Houston Boating While Intoxicated (BWI) Lawyer

Attorney for Boating While Intoxicated Charges in Houston, TX

With the beautiful lakes and waterways in the Lone Star State, many will hitch their motor boats to the back of a pickup, load some beverages in the cooler, and make a beeline for the coast or the lake. Responsible boaters need to know they are increasingly vulnerable to being wrongfully arrested for boating while intoxicated. Unlike driving in a car, it is not unlawful to consume alcoholic beverages while operating a boat, or other watercraft, so long as the operator does not drink so much to become legally intoxicated (not having the normal use of your physical and mental faculties due to the introduction alcohol or a drug, or above a 0.08% alcohol concentration). It is commonplace—and perfectly legal—for people enjoying a hot Texas summer day on a boat or watercraft to enjoy a a cold beer, wine, or drink.

Water safety patrols are undoubtedly necessary to protect all people on the water, but some of the investigative tactics employed by water safety patrols in Texas cast such a wide net that many sober and responsible boaters are falsely accused of boating while intoxicated (BWI). Many boaters who are drinking and boating responsibly are subject to wrongful detention and arrest for BWI because of increased water patrols and the use of federal grant money to enforce water safety laws.

Texas law enforcement is now using a series of "float tests," or seated sobriety exercises, to justify arresting someone for boating while intoxicated. These "float tests" are police tools created by police officers for police officers. The float tests are seated sobriety exercises and were not created by doctors or scientists. The seated sobriety exercises are found in the National Association of State Boating Law Administrators in their Boating Under the Influence Seated Battery Transition Training Course, Student Manual.

Being charged with boating while intoxicated (BWI) is stressful, as it is never expected. A skilled Houston, Texas BWI attorney can help you understand how to defeat a boating while intoxicated charge. Whether you have a Lake Conroe BWI, Lake Houston BWI, Galveston BWI, Kemah BWI, or Lake Travis BWI, Doug Murphy is the only lawyer in Texas with numerous published BWI defense treatises in national, state, and local criminal defense legal publications. Doug has also presented on defending BWI cases nationally and also in Texas.

Boat Operation Requirements in Texas

In Texas, according to the Parks & Wildlife Department, there are more than half a million boats registered in the state. To operate one of these boats, a person must have taken a boater education course and must qualify according to age.

Boater Education

If you were born on or after September 1, 1993 and want to operate any vessel over 15 horsepower, wind-blown vessel over 14 feet, or all personal watercraft, then you are required to take a boater education course approved by the Texas Parks & Wildlife Department. You must be at least 13 years of age to take a boater education course, which is available online for a $20.00 fee.

Upon successful completion of the course, you will be provided a Boater Education Card, also referred to as a Boater Education Certificate. The card does not expire. You must keep this card with you when you are operating a boat. If caught without it, you could be fined.

Age Requirements

Pretty much anyone can operate some form of water vessel in Texas so long as he or she is 13 years or older. A person younger than 13 years of age may operate a water vessel so long as there is supervision by a person who:

• Is 18 years of age or older; and
• Can lawfully operate the watercraft or vessel; and
• Is on board when the vessel is underway and in control of the child who is younger than 13 years of age.

In Texas, you are not required to have a boating license, often required by other states.

Boating While Intoxicated: What Is it?

According to Texas Penal Code Ann. § 49.06, a person commits the offense of boating while intoxicated if the person is intoxicated while operating a watercraft. Texas Penal Code Ann. § 49.01(4) defines watercraft as "a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water." A conviction will require the satisfaction of one of the following elements:

• The offender operated a watercraft while impaired by drugs or alcohol so as not to have "normal use of mental or physical faculties;" or
• The offender operated a watercraft while having a blood, breath, or urine alcohol concentration (BAC) of 0.08% or greater.

How Do You Get Charged With a BWI?

Law enforcement patrols usually congregate near a marina where boats are launched or trailered. Law enforcement officials are legally permitted to stop any watercraft solely for the purpose of conducting a water safety check to ensure boaters meet the necessary safety requirements (adequate life vests, fire extinguisher, emergency horn, identification numbers properly placed, etc.). Once a law enforcement officer comes aboard a watercraft, an officer may smell alcohol or see evidence of alcohol consumption. If so, they will immediately shift their focus to a boating while intoxicated investigation.

If you have been boating, it is possible that your appearance or behavior can mimic and be confused with signs of intoxication by law enforcement—facial redness due to sun, bloodshot eyes from sun and wind, and wobbly sea legs. These are hallmark signs of intoxication that boaters can and do experience after a day on the water despite not being intoxicated.

Roadside sobriety tests used in DWI cases were not designed for application on boaters due to the motion effect of being on the water. Officers are now employing a series of seated float sobriety tests that are thoroughly discussed below.

You've Been Charged With a BWI. Now What?

The first step is hiring a skilled Texas BWI attorney with experience in these kinds of cases. BWI attorney Doug Murphy is highly knowledgeable in BWI cases, having been published on his defenses of BWI cases and spoken at many continuing legal education seminars. Errors in BWI procedure are the difference between a conviction and an acquittal. Boating while intoxicated, like DWI, is an opinion crime, and the opinion is based upon a series of "Simon Says" exercises that have no basis in science or determining if a person is truly intoxicated. Law enforcement officers are trained to believe that if a person cannot follow instructions that an officer reads from a cheat sheet, then the boater is intoxicated. This is astonishing, since the officer cannot remember the instructions themselves, which is why they are forced to read from the cheat sheet law enforcement instruction card.

There is a lot at stake if you are charged with a BWI. Texas BWI lawyer Doug Murphy will walk you through the complex legal process while aggressively fighting for your rights in the courtroom. He is devoted to providing his clients with the best defense possible.

What Are the Possible Defenses to BWI?

A charge means neither guilt nor conviction. There are a number of defenses that may exist and that can be developed if you have been charged with a BWI in Texas. These defenses are similar to typical DWI defenses, and can include (but are not limited to):

1. The "rising blood alcohol" defense;
2. An inaccurate breath or blood test result;
3. Improper handling of the blood sample;
4. Accuracy, procedural, or administration issues with field sobriety tests;
5. Constitutional challenges; and/or
6. Insufficient probable cause to detain or arrest you.

For their similarities in Texas, an experienced, reputable DWI defense attorney can provide excellent legal counsel and representation if you have been charged with a BWI. An experienced Houston-based DWI defense attorney is resourceful and knowledgeable not only of the applicable laws, but also the science behind rising blood alcohol and chemical tests as well as the so-called "float tests," and this matters because many cases can be dismissed due to inconsistencies, improper protocol, or technical failures.

Five Things to Remember About BWI in Texas

1. Unlike DWIs, it is not unlawful to have open containers and to be drinking on a boat while it is being operated.
2. Unlike DWIs, law enforcement may stop your boat and conduct a routine safety check without any suspicion that there has been alcohol or drug consumption.
3. Like DWIs, a BWI conviction carries with it steep fines and jail time, and the latter increases with any priors or enhancements.
4. Like DWIs, many BWIs are cited after the boat operator violated another boating rule and by doing so, caught the attention of the officer.
5. Like driving under the influence offenses (DUIs), if you are under the age of 21 and suspected of drinking while operating a boat, you can be charged with a boating under the influence (BUI) offense.

Boating While Intoxicated: Consequences of a Conviction

The penalties for a Texas BWI depend on a number of factors, including prior DWI or BWI convictions, if there was an accident, and if that accident caused serious injuries or death. (Tex. Penal Code Ann. §§ 49.06, 49.07, 49.08, 49.09.) The penalties are basically the same as a DWI conviction.

	Class	Fine	Incarceration	Driver's License Suspension
First Offense	Class B Misdemeanor	Up to $2,000	72 hours - 180 days	6 months - 1 year
First Offense with Serious Injury	Third Degree Felony	Up to $10,000	2 - 10 years	6 months - 1 year
First Offense with Death	Second Degree Felony	Up to $10,000	2 - 20 years	6 months - 1 year
Second Offense (BWI or DWI)	Class A Misdemeanor	Up to $4,000	30 days to 1 year	6 months - 1 year
Third Offense (BWI or DWI)	Third Degree Felony	Up to $10,000	2 - 20 years	6 months - 1 year

In addition, these penalties can be further enhanced if the victim suffered a traumatic brain injury or was a peace officer, firefighter, or emergency medical personnel in the line of duty.

Other consequences are a result of the criminal record that a conviction establishes. These collateral consequences include an increase in car insurance premiums, and difficulty obtaining jobs, admissions to higher education institutions, educational loans or scholarships, and housing.

Seated Float Sobriety Field Tests

Only two studies have examined investigating intoxicated boaters in the marine environment. Of these, only one of these studies examined the use of seated sobriety exercises on a boat. It comes as no surprise that both studies were conducted by government agencies with government grant money aimed at producing a law-enforcement-based solution.

The Yorktown BWI study recognized the need to evaluate "the effectiveness of these tests in the marine environment" because "certain stressors are present in the boating environment which are not present on the highway." The stressors inherent in boating are heat, spray, boat motion, vibration, and glare. Such stressors may cause boaters (whether intoxicated or sober) to perform poorly on field sobriety tests.

The Yorktown BWI study had a 32% false arrest. The study recognized this false arrest rate is "quite high," essentially arresting "one innocent person in every three arrests." The report rationalized that the high error rate was due to the lack of consequences for either the officer or the subject.

The other marine study was done in 2009 by the U.S. Coast Guard and The National Association of State Boating Law Administrators (NASBLA). Together they funded a Validation Study, conducted by the Southern California Research Institute, entitled "Validation of Sobriety Tests for the Marine Environment." The study was commissioned due to the lack of uniformity among enforcement of Boating While Impaired and related offenses from state to state.

The objective of the validation study was to develop sobriety tests that can be administered in the seated position to assist water patrol officers to distinguish blood alcohol content levels both below and above .08% due to environmental conditions (wind, wave height, and glare) that made it difficult for law enforcement officials to determine a boater's impairment. Unlike on the roadside, a standardized battery of sobriety tests had not yet been developed for use on the water.

This Validation Study used a combination of four seated tests—horizontal gaze nystagmus (HGN), finger to nose (FTN), palm pat (PP), and hand coordination (HC).

The results of the Yorktown and Validation Studies failed to establish the seated battery of exercises as a reliable predictor of boating while intoxicated. For instance, excluding the HGN, the Validation study yielded accuracy results of only 65% reliability for the finger to nose exercise, only 57% reliability for the palm pat exercise, and 52% reliability for the hand coordination exercise.

The Manual further sets forth that the seated battery must be administered in a reasonably safe and stable environment. It is recommended to administer the seated battery in calmer waters, i.e. backwaters, coves, bays, or stabilized on the shoreline in a location that minimizes significant boat movement.

The seated battery test manual further acknowledges that the seated battery may not be appropriate for people with certain disabilities, such as:

1. People with certain arm, shoulder, or elbow problems may be unable to perform the tests.
2. People missing a portion of an index finger...or more should not be administered the FTN.

The Student Manual indicates that validation for the entire battery of tests is predicated upon two factors. First, it is essential that the manual be precisely followed:

Although some of the seated SFSTs are only moderate indicators of impairment individually, the results of the study unmistakably validated the seated battery of SFSTs.

IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN:

• The tests are administered in the prescribed, standardized manner.
• The standardized clues are used to assess the suspect's performance.
• The standardized criteria are employed to interpret that performance.

IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.

Second, the Manual requires that each subject be properly positioned and stable:

To ensure that your subject is in a stable seated position, give the following instructions to all subjects before starting any of the Seated Battery Standardized Field Sobriety Tests.

• "Please sit straight at the front edge of your seat."
• "Put your arms down at your sides."
• "Place your feet shoulder-width apart so you are comfortable and stable. Are you stable?" (Wait for response.)
• "Do not move your feet until the tests are over. Stay in this position and do not do anything else until I tell you to do so."
• "Do you understand?" (Get acknowledgment of understanding.)

The manual does allow for an alternative position for the administration of the HGN—permitting the seated suspect to cross his ankles and sit on his hands. However, the suspect must be placed in the proper positions for all remaining tests.

Here are the exact instructions required for "valid" seated exercises:

Finger to Nose (FN) Exercise Procedures

The procedures for the FN exercise are as follows:

• "Make a fist with both hands, extend your index fingers, and turn your palms forward." (Demonstrate).
• "Remain in this position while I explain the test. Do you understand?" (Wait for response.)
• "When I say BEGIN, tilt your head back to about a 45-degree angle and close your eyes." (Demonstrate how the subject is supposed to move the arm up directly in front of the subject and how to properly touch the tip of the nose with the tip of the index finger.)

NOTE: Show the tip of the index finger as the area immediately below the fingernail tip, not the fingerprint pad area or the side of the index finger, and demonstrate touching the tip of the nose (about a dime-sized portion at the very end of the nose).

• "When I say RIGHT, you must touch your right index finger to your nose; when I say LEFT, you must touch your left index finger to your nose."
• "Do you understand?" (Get acknowledgment of understanding.)
• "BEGIN."

NOTE: Ensure that the subject tilts the head back and closes the eyes. Do not start to give the commands until the subject is in compliance. If necessary, emphasize to the subject that he must keep the eyes closed until you say to open them.

• "LEFT, RIGHT, LEFT, RIGHT, RIGHT, LEFT." (Give the commands in exactly this order.)

NOTE: Make sure the subject returns the arm to the side immediately after each attempt. Pause two or three seconds between commands to both evaluate a proper return and to allow time for you to document observations.

• "Open your eyes and straighten your head." (After the sixth attempt.)

Finger to Nose (FN) Clues

There are a total of 13 clues, during two phases of the FN exercise: (1) instruction phase; and (2) performance phase. Nine or more clues "suggest" that the individual is impaired with .08 or higher BAC.

Instruction Stage:

1. Unable to follow instructions - Applies if exercise had to be explained "more than twice," or subject did not remain in the instruction phase.
2. Started at wrong time - Subject began test before being told to begin by tilting head back or closing eyes, or by raising either finger before being told to do so.

Performance Stage:

1. Did not close eyes - Failed to close eyes when told to begin test.
2. Did not tilt head back - Failed to tilt when told to begin, however, if tilted back too much or too little, clue would not be assessed.
3. Opened eyes during test - Opened eyes at all during test.
4. Moved head during test - Moves head backward, forward, or side to side after beginning test. Movement of at least 1 inch is necessary to score clue.

The following require compliance with each attempt

1. Wrong hand - Contacts nose with wrong hand.
2. Wrong finger - Used any finger other than index finger.
3. Hesitated - Starts with one hand then changes to other hand prior to making contact, or when pauses or significantly slows down upon approach to and prior to contact with nose. (no time is provided for pause or significant slows down, leaving subjective interpretation to the officer.)
4. Searched - Any distinct vertical or horizontal movement with finger upon approach to nose. NOTE: Hesitation and searching may both be observed during the same attempt.
5. Not fingertip - Touches nose with any part of the finger other than the area immediately below fingernail tip. Fingerprint pad area of finger is not the fingertip.
6. Missed tip of nose - Fails to touch any part of the finger to the tip of the nose. The nose is defined as dime-sized portion of the nose furthest away from the face.
7. Did not bring hand down - Failed to immediately (if contact is more than one second) bring finger back down to the side after making contact with the nose.

Palm Pat (PP) Exercise Procedures

The PP requires one hand extended, palm up, out in front. The other hand is placed on top with the palm facing down. The top hand begins to pat the bottom hand, rotating 180 degrees alternating between the back and palm of the hand. The bottom hand remains stationary.

The instructions for the PP exercise are as follows:

• "Place your hands palm to palm with one hand up and one hand down, like this." (Demonstrate).

NOTE: Start by demonstrating to put one hand out in front with the open palm facing upward. The opposite hand is then placed on top of the first hand with the open palm facing downward with hands/fingers parallel. The demonstration will show that the hand with the palm facing upward is held in a stationary position. The hand on top with the palm facing downward will be the only hand moving.

• "Remain in this position while I explain the test. Do you understand?" (Wait for response.)
• "When I say tell you to begin, turn the top hand over and count out loud "one," then turn the hand back over and count out loud "two," counting only when your hands make contact, like this." (Demonstrate at least two sets at a moderate pace.)

NOTE: To begin, the subject will rotate the top hand 180 degrees and pat the back of the top hand to the palm of the bottom hand simultaneously counting out loud, "one." The top hand then rotates 180 degrees so the palm of the top hand pats the palm of the bottom hand, simultaneously counting out loud, "two." Be sure to exaggerate the palm pat sequence using adequate height between claps.

• "Repeat this, speed up as you go, and do not stop until told."

NOTE: The process then repeats. The subject should start at a slower speed, then gradually increase the speed until a relatively rapid pace is reached.

• "Make sure to keep your hands and fingers parallel during each pat, like this." (Demonstrate.)
• "Do you understand?" (Get acknowledgement of understanding.)
• "BEGIN."

NOTE: The subject should perform this test for a minimum of 10 seconds but no more than 15 seconds. If the speed has not noticeably increased within 4 or 5 seconds, prompt the subject to increase speed. The goal is to reach a relatively rapid pace.

Palm Pat Exercise Clues

There are a total of 10 clues during the two phases of the PP exercise: (1) instruction phase; and (2) performance phase. Two or more clues "suggest" that the individual is impaired with .08 or higher BAC.

Instruction Stage:

1. Unable to follow instructions - Applies if the exercise had to be explained "more than twice," or the subject did not remain in the instruction phase.
2. Started at wrong time - Subject began test before being told to begin either by starting on his own at any time or by following along with the officer's demonstration.

Performance Stage:

1. Did not count as instructed - Counts out loud anything other than "1,2,1,2,1,2," and so on. "1" must be said out loud only when the back of the top hand makes contact with the palm of the bottom hand, and "2" must be said out loud only when the palm of the top hand makes contact with the palm of the bottom hand. If the subject fails to count out loud, check this clue, however, correct him and advise to start counting out loud.
2. Rolled hands - Fails to fully break contact between the two hands when going from one pat to the next, simulating a "rolling" movement on the bottom hand with the top hand.
3. Double pat - Conducts two or more of the same pat in a row. E.g. pats the palm of the top hand to the palm of the bottom hand twice in a row.
4. Chopped pat - Hits bottom hand with the side of top hand instead of either palm or back of the top hand.
5. Other improper pat (document) - Conducts any pat other than what is instructed and cannot be checked above. Be sure to describe in narrative.
6. Did not increase speed - Did not make a noticeable increase in speed within any 4 to 5 second period of the test. Correct this and remind him to speed up as he goes.
7. Rotated hands - Fingers no longer run parallel to each other, resulting in noticeable and distinct rotation in any pat.
8. Stopped before being told - Subject stops at any time before the command to stop is given.

Hand Coordination (HC) Exercise Procedures

The HC requires a person to perform four tasks with the hands. It is adapted from the Walk-And-Turn SFST performed in the standing position.

The standard instructions for the HC exercise are as follows:

• "Make fists with both hands. Place your left fist at the center of your chest and your right fist against your left fist, like this." (Demonstrate).

NOTE: Place your left thumb against the sternum and the thumb side of the right fist against the fleshy side of the left fist.

• "Remain in this position while I explain the test. Do you understand?" (Wait for response.)
• "When I say BEGIN, you must perform four tasks."
• "The first task is to count out loud from one to four while you move your fists in a step-like fashion, making contact between your fists at each step." (Demonstrate while counting out loud "1,2,3,4.")
• "The second task is to memorize the position of your fists after you have counted to four, clap your hands three times and return your fists to the memorized position." (Demonstrate)

Note: No verbalized count is required.

• "The third task is to move your fists in a step-like fashion in reverse order; counting out loud from five to eight and returning your left fist to your chest." (Demonstrate while counting out loud "5,6,7,8.")
• "The fourth task is to open your hands with palms down and place them in your lap." (Demonstrate)
• "Do you understand?" (Get acknowledgement of understanding.)
• "BEGIN."

Hand Coordination Exercise Clues

There are a total of 13 clues during the two phases of the HC exercise: (1) instruction phase; and (2) performance phase. There are four tasks, with 3 clues in task one; four clues in task two; four clues in task three; and two clues in task four. Three or more total clues "suggest" that the individual is impaired with .08 or higher BAC.

Instruction Stage:

1. Unable to follow instructions - Applies if the exercise had to be explained "more than twice," or subject did not remain in the instruction phase. Also put when right fist is put to chest instead of left fist when told to put left fist against chest.
2. Started at wrong time - Subject began the test before being told to begin either by starting on his own at any time or by following along with the officer's demonstration.

Performance Stage:

Task One: Forward Steps

1. Improper count - Counts anything other than "1,2,3,4," while moving fists out away from the chest four times in a step-like fashion. This includes when the subject does not count out loud or counts too many or too few steps.
2. Improper touch - Drags the fists over one another while moving from one step to another, when the subject does not make end-to-end contact between the two fists, or when the subject accidentally makes top to bottom contact between the two fists.
3. Did not perform - Skips over and forgets to perform this task.

Task Two: Hand Clapping

1. Improper count - Does anything but clap 3 times. The subject does not have to count out loud. This includes too many or too few claps.
2. Improper touch - Makes any contact between the hands other than palm-top-palm clapping.
3. Improper return - Does not return fists to the memorized position end-to-end with the right fist in front of left. The most common mistake is returning the left fist in front of the right.
4. Did not perform - Skips over and forgets to perform three hand claps.

Task Three: Return Steps

1. Improper count - Counts anything other than "5,6,7,8," while moving fists toward the chest four times in a step-like fashion. This includes when the subject does not count out loud or counts too many or too few steps.
2. Improper touch - Drags the fists over one another while moving from one step to another, when the subject does not make end-to-end contact between the two fists, or when the subject accidentally makes top to bottom contact between the two fists.
3. Did not return left fist to chest - Does not make contact to the chest with the left fist or if the subject brings the right fist to the chest instead of the left fist.

NOTE: Following an improper return on the hand clap, if the subject makes an adjustment to return the left hand to the chest along with a proper number of counted steps and proper touch, a clue will not be assessed.

1. Did not perform - Skips over and forgets to perform this task.

Task Four: End Position

1. Improper position - Opens up the fists and places them anywhere other than on the lap. A noticeable attempt to complete this task must be observed, e.g., if the subject opens hands with palms facing down and then holds them out in the air in front of them, if the subject opens hands with palms facing down and places the hands beside them in the seat, or if the subject opens hands and then says, "I can't remember where to put my hands."
2. Did not perform - Skips over and forgets to perform this task, e.g., if the subject remains with fists closed against the chest and makes no attempt to perform the final task or if the subject takes fists directly to lap or seat with no attempt to open hands up with palms facing down.

NOTE: If the subject totally refuses to perform HC, refusal will be noted. The officer will not check all of the "did not perform" boxes, thus resulting in an indication that four clues were observed.

NOTE: During Task 1 of HC, while moving fists in a step-like fashion out away from the chest, if the subject did not go out away from the chest as much as the officer demonstrated, no clue will be assessed. All the subject must do is place one fist in front of the other in a step-like fashion while counting out loud from 1 to 4. No specific distance from the chest is required.

NOTE: During Tasks 1 and 3 on HC, no clues will be assessed if the subject "steps" under or around the fist instead of "stepping" over the fist as demonstrated by the officer.

NOTE: When a clue is observed in any test, it is only counted once, no matter how many times it was observed. The only exception is for those performance clues that require compliance during each attempt during the Finger to Nose test.

Contact Our Harris County BWI Defense Attorney

Being charged with a BWI can be shocking for otherwise law-abiding citizens. If you have been charged with a BWI, you should contact an experienced attorney to help you defend the charge. At Murphy & McKinney Law Firm, P.C., we devote our resources and capabilities to DWI cases. We have decades of proven experience and a reputation earned in the courtroom for successful results. Attorney Doug Murphy is a board-certified DWI lawyer who not only fights on behalf of his clients but constantly gives back to the legal community to teach other attorneys how to do the same. Contact Doug Murphy today at 713-229-8333 to discuss the circumstances of your case. He has the experience and skill to successfully defend and defeat a boating while intoxicated charge.