In Georgia, Boating Under the Influence is a Serious Misdemeanor Offense
Georgia BUI Lawyer - Georgia BUI Attorney
As we move into boating season, our office has received several calls about boating under the influence cases in Georgia. Naturally, our clients have many questions.
Since 2013, Georgia has increased the punishments for BUI and has made the boating laws directly parallel our DUI laws, with a few exceptions.
The Administrative Process in Georgia BUI Cases:
BUI is different from a DUI case because an accused boater only has 10 days to request a hearing to save their privilege to operate a vessel on the waterways of Georgia while a person charged with a DUI has 30 days. The hearing request must be postmarked within 10 business days and is sent to the Department of Natural Resources to:
State of Georgia
Department of Natural Resources
2065 U.S. Highway 278 SE
Social Circle, GA 30025
The hearing request should be made via certified mail. However, unlike with a DUI case, there is no $150 filing fee in a Georgia BUI Case.
The hearing is held once a month before a judge with the Office of State Administrative Hearings. The infrequency of the hearings can be a problem. In a DUI case, a person is given an extension of their permit to drive until such time of the hearing (as long as the appeal was filed timely)
However, in a BUI case, a person's privilege to operate a vessel is suspended after the 10th business day, even though a hearing has been requested. See. O.C.G.A. 52-7-12.5(g)(3):
The request for a hearing shall not stay the suspension of the person's privilege to operate a vessel on the waters of this state; provided, however, that if the hearing is timely requested and is not held within 60 days and the delay is not due in whole or in part to the reasonably avoidable fault of the person, the suspension shall be stayed until such time as the hearing is held and the hearing officer's decision is made.
This appears to be in clear violation of the Due Process Clause of the United States Constitution. See Bell v. Burson 402 U.S. 535 (1971).
Back in 1971, when an uninsured Georgia was in an accident, their motor vehicle registration and driver's license was automatically suspended. They were not afforded a hearing before the suspension went into effect.
The United States Supreme Court held that this violated the Due Process Clause of the Constitution.
In cases where there is no reasonable possibility of a judgment's being rendered against a licensee, Georgia's interest in protecting a claimant from the possibility of an unrecoverable judgment is not, within the context of the State's fault-oriented scheme, a justification for denying the process due its citizens. Nor is additional expense occasioned by the expanded hearing sufficient to withstand the constitutional requirement.
"'While the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process.'" Bell v. Burson 402 U.S. 535 (1971).
Yet, here we are in Georgia taking away a privilege before there is a hearing. Boating season is short, and it can take several weeks before there is an administrative hearing. Now, the government may argue that there are significant differences between boating and driving.
Driving, to most people, is certainly much more of a necessity. However, that is a specious argument. For many, boating is their entire livelihood. For example, think of people who work and own marinas, those who sell watercraft, and that service and repair watercraft. This is an important industry in Georgia. That is why people should be afforded substantive Due Process, as required by law.
Twenty Differences and Similarities between DUI and BUI include the following:
- There is no driver's suspension for BUI.
- Both offenses are misdemeanors in Georgia and carry up to 12 months in jail, community service, fines, fees, substance abuse evaluations, and fees to reinstate the privilege to drive or operate a vessel. For specific BUI Penalties and DUI Penalties, consult our website.
- You are presumed innocent of any criminal offense in the United States unless proven guilty beyond all reasonable doubt.
- Both DUI Drivers and BUI suspects are asked to perform field sobriety tests. However, the tests are different because of the environmental differences and practicality.
- Neither a boater or driver is required to perform requested field sobriety tests.
- The DNR and Georgia Department of Public safety use the same breath testing devices in Georgia, the Intoxilyzer 9000.
- In both DUI and Boating under the influence cases, the arresting officer or ranger must read an appropriate implied consent notice before requesting a breath test or blood test. In the event the notice is not read, any testing would be inadmissible in court.
- If the operator of a vessel or driver of an automobile wants a jury trial, that trial must occur in either a State Court or Superior Court.
- A driver of an automobile cannot sit in his or her car while drinking. They would be charged with open container. However, a person can now be on a non-motorized floatation device and “float under the influence.”
- Although there are far more DUI arrests in Georgia than BUI arrests, there is a much higher concentration of BUI arrests per operator. The moral of the story is that the DNR and Local Sheriff's Departments enforce the boating laws strictly in Georgia.
- In Georgia DUI Cases, a person's driver's license can be suspended at both the administrative level and after the criminal case is heard. In a Georgia Boating Under the Influence Case, the privilege to boat can only be suspended at the administrative level. There is no separate criminal court suspension. However, a judge can make a person refrain from boating as a condition of probation.
- In both DUI cases and BUI cases, operating a vehicle or vessel while suspended is a misdemeanor that carries up to 12 months in jail. It also would be a violation of a person's probation.
- BUI laws in Georgia, as with our DUI laws, include felony provisions for multiple offenses, seriously injuring others, or for causing fatalities. All felonies in Georgia are heard in the Superior Court in which the alleged offense occurred.
- Both the Georgia State Patrol (GSP) insofar as DUI is concerned, and The Georgia Department of Natural Resources (DNR) insofar is BUI is concerned take enforcement seriously.
- Remember you only have 10 Days in a BUI case to appeal your license suspension. You have 30 days for a DUI case.
- To reinstate a person's driver's license or privilege to boat, you must attend a state-approved risk reductions program and pay a reinstatement fee.
- In both DUI and Boating Under the Influence cases, the "legal limit" for drivers and operators under the age of 21 is .02.
- You have an absolute right to a jury trial in any misdemeanor case in Georgia. The jury will consist of 6 citizens.
- If a person resists arrests or fails to comply with the law orders of a police officer or ranger
- A person accused of DUI or BUI has a right to refuse both field sobriety testing and the State-administered breath, blood, or urine test. However, there are consequences when an accused person refuses to perform the chemical test.
Georgia has a long boating season compared to our Northern Neighbors. When spending time on our waterways, be safe and be smart. Make sure that every passenger has an approved life jacket. Make sure all children wear their lifejackets at all times. Make sure your vessel is properly serviced and maintained. Finally, do not consume alcohol while boating in Georgia.
If you are charged with Boating Under the Influence, contact our office as soon as possible. We are here to help!