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Group enjoying drinks while boating

When you're facing Boating Under the Influence charges in York, Lancaster, or Chester County

Warm weather in South Carolina sees our local lakes and harbors full of boaters, spending long days out on Lake Marion, Lake Hartwell, and Lake Jocassee, enjoying all the beauty our state has to offer. However, these waterways are also heavily patrolled, with authorities on the lookout for boaters under the influence (BUI). Although the majority of boaters operate their vessels safely, BUI is considered a zero-tolerance offense – meaning you can be charged with minimal evidence.

BUI charges are quite similar to driving under the influence (DUI) charges. The only difference is that you are operating a motorized vehicle on a waterway instead of a highway. Instead of traveling on I-85 or I-26, you are traveling on Lake Wylie, Lake Murray, or Lake Wateree. And, like a DUI, conviction of BUI charges can lead to a criminal record, fines, mandatory substance abuse counseling and loss of boating privileges. Talk to Holland Law LLC in Rock Hill or Fort Mill immediately for experienced criminal defense.

What are the BUI laws and penalties in SC?

Under the South Carolina Boating & Safety Act of 1999, it is unlawful to operate a boat on the water under the influence of drugs, alcohol or a combination of both, also known as the crime of BUI. Any law enforcement agency can arrest you for BUI. The legal limit for operating watercraft is the same as for a vehicle – .08%. However, it is up to the arresting officer to determine if you are “materially and appreciably impaired,” to quote the letter of the law.

Misdemeanor BUI charges and penalties

If this is your first BUI, you will typically be charged with a misdemeanor. However, if you have previous BUI convictions in the past 10 years, you may face additional penalties. Misdemeanor BUI charges and penalties are as follows:

·         First offense - $200 fine or 48 hours to 30 days in jail. Community service may replace jail time. Six-month loss of boating license and privileges.

·         Second offense - $2,000 to $5,000 fine plus 48 hours to one year in jail. The court may exchange jail time for a minimum of ten days of community service. One-year loss of boating license and privileges.

·         Third offense - $3,500 to $6,000 plus 60 days to three years in jail. Two-year loss of boating license and privileges.

Anyone convicted of a misdemeanor BUI charge is required to complete ADSAP (Alcohol and Drug Safety Action Program), a mandatory boating safety education program, and is responsible for the costs of the programs.

You will also face increased charges and penalties if you injure or kill another person or cause damage to another person's property as a result of boating and drinking.  At Holland Law LLC, we can help.

Felony BUI charges and penalties

If your BUI accident caused great bodily injury or death to another person, you will face felony charges. The state of South Carolina defines “great bodily injury” as injury that creates a substantial risk of death or causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ of the victim.

Charges and penalties for felony BUI are as follows:

  • Great bodily injury. If a BUI accident causes another person great bodily injury, you may face up to 15 years in jail and $5,000 to $10,000 in fines. Three-year loss of boating privileges upon release from jail.
  • Death. If a BUI accident causes the death of another person, you may face between one to 25 years in jail and $10,000 to $25,000 in fines. Three-year loss of boating privileges upon release from jail.

In cases of felony BUI, a judge may not suspend any part of the sentence, and you may not receive probation or eligibility for expungement. It is critical you retain the services of a BUI defense attorney at Holland Law as soon as you are charged for the best possible outcome for your case.

Do I have to take the field sobriety test on a boat?

The Department of Natural Resources (DNR) administers what is called the Afloat Test Battery instead of the Standard Field Sobriety Tests (SFSTs). This is similar to typical field sobriety tests, but take place while the subject is seated in his/her or the officer's boat. The Afloat Test Battery consists of:

  • Horizontal gaze nystagmus test. Sometimes called the “pen test,” the officer moves a pen back and forth across your sight line, looking for an involuntary movement of the eye call nystagmus. This movement can indicate impairment.
  • Finger to nose test. The officer will ask you to bring the tip of your index finger to the tip of your nose while your eyes are closed and your head slightly tilted back. You'll be asked to do this six times; three with each hand.
  • Palm pat test. The officer will ask you to perform a series of rotations with the palms and backs of your hands, counting at the same time.
  • Hand coordination test. You will be asked to perform a series of tasks with your hands and fists, including memorization, clapping and counting aloud.

Breath tests and BUIs

Just like a driving under the influence arrest, at the police station they will ask you to blow into the breath machine (DataMaster DMT), which will record your blood alcohol content (BAC) level:

·         0.00% to 0.05%. You are presumed to not be under the influence of alcohol.

·         Over 0.05% to less than 0.08%. In court, a jury can make no inference of intoxication from the DataMaster results. However, the results can be used with other evidence in determining guilt or innocence.

·         0.08% or higher. In court, a jury can infer you were intoxicated.

You should know that if you are unconscious or cannot take a breath test, law enforcement can take a sample of your blood without your consent.

Can I refuse to take a breath test?

Yes, you can – however, by virtue of having a boating license, you imply consent to a chemical test. If you refuse a breath test, your boating license will be revoked for 180 days. You can fight this by requesting an administrative hearing  within 30 days of your arrest. Call Holland Law firm as soon as you are charged, and we can help with this hearing.

Can I get a BUI on a sailboat in South Carolina?

Many people believe that you can only be arrested for boating under the influence if you are on a watercraft powered by a motor. This is a myth. BUI laws pertain to all vessels, from a canoe to a sailboat to a luxury yacht. State law defines a vessel as “every description of watercraft, other than a seaplane regulated by the federal government, used or capable of being used as a means of transportation on water.”

Do open container laws apply to boaters?

No, they do not. In fact, it is not illegal to have a drink while you are operating a boat; it is illegal to operate that boat while you are under the influence of alcohol. Per the South Carolina Boating and Safety Act, “It is unlawful for a person to operate a moving motorized water device or water device undersail upon the waters of this State while under the:

  1. influence of alcohol to the extent that the person's faculties to operate are materially and appreciably impaired;
  2. influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person's faculties to operate are materially and appreciably impaired; or
  3. combined influence of alcohol and any other drug or drugs, or substances which cause impairment to the extent that the person's faculties to operate are materially and appreciably impaired.”

As the driver or owner of a boat, you are responsible for your and your passenger's actions. Spending hours in the sun can cause people to become impaired faster than they may anticipate.

Even if you are not drinking any alcohol, if your passengers are, ensure they are kept away from the driving/captain's area. Even the appearance of unsafe boating could be enough for authorities to stop you.

What are the defenses against boating under the influence?
Prosecution must prove two main points in a BUI case:

  • That you were operating the vessel; and
  • That you did so while impaired – meaning you were under the influence of alcohol, legal or illegal drugs, a combination of each, or some other substance.

DUI arrests require videotaping, sobriety tests, and chemical testing. Therefore, any failure to follow proper procedure by the arresting officer typically results in dismissal of the DUI. However, in the case of a BUI, there are no such requirements. Holland Law Firm holds that the Afloat Test Battery is not always reliable, nor may be a traditional field sobriety test on a dock administered shortly after stepping off a floating vessel.

Additionally, if your boat was docked or anchored at the time you were arrested, we will work to have your charges dismissed. We will also investigate to see if your boat was illegally stopped or searched, which is a violation of your Constitutional rights. Let us help you today.

Aggressive representation for boating under the influence charges

Holland Law LLC provides experienced defense when you are charged with BUI. We offer immediate assistance when you need it and defend you at hearings and in court. Tom Holland serves clients in York, Lancaster, and Chester Counties. Call today to schedule a consultation, please call 803-219-2630, or reach out through our contact page. We maintain offices in Fort Mill and Rock Hill.

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