Boating under the influence (BUI) is the Nevada crime of operating a watercraft while impaired by drugs or alcohol or with a blood alcohol content (BAC) of 0.08% or higher. BUI is usually a misdemeanor carrying up to six months in jail and/or $1,000 in fines.
Here are three key things to know:
- If a BUI results in serious injury or death, it is a felony carrying 2 to 20 years in prison and $2,000 to $5,000.
- BUI also goes by OUI (operating under the influence) or BWI (boating while intoxicated).
- Depending on the case, BUI charges could be reduced or dismissed as part of a plea bargain.
In this article, our Las Vegas criminal defense attorneys discuss:
- 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. Full text of the Nevada BUI statute
- Additional resources
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 you are not impaired by the alcohol; or
- having illegal blood levels of certain drugs even if you are not impaired by them.1
By driving a boat in Nevada, you give “implied consent” to take a breath test or blood test if a law enforcement officer suspects you of boating drunk or high. The results of these tests could come in as evidence if the case were to proceed to trial.
If the officer believes you are only drunk and not high, you may choose a breath test over the blood test. Otherwise, you must take the blood test – because breathalyzers do not check for drugs, only alcohol.
If you refuse to take any test, then law enforcement may get a court order authorizing them to administer a forced blood draw.2
2. Is boating under the influence the same as a DUI?
Boating under the influence is a separate crime from driving under the influence (NRS 484C.110). BUI applies just to watercraft while DUI applies only to on-land automobiles.
Another difference is that, unlike DUIs, BUI convictions do not cause your driver’s license to get suspended.
3. What are the penalties under NRS 488.410?
Nevada BUI offense |
Penalties |
NRS 488.410 – no victim was killed or seriously injured | Misdemeanor:
In practice, judges also order an online boater safety course as well as community service.3 |
NRS 488.427 – BUI following a prior felony BUI conviction | Category B felony:
|
NRS 488.420 – BUI causing death or substantial bodily harm | Category B felony:
|
NRS 488.425 – BUI causing death, and you have three prior BUI convictions (“Homicide by vessel”) | Category A felony:
|
Note that judges may not grant probation or a suspended sentence in felony BUI cases. Plus if you are convicted of felony BUI, you must undergo an evaluation for alcohol and drug abuse.
Also note that if you are sentenced to prison for BUI, you should be housed in a minimum-security facility and are segregated from violent offenders.7
4. Can the charges be fought?
As with DUI, there are literally dozens of possible ways to fight Nevada allegations of drunk boating or drugged boating. Five common defenses are:
- You were not the one driving the boat;
- The law enforcement officer did not have probable cause to arrest you;
- The breath- or blood-testing equipment was defective;
- You had a physical or medical condition that causes falsely high BAC results;
- The law enforcement officer committed misconduct (such as not giving you the option to take a breath test when no drug use was suspected)
In every case, we would conduct a thorough investigation. This includes everything from
- getting the weather report and interviewing witnesses to
- documenting what you ate prior to the incident and gathering medical records.
Any of these factors could be the difference between a conviction and a dismissal. If we 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. Full text of the Nevada BUI statute
NRS 488.410. Unlawful acts; penalty.
1. It is unlawful for any person who:
(a) Is under the influence of intoxicating liquor;
(b) Has a concentration of alcohol of 0.08 or more in his or her blood or breath; or
(c) Is found by measurement within 2 hours after operating or being in actual physical control of a power-driven vessel or sailing vessel under way to have a concentration of alcohol of 0.08 or more in his or her blood or breath,
to operate or be in actual physical control of a power-driven vessel or sailing vessel under way on the waters of this State.
2. It is unlawful for any person who:
(a) Is under the influence of a controlled substance;
(b) Is under the combined influence of intoxicating liquor and a controlled substance; or
(c) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders the person incapable of safely operating or exercising actual physical control of a power-driven vessel or sailing vessel under way,
to operate or be in actual physical control of a power-driven vessel or sailing vessel under way on the waters of this State.
3. It is unlawful for any person to operate or be in actual physical control of a power-driven vessel or sailing vessel under way on the waters of this State with an amount of any of the following prohibited substances in his or her blood or urine that is equal to or greater than:
Prohibited substance
Urine Nanograms per milliliter
Blood Nanograms per milliliter
(a) Amphetamine 500
100
(b) Cocaine 150
50
(c) Cocaine metabolite 150
50
(d) Heroin 2,000
50
(e) Heroin metabolite: (1) Morphine 2,000
50
(2) 6-monoacetyl morphine 10
10
(f) Lysergic acid diethylamide 25
10
(g) Methamphetamine 500
100
(h) Phencyclidine 25
10
4. For any violation that is punishable pursuant to NRS 488.427, it is unlawful for any person to operate or be in actual physical control of a power-driven vessel or sailing vessel under way on the waters of this State with an amount of any of the following prohibited substances in his or her blood that is equal to or greater than:
Prohibited substance
Blood Nanograms per milliliter
(a) Marijuana (delta-9-tetrahydrocannabinol) 2
(b) Marijuana metabolite (11-OH-tetrahydrocannabinol) 5
5. If consumption is proven by a preponderance of the evidence, it is an affirmative defense under paragraph (c) of subsection 1 that the defendant consumed a sufficient quantity of alcohol after operating or being in actual physical control of the power-driven vessel or sailing vessel, as applicable, under way and before his or her blood was tested, to cause the defendant to have a concentration of 0.08 or more of alcohol in his or her blood or breath. A defendant who intends to offer this defense at a trial or preliminary hearing must, not less than 14 days before the trial or hearing or at such other time as the court may direct, file and serve on the prosecuting attorney a written notice of that intent.
6. Except as otherwise provided in NRS 488.427, a person who violates the provisions of this section is guilty of a misdemeanor.
Additional resources
Educate yourself about Nevada boating laws before going out on the water:
- Operation Dry Water – a program where patrol boats heighten enforcement during one high-traffic weekend a year
- Boating Rules and Regulations – an overview by the Nevada Department of Wildlife of the laws boaters must follow
- Boating at Lake Mead – an informational guide by the National Park Service
Injured in a BUI in Lake Mead? See our article about Lake Mead Boating Accidents and Injuries | Nevada personal injury lawyers. Plus see our article Nevada boating accident laws – 3 that you should know.
Legal References
- NRS 488.410. See also SB 59 (2023).
- NRS 488.460. See also People v. Arter, (2017) 19 Cal. App. 5th Supp. 1. See also People v. Gutierrez (2019) 33 Cal. App. 5th Supp. 11.
- NRS 488.410; Francis McCabe, “Erin Brockovich-Ellis quietly resolves her drunken boating case“, Las Vegas Review-Journal (October 4, 2013).
- NRS 488.427.
- NRS 488.420.
- NRS 488.425.
- NRS 488.430; NRS 488.420; NRS 488.427; NRS 488.425.