Published on:

Odor of Alcohol and Beer Cans Found on Boat WEre Not Sufficient for Boating Under the Influence (BUI) Investigation

In Florida, most alcohol related criminal cases are DUI cases, however it is not uncommon for us to see boating under the influence, or BUI, cases as well. There are some similarities between DUI and BUI cases as well as certain differences. As to the similarities, it is illegal to drive a boat while impaired, and the police will try and get the boat driver to submit to field sobriety exercises and a breathalyzer test just as with a DUI. Additionally, the penalties for BUI and DUI cases are similar.

There are also some key differences. Some of the observations the law enforcement officers make trying to prove impairment are obviously different when a person is on a boat versus in a vehicle. Additionally, it is not illegal to drink alcohol on a boat, while it is illegal for any occupant to have an open container of alcohol in a vehicle on the road.

In a recent case near Jacksonville, Florida, a Fish and Wildlife Department officer observed the defendant violating the wake free zone with his boat. He asked the defendant to pull his boat over to the officer’s boat. The defendant was able to maneuver his boat over to the officer’s boat. The officer then conducted a safety inspection which required the defendant to retrieve certain items such as a life vest, boat registration and other items required to be on the boat. The defendant had to balance himself while obtaining these items. The officer then indicated that he noticed an odor of alcohol coming from the defendant and saw two empty beer cans in the boat. Based on these observations, the officer requested the defendant submit to field sobriety tests and the breathalyzer test. Once those were completed, the officer arrested him for BUI.

The criminal defense lawyer filed a motion to suppress the evidence of the field sobriety exams and the breathalyzer. The law, which applies to BUI and DUI cases equally, says that a law enforcement officer may not detain a suspect for investigation including field sobriety tests and a breathalyzer test without reasonable suspicion that the driver was committing a crime. In other words, the officer needed to have specific evidence that the driver was impaired from alcohol. In this case, the officer relied on the fact that the defendant was unsteady while retrieving items on the boat, smelled like alcohol and had two empty beer cans on the boat. However, the court found this evidence to be insufficient evidence of impairment.

If this was a DUI case, it might have been different. Police officers are always testifying that drivers are swaying and/or unsteady on their feet. On land, this can be a difficult factor for a defendant to refute. However, on a boat, while trying to find items for the officer, being unsteady is understandable without regard to impairment. Smelling like alcohol may be evidence that a person has had alcohol to drink, but it does not mean that person is impaired. It is not illegal to have a drink or two and drive. It is only illegal to drive while impaired. Finally, the court did not find that the evidence of the beer cans was sufficient to support illegal activity. It is not illegal to drink on a boat. Also, there was no evidence that the driver was the one who drank those beers, or if he did, when he drank them.

Ultimately, the state did not establish that the officer had sufficient and specific reasons to suspect the defendant was impaired and committing a BUI offense. As a result, the evidence of the field sobriety tests and the breathalyzer test was suppressed, and the BUI case was thrown out.