Consumption of alcohol on navigable waters has a long tradition, going back to the British Royal Navy, where the alcohol ration given to all sailors at noon was 4.5 liters of beer, which was replaced in 1655 with half a pint of rum after the British capture of Jamaica from Spain. The tradition remained in the Royal Navy until abolished in 1970, when a British admiral concluded that intoxicated sailors were less capable of managing complex machinery. Well…duh!

Many boaters may consider it their right as weekend sailors to continue the tradition of consuming sizeable quantities of alcohol on Washington waters, but they better beware. A sea change in the law has come. State lawmakers recently took the fight against impaired boating to the water, and boaters will soon face stiffer penalties if convicted of boating under the influence (BUI), and may be fined $1,000 for refusing a breath test. The new legislation, SSB 5437, was signed into law by Governor Jay Inslee yesterday, and should take effect in July.

Operating a vessel with a .08 blood alcohol content (BAC) or impaired by alcohol or drugs is a crime, punishable by potential fines and jail. While still a crime, BUI previously had not carried as stiff penalties as those for driving a motor vehicle under the influence (DUI).  The changes to Washington boating safety laws attempt to bring the penalties for BUI into parity with those for DUI, at least for the time being.

Under existing law, a boater suspected of BUI could exercise their right to refuse a breath test without fear of penalty if arrested for BUI.  Unlike a DUI, where a person faces a near-certain driver’s license revocation if they refuse a breath test, no analogous penalty or consequence existed if a boat operator suspected of BUI refused a breath test.  Until now, that is.  The new law adds what is called “implied consent” language to RCW 79A.60.040, which now provides that anyone operating a vessel on Washington waters is deemed to have consented to undergo testing of the person’s breath or blood for alcohol, marijuana or other substances.  The law enforces implied consent by providing that anyone suspected of BUI who refuses a breath test will be guilty of a Class 1 civil infraction, and subject to a monetary penalty of $1,000.

Under the new law, a person is only required to submit to a breath test when that person is actually arrested for an offense where the officer has reasonable grounds to believe that the vessel was operated by a person under the influence. As a practical matter, this means that an officer can arrest a vessel operator and demand a breath test anytime he or she can articulate reasonable grounds for believing that the vessel operator is under the influence.  Unlike when operating a motor vehicle on the roads, there is no law prohibiting the consumption of alcohol while operating a vessel on Washington waters, and whether a person is “properly” operating a vessel on an open body of water is far more subjective than it is with a motor vehicle on the road.  Accordingly, a determined law enforcement official is apt to have little problem articulating some “reasonable ground” for suspecting BUI whenever an open container of alcoholic beverage is found on board a vessel that is under way.  For example, a frequently-cited ground for detaining a vessel is when they it was observed to have a visible wake in a “no wake” zone.  As a practical matter, it is safe to assume that a reason can always be found to justify a stop.

It should also be noted that the breath test a BUI suspect must take, or incur the $1,000 fine, is the “official” breath test conducted with a BAC DataMaster testing unit, which is typically only found at the local law enforcement office for the jurisdiction.  The required breath test is NOT the portable, hand-held, breath testing unit that is usually carried by marine patrols, and is often referred to as an “Alcosensor.”  Nevertheless, while a boater is not legally required to submit to the portable, hand-held, breath testing, the practical consequence of refusing such a test may be arrest, the towing of the boat to an impound facility, and a trip to the local police station to undergo the official breath test.  Note also that at large gatherings, such as Seattle’s Seafair, you can expect that law enforcement will have a nearby shore facility equipped with a BAC DataMaster to promptly test and process those suspected of BUI.

As noted above, boaters will also now face stiffer penalties if convicted of BUI. The new law increases both the maximum jail time and maximum fines for those convicted. This was accomplished by changing the classification, or type, of misdemeanor for a BUI. Previously, a BUI charge was a “simple” misdemeanor, punishable by up to 90 days in jail and a $1,000 fine. The new law now classifies BUI as a “gross” misdemeanor, carrying maximum penalties of 364 days in jail and a $5,000 fine.

It is also noteworthy that the BUI law applies not only to motor vessels, but to any “vessel,” which is defined to include “…every description of watercraft on the water, other than a seaplane, used or capable of being used as a means of transportation on the water. However, it does not include inner tubes, air mattresses, sailboards, and small rafts or flotation devices or toys customarily used by swimmers.”  Accordingly, drunk kayakers are not immune from the new law, but Huck and Jim may be safe on their small raft.

Where Washington law officials may have been unable to effectively prosecute boaters for BUI for lack of sufficient evidence, imbibing boaters have sometimes been prosecuted for negligent boating by the U.S. Coast Guard.  Such prosecutions by the U.S. Coast Guard are conducted as administrative proceedings before an administrative law judge employed by the U.S. Coast Guard, and require proof by only a preponderance of evidence to support the finding of a violation, which is a far lower threshold of proof than the “beyond a reasonable doubt” standard applicable to criminal prosecution for BUI by state officials.  Under the mere preponderance of evidence standard, the mere testimony of a law enforcement official as to the boater’s appearance, conduct, smell, and vessel operation can be more than sufficient to sustain the finding of a violation of the applicable federal regulation.

The bulk of BUI cases in Washington come from major festivals on the water where crowds of boats congregate, such as Seattle’s Opening Day of Boating and the Seafair air show/hydroplane races.  At Seafair, BUI task forces made up of various federal, State and local jurisdictions routinely board vessels looking for impaired skippers and other violations (minors in possession, safety equipment deficiencies, lack of current vessel registration, etc.) on the water.  If you want to enjoy Washington waters at these events, it is best to have a mature, designated vessel operator who will not be imbibing and who is capable of convince a boarding officer that they have consumed no alcohol. This includes ready submission to a portable breath test, upon request.

To view this new legislation, click here.

Andrew Huff