There has been a noticeable increase in the number of people being charged with boating DUI in Arizona, also known as OUI (operating under the influence). However, it is unclear that the rise in boating DUI cases is due to more crimes being committed, or simply more enforcement. We have have been involved in many OUI cases where there little evidence of impairment, yet people were still charged with a crime. For example, many people are being charged with OUI based upon field sobriety tests performed on a swaying boat, which gives them no chance to pass. Cases like these have been observed at Lake Pleasant, Bartlett Lake, Saguaro Lake, and Lake Havasu.
Current Boating DUI Law
The Arizona State legislature has passed several changes to the boating DUI statute; The current version of the law can be found in A.R.S. 5-395.01. Under the current law, before a person can be convicted of operating under the influence, the prosecutor must prove the person operated or was in actual physical control of the motorized watercraft, within this state, under any of the following circumstances:
- While under the influence of intoxicating liquor, or drug, if the person is impaired to the slightest degree.
- If the person has an alcohol concentration of 0.08 or more within two hours of operating or being in actual physical control of the motorized watercraft and the alcohol concentration results from alcohol consumed either before or while operating or being in actual physical control of the motorized watercraft.
- While there is any drug as defined in section 13-3401 or its metabolite in the person’s body.
- If the motorized watercraft is a commercial motorized watercraft and the person has an alcohol concentration of 0.04 or more.
Boating OUI Defenses
Boating OUI cases have unique challenges and require specialized training to properly defend. Here is a sample of defenses that may be used in boating cases:
- Illegal search and seizure violating the Fourth Amendment;
- Field sobriety tests performed on wet, slippery and unstable surfaces (boats);
- Falsely high blood or breath test results causing a person to be wrongfully charged with OUI, extreme OUI or super extreme OUI;
- Detention of boaters without reasonable suspicion;
- Use of outdated and uncalibrated breath testing machines.