Boating Under the Influence
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BUIs and Other Types of Off-Road Vehicle DUIs
In many states, the state legislature has adopted separate Boating Under the Influence (BUI) statutes addressing the operation of a motor boat or other motorized watercraft while under the influence of drugs or alcohol; however, the State of Utah has taken a different approach. Rather than passing a separate BUI statute, the State of Utah prosecutes boating, off-highway vehicle (OHV), and snowmobile-related DUIs under the State’s standard DUI statute, Utah Code 41-6-502. This means that a person may not operate a boat, waverunner, snowmobile, four wheeler, motorcycle or other off-highway or all-terrain vehicle while having a blood alcohol level of .08 or greater or while under the influence of alcohol drugs or combination of alcohol or drugs to a degree that they cannot safely operate their vehicle. Many operators are under the misunderstanding that they cannot be arrested and prosecuted for DUI unless they are operating their vehicle on a public road or highway. This assumption is false. Utah’s DUI law does not require that the vehicle be operated on a road or highway, only that the vehicle is being operated “within this state.” So whether you are in the middle of a field, on a dirt road, in the middle of the lake, or any other place in the state, you can and will be prosecuted for DUI if you come in contact with a law enforcement officer. Many people are also under the impression that they can only be arrested for DUI by a police officer. This too is false. Virtually all Utah Park Rangers and Division of Wildlife Resource Officers are also POST certified police officers, meaning that they have the same legal authority to arrest an individual for committing a crime such as DUI as a city cop, county sheriff, or a Utah Highway Patrol trooper.
Whether you are boating, four wheeling or otherwise getting off the beaten path, these types of nontypical DUIs may create some interesting situations outside the normal DUI setting, resulting in unique issues pertaining to topics such as the application of open container laws and field sobriety testing.
Open Container on a Boat
Pursuant to UCA 41-6a-526 a person may not drink, carry, possess, transport, or allow another to keep, carry, possess, or transport in the passenger compartment of a motor vehicle, when the vehicle is on any highway or waters of the state, any container which contains any alcoholic beverage if the container has been opened, its seal broken, or the contents of the container partially consumed. This provision applies to all vehicles including cars, four wheelers, motorcycles, dune buggies, snowmobiles, and other all terrain vehicles. However there is an exception to this rule for passengers on a boat. Pursuant to UCA 41-6a-526 the prohibition against open containers does not apply to a passenger on a boat. Despite the exception for passengers on a boat, the driver of the boat may not possess an open container of alcohol while operating the boat.
Field Sobriety Tests in BUIs
Pursuant to NHTSA, there are three validated and standardized filed sobriety tests: The Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand. (For a full discussion of Field Sobriety Test, click here.) However, it may be difficult or impossible to administer these three tests on a boat floating on the water or in the backcountry. The Walk and Turn Test requires a flat, dry, hard, reasonably flat surface free of debris in order to be administered properly. These conditions are not possible on a boat floating in the water or on a rocky path in the mountains. In these situations officers may tend to rely on other “alternative tests.” The most common battery of tests administered by park rangers or other law enforcement in a boating setting are to administer the standardized HGN, and the non-standardized test of the alphabet, finger count, and hand slap. These alternative tests have never been determined to be sufficiently reliable and accurate in determining intoxicated drivers, and therefore, have not been standardized by NHTSA. Therefore, if the three standardized field sobriety tests are not used, it may be more difficult for an officer to detect an impaired driver and therefore more plausible to defend your DUI case.
Because the State of Utah has chosen to prosecute boating and OHV DUIs under its standard DUI statute, the penalties for a boating or OHV DUI are identical to the penalties for a DUI received while driving a car. For more on the penalties for a DUI in the state of Utah, click here.
Driver License Consequences
Although a person may not legally be required to have a driver license to operate a boat or OHV, because the State of Utah has chosen to prosecute boating and OHV DUIs under its standard DUI statute, a person arrested for a BUI or OHV DUI faces the same potential driver license suspensions and restrictions as a person arrested for DUI while driving a car. Thus if you are arrested or cited for DUI while operating a boat, four wheeler, motorcycle or other OHV, you must file a written request for a Driver License Administrative Hearing within 10 calendar days of the date of your arrest in order to have the opportunity to fight the suspension of your driver license. For more on the driver license consequences for a DUI and the procedure you must follow in order to try to save your driver license Click Here.
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