Oct. 19 to 20 Denver ILFSS Conference-Faculty Member-Scott Wonder Presents

Oct. 19 to 20 Denver ILFSS Conference-Faculty Member-Scott Wonder Presents

Capture

 

Recent Washington Law Changes Make Seafair Boating Under The Influence (BUI) Charges Even More Critical – Part III

Recent Washington Law Changes Make Seafair Boating Under The Influence (BUI) Charges Even More Critical – Part III

Iphone 5 Images 2-11-13 443In this post we discuss whether to take a breath test when arrested for BUI.  It is now a civil infraction for a boater to refuse to give a breath or blood test when arrested for BUI, even when there is no search warrant.  The fine is $1,000.00.  However, a recent Washington Court of Appeals case, State v. Gauthier, examined Constitutional law and ruled suspects couldn’t be penalized for refusing to submit to a warrantless search.  Police have to get a search warrant.

Gauthier dealt with a warrantless request for a DNA test.  A request for DNA is a seizure that amounts to a search.  Without a search warrant, anyone is free to refuse a warrantless search without penalty.  Penalizing someone for refusing to submit to a warrantless search violates Constitutional principles and would put a chilling effect on people who would exercise their Constitutional rights but for the threat of being penalized.  That’s why Gauthier ruled you can’t be penalized for refusing a warrantless search.

What does this have to do with BUI?  Gauthier should apply with equal force to BUI and DUI charges.  Declining to submit to a warrantless DNA test is no different than refusing to submit to a warrantless breath or blood test – both are warrantless government searches and seizures of bodily substances for testing.  A person has a Constitutional right to refuse a warrantless search.  The Government can’t penalize a person for refusing a warrantless search and exercising a Constitutional right.  This ruling should apply to warrantless breath and/or blood testing.

It will be interesting to see if the civil fine for boaters who refuse BUI breath or blood tests holds up in court.  I suspect it will not.  And, boaters always have to remember that officers can get a search warrant for a blood test if they have probable cause.  Still, the consensus among the other skilled attorneys I have spoken to is that it is probably better to decline a breath test when arrested for BUI.

Recent Washington Law Changes Make Seafair Boating Under The Influence (BUI) Charges Even More Critical – Part II

Recent Washington Law Changes Make Seafair Boating Under The Influence (BUI) Charges Even More Critical – Part II

Iphone 5 Images 2-11-13 373In my last post, I discussed recent changes to BUI laws.  Although the best thing is to have a designated skipper, the ability to be charged with a BUI even if your alcohol test result is less than the .08 legal limit, the artificially low 5.00 THC level (which affects not only those with medical marijuana cards but many people completely unimpaired by marijuana), aggressive enforcement of BUI laws and the new BUI legal penalties mean skippers need to know what to do if they are stopped and investigated for DUI.

There is a significant difference between the US Coast Guard and Washington law enforcement officers.  The Coast Guard has broad authority to stop and inspect any boat.  In contrast, Washington officers generally have to have a reason to stop a boat, so don’t give them one.  Go slow.  Comply with the no wake zone.  Don’t let people bow ride.  Wait your turn in the narrow spots.  If you act like you are obeying the law, they don’t have a reason to stop you.

Once stopped, skippers (and their crew) should cooperate – up to a point.  A skipper has no obligation to do field sobriety tests, and few attorneys believe a skipper should do field tests.  A skipper has no obligation to do a portable (boat) breath test, and few attorneys would tell a skipper to do a portable breath test (unless the skipper has not been drinking at all).  We’ll talk about the tricky issue of whether to give a breath test or a blood test in our next installment.