The Fourth of July is a time for celebration. Many people celebrate with fireworks. In this area, people also celebrate by spending time on the water in their boats, and it is not unheard of to also celebrate with alcohol. Unfortunately, mixing boating and alcohol can be not only illegal, but also dangerous. The Charlotte Observer reports that three people died in two separate boating accidents this weekend. The first accident occurred around 8:00 p.m. on Saturday night on Lake Norman. A 17-year-old girl was knee-boarding behind a boat. When the boat pulling her turned left, the pontoon boat that was behind it continued moving forward and struck the girl. The second accident occurred around midnight on Saturday night on Mountain Island Lake. A boat with four passengers hit a rock formation in the lake. The accident resulted in the death of two of those passengers. The other two passengers were injured and sent to Carolinas Medical Center in critical condition.
Although the relationship with alcohol in the second accident has not been confirmed, the driver of the pontoon boat in the first accident had a BAC of 0.14 at the time of the accident. Most people know that driving a motor vehicle while impaired violates the law, but boating while impaired is also illegal. 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.
In addition, much like the DWI statute’s expansive definition of the term “vehicle,” the BWI statute has an expansive definition of the term “vessel.” Some readers might know that a “vehicle” is defined under G.S. 20-4.01(49) as including not just cars and trucks, but also bicycles and tractors. In the world of BWI, the term “vessel” is broadly defined as “every description of watercraft or structure, other than a seaplane on the water, used or capable of being used as a means of transportation or habitation on the water.”
However, although the DWI and BWI statutes look similar, there are several differences in how they operate. First, the Charlotte Observer article notes that the requirements for boater education is quite different from the requirements for driver education. Before 2012, anyone could drive a boat without training and with no restrictions as to age. In 2012, the law became stricter for people born after 1988 (people born before 1988 are still not required to have any boater education). However, even the stricter requirements seem relaxed when compared to the education and testing a person must endure to obtain a driver’s license for a motor vehicle.
Another difference becomes apparent in connection with the licensing difference.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 does not impliedly consent to submit to breath and blood tests simply by operating a boat. Under implied consent laws, if a motor vehicle drive refuses to submit to a breath test after a DWI arrest, he receives 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. Applying the reasoning seen DWI case law, 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.
We see a second difference when we look at the agencies that enforce these crimes. Typically, the state or local law enforcement is responsible for enforcing the DWI laws. For BWIs, however, 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.”
G.S. 75A-17(a) further specifies how Chapter 75A is to be enforced:
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 provide 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, which leads us to another difference between BWI and DWI. For a police officer to make a traffic stop of a motor vehicle under DWI law, 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 explained 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.” The court went on to reason that unlike a police officer who can run the license plate on a car, a wildlife protector cannot inspect a boat without stopping it.
If you have been arrested for impaired boating or impaired driving, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.