Boating Under the Influence (BUI) Laws in California

Harbors & Navigation Code 655 is the California statute that prohibits boating under the influence. This section makes it a crime to operate any boat, watercraft, jetski or vessel while under the influence of alcohol or drugs, or with a BAC of .08 or higher.

More specifically, California’s BUI law makes it a crime to do any of the following:

1. Operate any vessel (boat) while under the influence of alcohol or drugs (this is the BUI equivalent of Vehicle Code 23152(a) VC driving under the influence);
2. Operate a recreational vessel with a blood alcohol concentration (“BAC”) of 0.08 percent or higher (this is the BUI equivalent of Vehicle Code 23152(b) VC driving with a BAC of .08 or greater);
3. Operate a commercial vessel with a BAC of 0.04 percent or higher; or
4. Operate any vessel while under the influence of alcohol and, while doing so, commit a negligent act that causes bodily injury to another person (this is the BUI equivalent of DUI causing injury). ^1 2

Section 655 reads that “(“(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug. (c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood. (d) No person shall operate any vessel other than a recreational vessel if the person has an alcohol concentration of 0.04 percent or more in his or her blood. . . . (f) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or under the combined influence of an alcoholic beverage and any drug, and while so operating, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, water skis, aquaplane, or similar device, which act or neglect proximately causes bodily injury to any person other than himself or herself. “

Examples

Here are some examples of people who could be charged with BUI under Harbors & Navigation Code 655:

• A man has several glasses of wine and smokes a marijuana joint while piloting his sailboat. The alcohol and marijuana make him sleepy, and he almost falls asleep at the helm.
• A woman drinks four beers while hanging out with friends on a motorboat, bringing her BAC to 0.09 percent. She then takes a turn waterskiing behind the boat.
• The captain of a small commercial yacht that takes passengers on pleasure cruises has a few beers before going to work and operates the boat with a BAC of 0.05 percent.

Penalties

Like California DUI penalties, the penalties for BUI vary depending on the section of the law you are alleged to have violated and on whether or not this is your first offense.

In most cases, BUI is a misdemeanor, carrying a potential county jail sentence of six (6) months to one (1) year and/or a fine of up to one thousand dollars ($1,000).³

However, BUI causing injury is what is known as a “wobbler” – which means it may be charged as either a misdemeanor or a felony. The felony penalties for BUI causing injury include sixteen (16) months, two (2) years or three (3) years in jail.⁴

Legal defenses

Getting hit with BUI charges comes as a very unpleasant surprise to many people. In part, this is because “open container” laws that apply to cars do not apply to boats—and drinking alcohol while boating is generally a socially accepted practice.

If you are fighting BUI charges, the following common legal defenses may be of use to you:

• You were not actually under the influence; and/or
• You were the victim of an illegal stop made without probable cause.

In order to help you better understand the crime of boating under the influence (BUI), our California criminal defense attorneys will address the following:

• 1. When is boating under the influence a crime?
  • 1.1. Boating under the influence
  • 1.2. Boating with a BAC of 0.08 or above
  • 1.3. Commercial boating with a BAC of 0.04 or above
  • 1.4. BUI causing injury
• 2. What are the potential consequences?
  • 2.1. First offenses
  • 2.2. Second and subsequent offenses
  • 2.3. BUI causing injury
  • 2.4. Chemical test refusal
• 3. Is it possible to fight the charges?

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. When is boating under the influence a crime?

California Harbors & Navigation Code 655 sets forth several different behaviors that meet the legal definition of boating under the influence (BUI).

 1.1. Boating under the influence

The first of these is boating under the influence of drugs or alcohol, set forth in Harbors & Navigation Code 655(b).⁵

Specifically, this offense consists of:

1. Operating a vessel, or else manipulating water skis, an aquaplane, or a similar device;
2. While under the influence of either alcohol, illegal drugs, or a combination of drugs and alcohol.⁶

You are considered to be “under the influence” if, as a result of consuming alcohol or drugs, your mental or physical abilities are so impaired that you are no longer able to operate the boat with the caution of a sober person, using ordinary care, under similar circumstances.⁷

Example: Sam has been sailing since he was a child. He owns his own sailboat and takes it out on the water whenever weather allows.

Sam usually has a daiquiri every half hour or so while he is sailing. But he is such an experienced sailor that even with this amount of alcohol in his system he is able to sail as cautiously as a sober person. So he is not guilty of BUI under Harbors & Navigation Code 655(b).

Sam’s wife Natasha is a different story. She only learned to sail a few years ago. She drinks almost as much as Sam when sailing. When she drinks and takes the helm of the boat, she frequently sails on an erratic course or just barely avoids hitting other boats.

Natasha may be guilty of boating under the influence under this section of the law.

Prosecutors have various ways of proving that someone was “under the influence.” They may point to any of the following:

• The way in which you operated your vessel or water skis;
• Your physical appearance (red or watery eyes, slurred speech, unsteady gait, etc.);
• Your performance on a field sobriety test; and/or
• The results of a chemical breath test or blood test.

If a chemical test reveals that your blood alcohol concentration (“BAC”) was under 0.05 percent, it is presumed that you were not under the influence. But the prosecutor can still put forth other facts that rebut that presumption.⁸

If a test reveals that your BAC was between 0.05 and 0.08, there will be no presumption one way or the other.⁹

If your BAC was 0.08 or above, it will be presumed that you were under the influence—a presumption that you and your defense lawyer can rebut with other information.¹⁰ (And in that case you could also be charged with boating with a BAC of 0.08 or above, as we describe below.)

 1.2. Boating with a BAC of 0.08 or above

Another way to violate California’s law against BUI is to operate a boat with a blood alcohol concentration (“BAC”) of 0.08 percent or above. This form of the offense is described in Harbors & Navigation Code 655(c).¹¹

Like boating under the influence, boating with a BAC of 0.08 or higher applies not only to boats, but to water skis, aquaplanes and similar devices as well.¹²

Note that you can be guilty of boating under the influence if your BAC is 0.08 or higher even if there is no evidence that your ability to operate the boat or device was actually impaired.

Example: Let’s return to Sam from our example above.

One day Sam mixes his daiquiris particularly strong. After four cocktails, Sam’s BAC is 0.10 percent.

Because of his extensive sailing experience, the alcohol in his system does not impair his ability to operate his boat in a normal fashion. Also, because Sam is an experienced drinker, no one would suspect he is drunk—he is not slurring his speech or acting in an unusual way.

Still, under Harbors & Navigation Code 655(c), Sam is now guilty of BUI.

If you are charged with this form of BUI, it is virtually certain that a law enforcement officer administered a breath test or blood test to measure the amount of alcohol in your system.

 1.3. Commercial boating with a BAC of 0.04 or above

You can be guilty of BUI under Harbors & Navigation Code 655(d) if you operate any vessel other than a recreational vessel—in other words, a commercial vessel—with a BAC of 0.04 or above.¹³

This section of the California boating under the influence law is typically used to charge operators of:

• Fishing boats;
• Sportfishing boats;
• Tour boats; and/or
• Passenger ferries.

This tougher approach to BUI committed by operators of commercial vessels is similar to the tougher approach to driving under the influence when it is committed by drivers of commercial vehicles.

Example: Eric owns a fishing boat that he uses to take tourists out on deep-sea fishing expeditions. One day one of his customers catches an especially large fish and opens a bottle of champagne to celebrate. He invites Eric to share it with him.

After two glasses of champagne in a short period, Eric’s BAC is at 0.05. He then pilots the boat back toward shore.

Eric could be found guilty of BUI under Harbors & Navigation Code 655(d) for operating the boat with a BAC of 0.05.

 1.4. BUI causing injury

Boating under the influence causing injury—also known as “aggravated BUI”—is the last main form of BUI. It is covered in Harbors & Navigation Code 655(f).¹⁴

You commit this form of BUI if:

1. You operate any vessel or manipulate water skis, an aquaplane, or a similar device;
2. You do so under the influence of alcohol, any drug, or the combination of alcohol and drugs;
3. You do any act forbidden by law, or neglect any duty imposed by law, in the operation of the vessel; and
4. This act or neglect proximately causes bodily injury to any person other than yourself.¹⁵

Note that you can violate California’s aggravated BUI law if your actions cause any bodily injury, no matter how slight. Great bodily injury is not required.

However, the prosecutor also must prove that you did something illegal while operating a vessel, and that this illegal action caused the injury. It is not enough that you operated a boat under the influence and an injury randomly resulted.

Example: Laurie is camping with her friends by a lake. She has a few beers. She then offers to take her friends out on her motorboat.

Despite being a little tipsy, Laurie does nothing out of the ordinary as she gets the boat off the dock and out onto the lake. But as she does so, her friend Alfonso, who has also been drinking, trips and falls, hurting his ankle. The injury later turns out to be a sprain.

While they are out on the lake, Laurie has a few more beers. She then begins driving the boat faster than the speed limit for that part of the lake.

When Laurie turns the boat at this high speed, another of her friends, Maria, falls overboard. Maria does not drown, but she does dislocate her elbow in the fall.

Laurie is probably not guilty of aggravated BUI because of Alfonso’s sprained ankle, since she was not operating the boat in an illegal or negligent fashion when it occurred.

But she can be charged with aggravated BUI for Maria’s fall, because she was operating the boat in an unsafe illegal fashion and thereby caused Maria’s injury. Maria could also file a lawsuit in California for injuries stemming from a boating accident and potentially recover money damages.

2. What are the potential consequences?

The penalties for boating while intoxicated in California depend on the section of the BUI law you are alleged to have violated and on whether this is your first or a subsequent offense.

2.1. First offenses

For first offenders charged with any form of BUI other than BUI causing injury (Harbors & Navigation Code 655(f)), BUI is a misdemeanor. The potential penalties include:

• Misdemeanor (summary) probation—one of the conditions of which may be that you participate in California DUI school;
• Up to six (6) months in county jail; and/or
• A fine of up to one thousand dollars ($1,000).¹⁶

2.2. Second and subsequent offenses

The potential punishment for BUI (other than aggravated BUI causing injury) increases if you are convicted of this offense within seven (7) years of a prior conviction for any of the following:

• Harbors & Navigation Code 655 BUI (any form);
• Vehicle Code 23152(a) or (b) DUI;
• Vehicle Code 23153 DUI causing injury;
• Gross vehicular manslaughter while intoxicated; or
• Penal Code 192.5 manslaughter resulting from BUI.¹⁷

If you have any of these prior convictions, misdemeanor BUI (not causing injury) carries a potential county jail sentence of up to one (1) year.¹⁸

2.3. BUI causing injury

Aggravated BUI/BUI causing injury under Harbors & Navigation Code 655(f) is a wobbler.¹⁹

This means that the prosecutor may choose to charge it as either a misdemeanor or a felony, depending on:

• The details of the allegations; and
• The defendant’s criminal history.

BUI causing injury as a misdemeanor carries a minimum of ninety (90) days and a maximum of one (1) year in county jail, and/or a fine of at least two hundred fifty dollars ($250) and no more than five thousand dollars ($5,000).²⁰

Aggravated BUI as a felony carries a potential jail sentence of sixteen (16) months, two (2) years or three (3) years.²¹

If you are granted misdemeanor or felony (formal) probation after a conviction for BUI causing injury, and you have a prior conviction for non-aggravated BUI in the past seven (7) years—then you will be required to spend at least five (5) days in county jail, and pay a fine of at least two hundred fifty dollars ($250), as a condition of your probation.²²

And if you receive probation after a conviction for BUI causing injury, and you have a prior conviction in the past seven (7) years for either BUI causing injury, any DUI offense, or vehicular manslaughter—then you must serve at least ninety (90) days in jail, and pay a fine of at least two hundred fifty dollars ($250), as a condition of your probation.²³

 2.4. Chemical test refusal

If a peace officer has reasonable cause to believe that you were operating a mechanically propelled boat, water skis, an aquaplane, or a similar device under the influence, s/he may request that you submit to a chemical blood, breath or urine test.²⁴

If you willfully refuse to take the test upon the officer’s request, and you are later convicted of BUI, the judge may impose a longer jail sentence and/or larger fine (though your sentence and fine still cannot go above the maximums described above).²⁵

Note that the right of a peace officer to request a chemical test only applies if you are operating a mechanically propelled boat. This includes sailboats that also have a motor—but excludes boats with no motor, such as:

• Kayaks;
• Non-motorized sailboats;
• Dinghies; and
• Canoes.²⁶

3. Is it possible to fight the charges?

There are a variety of legal defenses that a California BUI defense attorney could present on your behalf. Not surprisingly, BUI legal defenses are often very similar to the kinds of defenses used in DUI cases.

The most common BUI defenses include:

You were not actually intoxicated

According to Fresno DUI and BUI defense attorney John Murray²⁷:

“The way in which you will want to argue that you were not actually under the influence depends on whether you are being charged under Harbor & Navigations Code section 655(b) or section 655(c). If you are charged with boating under the influence, you will want to make the case that your ability to operate a boat was not actually affected by the alcohol you had consumed. If you are charged with boating with a particular BAC, you will want to question the administration and results of the test that supposedly established your BAC.”

Let’s say you are charged with Harbors & Navigation Code 655(b) boating under the influence because of your boating pattern. Maybe you drove your boat too fast, forgot to turn your lights on, or were showing off or taking risks.

The fact is that sober people engage in this type of behavior all the time. Distraction, competition, miscalculation—these are all innocent explanations for why law enforcement may have singled you out.

Or the case against you may rest on the arresting officer’s testimony that you appeared drunk—that you had watery eyes, an unsteady gait, etc. But spending a day on the sun in the water can cause these symptoms—even if you did not have very much to drink.

By the same token, being sunburned, exhausted or dehydrated can lead to poor performance on a field sobriety test.

Even chemical blood or breath tests can measure your BAC inaccurately. “False positives” can result from any of the following situations:

• The breath testing machine had not been calibrated or serviced recently;
• You had eaten something prior to the breath test that affected the results; or
• You had been smoking, vomiting or regurgitating prior to the test.

If the case against you is based on the results of a blood test, questions your criminal defense attorney will want to ask include:

• Whether the person who drew your blood was properly trained; and
• Whether the blood sample was properly sealed, stored and handled prior to being tested.

You were the victim of an illegal stop made without probable cause

The Fourth Amendment to the U.S. Constitution protects you from being stopped by police without a reasonable suspicion that a crime was committed.²⁸ “Probable cause” is required to arrest you for suspected BUI.

Often a skilled California BUI attorney can show that there was no reasonable basis for an officer to stop you. It is quite possible that there was nothing unusual or suspicious about the way you were operating your boat. The office may have been stereotyping you based on the type of boat you were driving—or even engaging in illegal racial profiling.

For additional help…

For questions about the crimes of Harbors & Navigation Code 655 boating under the influence, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on Nevada “boating under the influence” laws, please see our page on Nevada “boating under the influence” laws (NRS 488.410).

Additional Resources:

California Department of Boating & Waterways: BUI Information Card

Legal References: