Boating Under the Influence Explained

Florida Statute § 327.35 makes it unlawful for any person to operate a vessel while under the influence of alcoholic beverages or controlled substances to the extent that normal faculties are impaired, or with a blood-alcohol or breath-alcohol level of 0.08 or higher. The statute creates tiered penalties that escalate from first-offense misdemeanor through third-degree felony, BUI with serious bodily injury, and BUI manslaughter, which is parallel in structure to DUI manslaughter under § 316.193(3)(c)3.

What the Statute Says

Section 327.35(1) defines the basic offense:

Subsequent subsections set out enhanced penalties for repeat offenses, BUI with property damage or non-serious injury, BUI with serious bodily injury, and BUI manslaughter.

Elements the State Must Prove

For a base BUI conviction under § 327.35(1), the State must prove beyond a reasonable doubt:

1. Operation of a vessel. The defendant was operating a vessel within Florida waters. "Vessel" is defined broadly under § 327.02 and includes most watercraft used or capable of being used as a means of transportation on water.
2. Impairment or unlawful BAC. The defendant either was under the influence of alcohol or a controlled substance to the extent that normal faculties were impaired, or had a blood-alcohol or breath-alcohol level of 0.08 or higher.

For enhanced charges, the State must additionally prove the elevating fact: prior conviction(s) within the relevant lookback period, property damage, serious bodily injury (as defined by § 327.353), or causation of a death.

Penalty Tiers in Detail

First Offense (§ 327.35(2)(a)1)

First-degree misdemeanor. Up to 6 months in county jail. Fine of $500 to $1,000. Probation conditions typically include a substance abuse course, community service, and a vessel operation safety course.

Second Offense (§ 327.35(2)(a)2)

Up to 9 months in jail. Fine of $1,000 to $2,000. If the second offense occurs within 5 years of the first, the statute imposes a mandatory minimum of 10 days in jail.

Third Offense (§ 327.35(2)(b))

If a third BUI occurs within 10 years of a prior conviction, it is charged as a third-degree felony. Up to 5 years in prison and a fine of $2,000 to $5,000. The statute imposes a mandatory minimum of 30 days in jail. A third or subsequent offense beyond the 10-year window remains a misdemeanor with enhanced penalties.

Enhanced BAC (0.15 or Higher)

Where the defendant's blood- or breath-alcohol level is 0.15 or higher, or where the defendant was accompanied in the vessel by a person under 18, fines and jail caps are increased.

BUI with Property Damage or Non-Serious Injury (§ 327.35(3)(a))

First-degree misdemeanor. Up to 1 year in county jail. Applies when operation of a vessel under the influence causes or contributes to causing damage to property or non-serious injury to another person.

BUI with Serious Bodily Injury (§ 327.35(3)(c)1)

Third-degree felony. Up to 5 years in prison. "Serious bodily injury" is defined under § 327.353 as a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of a bodily member or organ.

BUI Manslaughter (§ 327.35(3)(c)3)

Second-degree felony. Up to 15 years in prison. Statutory mandatory minimum of 4 years. Applies when operation of a vessel under the influence causes or contributes to causing the death of another person. The structure is parallel to DUI manslaughter under § 316.193(3)(c)3.

Implied Consent on the Water

Florida Statute § 327.352 establishes implied consent for vessel operators. By accepting the privilege of operating a vessel in Florida waters, a person consents to a chemical test of breath, blood, or urine if lawfully arrested for BUI. The statute permits a breath or urine test as the default; blood may be drawn under specific circumstances, including when breath testing is impractical or when the operator is unable to consent.

Refusal to submit to a lawful test carries administrative and evidentiary consequences. A first refusal results in administrative penalties, and a second refusal is itself a first-degree misdemeanor under § 327.35215.

Marine Field Sobriety Tests

Standard roadside field sobriety tests (the walk-and-turn and one-leg-stand) are not designed for use on a vessel. Officers typically administer adapted seated tests in the marine environment, including:

• Finger-to-nose test. The subject touches the tip of the index finger to the tip of the nose with eyes closed.
• Palm pat. Alternating palm-down and palm-up taps on the opposite hand at increasing speed.
• Hand pat. A timed coordination test involving rapid hand patting.
• Alphabet recitation. Saying the alphabet from a designated letter forward, without singing.
• Number counting. Counting backward from a designated number.

Conditions including vessel motion, sun exposure, dehydration, and prolonged time on the water all affect performance. The validity of these tests, the officer's training and certification to administer them, and the conditions of administration are common subjects of cross-examination.

Who Enforces BUI Laws

• Florida Fish and Wildlife Conservation Commission (FWC). Primary state-level enforcement. FWC officers conduct routine vessel safety inspections and BUI investigations.
• County sheriff marine units. Many South Florida counties operate marine patrol divisions that enforce state law on inland and coastal waters.
• United States Coast Guard. Federal enforcement, particularly in the Intracoastal, federal channels, and offshore waters. Coast Guard boardings often pivot to BUI investigations after a routine safety inspection.

Each agency operates under different procedures. The validity of the stop, the basis for transitioning a safety inspection into a BUI investigation, and the chemical test process must be evaluated under the relevant agency's protocols.

Common Defenses

• Validity of the stop or boarding. Routine FWC and Coast Guard safety inspections do not require probable cause, but the transition to a BUI investigation triggers Fourth Amendment standards. Suppression of evidence obtained after an unsupported transition is often the most productive ground.
• Operation. Whether the defendant was actually operating the vessel, or merely on board, is a fact issue in many cases involving raft-ups, anchored vessels, and group outings.
• Field test reliability. Marine conditions, sun exposure, dehydration, and vessel motion all affect performance on adapted seated tests.
• Breath instrument reliability. The same calibration, observation, and chain-of-custody standards that govern DUI breath testing apply to BUI. Field deployment of breath instruments in a marine environment introduces additional variables.
• Blood draw issues. Where blood is drawn, chain of custody, qualification of the person drawing, preservatives used, and storage conditions are subject to challenge.
• Refusal challenges. The validity of the implied consent advisement and the lawfulness of the request affect whether a refusal can be introduced as evidence.

Related Florida Statutes

Frequently Asked Questions