Boating Under the Influence in Georgia - B.U.I. in Georgia - Georgia BUI Cases in Georgia
In Georgia, it is against the law to operate any moving vessel while under the influence of alcohol, drugs, whether illegal or prescription, to the extent that it is less safe for the person to do so. Like Driving Under the Influence (DUI) charges, in Georgia a Boating Under the Influence (BUI) charge carries heavy fines and penalties that can have a significant impact on your life.
10 Day Warning For BUI in Georgia:
If you have been cited or arrested for Boating Under the Influence in Georgia, you only have 10 days to appeal the suspension of your privilege to boat in Georgia. Your Georgia Boating Under the Influence Lawyer can file that appeal for you. If this appeal is not filed timely, you will lose your privilege to boat in Georgia for up to 1 year.
The Boating Under the Influence Laws in Georgia:
O.C.G.A. § 52-7-12 (a) states that “no person shall operate, navigate, steer, or drive any moving vessel, or be in actual physical control of any moving vessel, nor shall any person manipulate any moving water skis, moving aquaplane, moving surfboard, or similar moving device while [under the influence of alcohol, drugs, a combination of alcohol and any drug, marijuana, glue, aerosol, or other toxic vapor] …” This shows that BUI laws apply to all types of watercrafts including motor boats, sailboats, jet skis, water skis, and surf boards.
In order to be convicted of BUI, the State must be able to prove that you were under the influence of an intoxicant to the extent that you were less safe to operate, navigate, steer, drive, or be in actual physical control of any moving vessel. This can be an important distinction when the evidence only shows the mere presence of alcohol but no “manifestations of impairment” were observed. An odor of alcohol or a positive Alco-sensor (breathalyzer) result shows that you likely had consumed some amount of alcohol, but does not show that you were actually impaired or less safe to operate a watercraft. Poor performance on field sobriety evaluations, however, can be used as evidence of impairment.
It is also against Georgia BUI law for any person's blood alcohol concentration (BAC) to be “0.08 grams or more at any time within three hours after such operating, navigating, steering, driving, manipulating, or being in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device from alcohol consumed before such operating, navigating, steering, driving, manipulating, or being in actual physical control ended.” O.C.G.A. § 52-7-12(a)(4).
This offense is commonly referred to as “BUI per se” and requires the State have a chemical test result in evidence to prove that the person's BAC was 0.08 grams or more, as opposed to “BUI less safe.” The penalties for BUI Less Safe and BUI per se are the same. Effective May 15, 2013, the “per se” blood alcohol level for BUI was lowered to 0.08 grams to mirror Georgia's DUI law. O.C.G.A. § 52-7-12(a)(4). The previous BAC was 0.10 grams for all cases the arose prior to May 15, 2013.
A person under the age of 21 can be arrested for BUI in Georgia if his or her BAC is 0.02 grams or more at any time within three hours after being in physical control of a moving watercraft. This also mirrors the Georgia DUI Laws. This can result in a situation where an under 21 boater can be found guilty of Boating Under the Influence, while actually not being impaired.
If there is a chemical test of the person's blood alcohol concentration, certain presumptions can be made about the person's level of impairment. These presumptions can be rebutted, however, due to the fact that each individual responds to and processes alcohol differently. If the person's BAC was 0.05 grams or less, it is presumed that the person was not impaired. This inference can be rebutted, however, by evidence of erratic behavior or other clues of impairment observed by the officer.
No inference is created for BAC levels greater than 0.05 grams, but less than 0.08 grams. If the person's BAC was 0.08 grams or more, it is presumed that the person was under the influence of alcohol. And finally, if the person's BAC was 0.08 grams or more at that time or within three hours of being in actual physical control of a moving watercraft due to the consumption of alcohol before such physical control ended, the person is in violation of Georgia's “BUI per se” statute.
Georgia's BUI laws fall under the Georgia Boat Safety Act which means BUI laws only apply to boaters on public waterways, and not to boaters on private lakes like Lake Arrowhead within Cherokee County. But Lake Lanier, Lake Oconee, Lake Allatoona, and Lake Burton as well as Georgia's other waterways are patrolled by the Department of Natural Resources and local law enforcement agencies.
Law enforcement does not need any reason to stop a person's vessel on a waterway. In Georgia, safety checks are permitted on boats without any probable cause of any criminal wrongdoing. This is a key difference between boating and driving, and the Georgia DUI Laws. At least reasonable suspicion is needed to pull over any Georgia driver. There must be probable cause to arrest a person of DUI in Georgia.
If an officer observes signs of impairment after performing a safety check, the officer can then further detain the person for purposes of investigating whether the person is under the influence of alcohol or drugs and is safe to operate the watercraft. During the investigation, the officer will be look for clues such as the admission of drinking, slurred speech, bloodshot eyes, fumbling, repeating questions or comments, the odor of alcohol on the person's breath, and providing incorrect or inconsistent answers.
Many of the officer's observations will only show a likelihood of the presence of alcohol but will not show that the person is actually impaired. Many law enforcement officers are trained to administer standardized field sobriety tests that are designed to assess the person's mental and physical impairment. Many tests administered when BUI is suspected as when a DUI is investigated. The officer may administer the horizontal gaze nystagmus test, a scientific test, as well as ask you to recite the alphabet, count backwards, perform a dexterity test, or submit a breath sample into an Alco-sensor.
Boating Under the Influence Field Sobriety Testing:
During the field sobriety tests, the officer will be evaluating the person's performance by looking for certain clues. These clues, if observed, may provide the officer with probable cause to arrest for BUI. Performance on the field sobriety tests will be used as evidence to prove that the person was less safe to operate a watercraft. The officer's arrest decision is based on the totality of the circumstances involved.
If the person is subsequently arrested for BUI, Georgia law requires law enforcement officers to follow certain procedures to request a chemical test to determine the person's blood alcohol concentration. If those procedures are not adequately followed, it can lead to key evidence being inadmissible at trial and can mean the difference between a conviction and a dismissal of all charges.
Any person operating a watercraft or vessel on the waters of this state is deemed to have given consent to a chemical test of his or her blood, breath, or urine to determine the presence of alcohol or drugs if arrested for BUI or if involved in an accident resulting in a fatality or serious injury.
The arresting officer must read the appropriate Georgia Implied Consent Notice depending on the person's age. There are separate notices for operators age 21 or over, and those under age 21. This is due to the differences in the “per se” level of impairment under Georgia law. This mirrors the differences in the DUI Laws of Georgia.
Your Rights in a Georgia Boating Under the Influence Case:
The Implied Consent Notice for Suspects 21 or Over is as follows:
Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your privilege to operate a vessel on the waters of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing, the results of that test or tests may be used against you. If the results of such test or tests indicate an alcohol concentration of 0.08 grams or more or the presence of any illegal drug, your privilege to operate a vessel on the waters of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?
If the person refuses to take the requested chemical test, the refusal to submit can be used as evidence in the criminal case. Georgia law further states that any person who is dead or unconscious, or otherwise in a condition making the person incapable of refusing has not withdrawn his or her consent and the test may still be administered. This is the same in Georgia Vehicular Homicide Law and Georgia Serious Injury by Vehicle Law.
Georgia has an administrative penalty, separate from the criminal proceeding, for any watercraft operator that refuses to take a state-administered test or submits to a state-administered test that shows a blood alcohol concentration of 0.08 grams or more, or, if the person is under the age of 21, a blood alcohol concentration of 0.02 grams or more. The vessel must have been motorized having ten or more horsepower or was a sailboat more than 12 feet in length. This penalty is a 12 month suspension of the person's privilege of operating a vessel on the waters of this state and the suspension is implemented immediately after arrest for BUI.
A request for a hearing must be submitted within 10 business days after arrest or receipt of notice of the suspension to appeal the suspension of the person's Georgia boating privileges. The request for a hearing is commonly referred to as the “10 day letter” and must include certain basic information as well as state the grounds for the appeal.
- The hearing is limited in scope and only covers the following issues:
- Whether the officer had reasonable grounds to believe the person was operating or in actual physical control of a moving vessel while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for BUI;
- Whether the person was involved in a vessel accident or collision resulting in serious injury or fatality;
- Whether the officer informed the person of his or her implied consent rights at the time a test was requested;
- Whether the person refused the test; or
- Whether a test was administered and the results indicated a BAC of 0.08 grams or more or, if the person is under the age of 21, a blood alcohol concentration of 0.02 grams or more; and
- Whether the test was properly administered.
If the test was refused, the person's boating privileges will be suspended for a 12 month period. If the person submitted to a test and the results showed a BAC of 0.08 grams or more or, if the person is under the age of 21, a blood alcohol concentration of 0.02 grams or more, the person's boating privileges will be suspended for a period of one year. If proof that a DUI Alcohol or Drug Risk Reduction Program (DUI School) has been completed the certificate of completion is submitted and a restoration of $200 is paid, the person's boating privileges may be reinstated as soon as 120 days. Previously, privileges could be reinstated as soon as 30 days and no restoration fee was required. A second administrative suspension within five years will lead to a three year suspension, with eligibility for reinstatement after 18 months. A third or subsequent suspension within five years will lead to a five year suspension with no early reinstatement.
If boating privileges are suspended administratively, that suspension will be lifted if the BUI charges are dismissed, a nolle prosequi is entered, the charges are reduced, or if the person is acquitted. So, if you win your case, then the victory in the criminal court will supersede the administrative boating suspension.
Georgia B.U.I Penalties:
Operating a watercraft within Georgia while boating privileges are suspended is a misdemeanor offense punishable by a fine not less than $500 nor more than $1,000. A second offense within five years is a high and aggravated misdemeanor offense punishable by a fine not less than $1,000 nor more than $1,500. Each conviction will extend the period of suspension by an additional six months.
A BUI will not suspend or have any effect of a person's Georgia driver's license or privileges to drive in this state. Only a person's boating privileges can be suspended due to a BUI. This is a commonly held misconception. However, BUI is a serious misdemeanor that can result in jail-time and other court mandated sanctions. It must be taken very seriously.
Because a BUI is a misdemeanor offense, the maximum penalty of 12 months in jail and a $1,000 fine plus court surcharges and costs. The minimum sanctions are 24 hours in jail with credit for time served at arrest, 12 months probation, a fine of $300, 40 hours community service (only 20 hours are required if the person's BAC was less than 0.08 grams), completion of a DUI Alcohol or Drug Use Risk Reduction Course, and a clinical evaluation and any recommended treatment. If convicted, a BUI charge will remain on your criminal record forever, which can affect your ability to gain future employment, enroll in school, and receive financial aid.
A second BUI offense in Georgia within a 10 year period has a maximum sanction of 12 months in jail and a fine up to $1,000. The minimum sanctions are 72 hours in jail with credit for time served at arrest, 12 months probation, a fine of $600, 240 hours community service, completion of a DUI Alcohol or Drug Use Risk Reduction Course, and a clinical evaluation and any recommended treatment.
A third conviction of BUI within a ten year period is a high and aggravated misdemeanor punishable by a fine of $1,000 to $5,000. The minimum sanctions are 15 days in jail with credit for any time served at arrest, a $1,000 fine, 12 months probation, 240 hours community service, completion of a DUI Alcohol or Drug Use Risk Reduction Course, and a clinical evaluation and any recommended treatment.
A fourth or subsequent BUI in a ten year period is a felony offense and punishable by a fine of $1,000 to $5,000, not less than 90 days nor more than 5 years in prison, 480 hours community service, completion of a DUI Alcohol or Drug Use Risk Reduction Course, a clinical evaluation and any recommended treatment, and 5 years probation less any days spent in actual confinement. Only arrests occurring after May 15, 2013 will be considered in calculating the number of convictions within a ten year period.
With any BUI fines, one half of any fine imposed may be suspended by the judge at his sole discretion if the person undergoes treatment in a substance abuse treatment program.
Further, any person who is charged with BUI while a child under the age of 14 is on the watercraft or being towed on water skis, an aquaplane, a surfboard or similar device will also be charged with the separate offense of Child Endangerment. A separate count of child endangerment will be charged for each child under the age of 14 present at the time of arrest. Just like in DUI Child Endangerment, each child in the boat creates a separate criminal offense on top of the BUI.
The maximum penalty for a first or second Child Endangerment misdemeanor conviction in Georgia is 12 months incarceration and a $1,000.00 fine plus court surcharges. A third or subsequent conviction will be a felony and is punishable by incarceration for one to three years and a fine of $1,000.00 to $5,000.00 plus court surcharges.
Serious Injury By Vessel - Homicide by Vessel
A person may face much more serious charges if an accident or collision occurs while a person is operating a watercraft that results in serious injury or death.
Serious Injury by Vessel can be charged if a person causes another person bodily harm through an offense of speeding greater than idle speed within 100 feet of a moored vessel or a person in the water, or shoreline, operating a vessel in a boating safety zone, failing to render assistance as required, failing to stop for law enforcement, reckless operation, or BUI. The statute defines serious injury as “depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless.” O.C.G.A. § 52-7-12.4. Serious Injury By Vessel is a felony offense and is punishable by imprisonment for not less that one year nor more than 5 years. A person's boating privileges will also be suspended in Georgia for 3 years if convicted.
Homicide by Vessel is a very serious charge in Georgia and carries severe penalties. Homicide by Vessel in the First Degree is a felony offense if the death is caused by a serious violation such as speeding greater than idle speed within 100 feet of a moored vessel or a person in the water, or shoreline, failing to render assistance as required and leaving the scene of an accident or collision, operating a vessel in a boating safety zone, failing to stop for law enforcement, reckless operation, or BUI and is punishable by not less than 3 nor more than 15 years in prison.
Homicide by Vessel may be charged as Homicide by Vessel in the Second Degree if the death was the result of a violation of any other boating offense not enumerated in Homicide by Vessel in the First Degree. Homicide by Vessel in the Second Degree is a misdemeanor offense with a maximum punishment of one year in jail and a $1,000 fine.
Boating Under the Influence Defenses:
If you have been charged with BUI in Georgia, it is important to get qualified BUI Lawyer now. The Georgia B.U.I. Lawyers at our office know how to defend you and protect your freedom and your privilege to boat in Georgia. Call now for immediate legal attention. We are here 24/7 to help.
More Information on the Georgia Boating Laws:
Flotation Device Regulations:
O.C.G.A. § 52-7-8(d)(3) has been amended as of May 15, 2013, to require that all children under the age of 13 wear personal flotation devices when aboard a moving vessel on Georgia waters other than when the child is within a fully enclosed roofed cabin or other fully enclosed roofed compartment or structure on the vessel.
Kile Glover Boat Education Law:
Effective July 1, 2014, this law will require that anyone age 12 through 15 may operate a personal watercraft on Georgia waters if accompanied by an adult 18 years of age or older or if he or she has completed a boating education course approved by DNR prior to operation of such vessel. Further, any person born on or after January 1, 1998, who operates any motorized vessel on the waters of Georgia must have completed a boating education course, unless the person is a license member of the US Coast Guard, operates the vessel on a private lake or pond, or a nonresident who has completed a National Association of State Boating Law Administrators approved boater education course or the equivalency from another state and has proof of completion in his or her possession. O.C.G.A. § 52-7-22(b)&(c).
(m) Every person convicted of violating this Code section shall, upon a first or second conviction thereof, be guilty of a misdemeanor; upon a third conviction thereof, be guilty of a high and aggravated misdemeanor; and upon a fourth or subsequent conviction thereof, be guilty of a felony except as otherwise provided in paragraph (4) of this subsection and shall be punished as follows:
(1) For the first conviction with no conviction of and no plea of nolo contendere accepted to a charge of violating this Code section within the previous ten years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:
(A) A fine of not less than $300.00 and not more than $1,000.00, which fine shall not, except as provided in subsection (n) of this Code section, be subject to suspension, stay, or probation;
(B) A period of imprisonment of not fewer than ten days nor more than 12 months, which period of imprisonment may, at the sole discretion of the judge, be suspended, stayed, or probated, except that if the offender's alcohol concentration at the time of the offense was 0.08 grams or more, the judge may suspend, stay, or probate all but 24 hours of any term of imprisonment imposed under this subparagraph;
(C) Not fewer than 40 hours of community service, except that for a conviction for violation of subsection (k) of this Code section where the person's alcohol concentration at the time of the offense was less than 0.08 grams, the period of community service shall be not fewer than 20 hours;
(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program as defined inCode Section 40-5-1. The sponsor of any such program shall provide written notice of the Department of Drivers Service's approval of the program to the person upon enrollment in the program;
(E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; provided, however, that in the court's discretion, such evaluation may be waived; and
(F) If the person is sentenced to a period of imprisonment for fewer than 12 months, a period of probation of 12 months less any days during which the person is actually incarcerated;
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