At Lake of the Ozarks, it is illegal to operate a boat, jet ski, Sea Doo or other motorized watercraft with a blood alcohol level of 0.08 or higher or when you have lost your normal physical or mental faculties. In a BWI case, a watercraft is any motorized craft that can carry a person on over water. If the watercraft is propelled by human power meaning without the use of motors then you will be okay.Missouri law establishes the following penalties.
Boating while intoxicated and driving while intoxicated laws are similar in Missouri. Beside the differences of a boat and car as the vehicle transporting a person, the major difference between BWI and DWI defense is the justification for the stop. BWI Law does not require an officer to have reasonable suspicion or probable cause to stop a watercraft operating on the waters of Miller, Morgan, Camden or Benton Counties. Waterway officers may board your watercraft at any time for safety and security reasons (operator license or flotation device check). But when you are in a vehicle stop on the roadways in Lake Ozark, Osage Beach, Camdenton or Eldon to name a few, Probable Cause is required.
When you consider if this could happen to you, you need to consider the various circumstances and senarios of a BWI arrest. A police officer could be checking for life jackets and smell alcohol on your breath. An officer could see you and your friends enjoying the lake with a few beers and come over to investigate. Since drinking a few beers while boating is not illegal, it is evidence that may compel the police to investigate you for BWI.
Then you will be asked to perform sobriety tests. You may be tired from boating and water skiing all day, thus impairing your walking ability. Your face maybe red due to sunburn. Your eyes maybe cracked and red due to the lack of sunglasses. Keep in mind, If the officer conducts your test on an uneven dock, the test will be even more difficult. And finally, I advise that you refuse the SFST and the breath test under almost all circumstances. But all these facts add up to a possible BWI charge.
The senario above is just one boating while under the influence of alcohol, but it highlights some of the problems that may result in a arrest and conviction. You must hire a skilled attorney who is versed in BWI cases. At Cisar Law Firm, we will look for flaws like the ones described above or any of the countless other pitfalls that may make up the difference between a conviction and an acquittal.
What are the Penalties for a BWI?
By operating a vessel on Missouri waters, you have consented to be tested for alcohol or drugs if so requested by a law enforcement official. If you refuse to be tested, you will be subject to arrest and punishment consistent with the penalties described above.
- Those convicted of boating while intoxicated are guilty
of a Class B misdemeanor upon a first conviction. In addition, those convicted will be required to complete and pass an approved boating safety course.
- Upon a second conviction, a person is guilty of a Class A
- Upon a third or subsequent conviction, a person will be guilty of a Class D felony.
- A person boating while intoxicated who causes the death or
serious injury of another person will, upon conviction, be
guilty of a felony.
Possession or use of drinking devices for the rapid consumption of large amounts of alcohol, commonly referred to as “beer bongs,” along with four gallon containers which hold any alcoholic beverage are prohibited on the state’s rivers except the Mississippi, Missouri, and Osage Rivers.
The jail time and fines can be probated and the Judge can require you to perform other probation related conditions such as classes, treatment, volunteer hours, MADD programs, etc.
Do they use Field Sobriety Tests in BWI Cases? BWI cases provide special challenges for law enforcement and defense counsel alike. Attorneys representing people charged with BWI should be or have people working for them that are certified in the Standardized Field Sobriety Tests (SFST) and Breath Testing device used in BWI cases and should consider retaining an expert in these fields.
Our investigators carefully evaluate the administration of the SFST. The testing protocol requires the tests to be administered on a smooth, flat, level surface. Additionally, while administering the Horizontal Gaze Nystagmus (eye test) exam, the suspects head is supposed to remain still. Obviously, both of the cited criteria are jeopardized if the tests are administered while on the water. If, however, the tests are administered on dry land shortly after the suspect had been boating, defense counsel should explore how long he had been on the water, what his "normal" balance would be under similar circumstances, and investigate the possibility that the suspect was suffering from "sea legs" during the performance of the test. An expert in this area can assist counsel in preparing an attack to the tests administered in any particular BWI case.
If you get arrested for BWI or DWI contact my office for a free consultation to discuss your Boating While Intoxicated case with a qualified attorney.