Touch Here To Claim Your Consultation:(856) 429-2323
Leckerman Law, LLC

Boating While Intoxicated And Sobriety Testing

In New Jersey, it is an offense under the Commerce and Navigation statutes to operate a water vessel while intoxicated (BWI). N.J.S.A. 12:7-46 establishes the penalties if an operator is found guilty.

A person who violates this section shall be subject to the following:

(1) For a first offense:

(i) if the person’s blood alcohol concentration is 0.08% or higher but less than 0.10%, or the person operates a vessel while under the influence of intoxicating liquor, or the person permits another person who is under the influence of intoxicating liquor to operate a vessel owned by him or in his custody or control or permits another person with a blood alcohol concentration of 0.08% or higher but less than 0.10% to operate a vessel, to a fine of not less than $250 nor more than $400; and to the revocation of the privilege to operate a vessel on the waters of this State for a period of one year from the date of conviction and to the forfeiting of the privilege to operate a motor vehicle over the highways of this State for a period of three months;

 (ii) if the person’s blood alcohol concentration is 0.10% or higher, or the person operates a vessel while under the influence of a narcotic, hallucinogenic or habit-producing drug, or the person permits another person who is under the influence of a narcotic, hallucinogenic or habit-producing drug to operate a vessel owned by him or in his custody or control, or permits another person with a blood alcohol concentration of 0.10% or more to operate a vessel, to a fine of not less than $300 nor more than $500; and to the revocation of the privilege to operate a vessel on the waters of this State for a period of one year from the date of conviction and to the forfeiting of the privilege to operate a motor vehicle over the highways of this State for a period of not less than seven months nor more than one year.

 (2) For a second offense, to a fine of not less than $500 nor more than $1,000; to the performance of community service for a period of 30 days, in the form and on the terms as the court deems appropriate under the circumstances; and to imprisonment for a term of not less than 48 hours nor more than 90 days, which shall not be suspended or served on probation; and to the revocation of the privilege to operate a vessel on the waters of this State for a period of two years after the date of conviction and to the forfeiting of the privilege to operate a motor vehicle over the highways of this State for a period of two years.

 (3) For a third or subsequent offense, to a fine of $1,000; to imprisonment for a term of not less than 180 days, except that the court may lower this term for each day not exceeding 90 days during which the person performs community service, in the form and on the terms as the court deems appropriate under the circumstances; and to the revocation of the privilege to operate a vessel on the waters of this State for a period of 10 years from the date of conviction and to the forfeiting of the privilege to operate a motor vehicle over the highways of this State for a period of 10 years.

a. Upon conviction of a violation of this section, the court shall collect forthwith the New Jersey driver’s license or licenses of the person so convicted and forward such license or licenses to the Chief Administrator of the New Jersey Motor Vehicle Commission. In the event that a person convicted under this section is the holder of any out-of-State motor vehicle driver’s or vessel operator’s license, the court shall not collect the license but shall notify forthwith the Chief Administrator of the New Jersey Motor Vehicle Commission , who shall, in turn, notify appropriate officials in the licensing jurisdiction. The court shall, however, revoke the nonresident’s driving privilege to operate a motor vehicle and the nonresident’s privilege to operate a vessel in this State.

 b. A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section against a second or subsequent offender. If a second offense occurs more than 10 years after the first offense, the court shall treat a second conviction as a first offense for sentencing purposes and, if a third offense occurs more than 10 years after the second offense, the court shall treat a third conviction as a second offense for sentencing purposes.

Many questions exist concerning the prosecution of a boating while intoxicated charge. Aside from a breath test, how can a prosecutor prove guilt beyond a reasonable doubt?

Unlike a motor vehicle on the road, operators of water vessels are not expected to keep the vessel moving in a lane or even in a straight line. Often, operators navigate their boats with long arcing motion or zig-zags. Unless there is a near collision, the State would have difficulty showing that the typical vessel operating behavior is erratic and indicative of intoxication.

If a vessel is stopped by the police or some other law enforcement agency, such as the coast guard, then that stop has to be justified by reasonable suspicion that the operator has violated a commerce and navigation statute or is otherwise engaged in criminal activity. During the investigative stop, the law enforcement officer will most likely administer field sobriety tests while the operator is on the vessel. These tests could involve balance. But how can someone have a fair opportunity to perform balance tests on a vessel floating in the water? The short answer is that it is impossible.

Studies have been conducting concerning the effectiveness of field sobriety testing for suspected boating while intoxicated investigations. These studies involved the administration of the horizontal gaze nystagmus test (an eye test) and various seated tests. None of the tests administered involved balance. In fact, one of the studies mentioned that balance tests on a boat were not feasible.

I have encountered a number of BWI cases where the investigating officers laughably based their decisions on the performances of balance tests, such as the one-leg stand and walk-and-turn tests, while the operator was still on the water vessel. As one could imagine, those cases did not last too long and were eventually dismissed. So, if you are arrested for boating while intoxicated (BWI), remember that there are numerous defenses concerning these cases, which could call into question the legitimacy of the investigation and arrest.



Share this Article