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Seafair 2017 BUI Enforcement Patrols

Posted by William Kirk, Partner | Aug 03, 2017 | 0 Comments

Boating Under the Influence in Washington State:  BUI Law 101

 It's that time of the year when Seattle celebrates SeaFair.  It is also the time of the year that law enforcement makes their one and only attempt at enforcing state BUI laws.  And in their rush to get as many BUI arrests as humanly possible, it is important to understand BUI laws so that you understand what you could be getting into in the event your are arrested for BUI on Lake Washington this weekend.

Much like DUI, there are different means of committing the crime of Operation1 of a Vessel While Under the Influence of Intoxicating Liquor (BUI). The operator2 of a boat [vessel]3 is presumed to be under the influence of intoxicating liquor, marijuana, or any drug if:

(a) The person has an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under
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RCW 46.61.506; or

(b) The person has a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or

(c) The person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or

(d) The person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.4

Included in the same statute, it is also unlawful for any person to operate a vessel in a reckless manner.5 Violation of the reckless prong of the statute is a misdemeanor. However, violation of the BUI prong of the statute now constitutes a gross misdemeanor.67-8

Recent amendments to Washington's Boating Under the Influence laws have attempted to remove some of the ambiguity created by stark difference that previously existed between DUI and BUI laws. The most recent legislative amendments have certainly attempted to mirror more of the DUI legislative scheme, but in doing so, several other issues have become clearer for the defense.

Most significantly the specific inclusion of the Implied Consent Law and the statute governing breath and blood testing. New sections to RCW 79A.60.040 include the following:

            (4) Any person who operates a vessel with in this state is deemed to have given consent, subject to the provision of RCW 46.61.506, to a test or tests of the person's breath or blood for the purpose of determining the alcohol concentration, THC concentration, or presence of any drug in the person's breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person was operating a vessel while under the influence of intoxicating liquor, marijuana, or any drug. Neither consent nor this section precludes a police officer from obtaining a search warrant for a person's breath or blood. An arresting officer may administer field sobriety tests when circumstances permit.

(5) The test or tests of breath must be administered pursuant to RCW 46.20.308. where the officer has reasonable grounds to believe that the person is under the influence of a drug, or where the person is incapable due to physical injury, physical incapacity, or other physical limitation, of providing a breath sample, or where the person is being treated in a hospital, clinic, doctor's office, emergency medical vehicle, ambulance, or other similar facility, a blood test must be administered by a qualified person as provided in RCW 46.61.506(5). The officer shall warn the person that if the person refuses to take the test, the person will be issued a class 1 civil infraction under RCW 7.80.120.

The inclusion of the Implied Consent Law, RCW 46.20.308, and RCW 46.61.506 along with the addition of a civil penalty for refusing a breath/blood test, under RCW 7.80.120, constitute some of the most significant changes in boating laws.

 However, another very significant change to BUI laws is that a conviction for Boating Under the Influence now counts as a statutory prior should the offender be charged with a DUI within the 7-year prescribed time period.[1]  Even if the BUI charge is reduced to Reckless Operation of a Vessel, it too will count as a statutory prior.[2]

 Boating Under the Influence is a serious crime that can have serious consequences.  Jail time, stiff fines and probation are all possible if convicted of a BUI.  If you have any further questions about BUI Defense, call us today at:  425-822-1220.  

 1“Operate” means to steer, direct, or otherwise have physical control of a vessel that is underway. RCW 79A.60.010(11). “Underway” means that a vessel is not at anchor, or made fast to the shore, or aground. RCW 79A.60.010(22).

2“Operator” means an individual who steers, directs, or otherwise has physical control of a vessel that is underway or exercises actual authority to control the person at the helm. RCW 79A.60.010(12).

3RCW 79A.60.040 uses the term “vessel,” not boat or watercraft. “Vessel” includes all boats and vessels that are self-propelled. RCW 79A.60.010(9). “Vessel” also includes every description of watercraft on the water, other than a seaplane, used or capable of being used as a means of transportation on the water. However, it does not include inner tubes, air mattresses, sailboards, and small rafts or flotation devices or toys customarily used by swimmers. RCW 79A.60.010(9).

4RCW 79A.60.040(2)(a)–(d).

5RCW 79A.60.040(1). “Reckless” or “recklessly” means acting carelessly and heedlessly in a willful and wanton disregard of the rights, safety, or property of another. RCW 79A.60.040(20). Compare that with the definition of “reckless driving” wherein a person is guilty if: [they] drive any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. RCW 46.61.500.

6RCW 79A.60.040(3).

7-8[Reserved]

[1] See RCW 46.61.5055(14)(iv).

[2] RCW 46.61.5055(14)(v). 

About the Author

William Kirk, Partner

Bill Kirk has been named a Super Lawyer by Washington Law and Politics Magazine every year since 2003. He currently serves on the Board of Regents to the National College for DUI Defense and is the President of the Washington Foundation for Criminal Justice. Bill is one of only two attorneys in this state to pass the National College's Board Certification Exam.

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