BOATING UNDER THE INFLUENCE (BUI) IN PENNSYLVANIA
“Party Boating” has become increasingly popular in Pittsburgh. Each summer, you’ll see concentrations of partygoers drinking on boats at regattas, concerts, and Pirates games. Similar to a Driving Under the Influence (DUI) offense, a person cannot operate a watercraft while intoxicated or under the influence of drugs. Unfortunately, nearly 20% of all boating fatalities result from the consumption of drugs or alcohol according to the U.S. Coast Guard. This is comparable to the 30% of vehicular fatalities caused by drunk driving.
Many boat operators feel their odds of being arrested and charged with Boating Under the Influence are slim, so they’ll tempt fate by operating their boats while intoxicated. However, in 2021, the Pennsylvania Fish and Boat Commission has recently launched “Operation Dry Water,” designed to increase patrols and enforcement of BUI laws in Pittsburgh’s waterways. Additionally, more and more Waterway Conservation Officers are being hired to patrol waterways in Western Pennsylvania.
Many individuals don’t realize that the penalties for a BUI are similar to the penalties imposed for a DUI. If you are charged with and convicted of BUI, you may find yourself facing mandatory jail time, a permanent criminal record, a loss of your operator’s license, along with thousands of dollars in fines and court costs.
BUI Investigations in Pennsylvania
In Pennsylvania, a Waterway Conservation Officer (WCO) may stop your boat if they have reasonable suspicion to believe you are operating the watercraft under the influence of alcohol or a controlled substance, or if they have probable cause to believe you committed the equivalent of a “traffic offense” on the water. For example, you may be stopped by a WCO if you were observed drinking alcohol, engaged in the erratic operation of your boat, or if you were involved in a boating accident.
Similar to a DUI investigation, the WCO will determine if you display outward signs of intoxication, such as having an odor of alcohol on your breath, having glossy and bloodshot eyes, slurred speech, unsteady balance and related characteristics. The WCO may ask you questions about your consumption of alcohol and administer certain field sobriety tests. You may also be asked to submit to a handheld Portable Breath Test. Additionally, the WCO may rely upon eyewitness testimony of others during the course of an investigation and prosecution.
If the Waterway Conservation Officer forms the opinion that you were operating a watercraft under the influence of alcohol or a controlled substance, you may be placed under arrest and asked to submit to further chemical testing of your blood or breath. If you were involved in a boating accident, the WCO may apply for a search warrant to obtain your medical records to determine if there were drugs and alcohol in your system.
Thereafter, the WCO will prepare a Police Criminal Complaint, detailing the allegations and charges against you. You will most likely be issued a summons in the mail containing a copy of the Criminal Complaint, a fingerprint order, and a notice for your preliminary hearing date.
Refusing a Chemical Test of Blood, Breath or Urine After a BUI Arrest
Title 30 Section 5125 permits a Waterways Conservation Officer to request chemical testing of your blood, breath or urine if the WCO has reasonable grounds to believe you operated or exercised physical control over a watercraft while under the influence of drugs or alcohol. Additionally, the WCO can request chemical testing if you operated or exercised physical control of a watercraft and were involved in an accident in which the operator, passenger or another person was injured and required medical treatment.
If you refuse chemical testing after your BUI arrest, you face a mandatory suspension of your boating privileges for 12-months if you have no prior BUI or refusal history. If you have a prior offense for BUI, or have previously refused chemical testing after a BUI arrest, you face an 18 month boating privilege suspension.
Operating Watercraft Under Influence of Alcohol Or a Controlled Substance Definitions and Tiers
The crime of BUI is formally referred to as Operating Watercraft Under Influence of Alcohol or Controlled Substances under Title 30 Section 5502. There are several tiers, or classifications, of BUI crimes as follows:
BUI General Impairment: A person commits this offense if he or she is in actual physical control of the movement of a watercraft after imbibing a sufficient amount of alcohol such that he or she is incapable of safely operating or being in actual physical control of the movement of the watercraft. This offense does not require proof of a specific BAC.
BUI Lowest Rate of Alcohol: A person commits this offense if he or she is in actual physical control over the movement of a watercraft and imbibes a sufficient amount of alcohol that the alcohol concentration in a person’s blood or breath is at least .08% but less than .10% within two hours after the individual has operated or been in actual physical control of the movement of the watercraft.
BUI High Rate of Alcohol: A person commits this offense if he or she is in actual physical control over the movement of a watercraft and imbibes a sufficient amount of alcohol that the alcohol concentration in a person’s blood or breath is at least .10% but less than .16% within two hours after the individual has operated or been in actual physical control of the movement of the watercraft.
BUI Highest Rate of Alcohol: A person commits this offense if he or she is in actual physical control over the movement of a watercraft and imbibes a sufficient amount of alcohol that the alcohol concentration in a person’s blood or breath is .16% or higher within two hours after the individual has operated or been in actual physical control of the movement of the watercraft.
BUI Controlled Substances: A person commits this offense if he or she is in actual physical control over the movement of a watercraft, and there is in the individual’s blood:
Any amount of a Schedule I controlled substance (i.e. heroin, marijuana, fentanyl, etc);
Any amount of a Schedule II or III controlled substance (i.e. methadone, oxycodone, etc) that has not been medically prescribed for the actor; OR
Any amount of a Schedule I metabolite, or a Schedule II metabolite if the Schedule II controlled substances has not been medically prescribed for the actor.
BUI by Minors: A person under the age of 21 commits this offense if he or she is in actual physical control over the movement of a watercraft and imbibes a sufficient amount of alcohol that the alcohol concentration in the minor’s blood or breath is .02% or higher within two hours after the individual has operated or been in actual physical control of the movement of the watercraft.
BUI Penalties in Pennsylvania
The penalties you face for Boating Under the Influence in Pennsylvania depend upon your prior criminal history, level of impairment and other circumstances, as follows:
Add-on penalties for BUI With a Minor Passenger: All BUI offenses where a minor was present on the watercraft will be graded as 1st Degree Misdemeanors punishable by up to 5 years in prison. Mandatory jail sentences and fines are imposed according to your level of impairment and the prior number of offenses. However, there are additional penalties that also apply when a minor was present on your watercraft during the commission of a BUI, as follows:
1st Offense: Mandatory $1,000 fine and completion of 100 hours of community service, added on to any mandatory jail time that may apply;
2nd Offense: Mandatory $2,500 fine and mandatory minimum jail sentence of 1-6 months,
3rd Offense: Mandatory minimum jail sentence ranging from 6-24 months.
BUI General Impairment
1st Offense: Ungraded Misdemeanor punishable by mandatory minimum of 6 months of probation, maximum sentence of up to 6 months in jail, a $300 fine, completion of an approved boating safety course, and the payment of court costs;
2nd Offense: Ungraded Misdemeanor punishable by mandatory minimum of 5 days of incarceration, maximum sentence of up to 6 months in jail, a fine ranging from $300 to $2,500, completion of an approved boating safety course, and the payment of court costs;
3rd Offense: 2nd Degree Misdemeanor punishable by mandatory minimum sentence of 10 days of incarceration, maximum sentence of up to 2 years in prison, a fine ranging from $500 to $5,000, completion of an approved boating safety course, and the payment of court costs;
BUI Lowest Rate of Alcohol between .08% and .10%
1st Offense: Ungraded Misdemeanor punishable by mandatory minimum of 6 months of probation, maximum sentence of up to 6 months in jail, a $300 fine, completion of an approved boating safety course, and the payment of court costs;
2nd Offense: Ungraded Misdemeanor punishable by mandatory minimum of 5 days of incarceration, maximum sentence of up to 6 months in jail, a fine ranging from $300 to $2,500, completion of an approved boating safety course, and the payment of court costs;
3rd Offense: 2nd Degree Misdemeanor punishable by mandatory minimum sentence of 10 days of incarceration, maximum sentence of up to 5 years in prison, a fine ranging from $500 to $5,000, completion of an approved boating safety course, and the payment of court costs.
BUI High Rate of Alcohol between .10% to .16%
1st Offense: Ungraded Misdemeanor punishable by mandatory minimum sentence of 48 hours of incarceration, maximum sentence of up to 6 months in jail, a fine ranging from $500 to $5,000, completion of an approved boating safety course, and the payment of court costs;
2nd Offense: Ungraded Misdemeanor punishable by mandatory minimum sentence of 30 days of incarceration, maximum sentence of up to 6 months in jail, a fine ranging from $750 to $5,000, completion of an approved boating safety course, and the payment of court costs;
3rd Offense: 1st Degree Misdemeanor punishable by mandatory minimum sentence of 90 days of incarceration, maximum sentence of up to 5 years in jail, a fine ranging from $1,500 to $10,000, completion of an approved boating safety course, and the payment of court costs;
4th or Subsequent Offense: 1st Degree Misdemeanor punishable by mandatory minimum sentence of 1 year of incarceration, maximum sentence of up to 5 years in jail, a fine ranging from $1,500 to $10,000, completion of an approved boating safety course, and the payment of court costs.
BUI General Impairment with an Accident Resulting in Bodily Injury, Serious Bodily Injury or Death or Damage to a Watercraft or Other Property: Note that individuals involved in an accident may face more serious charges of Aggravated Assault by Watercraft while Under the Influence
1st Offense: Ungraded Misdemeanor punishable by mandatory minimum sentence of 48 hours of incarceration, maximum sentence of up to 6 months in jail, a fine ranging from $500 to $5,000, completion of an approved boating safety course, and the payment of court costs;
2nd Offense: Ungraded Misdemeanor punishable by mandatory minimum sentence of 30 days of incarceration, maximum sentence of up to 6 months in jail, a fine ranging from $750 to $5,000, completion of an approved boating safety course, and the payment of court costs;
3rd Offense: 1st Degree Misdemeanor punishable by mandatory minimum sentence of 90 days of incarceration, maximum sentence of up to 5 years in jail, a fine ranging from $1,500 to $10,000, completion of an approved boating safety course, and the payment of court costs;
4th or Subsequent Offense: 1st Degree Misdemeanor punishable by mandatory minimum sentence of 1 year of incarceration, maximum sentence of up to 5 years in jail, a fine ranging from $1,500 to $10,000, completion of an approved boating safety course, and the payment of court costs.
BUI by a Minor with BAC above .02%
1st Offense: Ungraded Misdemeanor punishable by mandatory minimum sentence of 48 hours of incarceration, maximum sentence of up to 6 months in jail, a fine ranging from $500 to $5,000, completion of an approved boating safety course, and the payment of court costs;
2nd Offense: Ungraded Misdemeanor punishable by mandatory minimum sentence of 30 days of incarceration, maximum sentence of up to 6 months in jail, a fine ranging from $750 to $5,000, completion of an approved boating safety course, and the payment of court costs;
3rd Offense: 1st Degree Misdemeanor punishable by mandatory minimum sentence of 90 days of incarceration, maximum sentence of up to 5 years in jail, a fine ranging from $1,500 to $10,000, completion of an approved boating safety course, and the payment of court costs;
4th or Subsequent Offense: 1st Degree Misdemeanor punishable by mandatory minimum sentence of 1 year of incarceration, maximum sentence of up to 5 years in jail, a fine ranging from $1,500 to $10,000, completion of an approved boating safety course, and the payment of court costs.
BUI Highest Rate of Alcohol .16% and above
1st Offense: Ungraded Misdemeanor punishable by mandatory minimum sentence of 72 hours of incarceration, maximum sentence of up to 6 months in jail, a fine ranging from $1,000 to $5,000, completion of an approved boating safety course, and the payment of court costs;
2nd Offense: 1st Degree Misdemeanor punishable by mandatory minimum sentence of 90 days of incarceration, maximum sentence of up to 5 years in jail, a fine ranging from $1,500 to $5,000, completion of an approved boating safety course, and the payment of court costs;
3rd or Subsequent Offense: 1st Degree Misdemeanor punishable by mandatory minimum sentence of 1 year of incarceration, maximum sentence of up to 5 years in jail, a fine ranging from $2,500 to $10,000, completion of an approved boating safety course, and the payment of court costs.
BUI for Controlled Substances
1st Offense: Ungraded Misdemeanor punishable by mandatory minimum sentence of 72 hours of incarceration, maximum sentence of up to 6 months in jail, a fine ranging from $1,000 to $5,000, completion of an approved boating safety course, and the payment of court costs;
2nd Offense: 1st Degree Misdemeanor punishable by mandatory minimum sentence of 90 days of incarceration, maximum sentence of up to 5 years in jail, a fine ranging from $1,500 to $5,000, completion of an approved boating safety course, and the payment of court costs;
3rd or Subsequent Offense: 1st Degree Misdemeanor punishable by mandatory minimum sentence of 1 year of incarceration, maximum sentence of up to 5 years in jail, a fine ranging from $2,500 to $10,000, completion of an approved boating safety course, and the payment of court costs.
Calculating Prior Offenses
Title 30 Section 5503(d) provides that a prior acceptance of Accelerated Rehabilitative Disposition, a juvenile Consent Decree or conviction for either a BUI offense or a DUI offense counts as a prior offense. What this means is that if you plead guilty to a past DUI, and later pick up a Boating Under the Influence charge, the new BUI charge will be charged as a 2nd Offense, even though it is the first time you’re accused of BUI.
Can I avoid mandatory jail time for my BUI Offense?
It is important for you to share all of the details regarding the incident with your criminal defense attorney. Your attorney can obtain and review your case discovery, prior record and other circumstances to decide on whether or not a trial or plea agreement is in your best interests. If your attorney suggests that pleading guilty is advisable, your lawyer may be able to have you serve your mandatory jail sentence on house arrest instead of incarceration. However, you cannot obtain house arrest if you were involved in an accident resulting in the serious bodily injury or the death of another person.
Can I receive the ARD program for my BUI Offense?
The Accelerated Rehabilitative Disposition program, referred to as ARD for short, is a diversionary program that will allow offenders to avoid a criminal conviction. Depending on the facts and circumstances of your case, having your criminal defense attorney pursue your entry into the ARD program on a 1st Offense BUI case may be a good option. However, the acceptance of ARD will trigger the following consequences:
Your watercraft operating privileges will be suspended for a period ranging from 6-12 months;
You will have to pay restitution to anyone who has suffered a financial loss as a result of your actions;
You will have to attend and successfully complete an approved boating safety course, and pay the costs of attending the course, even if you never intend on regaining your watercraft operating privileges;
Your probationary period cannot be less than 6 months generally, and cannot be less than 12 months if you owe restitution or require counseling and treatment for alcohol usage.
The Zuckerman Law Firm can help
If you are charged with Boating Under the Influence in Pittsburgh or Western Pennsylvania, it is important to hire a DUI defense attorney with experience defending those accused of DUI and BUI. For a free consultation, call the Zuckerman Law Firm at 412-447-5580 today.