NRS 488.410 – “Boating Under the Influence” (BUI) in Nevada

Nevada BUI offense	Penalties
NRS 488.410 – no victim was killed or seriously injured	Misdemeanor: up to 6 months in jail, and/or up to $1,000 in fines
NRS 488.427 – BUI following a prior felony BUI conviction	Category B felony: 2 – 15 years in Nevada State Prison, and $2,000 – $5,000 in fines
NRS 488.420 – BUI causing death or substantial bodily harm	Category B felony: 2 – 20 years in prison, and $2,000 – $5,000 in fines
NRS 488.425 – BUI causing death, and the defendant has 3 prior BUI convictions	Category A felony: life in prison with the possibility of parole after 10 years; or 25 years in prison with the possibility of parole after 10 years

Predictably, many of Nevada’s drunk boating cases occur in Lake Mead and Lake Tahoe.

Depending on the case, BUI charges could be reduced or dismissed as part of a plea bargain. There are several possible defenses, including:

• the breath- or blood-testing equipment malfunctioned;
• the police committed misconduct when investigating or arresting the suspect; or
• the boat operator had a medical condition that caused falsely high blood alcohol concentration results

In this article, our Las Vegas criminal defense attorneys discuss the Nevada crime of driving a boat while impaired. Click on a topic below to jump to that section:

• 1. What is “operating a boat while under the influence” in Nevada?
• 2. Is boating under the influence the same as a DUI?
• 3. What are the penalties under NRS 488.410?
• 4. Can the charges be fought?
• 5. Can immigrant defendants be deported?
• 6. When can the record get sealed?

1. What is “operating a boat while under the influence” in Nevada?

It is a crime in Nevada “to be in actual physical control of a vessel under power or sail” while either:

• impaired by drugs, alcohol, or other chemicals;
• having a blood alcohol content (BAC) of at least 0.08% even if the person is not impaired from the alcohol;
• having illegal blood levels of the following drugs even if the person is not impaired from the drugs:

Prohibited substance while driving a boat in Nevada	Prohibited blood levels (nanograms per milliliter)
Amphetamine	100
Cocaine	50
Cocaine metabolite	50
Heroin	50
Heroin metabolite morphine:	50
Heroin metabolite 6-monoacetyl morphine	10
Lysergic acid diethylamide	10
Marijuana (delta-9-tetrahydrocannabinol) – only for third- or successive DUIs in a seven year period.	2
Marijuana metabolite (11-OH-tetrahydrocannabinol) – only for third- or successive DUIs in a seven year period.	5
Methamphetamine	100
Phencyclidine	10

Note that people face BUI charges no matter what kind of vessel they are driving. This includes:

• ships
• yachts
• motorboats
• sailboats
• jet skis¹

1.1. Federal law

It is also against federal law under 46 USC § 2302 to drive a boat while under the influence of

• alcohol or
• a dangerous drug.

BUI suspects potentially face prosecution under both state and federal law if the lake or river is federal land. But in practice, it is rare for both state and federal prosecutors to press charges for the same BUI incident.

1.2. Enforcement

In the same way police patrol highways for erratic driving, police also patrol Nevada’s bigger lakes and rivers for erratic boating – especially during Memorial Day and Fourth of July. Nevada also participates in Operation Dry Water, where patrol boats heighten enforcement during one high-traffic weekend a year.

A recent high-profile BUI incident occurred at Lake Mead when a game warden spotted consumer advocate Erin Brockovich struggling to moor her motorboat. She subsequently failed a breathalyzer test and ultimately pleaded no contest in Henderson Justice Court.²

Nevada’s other popular water landmarks include:

• Colorado River
• Truckee River
• White River
• Lake Tahoe (Washoe & Douglas)
• Lake Las Vegas (Clark)
• Lake Mohave (Clark)
• Spooner Lake (Washoe)
• Overland Lake (Elko)
• Wild Horse Reservoir (Elko)
• Wilson Reservoir (Elko)
• Lamoille Lake (Elko)
• Lake Lahontan (Elko & Churchill)
• Topaz Lake (Douglas)
• Angel Lake (Elko)
• Washoe Lake (Washoe)
• Walker Lake (Mineral)
• Pyramid Lake (Washoe)

1.3. Breath and blood tests

Anyone who drives a boat in Nevada gives “implied consent” to take a breath or blood test if a law enforcement officer suspects him or her of operating while impaired.

1.3.1. Preliminary breath test

When an officer first approaches the suspect, the officer may administer a preliminary breath test for alcohol. The officer will arrest suspects who refuse to submit to the preliminary breath test, even if the results would have been negative for alcohol.

The results of the preliminary test may not be used as evidence against the suspect should the case eventually go to trial. This test’s sole purpose is to help the officer to determine whether the suspect may be intoxicated.³

1.3.2. Evidentiary breath or blood tests

Once a BUI suspect gets arrested, the suspect must submit to

1. a breath test or
2. a blood test.

The results of these tests could come in as evidence if the case were to proceed to trial.

If the officer believes the defendant is only drunk and not high, the suspect may choose a breath test over the blood test. Otherwise, the defendant must take the blood test – this is because breathalyzers do not check for drugs, only alcohol.

If suspects refuse to take any test, then law enforcement may get a court order authorizing them to administer a forced blood draw.⁴

2. Is boating under the influence the same as a DUI?

Boating under the influence (NRS 488.410) is a separate crime from driving under the influence (NRS 484C.110), but they are very similar. Both laws prohibit being under the influence of alcohol or drugs while driving. The primary difference is that NRS 488.410 refers to driving watercraft while NRS 484C.110 refers to driving on-land automobiles.

3. What are the penalties under NRS 488.410?

The punishment for BUI increases with each successive conviction. And predictably, the sentence is harsher when the incident causes serious injury or death.

3.1. Misdemeanor BUI

A conviction in Nevada of operating a water vessel under the influence is a misdemeanor as long as no one gets seriously hurt or injured. The penalties carry up to six (6) months in jail and/or up to $1,000 in fines.

In practice, judges also order the defendant to complete

• an online boater safety course as well as
• community service.⁵

3.2. Felony BUI

Any BUI incident where the defendant has a previous conviction or where a victim was seriously injured or killed is a felony.

Note that judges may not grant probation or a suspended sentence to defendants convicted of felony BUI. Judges also may not dismiss felony BUI charges whenever there is probable cause to support the defendant’s guilt.

Also note that if the defendant’s boat had a passenger under 15 years old, the court will consider that an “aggravating factor.” This means that the judge will order a steeper sentence that he/she would otherwise.

In addition, note that every defendant sentenced for a felony BUI will be required to undergo an evaluation for alcohol and drug abuse.

Finally, note that people sentenced to prison for BUI are usually housed in a minimum-security facility and are segregated from violent offenders.⁶

3.2.1. BUI following a felony BUI

Getting a BUI after you have been convicted of a felony BUI is a category B felony. The penalty carries:

• two to fifteen (2 – 15) years in prison; and
• fines of $2,000 to $5,000⁷

3.2.2. BUI causing serious injury or death

A Nevada BUI that causes someone else to die or sustain serious bodily harm is a category B felony. The penalty carries:

• two to twenty (2 – 20) years in prison; and
• fines of $2,000 to $5,000⁸

3.2.3. Homicide by vessel

Causing death by a BUI when the defendant has three prior BUI convictions is a category A felony. The penalty carries:

• life in prison with the possibility of parole after 10 years; or
• 25 years in prison with the possibility of parole after 10 years⁹

3.3. Plea bargains

As with every criminal case, it may be possible to negotiate BUI charges down to a dismissal or a lesser offense.

A common plea bargain is when BUI is reduced to “reckless or negligent boating” under NRS 488.400. This is only a misdemeanor and carries less of a stigma than boating under the influence.

3.4 BUI vs. DUI

Unlike DUIs in Nevada, BUI convictions do not cause the defendant’s driver’s license to get suspended.

Also unlike DUIs in Nevada, BUIs have no “seven-year wipeout” rule: If someone gets a BUI conviction and then seven years pass, any subsequent BUI charges will be prosecuted as a subsequent charge – not as a first-time charge.

And whereas a second-time DUI is a misdemeanor (as long as no one gets seriously hurt), a second-time BUI is always a felony whether or not anyone gets hurt.

4. Can the charges be fought?

As with DUI, there are literally dozens of possible ways to fight Nevada allegations of operating a water vessel while impaired. Five common defenses are:

1. The defendant was not the one driving the boat;
2. The law enforcement officer did not have probable cause to arrest the defendant;
3. The breath- or blood-testing equipment was defective;
4. The defendant had a physical or medical condition that causes falsely high BAC results;
5. The law enforcement officer committed misconduct (such as not giving the defendant the option to take a breath test when no drug use was suspected)

In every case, the defense attorney would conduct a thorough investigation. This includes everything from

• getting the weather report and interviewing witnesses to
• documenting what the defendant ate prior to the incident and gathering medical records.

Any of these factors could be the difference between a conviction and a dismissal.

If the defense attorney can show the prosecutors that they have too weak a case to prove guilt beyond a reasonable doubt, the state should dismiss the charges.

5. Can immigrant defendants be deported?

Boating under the influence is typically not a deportable offense. However, immigration laws are in a state of flux and are unpredictable.

Any non-U.S. citizen who faces BUI charges should consult an attorney to try to ensure that the case will not threaten his/her legal status.

6. When can the record get sealed?

A misdemeanor BUI conviction may be sealed one (1) year after the case closes. However, felony BUI convictions may never be sealed from the defendant’s record.¹⁰

Note that BUI charges that get dismissed can be sealed from the defendant’s record right away.¹¹Learn about how to seal Nevada criminal records.

Call a criminal defense attorney…

If you have been arrested for boating under the influence or drunk driving in Nevada, call our Las Vegas DUI defense attorneys for a meeting. Our mission is to try to get your BUI charges reduced or dismissed as quickly as possible without jail time.

To learn about California BUI laws, go to our informational article on Harbors & Navigation Code 655.

Injured in a BUI in Lake Mead? See our article about Lake Mead Boating Accidents and Injuries | Nevada personal injury lawyers.

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