Boating While Intoxication (BWI)

In 1995, the Legislature undertook a complete revision of boating intoxication laws that had been in effect since 1952. There are now, as a result of these revisions, four ways that a person can be convicted of intoxicated operation of a vessel under N.J.S.A. 12:7-46, each of which way requires operation of a vessel on the waters of New Jersey. Two terms that need to be understood therefore are “operation” and “waters of New Jersey”. Operation has been defined by the state very broadly to mean navigating, using, controlling, or commanding a vessel. It is important to note that the definition does not necessarily require movement of the vessel, a person that is simply in command of a vessel while intoxicated will be found guilty of Boating Under the Influence. The “waters of this state” have been defined as all waters within the jurisdiction of New Jersey, both tidal and non-tidal, and the marginal sea adjacent to the State to a distance of three nautical miles from the shoreline. Thus, in addition to the back bays, inlets, lagoons and open ocean bounding New Jersey’s shore towns, the intoxicated boating law includes also lakes, rivers, streams, canals and other places where vessels could be operated.

So How Is Intoxication Defined?

There are four ways that a person can be found guilty of this offense and they are to be under the influence of intoxicating liquor, a narcotic, hallucinogenic or habit-producing drug. The most prevalent of these offenses, however, is operation while under the influence of intoxicating liquors. This works in terms of prosecution in very much the same as the regular DWI offense under N.J.S.A 39:4-50. Under N.J.S.A. 12:7-46, it is illegal for a person to operate a vessel on the waters of this state with a blood alcohol concentration in excess of .08%.

What Are The Penalties?

A first time offender who is found under the influence of alcohol with a BAC of at least .08% but less than .10% will be subject to a fine that ranges from $250 to $400. Court costs of $33 may be imposed in the municipal court. The defendant must also pay a $50 assessment into court for the Victims of Crime Compensation Board (VCCB). All other convicted first time offenders, meaning those who have a BAC over .10%, will be subject to fines ranging $300 to $500 as well as court costs and the VCCB assessment. In terms of license suspension, a common misconception with operating a boat under the influence is that it won’t affect your driving privileges, but this is not true. For a person that operates a vessel under the influence with a BAC over .08%, but under .10% will be subject to a driver’s license suspension of 3 months and a boating license suspension of one year. For all other first time offenders, meaning people over .10% BAC, they will be subject to a loss of driving privileges for a term ranging from 7 months to one year in addition to loss of boating privileges for a period of one year.

A second time offender follows very much the same fines and penalties as a second offense DWI under N.J.S.A. 39:4-50(a). A second time offender is subject to fines that range from $500 to $1000 in addition to a $33 court cost and $50 fine payable to the VCCB. A convicted defendant will have to serve a mandatory 30 days of community service, which is the equivalent of 180 hours of community service to be done at a place designated by the county probation department. There is also a mandatory jail term required for second time offenders that ranges from 2 days to 90 days in jail. Part of this jail term may in some circumstances be transferred to time in an in-patient program approved by the Motor Vehicle Commission and the Division of Alcoholism and Drug Abuse in the Department of Health and Senior Services. In terms of license suspension, a second time offender will lose both their driving and boating license for a period not less than 2 years.

A third or subsequent offense of BUI (Boating Under the Influence) carries similar fines to a third or subsequent for DWI. A third or subsequent offender is subject to a fine of $1000 in addition to fines imposed for court fees and towards the VCCB in excess of another $80. There is a mandatory 180 day jail term for a third or subsequent offender. The term may be served in the county jail or in an in-patient rehabilitation center approved by the DMV and Division of Alcoholism and Drug Abuse in the Department of Health and Senior Services. This term can be reduced by 90 days if 90 days are relegated to community service. In terms of license suspension, like a third offense DWI, the penalty is the loss of your driving license for 10 years and the loss additionally of your boating license for 10 years.

There are however several mitigating factors, such as the step down doctrine, which also applies to DWI. What this doctrine does is that if there is a gap of ten years or more between offenses, the offense will be regarded as a first offense. An experienced attorney will be able to help you deal with these potentially serious offenses and here at The Law Offices of Jonathan F. Marshall we have over 100 years of collective experience defending DWI and BUI offenses in the state of New Jersey. In addition to having a number of former prosecutors on our staff, four of our lawyers are certified in the operation of the Alcotest 7110, the breath test device used in the state of New Jersey to measure BAC. We also boast three of only five attorneys in the state that are Certified Field Sobriety Instructors, instructors that know the ins and outs of the protocol that must be followed by police in performing Field Sobriety Tests. So please, if you or a loved one has been charged with a BUI offense in the state of New Jersey, do not hesitate to contact one of our conveniently located offices around the state.

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