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BWI=BOATING WHILE INTOXICATED
Getting a BWI is just like getting a DWI in Texas. One major difference between BWI and DWI defense is the justification for the stop. Texas law does not require a police officer have reasonable suspicion or probable cause to stop a boat operating on the waters of Texas, but does so require for an automobile stop.
• In Texas, it is illegal to operate a boat with a blood alcohol content of 0.08 or higher (the same as that for a DWI)
• Texas law establishes stiff penalties for boating while intoxicated (BWI) including:
*First conviction carries a fine up to $2,000 and/or jail time up to 180 days
*Second conviction carries a fine up to $4,000 and/or jail time up to one year
*Third conviction carries a fine up to $10,000 and/or jail time of 2-10 years.
• If you are found to be boating while intoxicated in Texas in a vessel that has an engine over 50 horsepower, your license will automatically be suspended.
Boating While Intoxicated -
Texas Penal Code § 49.06 makes it unlawful for a person to operate a boat while intoxicated. The statute reads:
“49.06. Boating while intoxicated.
- (a) A person commits an offense if the person is intoxicated while operating a watercraft.
- (b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.”
Texas Penal Code § 49.09 is the enhancement statute for BWI violations. It reads:
Ҥ49.09 authorizes the enhancement of boating while intoxicated to felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:
- (1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or
- (2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.”
Justification for the Stop
One major difference between BWI and DWI defense is the justification for the stop. Texas law does not require a police officer have reasonable suspicion or probable cause to stop a boat operating on the waters of Texas, but does so require for an automobile stop.
In Schenekl v. Texas, CITE, the Texas Court of Criminal Appeals considered, for the first time, whether Texas Parks & Wild. Code Ann. § 31.124(a) passes constitutional muster under the Fourth Amendment of the United States Constitution. The statute requires that boats meet various registration and safety requirements, and permits “an enforcement officer [to] stop and board any vessel subject to this chapter and may inspect the boat to determine compliance with applicable provisions.” Id.
In Schenekl the operator of a boat was stopped by a Game Warden after the boat left a marina at night. The officer claimed to have stopped Schenekl for a routine water safety check. Though not specifically addressed in the opinion, it is implied that the officer did not have probable cause or reasonable suspicion to stop the defendant for any law violation. After losing a motion to suppress argument at the trial court level, the defendant entered a no contest plea and appealed the denial of his motion to suppress. The Court of Appeals upheld the trial court, and the defendant appealed to the Court of Criminal Appeals.
In reviewing the case, the Court of Criminal Appeals first applied prior case holdings that, “[t]he permissibility of a particular law enforcement practice is judged by balancing the intrusion on the individual’s Fourth Amendment interests against the promotion of a legitimate governmental interest.” Id. citing Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). After reviewing prior decisions on how, and what factors, courts are to balance in considering these cases the Court held that, “the proper balancing test is two-pronged, weighing the State’s interest against the level of intrusion.” Id.
In applying that balancing test the Court found that the State has a “substantial interest in protecting the health and well-being of its citizens.” Id. citing Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 302-303, 97 S.Ct. 1056, 1064-1065, 51 L.Ed.2d 338 (1977). In reviewing the level of intrusiveness the Court considered that boats are not bound by established avenues of transport, do not bear license plates or registration stickers, and that fixed checkpoints would be impracticable. Id. The Court also found that while the random stopping of automobiles is impermissible, the random stopping of boats is not since boat travel is not a necessary means of transportation within our society. Id. Thus, the Court upheld the statute.
If the officer does provide a justification for the stopping of a boat, defense counsel should be vigilant in his questioning to lock the officer into the fact that he did not intend, nor perform, a routine safety inspection as justification for the stop. Such vigilance is required to preclude reviewing courts to conclude that the officer may have stopped the boat under the routine safety inspection rationale, thus uphold the stop even though it may have been constitutionally deficient.
Field Sobriety Tests in BWI cases
BWI cases provide special challenges for law enforcement and defense counsel alike. Attorneys representing people charged with BWI violations are well advised to apprise themselves of the methodology of the Standardized Field Sobriety Tests (SFST’s) administered by law enforcement, and retain an expert in SFST’s to review their case. This section is meant to provide an overview of the issues that may be raised, but is by no means an exhaustive discussion of how these issues may arise.
Attorney’s should carefully evaluate where the administration of the SFST’s take place. The original SFST study was validated by Marceline and Burns on a grant from the National Highway Traffic and Safety Administration (NHTSA). The study criteria demanded that the tests were administered on a smooth, flat, level surface. Additionally, while administering the horizontal gaze nystagmus exam, the suspects head is supposed to remain still. Obviously, both of the cited criteria are jeopardized if the tests are administered while on the water. If, however, the tests are administered on dry land shortly after the suspect had been boating, defense counsel should explore how long he had been on the water, what his “normal” balance would be under similar circumstances, and investigate the possibility that the suspect was suffering from “sea legs” during the performance of the test. An expert in this area can assist counsel in preparing an attack to the tests administered in any particular BWI case. It does not appear that the Court of Criminal Appeals have dealt with the validity of these standardized tests under the stated conditions. For more information on these tests see the section of this book on the SFST’s.
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