Boating Under The Influence – BUI

(b) For the purpose of this section:

   (1) “Commercial vessel” means any vessel used or whose principal use is to carry passengers for hire for monetary or other consideration or any vessel used or whose principal use is to transport or to assist in the transportation of goods or services;

   (2) “Drugs producing stimulating effects on the central nervous system” includes the salts of barbituric acid, also known as malonyl urea, or any compound, derivatives, or mixtures thereof that may be used for producing hypnotic or somnifacient effects, and includes amphetamine, desoxyephedrine or compounds or mixtures thereof, including all derivatives of phenolethylamine or any of the salts thereof, except preparations intended for use in the nose and unfit for internal use; and

   (3) “Test” means any chemical test designed to determine the alcoholic or drug content of the blood.

(c) The fact that any person who operates any vessel subject to registration or any commercial vessel as defined in this section on public waters of the state while under the influence of narcotic or barbital drugs is or has been entitled to use such drugs under the laws of this state is not a defense to the violation of this section.

(d)  (1) Any person who operates any vessel subject to registration or any commercial vessel as defined in this section on the public waters of the state shall be determined to have consented to one (1) or more tests for the purpose of determining the alcoholic or drug content of the person’s blood; provided, that any such test is administered at the direction of an officer having reasonable grounds to believe the person has been operating any vessel subject to registration or any commercial vessel as defined in this section while under the influence of an intoxicant or drug.

   (2) The specimen to be used for such test shall include blood, urine or breath.

   (3) Any physician, registered nurse, licensed practical nurse, clinical laboratory technologist, clinical laboratory technician, licensed paramedic or, notwithstanding any other provision of law to the contrary, licensed emergency medical technician approved to establish intravenous catheters, technologist, or certified or nationally registered phlebotomist who, acting at the written request of an officer, withdraws blood from a person for the purpose of making such test, shall not incur any civil or criminal liability as a result of the withdrawing of such blood, except for any damages that may result from the negligence of the person so withdrawing. Neither the hospital nor other employer of such physician, registered nurse, licensed practical nurse, clinical technician, technologist, or certified or nationally registered phlebotomist, shall incur, except for negligence, any civil or criminal liability as a result of the act of withdrawing blood from any person submitting to such test.

(e)  (1) An officer who requests that the person operating any vessel subject to registration or any commercial vessel as defined in this section submit to a test pursuant to this section for the purpose of determining the alcoholic or drug content of such person’s blood shall, prior to conducting such test, advise the person that refusal to submit to such test will result in the suspension by the court of such person’s privilege to operate any vessel subject to registration or any commercial vessel as defined in this section.

   (2) The court having jurisdiction of the offenses for which such person was placed under arrest does not have the authority to suspend the privilege of a person who refuses to submit to the test if such person was not advised of the consequences of such a refusal.

(f)  (1) If such person having been placed under arrest and thereafter has been requested by an officer to submit to the test and advised of the consequences for refusing to do so, refuses to submit, the test shall not be given and such person shall be charged with violating this section.

   (2) The determination as to whether a person violated this section shall be made at the same time and by the same court as the one disposing of the offense for which such person was placed under arrest. If the court finds that the person violated this section, the person shall not be considered as having committed a criminal offense; however, the court shall suspend the privilege of such driver for a period of six (6) months.

(g) Any person, who is unconscious at the time of arrest or apprehension or otherwise in a condition rendering such person incapable of refusal, shall be subjected to the test, but the results of the test shall not be used as evidence against such person in any court without the consent of the person so tested.

(h) It is the duty of the enforcement agency investigating boating accidents in which fatalities or serious injuries occur to obtain blood alcohol content from all operators involved and submit the results of the blood alcohol content to the district attorney general.

(i) Upon the trial of any person charged with a violation of this section, the results of any test made of the person so charged are admissible in evidence in a criminal proceeding. Failure of an officer to request the administering of a test is likewise admissible in evidence in a criminal proceeding.

(j)  (1) For the purpose of this section, evidence that there was, at the time alleged, five-hundredths of one percent (0.05%), or less, by weight of alcohol in the blood of the defendant, shall create no presumption.

   (2) Evidence that there was, at the time alleged, alcohol concentration in a person’s blood or breath equal to or greater than the amount constituting the offense of driving under the influence of an intoxicant as provided in § 55-10-401(2) shall constitute a violation of this section.

(k) The results of any test authorized by subsections (d)-(l) shall be reported in writing by the person making such test and such report shall have noted on it the time at which the sample analyzed was obtained from the person. Upon request of the person tested, the results of such test shall be made available to such person.

(l)  (1) The procurement of a sample of a person’s blood for making a test as provided by this subsection (l) and subsections (d)-(k), to be considered valid under this subsection (l) and subsections (d)-(k), shall be performed by a registered nurse, licensed practical nurse, clinical laboratory technologist, clinical laboratory technician, licensed paramedic or, notwithstanding any other provision of law to the contrary, licensed emergency medical technician approved to establish intravenous catheters, technologist, or certified or nationally registered phlebotomist, or at the direction of a medical examiner or other physician holding an unlimited license to practice medicine in Tennessee under procedures established by the department of health.

   (2) Upon receipt of a specimen forwarded to the director’s office for analysis, the director of the Tennessee bureau of investigation shall have it examined for alcohol concentration or for the presence of narcotic or other drugs, if requested by the arresting officer, county medical examiner, or any district attorney general. The chief medical examiner or the medical examiner’s duly appointed representative shall execute a certificate that indicates the name of the accused, the date, time and by whom the specimen was received and examined, and a statement of the alcohol concentration or presence of drugs in the specimen.

   (3) When a specimen taken in accordance with this section is forwarded for testing to the office of the director, a report of the results of such test shall be made and filed in the director’s office, and a copy mailed to the district attorney general for the district where the case arose.

   (4) The certificate provided for in subdivision (l)(2) is, when duly attested by the director or the director’s duly appointed representative, admissible in any court, in any criminal proceeding, as evidence of the facts in the certificate stated, and of the results of the test; provided, that the person taking or causing to be taken the specimen and the person performing the test of such specimen shall be available, if subpoenaed as witnesses, upon demand by either party to the cause, or, when unable to appear as witnesses, shall submit a deposition upon demand by either party to the cause.

   (5) The person tested is entitled to have an additional sample of blood or urine procured and the resulting test performed by any medical laboratory of the person’s own choosing and at the person’s own expense; provided, that the medical laboratory is licensed pursuant to title 68, chapter 29.

(m) It is unlawful for any person or persons to operate any vessel subject to registration or any commercial vessel as defined in this section on the public waters of the state while such person’s privilege to do so is suspended.

(n) This section does not apply to any vessel that is moored or anchored.

Boating Under the Influence is a Class A Misdemeanor.  As a Class A Misdemeanor, the offense carries up to 11 months, 29 days in jail for any conviction. Boating under the influence also carries significant mandatory minimum sentences and sanctions upon the privilege of operating a boating vessel. Below are the current consequences: 

• 1st Offense– Fine $250 up to $2,500. Maximum jail sentence of eleven months and twenty-nine days in jail. In addition to the fine and jail time, the Court will order your boating privilege to be suspended for one (1) year. Not only is it a crime to operate a boating vessel when prohibited, it can also be a violation of probation subjecting you to serving the remainder of any jail sentence that is suspended.
• 2nd Offense: Fine $500 up to $2,500. This carries a maximum jail sentence of eleven months and twenty-nine days in jail. Under a 2nd Offense, the Court may suspend your boating privileges for two (2) years. 
• 3rd or Subsequent Offenses: Fine $1,000 up to $5,000 (at the discretion of the Court). Jail time not to exceed eleven months and twenty-nine days. The Court is mandatorily required to enforce a jail sentence of 30 days to serve for these offenses. Boating privileges may be suspended for three years up to ten (10) years. 

When can the TWRA stop and board your boat? The TWRA often stops vessels for what they term as Safety and Registration Stops. Tennessee Code Annotated Section 69-9-220 states that  the TWRA has the authority to stop and board any vessel subject to this chapter. This law has never been specifically challenged in the State of Tennessee and the TWRA and local prosecutors often argue any stop and boarding of a vessel is legal whether or not there is probable cause to believe a crime is being committed. We often challenge stops not based on probable cause as being in violation of both the Tennessee and the United States Constitution. However, as with an automobile, there are currently so many laws regulating your conduct that it is difficult for a boater or driver to avoid appearing to violate one of the many laws on the books. 

Do I have to take a blood test if charged with Boating Under the Influence? The implied consent laws related to automobiles and boating are very similar. If arrested, the boater will likely be asked to submit to a blood test in order to determine if they under the influence drugs or alcohol. The boater may refuse the test and, if so, they will likely be charged with the offense of refusing to submit to the test. If the arresting officer meets all of the proper requirements of advising the boater of the penalties, the boater’s privilege to operate a vessel will be suspended for 6 months. As with DUI arrests, the officer may well have the option of seeking a search warrant in order to take the blood sample.

Will a Boating Under the Influence conviction or refusing to take the blood test impact my ability to operate an automobile?  When clients are charged with BUI, there is a common fear that a conviction will suspend their ability to operate an automobile, thereby affecting their ability to work and support their family. The answer is no! No part of the BUI laws will impact an individual’s ability to operate an automobile, whether from a BUI conviction or refusing to take the blood test.

     Citizens accused of Boating Under the Influence have the same rights as those accused of any other crime. You are protected by the Constitution and our office will diligently and fiercely seek to provide you with the greatest protection that it provides. Call our office at (615) 444-3995 if you are charged with a BUI Offense and need the very best in criminal defense.