Boating While Intoxicated
MASSIVE CRACKDOWN ON BOATING WHILE INTOXICATED CASES
One need only follow the media to see that that there has been a recent emphasis on the behalf of Law Enforcement and District Attorneys Offices to arrest and zealously prosecute people charged with BWI and BWAI. Given the perceived danger, the Nassau County and Suffolk County Police Departments have allocated additional resources to this purpose. The Suffolk County Police Department recently deployed its first BWI check point, resulting in several arrests. There also appears to be plans for these checkpoints to be redeployed again both in Suffolk and Nassau Counties. While there has been a recent emphasis on BWI enforcement, statistics reveal that the number of boating accidents involving alcohol is rather small when compared to the more than 500,000 vessels that are currently registered in New York State.
Currently, a conviction for a BOATING WHILE ABILITY IMPAIRED ( BWAI) or BOATING WHILE INTOXICATED ( BWI) will not affect a person’s license to operate a car; nor can a previous conviction for a BWI serve as a predicate to elevate an otherwise first time DWI misdemeanor arrest into a DWI felony arrest. However, recent legislation sponsored by State Senator Charles Fuschillo, Jr (R- Merrick) is about to alter this situation. If passed, any conviction for either a BWI or a DWI within 10 years will elevate a second BWI or DWI conviction to a felony. Moreover, a current conviction for a BWI and BWAI will not affect a person’s license or privilege to operate a motor vehicle. Likewise, a refusal to submit to a breath test or chemical test arising out of a BWI arrest will not affect a person’s license to drive a motor vehicle and only will result in a suspension of one’s privilege to operate a vessel and a fine. It is anticipated that the proposed legislation will also change this and will bring the current BWI statute into line with the current vehicle and traffic law governing DWI. Therefore, future convictions or findings of refusals for BWI and DWI will affect both a person’s privilege to operate a vessel and a motor vehicle.
An arrest on the charge of BWI is very similar to an arrest in a DWI case. In both situations, the police use Standard Field Sobriety Tests (SFST’s) before affecting an arrest, and use the same equipment in taking the chemical test. However, the validity of the SFST's in a marine environment are questionable at best, and often lead to false positives. The stiff consequences and future consequences of BWI convictions make it imperative that the person arrested for this crime obtain astute and knowledgeable DWI/ BWI trial attorneys.
THE CURRENT LAW AND PENALTIES FOR BWI AND BWAI
BOATING WHILE ABILITY IMPAIRED (BWAI) Section 49-a (2) No person shall operate a vessel upon the waters of the state while his ability to operate such vessel is impaired by the consumption of alcohol.
BOATING WHILE INTOXICATED (BWI)
49(b) No such person shall operate a vessel other than a public vessel while he has .08 of one per centum or more by weight of alcohol in his blood, breath, urine, or saliva.
49(c) No such person shall operate a public vessel while he has .04 of one per centum or more by weight of alcohol in his blood, breath, urine or saliva.
49(d) No person shall operate a vessel while he is in an intoxicated condition.
49(e) No person shall operate a vessel while his ability to operate such vessel is impaired by the use of a drug as defined by section one hundred fourteen-a of the vehicle and traffic law.
