boating while intoxicated defense attorneys texas

Boating While Intoxicated in Texas

Did you know Boating While Intoxicated is a criminal offense in Texas? Did you know the criminal penalties for Boating While Intoxicated are as severe as the penalties for Driving While Intoxicated? Did you know that officers from Texas Parks and Wildlife do no need a reason to stop you or board your vessel while you are on the water?

We know because we have handled dozens of these cases and even taken a Boating While Intoxicated cases to trial. Let’s take a look at Boating While Intoxicated in greater detail.

What is Boating While Intoxicated in Texas?

Pursuant to Penal Code Section 49.06, Boating While Intoxicated in Texas is a Class B offense in Texas. A person commits the offense of BWI if you are intoxicated while operating a watercraft. A water craft is “a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.”

What is the punishment for Boating While Intoxicated in Texas?

Although it is a Class B misdemeanor, the punishment range begins at 72 hours confinement and the maximum sentence is 180 days in jail. A first offense also carries with it a potential fine of up to $2,000 in addition to the jail sentence.

Can you have an open container in your boat?

Yes!

Can the operator of the boat drink?

While Texas Parks and Wildlife recommends avoiding alcohol, you may drink and operate a boat or watercraft legally as long as you are not intoxicated.

Does law enforcement need consent or probable cause to enter your boat or stop you?

No. Check out this case that arose from a stop out on Sneaky’s Pete’s Marina in Lewisville that went up to the Court of Criminal Appeals. The Court of Criminal Appeals ruled that Texas Parks and Wildlife Code Section 31.124 allows officers to stop boats to inspect them at any time for safety equipment and that Section 31.124 is constitutional. As a result, officers may stop boaters and board watercraft without developing reasonable suspicion. While they seem akin to illegal DWI roadblocks, these water checks are legal in Texas.

Will your driver license be suspended if you are arrested for Boating While Intoxicated?

Believe it or not, if you are arrested for BWI your Driver License will be suspended for 180 days if you are asked to give a specimen on your breath or blood and you refuse to provide a sample. This only applies to watercraft with engines that have a manufacturers rating of 50 horsepower or more. (See Transportation Code 724.002)  This limitation does not exist of the offense of boating while intoxicated.

How do officers prove intoxication in Boating While Intoxicated Cases?

The State has three definitions to prove intoxication that boil down the these three questions: whether you have lost your normal mental faculties, whether you have lost your normal physical faculties, or whether you have a blood alcohol concentration of .08 or greater. Typically for a DWI, officers rely on three standardized field sobriety tests, the Horizontal Gaze Nystagmus, Walk and Turn, and the One Leg Stand. Instead of using that set of standardized field sobriety tests, officers use “Seated Battery of Standardized Field Sobriety Tests.” These tests were developed by the Coast Guard and NASBLA.

This set of 6 tests is made up of:

Finger to Nose Test: The subject is asked to bring the tip of their finger to the tip of their nose while their eyes are closed and their head is tilted back. The officer says “right” or “left” to instruct the subject on which finger to use. Officers are watching to see if the person can touch their nose and if they use the proper hand.

Time Estimation Test: Officer will ask the subject to close their eyes, tilt their head back and estimate the passage of 30 seconds.

Finger Count Test: Officers will ask the subject to extend one hand with the subject’s palm up and count 1, 2, 3, 4 while touching the tips of the corresponding finger with the tip of their thumb.

Hand Coordination Test: The officer asks the subject to place their left fist at the center of their chest and their right fist against the left fist. They are then asked to move their fists one after another and take 9 “steps” with their first, then take 9 “steps” back with their fists. When this is completed, the subject is to place their hands in their lap with their palms facing down.

Palm Pat Test: The officer asks the subject to extend one hand, palm facing up and the other hand palm facing down on top of the first hand. The subject is asked to rotate their top hand 180 degrees back and forth while keeping the bottom hand steady. The subject is to count aloud and speed up as the test progresses.

Horizontal Gaze Nystagmus Test: This is the same test we discussed at length in our DWI Information Page.

If the instructions for these tests seem complicated, imagine doing them after you have had a couple of drinks while you were boating. If you are charged with boating while intoxicated, give us a call to discuss the defenses that can be raised and to ask about our experiences taking these cases to trial. (817) 203-2220.

About the Author
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Anna Summersett

Anna Summersett is a Board Certified Criminal Defense Attorney and an experienced trial lawyer. She was a criminal prosecutor for five years before joining the firm. Anna is a criminal law specialist who has tried over 100 cases to juries, ranging from misdemeanor DWIs to Capital Murder.

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