected of, or arrested for DWI, breath, blood, urine and saliva testing may also be utilized when one is suspected of BWI to determine their blood alcohol concentration.

Boating Under the Influence may also be a federal offense (BUI) if committed on waters which are subject the jurisdiction of the United States. Enforcement of federal BUI statutes is carried out by the United States Coast Guard.

Make no mistake about it; law enforcement in New York vigorously enforces New York’s BWI laws. In Westchester County, in addition to the Westchester County Police Marine Unit, several other local jurisdictions have their own marine or harbor patrol units that enforce the BWI statutes. You therefore need competent legal representation by experienced attorneys. If you have been charged with Boating While Intoxicated anywhere in the New York downstate region (Westchester, Dutchess, Putnam, Orange and Rockland counties or the Bronx, Queens, Brooklyn or Manhattan) call Tilem & Campbell at 1-888-DWI-COUNSEL for a free telephone consultation or visit us on the web at www.888DwiCounsel.com.