The Charlotte Observer reports that alcohol was a factor in a deadly boating accident on Lake Norman early this morning. The driver of the boat was killed when the boat hit a dock, causing him to be ejected from the boat. Two other passengers in the boat suffered minor scrapes and bruises but were not seriously injured. The accident occurred at approximately 2:15 a.m. when the boat driver was returning to his own dock. The boat’s passengers said the driver and passengers had been drinking prior to the accident and that the driver was speeding while driving back to his dock. Officials say that toxicology reports will confirm how much alcohol was in the driver’s system at the time of the accident.
This accident serves as a reminder that not only is driving a vehicle while impaired a crime, so is driving a boat while impaired. G.S. 75A-10(b1) states that
No person shall operate any vessel while underway on the waters of this State:
(1) While under the influence of an impairing substance, or
(2) After having consumed sufficient alcohol that the person has, at any relevant time after the boating, an alcohol concentration of 0.08 or more.
This is very similar to the driving while impaired statute G.S. 20-138.1(a) which states that
A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration; or
(3) With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.
There are a few differences between the application and enforcement of boating while impaired (BWI) provisions and driving while impaired (DWI) provisions. First, there is a special commission which was set up under North Carolina statute to enforce the Boating Safety Act. Under G.S. 75A-3(a), the Wildlife Resources Commission “shall enforce and administer the provisions of this Chapter.”
North Carolina statute further specifies how Chapter 75A is to be enforced. Under G.S. 75A-17(a)
Every wildlife protector and every other law-enforcement officer of this State and its subdivisions shall have the authority to enforce the provisions of this Chapter and in the exercise thereof shall have authority to stop any vessel subject to this Chapter. Wildlife protectors or other law enforcement officers of this State, after having identified themselves as law enforcement officers, shall have authority to board and inspect any vessel subject to this Chapter.
Subsection (e) of that section goes on to state that
Vessels operated on the waters of this State shall stop when directed to do so by a law enforcement officer. When stopped, vessels shall remain at idle speed, or shall maneuver in such a way as to permit the officer to come alongside the vessel. Law enforcement officers may direct vessels to stop by using a flashing blue light, a siren, or an oral command by officers in uniform. A person who violates this subsection is guilty of a Class 2 misdemeanor.
North Carolina courts have interpreted this section of North Carolina statute to allow enforcement officers to stop a boat for inspection at any time. This leads us to another difference between BWI and DWI. Under DWI law, for a police officer to make a traffic stop, the officer must have reasonable suspicion that the driver has committed a crime or an infraction. There is no such requirement for a wildlife protector to make a stop of a person’s boat. The North Carolina Court of Appeals has held that a boat operator has a “diminished” expectation of privacy. The court reasoned that a boat operator should be aware of “safety regulations which mandatorily are to be followed” and should know “that with regulations also come inspections.” Unlike a police officer who can run the license plate on a car, a wildlife protector cannot inspect a boat without stopping it.
Another difference between DWI and BWI is that unlike DWI, BWI is not an implied consent offense. When a driver operates a vehicle on a highway, he gives his implied consent to submit to breath and blood test. However, a boat operator has not impliedly consented to submit to breath and blood tests. A refusal to submit to a breath test after a DWI arrest comes with an automatic year long license revocation. This is not true for BWI, although a similar statement is read to a boat operator when he refuses to submit to a breath test as is read to a driver arrested for DWI. This statement advises the boat driver about his right to refuse the test and that such refusal is admissible at trial.
Without implied consent, an officer must obtain a search warrant to draw blood for a blood test if a boat operator refuses a breath test. Extending DWI case law reasoning, however, it is possible that a significant delay in obtaining a search warrant would provide exigent circumstances because of the dissipation of alcohol and allow a warrantless search under the Fourth Amendment.
BWI and DWI also have different sentencing structures. Although DWI is a misdemeanor, North Carolina statute provides a separate sentencing scheme for those found guilty of DWI under G.S. 20-179. There is no separate sentencing scheme for BWI, which is a Class 2 misdemeanor under G.S. 75A-10(b4) and is “punishable by a fine of not less than two hundred fifty dollars ($250.00).”
If you have been charged with boating while impaired, visit www.rflaw.net to get legal help.