ARS § 5-395 is the Arizona statute that makes it a crime to operate a motorized watercraft
- while under the influence of alcohol/drugs or
- with a blood alcohol concentration (BAC) of .08% or higher.
The offense is often called operating under the influence or “OUI.” A violation of the law is a Class 1 misdemeanor punishable by jail time and a minimum fine of $1,250.
- operating a motorboat with a BAC of .10%.
- driving a jet ski while drunk.
- taking control of a watercraft while intoxicated.
Criminal defense attorneys draw upon several legal strategies to help clients contest charges under this law. A few common ones include a lawyer showing that:
- a defendant was not under the influence,
- police stopped the accused without probable cause, and/or
- the defendant had a valid drug prescription.
- at least 10 consecutive days in jail, and
- a minimum fine of $1,250.
The penalties for the offense become harsher if a person violates the law a second or subsequent time.
In this article, our criminal defense attorneys/DUI lawyers will discuss what the law is under this statute, defenses available if charged, the penalties for a conviction, and related crimes.
1. How does Arizona law define “boating under the influence”?
In the State of Arizona, a prosecutor must prove the following elements to convict a person under ARS 5-395 successfully:
- the defendant was operating or in actual physical control of a motorized watercraft, and
- the defendant was impaired to the slightest degree, had a blood alcohol content above the legal limit of .08%, or had a drug or its metabolite in the person’s body.1
For the purposes of this statute, a “motorized watercraft” is any watercraft that is propelled by machinery whether or not the machinery is the principal source of propulsion.2 Examples include
- motorized fishing boats,
- jet skis, and
- sailboats with a motor.
2. Are there defenses to ARS 5-395?
People can challenge a charge under this code section, or any DUI offense for that matter, with an OUI or DUI defense. Three common defenses include an accused showing that he/she:
- was not under the influence.
- was stopped without probable cause.
- had a valid prescription for a drug.
2.1. Not under the influence
Recall that defendants are only guilty of OUI if they were boating while impaired. If the police could not conduct a breath, blood, or field sobriety tests to determine a defendant’s impairment level, the party can contest a charge by showing that he/she was not under the influence.
2.2. No probable cause
This is a common defense with violations of Arizona DUI laws. The police must have probable cause of a crime to legally stop a person of a suspected offense. This means it is always a defense for defendants to show that the police stopped them without probable cause. If the defense works, a judge may exclude certain evidence from the case and drop or dismiss a charge.
2.3. Valid drug prescription
Recall that people can be guilty of OUI if they operate a boat with any drug in their body. However, ARS 5-395C carves out an exception to this rule and says people are not guilty of violating the law if they had a valid prescription for the drug found in their system.3 Therefore, a defendant can try to contest a drug related charge by providing evidence of a valid drug prescription.
3. What are the penalties?
Operating under the influence is a Class 1 misdemeanor in Arizona. A first offense is punishable by:
- a minimum jail sentence of 10 days,
- a maximum fine of $1,250,
- completion of a drug screening or alcohol screening assessment, and/or
A second offense under this law is a misdemeanor offense punishable by:
- a minimum jail sentence of 90 days,
- fines for $3,000, and
- community service.
A third offense is a Class 4 felony punishable by:
- a minimum of four months in state prison,
- substance abuse treatment,
- forfeiture of the boat involved in the incident, and/or
- the potential loss of the ability to operate a watercraft.
4. Are there related offenses?
There are three crimes related to operating a boat under the influence. These are:
- DUI – ARS 28-1381A1,
- super extreme DUI – ARS 28-1382A2, and
- DUI on a suspended license – ARS 28-1383A1.
4.1. DUI – ARS 28-1381A1
Under ARS 28-1381A1, driving under the influence (or DUI/DWI) is the offense where someone drives or is in actual physical control of a motor vehicle while under the influence of:
- a vapor-releasing substance containing a toxic substance, or
- any combination of liquor, drugs, or vapor.
As with OUI, a first-time DUI is a misdemeanor offense punishable by jail time. Other drunk driving penalties or DUI penalties under Arizona’s DUI laws include:
- a driver’s license suspension or revocation,
- installation of an ignition interlock device (IID), and/or
- community service.
4.2. Super extreme DUI – ARS 28-1382A2
Under ARS 28-1382A2, super extreme DUI is the crime where people drive with a BAC of 0.20% or higher.
As with charges under ARS 5-395, people can contest DUI charges under this law with the defense that police stopped them without probable cause.
4.3. DUI on a suspended license – ARS 28-1383A1
Unlike with charges of boating under the influence, charges under this statute are always filed as felony offenses.
- Arizona Revised Statutes 5-395. The language of the statute reads as follows:
A. It is unlawful for any person to operate or be in actual physical control of a motorized watercraft that is underway within this state under any of the following circumstances:1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.
2. If the person has an alcohol concentration of 0.08 or more within two hours of operating or being in actual physical control of the motorized watercraft and the alcohol concentration results from alcohol consumed either before or while operating or being in actual physical control of the motorized watercraft.
3. While there is any drug as defined in section 13-3401 or its metabolite in the person’s body.
4. If the motorized watercraft is a commercial motorized watercraft and the person has an alcohol concentration of 0.04 or more.
B. It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state.
C. A person using a drug prescribed by a medical practitioner who is licensed pursuant to title 32 and who is authorized to prescribe the drug is not guilty of violating subsection A, paragraph 3 of this section.
D. The state shall not dismiss a charge of violating this section for either of the following:
1. In return for a plea of guilty or no contest to any other offense by the person charged with the violation of this section.
2. For the purpose of pursuing any other misdemeanor or a petty offense, including those arising out of the same event or course of conduct, unless there is clearly an insufficient legal or factual basis to pursue the charge of violating this section.
E. In any prosecution for a violation of this section the state, for the purpose of classification and sentencing pursuant to section 5-395.01 or 5-396, shall allege all prior convictions of violating this section occurring within the past eighty-four months, unless there is clearly an insufficient legal or factual basis to do so.
F. In a trial, action or proceeding for a violation of this section or section 5-396 other than a trial, action or proceeding involving operating or being in actual physical control of a commercial motorized watercraft, the defendant’s alcohol concentration within two hours of the time of operating or being in actual physical control as shown by analysis of the defendant’s blood, breath or other bodily substance gives rise to the following presumptions:
1. If there was at that time 0.05 or less alcohol concentration in the defendant’s blood, breath or other bodily substance, it may be presumed that the defendant was not under the influence of intoxicating liquor.
2. If there was at that time in excess of 0.05 but less than 0.08 alcohol concentration in the defendant’s blood, breath or other bodily substance, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
3. If there was at that time 0.08 or more alcohol concentration in the defendant’s blood, breath or other bodily substance, it may be presumed that the defendant was under the influence of intoxicating liquor.
G. Subsection F of this section shall not be construed as limiting the introduction of any other competent evidence bearing on the question of whether or not the defendant was under the influence of intoxicating liquor.
H. If a blood test is administered, only a physician, a registered nurse or another qualified person may withdraw blood for the purpose of determining the alcohol concentration or drug content. The qualifications of the individual withdrawing the blood and the method used to withdraw the blood are not foundational prerequisites for the admissibility of any blood alcohol content determination made pursuant to this subsection.
I. If a law enforcement officer administers a duplicate breath test and the person tested is given a reasonable opportunity to arrange for an additional test pursuant to subsection J of this section, a sample of the person’s breath does not have to be collected or preserved.
J. The person tested shall be given a reasonable opportunity to arrange for any physician, registered nurse or other qualified person of the tested person’s own choosing to administer a test or tests in addition to any administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.
K. If a person under arrest refuses to submit to a test or tests under section 5-395.03, whether or not a sample was collected pursuant to subsection L of this section or a search warrant, evidence of refusal is admissible in any civil or criminal action or other proceeding. The issue of refusal shall be an issue of fact to be determined by the trier of fact in all cases.
L. Notwithstanding any other law, if a law enforcement officer has probable cause to believe that a person has violated this section and a sample of blood, urine or any other bodily substance is taken from that person for any reason a portion of that sample sufficient for analysis shall be provided to a law enforcement officer if requested for law enforcement purposes. A person who fails to comply with this subsection is guilty of a class 1 misdemeanor.
M. A person who collects blood, urine or any other bodily substance under this section or any hospital, laboratory or clinic employing or using the services of the person does not incur any civil liability as a result of this activity if requested by a law enforcement officer to collect blood, urine or any other bodily substances unless the person, while performing the activity, acts with gross negligence.
N. A statement by the defendant that the defendant was operating a motorized watercraft that was underway and that was involved in an accident resulting in injury to or death of any person is admissible in any criminal proceeding without further proof of corpus delicti if it is otherwise admissible.
O. At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted.
P. For the purposes of this section, “alcohol concentration” means grams of alcohol per one hundred milliliters of blood or grams of alcohol per two hundred ten liters of breath.
- A.R.S 5-301.
- ARS 5-395C.