Florida Boating Under the Influence (BUI) Laws and Water Safety

Everyone enjoys a nice afternoon on the boat — but that fun outing on the boat can quickly turn bad if you are stopped for a “Vessel Safety Check” and the captain has been drinking alcohol. Most BUI/BWI cases in St. Johns County are investigated by officers with the Florida Fish Wildlife Conservation Commission aka FWC. Boaters may also be stopped in St. Johns County by deputies with the St. Johns County Sheriff’s Office Marine Patrol Unit or the U.S. Coast Guard.

Under Florida law, driving a vessel is different than driving a vehicle. If you are in a vehicle, the cops need a lawful basis to stop – such as a traffic infraction. If you are in a boat, the cops already have a lawful basis to stop you – a vessel safety check. Regardless, the penalties for a BUI/BWI are still just as severe as a DUI/DWI.

If you need an attorney to fight a Boating Under the Influence case in St. Johns County, Florida or surrounding areas, contact Mydock Law at (904) 864-3002 for a free consultation.

What Is a Vessel Safety Check in a BUI Case?

A typical boating under the influence case will start with a vessel safety check. The first questions in a vessel safety check will include a request that the captain or operator produce a whistle, fire extinguisher, and personal floatation devices. The officer will expect the captain or operator to locate these items without any assistance from the passengers on the boat. The officer may also ask for vessel paperwork or identification.

Stopping the vessel for a safety inspection is authorized by section 327.56, Florida Statutes, although the officer is not allowed to board the vessel unless they have consent, the captain/ operator is unable to produce the safety equipment, or the placement of the safety equipment requires boarding.

Florida Statutes (2023), section 327.56 (“Safety and marine sanitation equipment inspections; qualified.”) provides:

(1) No officer shall board any vessel to make a safety or marine sanitation equipment inspection if the owner or operator is not aboard. When the owner or operator is aboard, an officer may board a vessel with consent or when the officer has probable cause or knowledge to believe that a violation of a provision of this chapter has occurred or is occurring. An officer may board a vessel when the operator refuses or is unable to display the safety or marine sanitation equipment required by law, if requested to do so by a law enforcement officer, or when the safety or marine sanitation equipment to be inspected is permanently installed and is not visible for inspection unless the officer boards the vessel.

(2) Inspection of floating structures for compliance with this section shall be as provided in s. 403.091.

If the officer smells alcohol on the boat operator or the operator has slurred speech, a BUI/BWI investigation is likely to follow. The officer may perform that investigation on the boat or may move it to land.

Due to the constraints of a boat and the conditions caused by the water, the officer will usually administer different sobriety exercises than those employed in a standard DUI/DWI case that is investigated on land. Standardized field sobriety exercises in a DUI/DWI typically include the horizontal gaze nystagmus, the walk and turn, and the one-leg stand. These are the three approved by NHTSA. In a BUI case, the officer will usually administer the horizontal gaze nystagmus “HGN,” the palm pat exercise, the finger count exercise, the finger-to-nose exercise, and counting/alphabet exercises. See instructions for these boating safety exercises below.

See also section 327.35(1)(a), Florida Statutes, for more information on “Operating a vessel while normal faculties impaired.” Per section 327.35(10), “It is the intent of the Legislature to encourage boaters to have a “designated driver” who does not consume alcoholic beverages.”

If you need an attorney to fight a Boating Under the Influence case in St. Johns County, Florida or surrounding areas, contact Mydock Law at (904) 864-3002 for a free consultation.

What Are the Penalties for a First-Time BUI In Florida?

If you caught a BUI/BWI, you should know that the minimum penalties for a first offense of Boating Under the Influence include:

Mandatory Adjudication of Guilt, F.S. 327.36
Fine of not less than $500 or more than $1,000 for a first conviction F.S. 327.25(2)(a)1.a.
- If accompanied in vessel by a person under age 18 years old or if breath test result of .15 or more
  - Fine of not less than $1,000 or more than $2,000 for a first conviction, F.S. 327.25(4)(a)1.
Jail of not more than 6 months for a first conviction, F.S. 327.25(2)(a)2.a.
- If accompanied in vessel by a person under age 18 years old or if breath test result of .15 or more
  - Jail of not more than 9 months for a first conviction, F.S. 327.25(4)(b)1.
Probation for no more than 12 months, F.S. 327.25(6)(a)
Complete 50 hours of community service, F.S. 327.25(6)(a)
Alcohol Safety Education Course, F.S. 327.25(5)
10-day vessel impoundment/immobilization, F.S. 327.25(6)(b)

Standard conditions of probation may include:

Boater safety course
Do not consume any alcohol or any drugs (unless lawfully prescribed)
Do not enter any bar or establishment where primary purpose is the sale of alcohol
Do not possess any firearms or weapons
Do not leave the county of residence without prior approval of probation
If requested, submit to a warrantless search by probation
Submit to random drug and alcohol tests
Pay cost of supervision $50 / month

If you need an attorney to fight a first Boating Under the Influence case in St. Johns County, Florida or surrounding areas, contact Mydock Law at (904) 864-3002 for a free consultation.

Is There a Driver’s License Suspension in a BUI?

A conviction for boating under the influence (BUI/BWI) will NOT result in a driver’s license suspension or revocation of the privileges to drive a motor vehicle.

However, a BUI/BWI conviction can still nevertheless have a big impact on your freedom and driving privileges if you are later arrested for DUI/DWI because a BUI/BWI conviction will count the same as a prior DUI/DWI for enhancement purposes.

For purposes of DUI/DWI cases, see section 316.193(6) (Driving under the influence), Florida Statutes (2023), which provides in part that any conviction for a violation of section 327.35 (Boating Under the Influence; penalties; “designated drivers.”); or a previous conviction outside this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, driving with an unlawful breath-alcohol level, or any other similar alcohol-related or drug-related traffic offense, is also considered a previous conviction for violation of this section.

If you need an attorney to fight a Boating Under the Influence case in St. Johns County, Florida or surrounding areas contact Mydock Law at (904) 864-3002 for a free consultation.

Is There an Ignition Interlock Device Requirement in a Bui Case?

Florida Law has no provision for an ignition interlock device in a BUI case. See Chapter 327, Florida Statutes (2024).

What Is Refusal To Submit in a BUI Case?

If the boat operator refuses to submit to a test (breath-blood-urine), expect a citation for a violation of section 327.35215(1), Florida Statutes (2023), entitled “Penalty for refusal to submit” which provides: “A person lawfully arrested for an alleged violation of s. 327.35 who refuses to submit to a blood test, breath test, or urine test pursuant to s. 327.352 is subject to a civil penalty of $500.”

What Happens If You Refuse To Submit?

When a person refuses to submit to a blood test, breath test, or urine test pursuant to s. 327.352, a law enforcement officer authorized to make arrests for violations of this chapter shall file with the clerk of the court, on a form provided by the commission, a certified statement that probable cause existed to arrest the person for a violation of s. 327.35 and that the person refused to submit to a test as required by s. 327.352. Along with the statement, the officer shall also submit a sworn statement on a form provided by the commission that the person has been advised of both the penalties for failure to submit to the blood, breath, or urine test and the procedure for requesting a hearing. See section 327.35215, Florida Statutes (2023).

Accordingly, if a boater refuses testing, the Officer will complete form FWCCDLE 108F (revised 06/07): “Affidavit of Refusal to Submit to Breath, Urine, or Blood Testing.” The original will be filed with the clerk of court along with a probable cause narrative and a copy of the uniform boating citation. An additional copy is mailed to FWC – Law Enforcement Records Section, 620 South Meridian Street, Tallahassee, FL 32399-1600.

A person who has been advised of the penalties pursuant to the above subsection may, within 30 days afterward, request a hearing before a county court judge. A request for a hearing tolls the period for payment of the civil penalty, and, if assessment of the civil penalty is sustained by the hearing and any subsequent judicial review, the civil penalty must be paid within 30 days after final disposition. The clerk of the court shall notify the Department of Highway Safety and Motor Vehicles of the final disposition of all actions filed under this section by electronic transmission in a format prescribed by the department. When the department receives the final disposition, the department shall enter the disposition on the person’s driving record. See section 327.35215, Florida Statutes (2023).

What Are the Penalties If You Refuse To Submit?

It is unlawful for any person who has not paid a civil penalty imposed pursuant to this section, or who has not requested a hearing with respect to the civil penalty, within 30 calendar days after receipt of notice of the civil penalty to operate a vessel upon the waters of this state. Violation of this subsection is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. See section 327.35215, Florida Statutes (2023).

See also section 327.352, Florida statutes, entitled “Vessel Safety – Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal.”

Effective October 2021, changes were made by the Florida Legislature to the Boating Under the Influence refusal law found in section 327.359. Florida law now makes it a first-degree misdemeanor if a boat operator refuses a test and they were previously fined pursuant to 327.25215 (Vessel safety – Penalty for failure to submit to test), and now also if the boat operator previously had his or her driver license suspended for refusal to submit (including under 322.2615, 322.2616, 322.64, or similar statute). Section 327.359 was further amended to remove a blood test refusal from triggering a misdemeanor for prior refusals. The amendments still do not provide for a driver license suspension under the Florida BUI implied consent laws.

Florida Statutes (2023), Section 327.359 (“Refusal to submit to testing; penalties.”) provides:

Any person who has refused to submit to a chemical or physical test of his or her breath, blood, or urine, as described in s. 327.352, and who has been previously fined for refusal to submit to a lawful test of his or her breath, urine, or blood, and:

(1) Who the arresting law enforcement officer had probable cause to believe was operating or in actual physical control of a vessel in this state while under the influence of alcoholic beverages, chemical substances, or controlled substances;

(2) Who was placed under lawful arrest for a violation of s. 327.35 unless such test was requested pursuant to s. 327.352(1)(c);

(3) Who was informed that if he or she refused to submit to such test he or she is subject to a fine of $500;

(4) Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if he or she has been previously fined for refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor; and

(5) Who, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer,

commits a misdemeanor of the first degree and is subject to punishment as provided in s. 775.082 or s. 775.083.

If you need an attorney to fight a Boating Under the Influence Refusal to Submit case in St. Johns County, Florida or surrounding areas contact Mydock Law at (904) 864-3002 for a free consultation.

Can a First BUI Conviction Make a Future DUI or BUI Worse?

Generally, it is never good to have “history” because a future BUI and/or DUI can be enhanced based on a prior conviction for BUI and/or DUI. See Florida Statutes, Section 327.35(6), which provides:

For the second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 10 days.
For the third or subsequent conviction for an offense that occurs within a period of 10 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 30 days.

For the purposes of this section 327.35(6), any conviction for a violation of s. 316.193 (DUI) … or a previous conviction outside this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, driving with an unlawful breath-alcohol level, or any other similar alcohol-related or drug-related traffic offense, is also considered a previous conviction for violation of this section.

Likewise see Florida Statutes, Section 316.193(6)(m), which provides: For the purposes of this section, any conviction for a violation of s. 327.35 (BUI) … or a previous conviction outside this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, driving with an unlawful breath-alcohol level, or any other similar alcohol-related or drug-related traffic offense, is also considered a previous conviction for violation of this section.

Therefore, it is important to hire an experienced criminal defense attorney to fight your BUI case in St. Johns County, Florida or surrounding areas. Attorney for a boating under the influence case in St. Johns County, Florida contact Mydock Law at (904) 864-3002 for a free consultation.

Can a BUI Charge Be Amended to Reckless or Careless Operation of a Vessel?

In some BUI/BWI cases, the State may agree to amend the charge to “Reckless operation of a vessel” or “Careless operation of a vessel” as a violation of section 327.33(1), Florida Statutes. If you need an attorney to fight a “Reckless operation of a vessel” case in St. Augustine, Florida or surrounding areas, contact Mydock Law at (904) 864-3002 for a free consultation.

Florida Statutes (2023), section 327.33 (“Reckless or careless operation of a vessel”) provides:

(1) It is unlawful to operate a vessel in a reckless manner. A person who operates any vessel, or manipulates any water skis, aquaplane, or similar device, in willful or wanton disregard for the safety of persons or property at a speed or in a manner as to endanger, or likely to endanger, life or limb, or damage the property of, or injure a person is guilty of reckless operation of a vessel. Reckless operation of a vessel includes, but is not limited to, a violation of s. 327.331(6). A person who violates this subsection commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) A person who operates any vessel upon the waters of this state shall operate the vessel in a reasonable and prudent manner, having regard for other waterborne traffic, posted speed and wake restrictions, and all other attendant circumstances so as not to endanger the life, limb, or property of another person outside the vessel or to endanger the life, limb, or property of another person due to vessel overloading or excessive speed. The failure to operate a vessel in a manner described in this subsection constitutes careless operation. However, vessel wake and shoreline wash resulting from the reasonable and prudent operation of a vessel, absent negligence, does not constitute damage or endangerment to property. A person who violates this subsection commits a noncriminal violation as defined in s. 775.08.

(3) Each person operating a vessel upon the waters of this state shall comply with the navigation rules.

(a) A person who violates the navigation rules and the violation results in a boating accident causing serious bodily injury as defined in s. 327.353 or death, but the violation does not constitute reckless operation of a vessel, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(b) A person who violates the navigation rules and the violation does not constitute reckless operation of a vessel commits a noncriminal violation as defined in s. 775.08, punishable as provided in s. 327.73.

(c) Law enforcement vessels may deviate from the navigational rules when such diversion is necessary to the performance of their duties and when such deviation may be safely accomplished.

(4) Unless otherwise provided in this chapter, the ascertainment of fault in vessel operations and boating accidents shall be determined according to the navigation rules.

If you have been arrested for Boating Under the Influence in St. Augustine or surrounding areas, call Mydock Law at (904) 864-3002 for a free and confidential case evaluation.

What Does the State Have To Prove for a BUI?

The elements that the State prosecutor will have to prove in a BUI case can be found in Florida Standard Criminal Jury Instruction No. 28.14 “BOATING UNDER THE INFLUENCE” and section 327.35(1), Florida Statutes.

To prove the crime of Boating Under the Influence, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) operated a vessel.

2. While operating the vessel, [he] [she]

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.

b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].

Give if applicable. § 327.35(4), Fla. Stat.

If you find the defendant guilty of Boating Under the Influence, you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while operating the vessel.

b. the defendant was accompanied in the vessel by a person under the age of 18 years at the time of the Boating Under the Influence.

§ 327.02, Fla. Stat.

“Operate” means to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

§ 327.02, Fla. Stat.; State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013).

“Vessel” means a boat and includes every description of watercraft, barge, and airboat, other than a seaplane, on the water used or capable of being used as a means of transportation on water.

§ 327.354, Fla. Stat.

“Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, operate a vessel, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).

Impaired means diminished in some material respect.

§ 322.01(2), Fla. Stat.

“Alcoholic beverages” are considered to be substances of any kind and description which contain alcohol.

( ) is a controlled substance under Florida law. Ch. 893, Fla. Stat.

( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.

Give if appropriate. § 327.354(2)(a) and (2)(b), Fla. Stat.

1. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

It is not necessary to instruct on the “prima facie evidence of impairment” in § 327.354(2)(c), Fla. Stat., if the State charged the defendant with boating with a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that the defendant operated a vessel with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

Defense of inoperability; give if applicable.

It is a defense to the charge of Boating Under the Influence if the vessel was inoperable at the time of the alleged offense, unless the defendant was controlling or steering the vessel while it was being towed by another vessel upon the waters of the state. However, it is not a defense if the defendant was boating under the influence before the vessel became inoperable.

Lesser Included Offense: BOATING UNDER THE INFLUENCE — 327.35(1)

Category One – None. Category Two – Attempt.

Comment: This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2012 [87 So. 3d 679], 2014 [146 So. 3d 1110], and 2016 [192 So. 3d 1190].

If you have been arrested for Boating Under the Influence in St. Augustine or surrounding areas, call Mydock Law at (904) 864-3002 for a free and confidential case evaluation.

What Does the State Have To Prove for a BUI Refusal?

The elements that the State prosecutor will have to prove in a BUI refusal case can be found in Florida Standard Criminal Jury Instruction No. 28.13(a) “REFUSAL TO SUBMIT TO TESTING – BOATING UNDER THE INFLUENCE” and section 327.359, Florida Statutes.

To prove the crime of Refusal to Submit to Testing – Boating Under the Influence, the State must prove the following six elements beyond a reasonable doubt:

Give 1a or 1b or both as applicable.

1. A law enforcement officer had probable cause to believe (defendant) operated [or was in actual physical control of] a vessel in this state while

a. under the influence of [an alcoholic beverage] [(a chemical substance listed in 877.111 Fla. Stat.)] [(a controlled substance listed in Chapter 893)] to the extent [his] [her] normal faculties were impaired.

b. [his] [her] [breath] [blood] alcohol level was .08 or higher.

2. The law enforcement officer lawfully arrested (defendant) for Boating Under the Influence.

3. (Defendant) was informed that if [he] [she] refused to submit to a [chemical] [physical] test of [his] [her] [breath] [urine], [he] [she] would be subject to a fine of $500.

4. (Defendant) was informed that it is a misdemeanor to refuse to submit to a lawful test of [his] [her] [breath] [urine], if either [he] [she] had been previously fined under s. 327.35215, or if [his] [her] driving privilege had been previously suspended, for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine].

5. (Defendant), after being so informed, refused to submit to a [chemical] [physical] test of [his] [her] [breath] [urine] when requested to do so by a [law enforcement officer] [correctional officer].

6. (Defendant) had been previously fined under s. 327.35215 or [his] [her] driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine].

BUI refusal

s. 327.35215 is the Florida statute that covers refusal to submit to testing after an arrest for Boating Under the Influence.

Inference. § 316.1939(3), Fla. Stat. Give if applicable.

You are permitted to conclude that (defendant’s) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine] if a record from the Department of Highway Safety and Motor Vehicles shows such a suspension.

§ 327.02, Fla. Stat. Some of these terms have their own definitions in § 327.02, Fla. Stat., which should be given if necessary. See State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013) (holding that for a BUI prosecution, the state is not required to prove that the boat defendant was operating was subject to a license tax).

“Vessel” means a boat and includes every description of watercraft, barge, and airboat, other than a seaplane, on the water, used or capable of being used, as a means of transportation on water.

Mathis v. Coats, 24 So. 3d 1284 (Fla. 2d DCA 2010).

“Probable cause” exists where the totality of circumstances, from the perspective of the law enforcement officer’s knowledge, training, and experience, gave the officer reasonable grounds and a fair probability to believe that a crime had been committed.

§ 327.02, Fla. Stat. Give if applicable. “Operate” means to be in charge of or in command of [or in actual physical control of] a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

“Actual physical control” means the defendant must be physically in or on the vessel and have the capability to operate the vessel, regardless of whether [he] [she] is actually operating the vessel at the time.

Lesser Included Offense: No lesser included crimes have been identified for this offense.

Comments: Where the lawfulness of the arrest is at issue, special instruction will be necessary. This instruction was adopted on January 7, 2022.

If you have been arrested for Boating Under the Influence Refusal in St. Augustine or surrounding areas, call Mydock Law at (904) 864-3002 for a free and confidential case evaluation.

Sample field instruction worksheet for sobriety exercises in a BUI case:

Attorney for Boating Under the Influence Arrest in St. Augustine

If you need a defense lawyer following a BUI offense, attorney Travis Mydock is a Board-Certified Specialist in Criminal Trial Law by The Florida Bar. His practice is limited to DUI/BUI and criminal defense.

Mydock Law is a boutique criminal defense law firm located in St. Augustine, Florida. The firm frequently defends DUI/BUI cases in the Seventh Judicial Circuit: Flagler, Putnam, St. Johns, and Volusia counties; the Fourth Judicial Circuit: Clay and Duval counties; and the Eighth Judicial Circuit: Alachua, Bradford, and Baker counties.

Attorney Mydock has experience in Boating Under the Influence cases and related issues. Mydock Law frequently defends cases in the following counties:

St. Johns County BUI

Flagler County BUI

Duval County BUI

Clay County BUI

Putnam County BUI

Volusia County BUI

If you have been arrested for Boating Under the Influence in St. Augustine or surrounding areas, call Mydock Law at (904) 864-3002 for a free and confidential case evaluation.

Revised February 28, 2024

Legal Disclaimer: The information you obtain on this site is not, nor is it intended to be, legal advice. You should always consult an attorney for specific legal advice regarding your individual situation. Review of this website does not create an attorney-client relationship.

Sources:

VESSEL SAFETY CHECK (VSC) | University of Southern Florida.

Boating Regulations | FWC

The 2023 Florida Statutes (including Special Session C)

Florida Statutes Section 327.35

Revised March 12, 2024