California Harbors and Navigation Code 655 – Boating Under The Influence

From stunning harbors, boatyards, and miles of eye-catching coastline to hundreds of reservoirs and lakes, there are undoubtedly many places where you can enjoy your time out either alone or with friends on a motorized boat. However, if you think boating will exempt you from driving under the influence (DUI) statutes, think again.

Just as it is illegal to operate an automobile under the influence of illegal drugs or alcohol, operating a boat or yacht while intoxicated by alcohol or unlawful drugs is also a criminal offense. If you are arrested or charged with boating under the influence (BUI) offense, it is natural to worry because you know what you are up against.

Although DUI statutes differ slightly from the boating ones under Harbors and Navigation Code (HNC) 655, the repercussions of a conviction could be serious and life-changing. Like a DUI offense, the key to securing the best possible outcome if you are under arrest or charged with a BUI offense is retaining the services of a defense attorney.

Our experienced attorneys at the Law Offices of Anna R. Yum could help you secure a dismissal of the alleged BUI offense or a lighter offense, with less serious consequences, wherever you are in San Diego.

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Understanding BUI Offense Under HNC 655

Vehicle Code (VC) 23152 is the statute that makes it unlawful to operate any automobile under the influence of alcohol or drugs. However, if you are under arrest or investigation as a suspect in a BUI-related case, the prosecutor will file your charges under HNC 655.

According to this statute, it is unlawful to drive any water vessel, including jet skis, fishing boats, passenger ferries, tour boats, and sportfishing boats, while intoxicated by alcohol, drugs, or with a blood alcohol concentration (BAC) of 0.08% and higher.

For the sake of this law, “being under the influence” means that your physical and mental capacity was impaired, limiting your ability to operate a boat as a sober, cautious person would under a similar situation. Below are examples of acts that could attract BUI charges under HNC 655:

  • Falling asleep on your boat’s helm due to the combined influence of alcohol and marijuana.

  • After drinking four beers, enough to bring your BAC to 0.08% or above, while boating with your friends, you decide to show them your jet skiing skills.

  • Operating a commercial yacht with passengers onboard with a BAC of 0.05% or higher.

It is worth noting that non-motorized watercraft, like canoes, rowboats, and kayaks, do not apply under this statute. If you are under investigation as a suspect in a BUI case, hiring a defense attorney can mean the difference between a conviction under HNC 655 and going free without a criminal charge.

Common BUI Charges You Ought to Know

Depending on the level of your intoxication and the facts of your unique case, the prosecutor could file your charges under any of the following statutes:

Harbors and Navigation Code 655(b)

HNC 655(b) makes it generally illegal to drive a watercraft or vessel while intoxicated by alcohol, drugs, or a combination of both. For the sake of this statute, drugs could include controlled substances and prescription drugs.

Like a DUI offense, the prosecutor must prove to the court beyond a reasonable doubt that you were under the influence to secure a HNC 655(b) violation conviction against you. To prove that you were under the influence, the prosecutor could cite any of the facts listed below:

  • Your performance in various field sobriety tests.

  • The results of your chemical blood and urine tests.

  • Objective signs of intoxication you exhibited, including watery eyes, red eyes, and an unsteady gait.

If your BAC level is 0.05 %, which is slightly lower than the illegal limit of 0.08 percent, the court will not assume you are impaired unless the prosecutor has evidence to prove so. The prosecutor will rely on the objective signs of intoxication the arresting officer noticed at the time of the arrest to prove you were impaired by alcohol or drugs.

If your BAC level at the time of the arrest was at 0.08 percent or higher, the prosecutor will file your BUI charges under HNC 655(c).

Harbors and Navigation Code 655(c)

Another way you can violate BUI laws is to operate any motorized boat, including jet skis, with a BAC of 0.08 percent or higher. During your BUI case’s trial, the court could convict you for an HNC 655(c) violation if the prosecutor can provide evidence to prove that your BAC level at the time of the arrest was at 0.08 percent or above.

Even if the prosecutor does not have evidence to prove that you were impaired or boating recklessly, the court could convict you under HNC 655(c) if the prosecutor can provide chemical or breath test results to prove your BAC level was at 0.08% or above.

Harbors and Navigation Code 655(d)

According to HNC 655(d), it is illegal to operate any commercial motorized watercraft 0.04 percent or higher. You are more likely to receive criminal charges under this statute if the vessel involved is any of the following:

  • A fishing boat.

  • A tour vessel.

  • A passenger ferry.

  • A sport fishing boat.

Harbors and Navigation Code 655(f)

Also commonly known as aggravated BUI, BUI with injury is another type of BUI offense you need to know. According to HNC 655(f), you commit this offense when:

  • You operate motorized watercraft while intoxicated by drugs, alcohol, or a combination of drugs and alcohol.

  • You neglect a crucial duty required by the law or commit an act prohibited by law while boating.

  • The negligence or act proximately causes the bodily injury of another person.

Even if the injury the victim sustained is minor, with appropriate evidence, the prosecutor could secure an HNC 655(f) violation conviction against you.

While it can be confusing and nerve-wracking to be under arrest or investigation for a BUI-related charge, you have options. With the legal assistance of a competent and experienced attorney, you could stand a chance of securing a dismissal of the charge or a lighter sentence.

Possible Sentence to Expect for a BUI Charge Conviction

The legal consequences you should anticipate upon a BUI charge will depend on whether you have a BUI-related criminal conviction on your record and the facts of your unique case. Because the penalties of a BUI charge conviction could vary significantly, we evaluate them in detail below:

Misdemeanor BUI Penalties

If you are a first-time offender, the prosecutor will file your BUI offense as a misdemeanor. Upon a BUI charge conviction under HNC 655(b), HNC 655(c), and HNC 655(d), you should expect the following misdemeanor penalties:

  • Up to six months of jail time.

  • A fine not exceeding $1,000.

  • Misdemeanor or informal probation with a requirement to enroll in a court-approved DUI school.

However, when you are a second or subsequent BUI offender, your conviction under HNC 655(b), HNC 655(c), or HNC 655(d) will carry the following misdemeanor penalties:

  • Informal probation.

  • Up to one (1) year of jail time.

  • Enroll in a court-approved DUI school.

Felony BUI Penalties

Unlike HNC 655(b), HNC 655(c), and HNC 655(d) charges, the prosecutor will file an HNC 655(f) as a wobbler offense, meaning it could attract felony or misdemeanor penalties upon conviction. A felony HNC 655(f) charge will carry the following potential consequences upon conviction:

  • Sixteen (16) months, two (2) or three (3) years of jail time.

  • Felony probation.

However, if your HNC 655(f) offense is a misdemeanor, your jail sentence upon conviction will include the following:

  • Ninety days to twelve (12) months of incarceration.

  • A fine ranging between $250 and $5,000.

  • Misdemeanor probation.

With the help of a seasoned defense attorney, the court could award you formal or informal probation instead of a jail term. However, the court could require you to serve a mandatory five-day jail sentence and pay a mandatory fine amounting to up to $250 if you do not have any aggravated BUI convictions on your record within the past seven (7) years.

However, if you have a conviction history for aggravated BUI, gross vehicular manslaughter, or DUI within the past 7 years, you could qualify for formal probation upon a subsequent HNC 655(f) violation conviction. However, you have to be ready to do the following to serve a jail sentence of up to ninety (90) days and pay a fine not exceeding $250 as a probation requirement.

Terms of Probation the Court Will Require You to Comply With Upon a BUI Charge Conviction

If you are eligible for formal or informal probation instead of a jail sentence upon a BUI charge conviction, the court could require you to adhere to the following terms and conditions:

  • Attend a DUI school.

  • Stay crime-free.

  • Agree to wear an ankle monitoring device.

  • Perform community service.

  • Suspension of your boating license.

  • Refrain from alcohol and drug use.

  • Agree to report or check in with a court-appointed probation officer regularly.

  • Agree to regular and random drug tests.

Probation is a more favorable alternative sentence than spending time in prison after a conviction for a BUI-related offense. However, you have to comply with the above terms and conditions for the required period.

Ensure you consult with your attorney or the court-appointed probation officer if you are unsure of what to do and not do while on probation.

Other Detrimental Consequences of a BUI Charge Conviction

In addition to the harsh legal penalties mentioned above, a BUI charge conviction carries other detrimental consequences that can affect your life’s quality. Examples of these detrimental consequences include the following:

  1. Suspension or Revocation of Driver’s License

Generally speaking, the court will treat a BUI offense as a DUI offense, meaning a conviction will result in revocation or suspension of your driver’s license.

  1. A Criminal Record

Like any other criminal offense, a BUI charge conviction will enter into your criminal record, negatively affecting several aspects of your life. For instance, a BUI charge conviction could make it challenging to do the following:

  • Find reliable employment.

  • Qualify for college or university admission.

  • Find a rental house or apartment to live.

  1. Loss of Your Gun Ownership Rights

Unfortunately, if you are guilty of a felony BUI offense under HNC 655(f), you will lose your legal right to own, possess, or carry a firearm. According to Penal Code 29800(a)(1) PC, it is a criminal offense for a felon to buy, carry, possess, or own a firearm. A conviction under this statute will attract a jail sentence of up to three (3) years.

Viable Defenses to a BUI Charge

While it is true you need to consult with a seasoned defense attorney to know the nature and the seriousness of the allegations you are up against, you will rely on your attorney at every stage of the prosecution process.

During your case’s trial, your defense attorney can apply various legal defenses to challenge the prosecutor’s evidence against you. Below are common defense arguments applicable in most BUI-related charges:

Your BAC Chemical Test Results Were Inaccurate

Your attorney can argue that your BAC test results were inaccurate because of any of the possible reasons listed below:

  • The police officer conducting the test was untrained.

  • You vomited before the BAC test.

  • The breathalyzer gadget was not well-serviced or standardized as required.

  • You had consumed medication or food that caused these exaggerated false results.

  • Your urine or blood samples were not correctly stored.

  • The containers used to store your urine and blood samples were tainted and unsterilized.

There are Alternative Explanations for Your Objective Signs of Intoxication

Your physical appearance during the arrest will be crucial to your BUI investigation. The arresting officer will testify at trial that you were intoxicated because you had:

  • A flushed face.

  • Watery and red eyes.

  • Unsteady gait.

  • Strong alcohol odor from mouth.

  • Slurred speech.

However, exhibiting these objective signs of intoxication does not necessarily mean you were intoxicated or under the influence. Your attorney can point out possible innocent explanations that could have led to these signs to secure the best possible outcome. For example, your red and watery eyes could be due to:

  • Allergies.

  • Eye irritation.

  • Fatigue.

  • A cold.

The Arresting Officer Lacked Probable Cause to Arrest You

According to the 4th Amendment of the Constitution, it is unlawful for a police officer to stop you without probable cause. For the court to consider your arrest to be legal, the prosecutor must prove that the arresting officers had probable cause or genuine reason to stop your motorized vessel or boat for a quick BUI investigation.

If your defense attorney can argue that the arresting officer racially profiled or stereotyped you because of your type of motorized boat, the court could drop or reduce your charges.

Your Field Sobriety Test Results Were Inaccurate

When field sobriety tests are conducted on moving or wet surfaces, even a sober person could perform poorly. The judge could dismiss or drop your charges if your defense attorney can argue that your field sobriety tests were inaccurate because you performed them in an unlit environment.

The Prosecutor’s Evidence Against You is Insufficient

The court will not convict you for a BUI charge if the prosecutor’s evidence against you is insufficient. To secure a BUI charge conviction against you, the prosecutor must provide the court with sufficient evidence to support his/her argument.

The specific defense argument your attorney will employ to challenge the BUI allegations you are up against will depend on your unique case particulars and circumstances.

Ensure you consult with an attorney as soon as possible if you are under investigation or arrest as a suspect in a BUI-related case. The sooner you contact an attorney, the better since some evidence related to the case can fade with time. A skilled attorney will know the specific evidence that can work in your favor in court to secure a favorable outcome.

Offenses Related to BUI Offense and Their Potential Penalties

In several aspects, BUI laws are closely related to DUI laws, except the automobile is a sea and ocean-faring motorized vessel. With this in mind, you could be curious about the potential consequences you could face if you are guilty of a DUI-related offense. Described below are common DUI offenses you ought to know and the potential consequences you could face upon conviction:

Drunk Driving

According to VC 23152(a), operating an automobile while under the influence of alcohol is illegal. You could be guilty of a VC 23152(a) violation even if the prosecutor does not have evidence to prove that your BAC level was at 0.08% or above.

What the court needs to convict you for a drunk driving offense is adequate evidence to prove that your mental and physical capacity was impaired, meaning you cannot drive safely like a sober driver would under similar circumstances. If it is your first-time offense, your sentence upon conviction for a drunk driving offense could include:

  • Five-year summary probation.

  • Attend DUI school.

  • A fine not exceeding $1,000.

  • 6-month driver’s license suspension.

  • Up to six (6) months of jail time.

Like a BUI offense, your penalties will be harsher if you caused an accident, leading to someone’s injury, or perhaps you have a past DUI-related conviction history.

DUI Causing Injury

Like a BUI with injury offense, you commit DUI causing injury offense when you do the following:

  • Operate a motor vehicle under the influence of drugs or alcohol.

  • In doing so, you cause an auto accident where another person sustains a bodily injury.

Since it is a wobbler, you should expect felony or misdemeanor penalties upon conviction. If you are guilty of misdemeanor DUI causing injury offense under VC 23153(a), your sentence could include:

  • Up to one (1) year of jail time.

  • Enroll in a DUI school.

  • A fine not exceeding $5,000.

  • Driver’s license suspension.

However, if your offense is a felony, your penalties upon conviction could include:

  • Habitual offender status for up to three (3) years.

  • A fine not exceeding $5,000.

  • A strike under the three strikes law.

  • Up to four (4) years of jail time.

  • 5-year driver’s license suspension.

Frequently Asked Questions About BUI Offenses

Whether you are under arrest or not, you would want to educate yourself about BUI offenses because you or a loved one can run afoul of the law in the future for a BUI-related offense. Below are the most common and frequent questions many people ask about BUI offenses:

  1. Would I be Eligible for Bail After a BUI Arrest?

Yes, the judge is more likely to require you to post bail if your BUI-related offenses involve injury or the death of another person or a BAC of 0.10% or higher. Other factors the court or the arresting officer will consider when determining whether you are eligible for bail include:

  • Your criminal record.

  • Whether you are a flight risk.

  • Whether you have a history of skipping bail.

  • Whether you are a threat to the community.

  1. What Happens When I Refuse a Chemical After a BUI Arrest?

Refusing a breathalyzer test or chemical blood or urine test upon an arrest as a suspect in a BUI-related offense is not a wise idea. According to implied consent law under VC 23612, you have no legal right to refuse a chemical urine or blood test upon a DUI or BUI arrest.

Refusing a chemical BAC test will attract harsher BUI penalties upon a conviction and mandatory suspension of your driver’s license, regardless of your case outcome.

Find a Skilled BUI Attorney Near Me

DUI and BUI are closely related offenses, but a conviction for BUI-related offenses could attract life-changing penalties. If you are under arrest or charged with a BUI-related offense, an attorney can help you understand your legal rights and offer you legal representation to secure a favorable outcome.

Our attorneys at the Law Offices of Anna R. Yum are here to help if you or a loved one is under arrest or in legal custody for a pending BUI-related offense in San Diego. Call us at 619-493-3461 to schedule your first cost-free consultation today.