Under Arizona law, it is illegal to commit DUI while on a boat. This crime is defined by A.R.S. 5-395 and is called “Operating or in Actual Physical Control of a Motorized Watercraft While Intoxicated.” This is sometimes called “Boating OUI” or “Boating DUI”. This makes sailing or boating while under the influence of alcohol illegal. It also applies to the user of other watercraft such as jet skis, Waverunners, or SeaDoos.
Boating DUI/OUI Laws in Arizona
There are three laws under which you can be charged under a regular OUI:
- ARS 5-395(A)(1): Operating a watercraft while impaired to the slightest degree by alcohol or any drug.
- ARS 5-395(A)(2): Operating a watercraft with a BAC of 0.08 or more.
- ARS 5-395(A)(3): Operating a watercraft with any illegal drug in your system.
These laws are similar in how they work to regular DUI laws that prohibit impaired driving. Even the slightest degree of impairment is prohibited if it is determined that you are operating a boat, and a it is illegal to have a BAC over 0.08 regardless of your actual impairment. If you have certain drugs or their metabolites in your system, you can also be charged with OUI.
Boating DUI/OUI Penalties
The possible penalties for an Boating Under the Influence will depend on whether this is your first offense or if you have multiple prior offenses, as well as on your BAC level. If other aggravating factors are present, that may also convert a misdemeanor OUI into a felony.
First Offense OUI
For a first time OUI and your BAC and your BAC is less than 0.15, you face the following potential penalties if convicted:
- Potential jail of up to 6 months, which can be suspended upon completion of alcohol screening classes.
- Fines totaling over $2,500
- Mandatory alcohol classes.
Second Offense OUI
If this is your second OUI conviction within 5 years, you face the following penalties:
- At least 90 days in jail. 60 days can be suspended if you complete mandatory alcohol screening classes. This jail time can be increased to up to 6 months.
- Fines totaling over $2,500.
Third Offense OUI
If this is your third OUI offense within 5 years, you may be charged as an aggravated DUI. This is a felony and should be taken very seriously as it can lead not only to prison time but also the loss of your civil liberties and serious fines.
If you BAC is over 0.15, then you can be charged with “Extreme OUI.” Because of your increased BAC level, this carries harsher penalties than regular OUIs.
If this is your first Extreme OUI, then you face a minimum of 30 days in jail, 20 of which can be suspended.
If this is your second OUI of any kind within 5 years, you face a mandatory minimum sentence of 120 days in jail, only 60 of which may be suspended.
Boating DUI Checkpoints in Arizona
Local officials, such as the wardens from the Arizona Game and Fish Department, patrol Arizona’s lakes heavily during the summer months in Arizona when boating activities increase. They will conduct frequent saturation patrols and OUI checkpoints. If you are investigated by officials from the Arizona Game & Fish Department, you should know that they are licensed peace offices, giving them the same ability as regular police officers to issue citations and make arrests for OUI.
OUI checkpoints are common during the months of March through September on Arizona’s lakes, such as Bartlett Lake, Lake Pleasant, Lake Havasu, or Saguaro Lake.
Common Defenses for an OUI or Boating DUI
If you have been arrested for OUI/Boating DUI, then an knowledgeable OUI defense lawyer can help you. We will discuss the specific facts involved in your case and give you the best possible defense for your situation.
Potential defenses that can help you fight your OUI charges include:
- No actual physical control. You’ve pulled your boat, docked it or anchored it and now you’re drinking. Motor is off. Under the defense of “corpus delicti” we can argue that there is no evidence that you were impaired by alcohol at the time that you were operating the boat and pulled it up to the location where it is now docked. The police might just be assuming that you are. And that is not enough to overcome the burden of proof beyond a reasonable doubt.
- No reasonable suspicion to stop. The deputies love to claim that you were in a no wake zone, and you created a wake that was too high. Or the police could pull up and stop next to your boat and start questioning you without any reasonable suspicion. They might begin asking you questions about when you pulled up your boat, and how long you have been drinking beer. and It is possible to successfully defend you of an OUI if there is no other basis for the stop than this.
Breath and Blood Testing Defenses
There are two ways that police officers measure Blood Alcohol Concentration (BAC): the first is a breath testing device and other is a blood test. Both may be challenged by a defense attorney to cast doubt on the charges you face.
We can challenge the standard quality assurance procedures for the breath testing equipment. The devices that are used to test your breath for alcohol have to go through 90-day quality assurance checks on the device. These devices have a plus or minus 10% margin of error, meaning that at any given time, including the time that you were tested, the machine could have been reading BAC at 10% higher than it actually is. This margin of error can play a significant role in your defense, especially if your BAC is at a threshold BAC level.
Your body temperature can also affect the reading of a breath testing device. If you have a fever or high temperature at the time of the test, this can significantly affect the reading. And if there is mouth alcohol present in the breath sample, which may have been caused from regurgitation issues, this can also cause an inaccurate reading, and we can use these arguments to challenge the test results that are being used against you.
If your BAC was calculated by a blood draw rather than a breath test, we can check whether the swap that the office used had alcohol. If it was alcohol-based, the officer may have added alcohol to your sample when he drew your blood. We also look at the hand sanitizer used by the officer, and whether the hand sanitizer was alcohol-based. The alcohol from the hand sanitizer could easily have gotten onto the gloves that he was wearing when he performed the blood draw and he palpitated your vein–thereby getting alcohol on the skin above your vein when he punctured it to conduct the blood draw.
We can also examine whether there were any fermentation or coagulation issues with your blood draw. If you look at the vial of blood that the officers drew, there is powder in the bottom. We can examine whether the officers mixed the blood properly, or whether they allowed it to ferment. The fermentation process (much like it occurs with grapes fermenting into wine) change the blood into alcohol, and therefore create an inaccurate BAC reading.
We will also examine the blood testing device itself. The auto-sampler used to test blood in a crime lab usually contains thirty vials of blood, and the same needle will puncture the top of each vial. The device will then suck the air out that is in the vial, and then send that air into what is essentially a breath testing device. This is known as headspace gas chromatography. This can cause errors in reading your blood sample, which must be carefully examined by an experienced DUI attorney in conjunction with the criminology experts that we work with so that we can determine if there were any errors in that contributed to a falsely high BAC reading.
Free Consultation to Build your Defense
If you have been charged with Boating DUI/OUI, you should consult with an experienced DUI attorney immediately. After carefully analyzing the facts of your case and conducting an investigation into the evidence against you, we will fight to obtain the best possible outcome for you. This may include:
- Charges reduced in a favorable plea agreement.
- Charges dismissed.
- An acquittal at trial.
We have an established track record of success in DUIs. Stewart Salwin is a former prosecutor and has handled DUIs from both sides of the aisle. He knows how the prosecution thinks and what types of evidence is persuasive to the prosecutor to agree to get the charges lowered or dropped. If the case goes to trial, he also knows the best defenses to maximize your chances of a successful outcome.
If you’ve been arrested for a Boating DUI/OUI, there is hope! Call the Salwin Law Group today, and we will begin to work on preparing your defense immediately. We serve the greater-Phoenix area, including Tempe, Scottsdale, Mesa, and Goodyear. You will be kept informed and have the process explained every step of the way. Together, we can help you get your life back.
Call Salwin Law Group to schedule your free consultation at (480) 702-1789.