Boating While Intoxicated
Contact a Galveston boating while intoxicated lawyer today.
What is Boating While Intoxicated (BWI)? The charge is very much what it sounds like: it is the boat version of what we all know as driving while intoxicated. The crime of boating while intoxicated ispunished the same as driving while intoxicated. The Texas Penal Code defines the offense of BWI as:
Sec. 49.06. BOATING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a watercraft.
(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
One of the interesting parts of the code regarding BWI is the definition of what is a “watercraft.” The Penal Code provides:
Sec. 49.01. DEFINITIONS. In this chapter:
(4) "Watercraft" means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.
This means that if you are “intoxicated” while on a single water ski or wake board, you can be charged with a BWI. This is a very broad definition and allows for pretty much everything on the water, except a paddleboat, to be considered a watercraft.
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DWI vs. BWI: HOW ELSE ARE THEY DIFFERENT?
The major difference between a BWI and a DWI is what it takes for a police officer to be able to begin an investigation for each type of case. As with nearly every other type of crime that can be committed in Texas, a DWI investigation cannot be initiated by a police officer unless that officer has probable cause to initially pull the motorist over to begin gathering information regarding intoxication. The officer needs to see a traffic violation, or receive a tip from another driver, or come upon the scene of an accident in order to detain and begin questioning a citizen about a DWI case.
However in BWI cases, the Texas Parks & Wildlife Code requires boat to carry a certificate of registration, proper lights, a whistle or bell, life preservers, a fire extinguisher, and a rearview mirror. The TP&W code also has a provision that allows an enforcement officer to board a boat at anytime to inspect for those items. Specifically, Texas Parks & Wildlife Code § 31.124(a) provides:
Sec. 31.124. INSPECTION OF VESSELS. (a) In order to enforce the provisions of this chapter, an enforcement officer may stop and board any vessel subject to this chapter and may inspect the boat to determine compliance with applicable provisions.
This means that a police officer can stop a boat on the water at anytime and WITHOUT probable cause to conduct an inventory of the items required by the TP&W code. While on the boat conducting this inspection, the officer can also begin a BWI investigation with just the information he gathers during his inventory procedure. This is a huge issue because police officers are given a legal reason to investigate and do not have to actually see you break any laws before they start investigating you.
The key for a good BWI defense lawyer in these cases is to be very thorough in the questioning of the police officer about the inventory he conducted or failed to conduct, to show that the reason to stop the boater was a sham and that the officer never intended to actually inspect the required items, he just wanted to start a BWI investigation. If this can be shown, the BWI can be dismissed because it was improperly initiated.
ANOTHER KEY DIFFERENCE BETWEEN DWI AND BWI
The tests that are conducted for both a DWI and a BWI are the same. The standardized field sobriety tests will be used in both types of alcohol related offenses. The key issue in a BWI is that the tests must be performed on the shore, not the water. Furthermore the tests cannot be conducted immediately after returning to shore, as there needs to be enough time on shore for the person being tested to no longer have “sea legs.” Since the field sobriety tests require good balance, it will take a person who has been on the water all day, a period of time to regain their balance and ability to perform the tests to standard. If this time is not provided by the arresting officer, a good BWI defense lawyer will be able to exploit this fault in favor of the accused boater.
If you need an experienced Clear Lake boating while intoxicated lawyer on your side, call 281.476.9447 or
email me today.
My firm serves the areas of Houston,
Bunker Hill Village,
Galveston County, and
Fort Bend County.