BOATING UNDER THE INFLUENCE
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Mandatory Criminal Penalties

Unlike their driving equivalent, BUIs do not carry any mandatory penalties. Where even a first time DUI conviction will assure an individual of jail time, a license suspension, _an order of ignition interlock, and high risk insurance," BUIs do not carry such "mandatory" punishment. Since BUI is a misdemeanor, it is punishable by up to 90 days in jail and a $1,000 fine. Whereas a DUI conviction will place five years of probation upon an individual, a BUI conviction will require a maximum of two years probation.
While a DUI conviction will require a minimum one year ignition interlock requirement, a BUI conviction, should not. The interlock statute reads as follows:
under section (2) of the statute as that clearly requires a conviction for DUI or Physical Control.51 Finally, the misdemeanor sentencing statute does not provide the court with authority to require an ignition interlock.

Mandatory Court Appearances

A person charged with BUI will not need to appear, in person, for his or her arraignment, so long as he or she has retained counsel who can enter a plea along with a notice of appearance and a waiver of arraignment.

Field Sobriety Testing

While field sobriety testing creates legal and factual issues in DUIs, FSTs on the water provide the defense attorney with a plethora of legal and factual issues. Of course, the BUI statute specifically states that an officer shall administer field sobriety tests only when circumstances permit. Field sobriety testing constitutes a search. It certainly does not lie within the plain sight exception to the warrant requirement. Since this is a search conducted, theoretically, in the absence of probable cause, an exception to the warrant requirement must exist. The burden of establishing that exception lies with the state. Furthermore, since "consent" is the only exception upon which the Prosecutor could rely, he must establish a boater's voluntary consent by clear and convincing evidence.

Breath Test Refusals

Like driving cases, breath/blood test refusals present the attorney with several challenges. Furthermore, unlike driving cases, where over 90 percent of the time an attorney would advise a driver to take the breath test, boating cases are not easy. Unlike driving cases, where a refusal will result in greater administrative and criminal sanctions, a refusal following an arrest for BUI could benefit one in the criminal court.

Refusals and the Criminal Court

Breath test refusals in driving cases can have a devastating impact on those accused of DUI. It increases the mandatory jail time, regardless of criminal history. It lengthens the mandatory license suspension imposed by both the court and the Department of Licensing. However, in the BUI context, not only does a refusal have no effect on mandatory penalties, but it potentially has no relevance and, therefore, is inadmissible.
You are under arrest for RCW 79A.60.040: Operation of a vessel while under the influence of intoxicating liquor and/or drugs. You are now being asked to submit to a test of your breath or blood. The breath test consists of two separate samples of your breath, taken independently, to determine alcohol concentration.
First, a boater is not even told of the right to refuse. Secondly, should they choose to refuse, it will have no effect on their case; but they are not so informed. A refusal will not increase any license suspension or criminal penalty. Finally, the Washington on State Patrol does not believe that boaters have a right to an independent test taken by the professional of their choosing.
In conclusion, unlike the DUI context, where a prosecutor could reasonably demonstrate a nexus between a driver's refusal and a guilty conscience it seems impossible in the BUI context. Essentially, should a boater refuse a breath or blood test? It will not increase any criminal sanction potentially imposed by the Court. How then can a prosecutor establish any relevance to a vessel operator's choice to not submit to such testing? Consequently, it would appear that any refusal in the marine context lacks any probative value and its admission would clearly be unfairly prejudicial to your client.
While refusals seem to have little probative value before the criminal court, they can have a devastating impact administratively before a Coast Guard hearing officer.
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