NRS § 488.410 – Boating Under the Influence – Nevada Law

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:

1. You were not the one driving the boat;
2. The law enforcement officer did not have probable cause to arrest you;
3. The breath- or blood-testing equipment was defective;
4. You had a physical or medical condition that causes falsely high BAC results;
5. 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.

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