ARS 5-395 is the Arizona statute that makes it a crime for people 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 referred to as 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.
Operating under the influence is a misdemeanor offense (as opposed to a felony). The crime is punishable by:
- 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 Phoenix Arizona 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 successfully convict a person under ARS 5-395:
- 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 a 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 were not able to conduct a breath test, blood test, 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 resultingly 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 in the amount of $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
Per ARS 28-1383A1, DUI on an invalid license is an aggravated DUI offense where people drive under the influence after a driver’s license suspension, license revocation, or license cancelation.
Unlike with charges of boating under the influence, charges under this statute are always filed as felony offenses.
For additional help…
For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law offices/law firm at the Shouse Law Group. Our legal team provides both free consultations and legal advice you can trust.
- Arizona Revised Statutes 5-395.
- A.R.S 5-301.
- ARS 5-395C.