California Harbors & Navigation Code 655 -- Boating Under the Influence (BUI)

Boating under the influence...also known as BUI, DUI boating, and boating DUI...may not be as common as DUI, but it is still a crime. If you are convicted under one of California's BUI laws, you face

• fines,



• a jail or prison sentence, and



• an alcohol/drug education program (also known as California DUI school).

Officers are on the lookout for BUIs in the major recreational water-sport areas and eager to make arrests. Areas like Lake Havasu, the Colorado River, Lake Castaic, Lake Tahoe, Big Bear, Arrowhead, and Pyramid Lake are just some of the areas where you are likely to see officers on BUI patrol.

The good news is that...much like DUI charges...BUI charges are often filed against innocent people who have been falsely arrested or wrongly accused of this crime. It is therefore advisable to consult with an attorney who has experience with California's BUI laws immediately upon your arrest.

In this article, our California BUI attorneys will provide a comprehensive guide to understanding California's boating under the influence laws by addressing the following:

What is Boating Under the Influence?

How Does the Prosecutor Prove that I am Guilty Of BUI?

Penalties, Punishment, and Sentencing for Boating Under the Influence

How Do I Fight a BUI Charge?

If, after reading this article, you have additional questions, we invite you to contact us.

You may also find helpful information in our related articles on California Vehicle Code 23152a Driving Under the Influence, California Vehicle Code 23152b Driving with a BAC of 0.08% or greater, California Vehicle Code 23153 DUI with Injury, California Penal Code 191.5 Manslaughter while Intoxicated, California's DUI Laws, and California DUI School.

What is Boating Under the Influence?

Boating under the influence is criminalized under California Harbors and Navigation Code 655. Under this section, there are several laws that regulate boating and drinking.

The first uses very similar language to California Vehicle Code 23152a driving under the influence. Harbors and Navigation Code 655b states that you may not operate a

• boat,



• water skis,



• an aquaplane, or



• any similar equipment (such as a jet ski),

while under the influence of alcohol and/or drugs.¹

The second is akin to California Vehicle Code 23152b driving with a BAC of 0.08% or greater. Harbors and Navigation Code 655c prohibits operating any of the listed equipment above if your blood alcohol concentration (BAC) is 0.08% or above as measured by a chemical blood or breath test.²

The third is a law that relates to commercial operators. Like driving a commercial vehicle, you are forbidden from operating a commercial boat if your BAC is 0.04% or greater pursuant to Harbors and Navigation Code 655d.³

The fourth California DUI boating law is similar to California Vehicle Code 23153 DUI with injury. Harbors and Navigation Code 655f penalizes you for operating a boat or any of the other equipment listed above while under the influence of alcohol and/or drugs if you injure another as a result.⁴

Unlike California laws that regulate drinking and driving, you are allowed to have open containers of alcohol on a boat. Both passengers and drivers of boats and other water equipment are permitted to have and consume alcohol. You only violate the law if you operate water devices while under the influence.

How Does the Prosecutor Prove that I am Guilty of BUI?

In the same way that he/she proves that you are DUI. In order to convict you under California's BUI laws, prosecutors will rely on:

• the manner in which you drove a boat or maneuvered on water skis, an aquaplane, or similar equipment,



• your physical appearance (red/watery eyes, slurred speech, unsteady gait, etc.), otherwise known as "objective signs and symptoms of intoxication",



• your performance on the field sobriety tests (FSTs), and



• the results of a chemical blood or breath test.

Simple BUI

If the prosecutor charges you with BUI under California Harbors and Navigation (H&N) Code 655b...also called "simple BUI"...he/she will use the above facts to prove:

• that you operated a boat, water skis, an aquaplane, or other similar equipment,



• while you were under the influence of alcohol and/or drugs.⁵

There are a few presumptions that apply to this offense.⁶

The first involves a BAC of less than 0.05%. If a chemical blood or breath test reveals these results, it is presumed that you were not under the influence of alcohol at the time of your arrest.

The second involves a BAC of 0.05% to 0.07%. If your BAC falls within this range, the judge/jury must decide whether you were, in fact, under the influence.

The third involves a BAC of at least 0.08%. If your BAC was 0.08% or higher, it is presumed that you were under the influence of alcohol at the time of your arrest.

BUI with a BAC of 0.08% or higher

If the prosecutor charges you under H&N Code 655c boating under the influence with a BAC of 0.08% or greater, he/she must prove that you:

1. operated a boat, water skis, an aquaplane, or other similar equipment, and



2. did so with a BAC of 0.08% or greater as measured by a chemical blood or breath test.⁷

Aggravated BUI

If the prosecutor charges you with California BUI causing injury under H&N Code 655f...otherwise known as aggravated BUI...he/she will need to prove:

• you were under the influence of alcohol and/or drugs, and



• while operating a boat, water skis, an aquaplane, or other similar equipment, you broke a law (in addition to boating under the influence), or otherwise drove in a negligent manner, that



• caused injury to another.⁸

Manslaughter while intoxicated

Similarly, if the prosecutor charges you with Penal Code 191.5 manslaughter while intoxicated, he/she must prove:

1. that you committed a simple or aggravated California BUI,



2. that you committed an additional negligent or grossly negligent act (not amounting to a felony), and



3. that your negligence caused the death of another.⁹

Penalties, Punishment, and Sentencing for Boating Under the Influence

Despite the fact that California BUIs are prosecuted in much the same manner as DUIs, the punishments vary quite a bit. If convicted, you still face a jail or prison sentence and heavy fines.

However, there are also two major differences. First, when charged with BUI, any prior BUI or DUI offenses will only add to your punishment if they were committed within seven years of the charged offense...instead of the ten years that are associated with California drunk driving cases.

It should be noted, however, that if you're charged with DUI, a BUI will count as a prior within ten years for punishment under California's DUI laws.¹⁰

Second, the California DMV will not revoke / suspend your driver's license following a BUI conviction like it routinely does in connection with DUI convictions. Although it used to do so, the California Supreme Court ruled that this practice was illegal in 2008.¹¹

It therefore follows that if you currently have a suspended / revoked license as a result of a California BUI that you suffered prior to 2008, you should consult with a California BUI defense attorney who will help you get your suspension / revocation lifted.

Misdemeanor simple BUI

If convicted of a first-offense BUI, you face

• up to six months in a county jail,



• a maximum $1,000 in fines, and



• California DUI school.¹²

If you are convicted of simple BUI and, within seven years suffered a prior

• California Harbors and Navigation Code 655b or 655c BUI,



• H&N Code 655f BUI with injury,



• Vehicle Code 23152 or 23153 DUI,



• Penal Code 191.5 PC vehicular manslaughter, or



• Penal Code 192.5 PC nautical manslaughter,

you face up to one-year in the county jail and/or a maximum $1,000 fine.¹³ If the judge grants probation, he/she will require that you complete an 18- or 30-month California DUI school.¹⁴

BUI charges for minors under 21

Just like DUI charges for minors under 21¹⁵, California has a "zero tolerance" policy for minors who suffer a BUI. If you are under 21 and have any measurable amount of alcohol in your system, you are prohibited from operating a boat, water skis, an aqua plane, or any similar equipment.¹⁶

If convicted of this infraction, you will be ordered to complete a minimum 12-hour DUI school and sentenced to pay:

• a maximum $100 penalty for a first offense,



• a maximum $200 penalty for a second offense if it is within one year of your first violation, and



• a maximum $250 penalty for a third or subsequent offense if it/they are within one year of your other violations.¹⁷

If you are under 21, the judge can convict you of this offense regardless of whether you took a chemical test if he/she believes you were under the influence of...or affected by...any amount of alcohol.¹⁸

Aggravated BUI

If convicted of aggravated BUI...which again, is a BUI causing injury...you face

• 90 days to one year in a county jail or 16 months, or two or three years in the California State Prison,



• $250-$5,000 in fines, and



• DUI school if the judge grants probation.¹⁹

Enhancements

Just like a DUI, if you are suspected of BUI and you refuse to submit to a chemical blood or breath test, you face an enhanced penalty. This means that the judge will tack-on a harsher punishment than he/she otherwise would have...but he/she must still sentence within the specified guidelines.²⁰

Another way to receive an enhanced sentence is to commit a hit and run. If you flee the scene after committing a nautical manslaughter while intoxicated, you face punishment under California's hit and run laws, pursuant to Vehicle Code 20001c VC.²¹ If convicted, you face an additional and consecutive five years in the California State Prison.²²

How Do I Fight a BUI Charge?

There are a variety of defenses that a California BUI defense attorney could present on your behalf, depending on the circumstances of your case. As you might guess, the defenses that are raised in a BUI case are very similar to those that are typically raised in a DUI case.

Boating pattern

Perhaps you were investigated for your California BUI because you drove your boat too fast, didn't turn properly, forgot to turn your lights on, or were taking risks on your water skis or jet ski.

The fact of the matter is that sober people engage in this type of behavior all the time. Distraction, competition, miscalculation...these are all innocent explanations for why law enforcement officers may have noticed you.

It must be noted that California Harbors and Navigation Code 655 boating under the influence only applies to motor-propelled boats or motor-propelled pulled equipment.²³ This means that if you are under the influence while operating a device that is exclusively self or water propelled, such as a

• kayak,



• canoe,



• raft,



• rowboat, or



• non-motorized sailboat...

you are exempt from prosecution under California's BUI laws.

Physical signs and symptoms of intoxication

As is typical in any BUI or DUI case, the arresting officer will testify that you had

• red/watery eyes,



• the smell of alcohol emitting from your breath,



• slurred speech, and



• an unsteady gait.

Nowhere would these symptoms be more exaggerated than on a boat.

Spending a day in the sun, on the water would certainly cause your eyes or face to turn red...especially if you didn't wear sunglasses or forgot to apply sunscreen.

The expression "sea legs" is well-known for a reason. After being on the water, your balance and coordination suffer.

Depending on how long you may have been on the water, you may be exhausted, which could account for your slurred speech.

And, once again, we must point out that drinking on a boat or while engaging in water-sport activities is not illegal...which could explain why you smell of alcohol.

Field sobriety tests (FSTs)

Much like the innocent explanations that can account for your physical appearance, there are a variety of innocent explanations that can account for poor performance on field sobriety tests (FSTs).

You may be lightheaded due to dehydration, exhausted, or suffering from a case of sea legs. Your legs could be weak from water skiing. You could be under the weather. Any of these...and many other...explanations could explain why you didn't perform the FSTs as well as you otherwise might have.

In addition, your California BUI defense lawyer will ask the officer to testify about all of the correct ways that you performed the FSTs. This testimony typically highlights the officer's true bias against you, as the number of things you did right usually far exceeds the number of things you did wrong.

And finally, your attorney will critically examine the officer and challenge the manner in which he/she administered the tests. Were you asked to perform the FSTs on a wobbly pier? Did the officer administer the approved FSTs? Did the officer sufficiently explain and demonstrate the instructions?

Inaccurate blood or breath test results

If your BAC was at or above a 0.08% (or 0.04% if you are a commercial operator), your BUI defense lawyer will challenge the results of your chemical blood or breath test. There are numerous issues that can cause false high readings for both types of tests.

Breath testing is susceptible to a number of errors...

• how and when you provided a breath sample could affect the accuracy of the test



• how recently the breath testing machine was calibrated or serviced could affect the accuracy of the test



• what you had eaten prior to your breath sample could affect the accuracy of the test, and/or



• whether you were eating, drinking, smoking, vomiting, regurgitating, or burping could all affect the accuracy of the test.

Similarly, if your blood test was contaminated, that could affect the accuracy of the reading. Questions regarding blood tests that your boating under the influence attorney will ask include:

• Who drew your blood? Was he/she trained to do so?



• Was the vial properly stored prior to your test? Was it properly sealed and mixed prior to the test?



• Was your sample stored properly? Who handled your blood sample?

Illegal stop / Lack of probable cause

California protects your constitutional right to remain free from unlawful intrusions. This means that the law enforcement agency that stopped you must have had a lawful reason to do so. It also means that the officer who arrested you for BUI must have had probable cause to do so. "Probable cause" means a reasonable suspicion that a crime was committed.

Often times your California BUI attorney may be able to prove that the officer wasn't justified in contacting you and/or in arresting you. If you prevail on this defense, the judge will dismiss your BUI charges.

The bottom line is this. Innocent people are falsely arrested and wrongly accused of BUI - period. Don't ever assume that you can't fight your BUI charge, because that simply isn't the case.

If you would like more information or would like to confidentially discuss your case with one of our California BUI defense lawyers, please don't hesitate to contact us.

We have local criminal law offices in Los Angeles, Orange County, San Bernardino, Ventura, San Jose, the San Francisco Bay area, and several nearby counties to conveniently serve you.

Arrested for BUI in Nevada?

Similar to California BUI, the Nevada crime of boating under the influence is also a simple misdemeanor and carries similar penalties. If you've been arrested for BUI in Nevada, our Las Vegas criminal defense attorneys may be able to persuade the prosecutor to reduce or dismiss your charges. Call them at 702-DEFENSE (702-333-3673) for a free consultation and learn more about the law at our information page: Nevada crime of boating under the influence.

Legal References:

¹California Harbors and Navigation Code 655b -- Reckless or negligent operation; safety regulations; operation under influence of alcoholic beverage or drug; actions causing personal injury; arrest; presumptions; foreign vessels. ("(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.")

²See H&N Code 655, subdivision "c" BUI. ("(c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.")

³See H&N Code 655, subdivision "d" BUI. ("(d) No person shall operate any vessel other than a recreational vessel if the person has an alcohol concentration of 0.04 percent or more in his or her blood.")

⁴See H&N Code 655, subdivision "f" Boating under the influence. ("(f) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or under the combined influence of an alcoholic beverage and any drug, and while so operating, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, water skis, aquaplane, or similar device, which act or neglect proximately causes bodily injury to any person other than himself or herself.")

⁵California BUI laws follow the same jury instructions as California DUI laws. Therefore, for simple BUI, Caljic 16.830 is applicable. California Jury Instructions - Criminal. Caljic 16.830 -- Misdemeanor Driving Under the Influence. ("In order to prove this crime, each of the following elements must be proved: [1] A person drove a vehicle; and [2] At the time, the driver was [under the influence of] [any alcoholic beverage] [or] [any drug] [or] [under the combined influence of any alcoholic beverage and drug] [or] [addicted to the use of any drug].")

⁶California Harbors and Navigation Code 655, subdivision "j" -- Boating under the influence. ("(j) Upon the trial of any criminal action, or preliminary proceeding in a criminal action, arising out of acts alleged to have been committed by any person who was operating a vessel or manipulating water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage in violation of subdivision (b) or (f), the amount of alcohol in the person's blood at the time of the test, as shown by a chemical test of that person's blood, breath, or urine, shall give rise to the following presumptions affecting the burden of proof: (1) If there was at that time less than 0.05 percent, by weight, of alcohol in the person's blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense. (2) If there was at that time 0.05 percent or more, but less than 0.08 percent, by weight, of alcohol in the person's blood, that fact shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but the fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage at the time of the alleged offense. (3) If there was at that time 0.08 percent or more, by weight, of alcohol in the person's blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense.")

⁷California Jury Instructions - Criminal. CALJIC 16.830.1 -- Misdemeanor Driving With 0.08 Percent Alcohol. ("In order to prove this crime, each of the following elements must be proved: [1] A person drove a vehicle; and [2] At the time, the driver had 0.08 percent or more, by weight, of alcohol in [his] [her] blood.")

⁸California Jury Instructions - Criminal. CALJIC 12.60 -- Felony Driving Under the Influence. ("In order to prove this crime, each of the following elements must be proved: [1] A person drove a vehicle while under the [influence of [any alcoholic beverage] [any drug]] [combined influence of any alcoholic beverage and any drug]; [2] That person concurrently [did an act which violated the law] [or] [failed to perform a duty required by law], namely, ; and [3] The [violation of law] [or] [failure to perform a duty] was a cause of bodily injury to a person other than the driver of the vehicle.")

⁹California Jury Instructions - Criminal. CALJIC 893 -- Vehicular Manslaughter While Intoxicated. ("In order to prove this crime, each of the following elements must be proved: [1] The driver of a vehicle violated Vehicle Code Section [23140,] [23152,] [or] [23153]; [2] In addition to that violation, the driver of the vehicle [committed [with gross negligence] an unlawful act [not amounting to a felony], namely a violation of , dangerous to human life under the circumstances of its commission] [or] [committed [with gross negligence] [negligently] an act ordinarily lawful which might cause death]; and [3] That [unlawful] [or] [negligent] act was a cause of the death of a human being.")

¹⁰California Vehicle Code 23620 -- Separate offenses. ("(a) For the purposes of this division, Section 13352, and Chapter 12 (commencing with Section 23100) of Division 11, a separate offense that resulted in a conviction of a violation of subdivision (f) of Section 655 of the Harbors and Navigation Code [boating under the influence]...is a separate offense of a violation of Section 23153. (b) For the purposes of this division and Chapter 12 (commencing with Section 23100) of Division 11, and Section 13352, a separate offense that resulted in a conviction of a violation of subdivision (b), (c), (d), or (e) of Section 655 of the Harbors and Navigation Code [BUI] is a separate violation of Section 23152.")

¹¹Cinquegrani v. Department of Motor Vehicles (2008), 163 Cal.App.4th 741, 744. ("May the state suspend the driver's licenses of individuals convicted of "boating under the influence"? After independently reviewing the pertinent Vehicle Code and Harbors and Navigation Code provisions, we conclude that state law does not authorize the Department of Motor Vehicles to automatically suspend the driver's licenses of individuals convicted of boating while intoxicated.FN1 The trial court correctly enjoined the state from proceeding with the unauthorized license suspensions...the DMV lacks statutory authority to suspend a driver's license solely to punish a BUI conviction...")

¹²California Harbor and Navigation Code 668 -- Violations; punishment; probation. ("(e) Any person convicted of a first violation of subdivision (b), (c), (d), or (e) of Section 655 [boating under the influence], or of a violation of Section 655.4, shall be punished by a fine of not more than one thousand dollars ($1,000) or imprisonment in the county jail for not more than six months, or by both that fine and imprisonment. If probation is granted, the court, as a condition of probation, may require the person to participate in, and successfully complete, an alcohol or drug education, training, or treatment program, in addition to imposing any penalties required by this code.")

¹³See same, subdivision "f". ("(f) Any person convicted of a second or subsequent violation of subdivision (b), (c), (d), or (e) of Section 655 within seven years of the first conviction of any of those subdivisions or subdivision (f) of Section 655 [BUI], or any person convicted of a violation of subdivision (b), (c), (d), or (e) of Section 655 within seven years of a separate conviction of subdivision (a) or (b) of Section 192.5 of the Penal Code, or a separate conviction of [Vehicle Code 23152 or 23153 DUI]...or Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, when the separate conviction resulted from the operation of a motor vehicle, shall be punished by a fine of not more than one thousand dollars ($1,000) or imprisonment in the county jail for not more than one year, or by both that fine and imprisonment.")

¹⁴See same. ("If probation is granted, the court, as a condition of probation, may require the person to do either of the following, if available in the county of the person's residence or employment: (1) Participate, for at least 18 months subsequent to the underlying conviction and in a manner satisfactory to the court, in a [DUI school] program licensed pursuant to Chapter 9...(2) Participate, for at least 30 months subsequent to the underlying conviction and in a manner satisfactory to the court, in a program licensed pursuant to Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code.")

¹⁵California Vehicle Code 23136 -- Blood alcohol concentration of .01 or greater [DUI charges for minors under 21]. ("(a) Notwithstanding Sections 23152 and 23153, it is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, to drive a vehicle.")

¹⁶California Harbors and Navigation Code 655.6 -- Operation of motorized recreational vehicle by minor with blood alcohol exceeding specified level [minor under 21 BUI]... ("(a) It is an infraction for a person under the age of 21 years who has 0.01 percent or more, by weight, of alcohol in his or her blood to operate any motorized vessel or manipulate water skis, an aquaplane, or a similar device.")

¹⁷See same, subdivision "d". ("(d) A violation of this section [California underage boating under the influence] is punishable by a fine not exceeding one hundred dollars ($100). A second violation occurring within one year of a prior violation which resulted in a conviction is punishable by a fine not exceeding two hundred dollars ($200). A third or any subsequent conviction within a period of one year of two or more prior infractions which resulted in convictions is punishable by a fine not exceeding two hundred fifty dollars ($250). A person found to have committed a violation of this section shall be required to participate in an alcohol education or community service program as provided in Section 23502 of the Vehicle Code.")

¹⁸See same, subdivision "b". ("(b) A person may be found to be in violation of subdivision (a) [California underage BUI] if the person was, at the time of operating any motorized vessel or manipulating water skis, an aquaplane, or a similar device, under the age of 21 years and under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine that person's blood-alcohol concentration and if the trier of fact finds that the person had consumed an alcoholic beverage and was operating any motorized vessel or manipulating water skis, an aquaplane, or a similar device while having a concentration of 0.01 percent or more, by weight, of alcohol in his or her blood.")

¹⁹See H&N Code 668, endnote 11 above, subdivision "g". ("(g) Any person convicted of a violation of subdivision (f) of Section 655 [California BUI] shall be punished by imprisonment in the state prison, or in the county jail for not less than 90 days or more than one year, and by a fine of not less than two hundred fifty dollars ($250) or more than five thousand dollars ($5,000). If probation is granted, the court, as a condition of probation, may require the person to participate in, and successfully complete, a [DUI school] program licensed pursuant to Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code.

²⁰California Harbors and Navigation Code 655.5 -- Refusal to submit to [chemical blood or breath] testing; enhanced penalties...("(a) Whenever a person convicted of any violation of subdivision (b), (c), (d), (e), or (f) of Section 655 [BUI] is found by the court to have willfully refused the request of a peace officer to submit to chemical testing of the blood, breath, or urine pursuant to Section 655.1, the court may impose enhanced penalties either by fine or imprisonment, or both, not to exceed the maximum of the penalties prescribed in Section 668.")

²¹California H&N Code 668k. ("(k) A person who flees the scene of the crime after committing a violation of Section 191.5 or paragraph (1) of subdivision (c) of Section 192 of the Penal Code [manslaughter while intoxicated] shall be subject to [California's hit and run laws] subdivision (c) of Section 20001 of the Vehicle Code.")

²²California Vehicle Code 20001c VC -- Duty to stop at scene of injury accident; penalties. ("(c) A person who flees the scene of the crime after committing a violation of Section 191.5 of, or paragraph (1) of subdivision (c) of Section 192 of the Penal Code, upon conviction of any of those sections, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison.")

²³California Harbors and Navigation Code 655.1 -- Operation under influence of alcohol or drugs; chemical testing. ("(a) As used in this section, "mechanically propelled vessel" means any vessel actively propelled by machinery, whether or not the machinery is the principal source of propulsion. (b) A peace officer, having reasonable cause to believe that any person was operating a mechanically propelled vessel or manipulating any water skis, aquaplane, or similar device under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, who lawfully arrests the person for any violation of subdivision (b), (c), (d), (e), or (f) of Section 655, may request that person to submit to chemical testing of his or her blood, breath, or urine for the purpose of determining the drug or alcoholic content of the blood.")

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