Pensacola BUI Attorney Jason Cromey Answers:

If you are pulled over for something like a registration check, that does not automatically give law enforcement the right to conduct a boating under the influence investigation. In order to engage in a BUI investigation, the officer must have a reasonable suspicion that you are under the influence while operating your vessel. Common indicators of impairment are slurred speech, blood shot and watery eyes, a flushed face, unsteadiness, and the presence of open containers. Fortunately, many of these traditional signs of impairment can be explained away in a BUI case.

If you are out on the open water with the wind in your face, it is reasonable to expect that your eyes are a little watery or red. Similarly, if you are standing on a rocking boat, you are not going to be as steady on your feet as you would be on dry land. Florida is the land of sunshine, especially in the summer, and a sunburn can easily explain away a flushed face.

These sorts of explanations may allow your BUI attorney to challenge whether or not the law enforcement officer legally conducted the BUI investigation in the first place. If they didn’t have the right to detain you to investigate a BUI, then all the evidence they gather after that point should be thrown out of court, and possibly your case too.

If law enforcement decides to conduct a BUI investigation, one of the first things they are going to do is ask whether or not you are willing perform field sobriety exercises (FSEs). When it comes to boating under the influence investigations, the most common field sobriety exercises are ones that can be done while sitting down. There are others, but below is a brief explanation of the top four:

1. The horizontal gaze nystagmus test – the officer will hold the tip of a pen about 12 inches from your face. They will ask you to look at the tip of the pen and, without moving your head, to follow the tip of the pen with your eyes as they move it from side to side. The officer is looking to see whether you have any nystagmus, which is the involuntary jerking of the eye. As the officer moves the pen off to the right or left, if you eyes bounce or jerk at certain points, it can be an indicator that your alcohol level is over a .08. Testimony about whether or not you have nystagmus is considered by the courts to be scientific, which mean that only an expert can testify about it at trial. Very few law enforcement officers are qualified to provide this sort of expert testimony, so often times it can be excluded from use in your trial.
2. The finger-to-nose exercise – is one of those exercises that most people have heard of before. The officer will ask you to extend your arms out to your sides, pointing your index fingers. You are instructed to tilt your head back and close your eyes. The officer will tell you “right” or “left” and you are supposed to take the corresponding index finger and touch the tip of your finger to the tip of your nose. One of the alleged indicators of impairment is if you use the wrong hand. They are trained to try and trick you during this exercise. The exercise begins with your left hand, then your right, back to your left, and then back to your right. Here’s the trick: once they get you into the routine of going from one hand to the other, on the fifth attempt, the officer is going to mix it up, and tell you to use your right hand a second time in a row. That is just an example of how tricky some of the field sobriety exercises can be. Officers also tend to be very critical about what qualifies as the tip of your finger and the tip of your nose.
3. The palm pat exercise – another common on-the-water field sobriety exercises, starts with you putting one hand out, palm side up, and then placing the other hand on top of the first one, palm side down. The bottom hand will stay still while you flip the top hand over so that the back of that hand “pats” the bottom hand. Then you flip the top hand back over so that the palm of your top hand again pats the palm of the bottom hand. You count out “1, 2, 1, 2, 1, 2, etc.” as you flip your top hand over and back. The officer will tell you to speed up as you go, and not to stop until you are told to. Like the finger-to-nose, this exercise can be tricky, especially if you start speeding up and the officer just lets you keep going, waiting until you make a mistake until they tell you to stop. The palm pat exercise is not approved by the National Highway Transportation and Safety Administration (NHTSA) as a standardized field sobriety exercise, which provides your BUI lawyer a good method for attacking whether the exercise really has anything to do with proving impairment.
4. Finally, the finger count exercise – This exercise is, frankly, confusing and difficult to do on even your best day. The officer will have you extend out your hand and count each of your fingers with the tip of your thumb. You start with your index finger, and then work your way through the other three fingers. Once you get to the fourth finger, you’ll count the fourth finger again, and work your way back to your index finger. They also want you to count out loud as you do it, “1,2,3,4,” and then back “4,3,2,1.” Like the palm pat test, you will also be instructed to speed up as you go, and not to stop until you are told to do so. The finger count exercise is also not NHTSA approved, leaving many questions about the exercise’s actual ability to determine if someone is under the influence of alcohol.

Under Florida law, you are not required to do field sobriety exercises when asked to by an officer conducting a BUI investigation. They can’t suspend your license, fine you, or charge you with something else just because you politely decline. Because you have the absolute right to refuse field sobriety exercises, your decision about whether or not to do them is extremely important.

In theory, the officer is asking you to perform the exercises in order to give you the “opportunity to dispel any suspicion they have that you may be impaired.” While it sounds nice that they are supposedly giving you a chance, the truth is that the majority of officers are asking you to do the exercises because they have already made up their mind and they simply want to gain evidence that they intend on using against you.

Each field sobriety exercise involves complex directions and tricky tasks. Don’t forget that these law enforcement officers are trained on these at the police academy. They practice conducting the exercises, as well as performing them. Despite this training, they still need to read the instructions off of a card or sheet of paper in order to make sure they don’t miss something.

The point is this: each exercise provides numerous opportunities for you to make a “mistake,” and all it takes is two or three slip-ups on an exercise to fail it.

There are times when someone performs the exercises and the officer is satisfied that the person is fine to operate their boat, but those situations are nowhere near as common as people being arrested after agreeing to do the exercises. When deciding whether or not to do them, just keep in mind that you have the right to say no.

Under Florida law, if you are arrested for boating under the influence In Pensacola you are required to submit to a breath test. In order for the breath test request to be lawful, the officer has to request it after you are placed under arrest. If they ask you for a breath test before you are placed under arrest, then there is a good argument that the results, or the refusal, can be thrown out of court.

If you agree to a breath test the results will be used against you in your BUI case. One way the government can prove BUI is by showing you had a breath alcohol level over a .08. If you breath test results are proven to be over a .08, it does not matter whether or not you were really that impaired. That means that a breath test can help the government easily prove their case. Also, if your breath test result is over a .15, there are additional penalties that you could be facing.

You can always refuse to submit to a breath test. However, unlike a refusal to do field sobriety exercises, there are repercussions that come along with a refusal of a breath test after a BUI arrest. They are not going to take away your driver’s license for a BUI refusal, but you will receive a $500 fine. You have the right to challenge that fine in court, which we will discuss below. If it is your first ever refusal, that’s the extent of it.

However, if you have refused a breath or urine test before (whether it was a boating or driving under the influence case), you will also be charged with an additional misdemeanor for refusal. Whether or not someone should refuse a breath test is an individual decision that needs to be made on a case-by-case basis. If it is your first refusal, you are having to chose between giving the government strong evidence against you or paying a $500 fine. If it is your second or subsequent refusal, just remember that you will be charged not just with BUI, but also with misdemeanor refusal to submit.

If you refuse to submit to a breath or urine test, you will be subject to a civil penalty of $500. However, under Florida statute 327.35215, within 30 days of your arrest you can request a hearing before a county court judge to fight the penalty. At the hearing you are able to challenge, among other things, whether or not you were lawfully arrested and whether or not you were properly advised of the consequences of a refusal to submit to testing.

These hearings can be a good opportunity to question the arresting officer under oath at an early stage of the case. If you succeed at the hearing, you don’t have to pay the fine. If you lose, they will not do anything else to you besides ordering you to pay the $500.

If you lose your hearing you will have 30 days to pay the fine. The same is true if you don’t request a hearing – in that situation, you have 30 days from the arrest to pay the fine. It is important that you make arrangement to pay the $500 if required because if you don’t, and you get caught driving a boat again, even sober, you will be charged with a new misdemeanor.

First a first offense boating under the influence conviction, the punishments include:

1. A fine of not less than $500, not more than $1,000
2. Up to 6 months in the county jail
3. A period of monthly reporting probation
4. A substance abuse evaluation and recommended treatment
5. 50 hours of community service work
6. The vessel involved in the case must be impounded or immobilized for a period of 10 days.

If it is your first offense, and your breath test level was a .15 or higher, or there was a minor in the vessel at the time of the offense, the range for the fine increases to $1,000 – $2,000, and you face up to 9 months in jail.

Upon a second conviction for BUI, you will also be facing a fine of $1,000-$2,000, and up to 9 months in jail. If your second conviction occurs within 5 years of your first conviction, then the judge must impose a mandatory jail sentence of no less than 10 days in jail. A prior conviction for driving under the influence can be used just like a prior boating under the influence conviction to enhance the penalties.

It goes without saying that as the number of prior convictions increases, so do the penalties. For example, if your third offense occurs within 10 years of your last conviction, you will have to do a mandatory 30 days in jail, the fine increases, and your vessel has to be impounded for 90 days.