Every summer, the waters of North Carolina are filled with boaters, jet-skiers, and people just having a good time under the sun. Whether it’s swimming or staying dry on a boat or lake shore, summertime on the water is enjoyable for all. But what many people don’t realize is that state laws treat boating dangerously or irresponsibly much like drunk driving, if not worse. In this article, we break down North Carolina law that sets the rules for safe and legal boating so that any and everyone can have a fun and safe time on the water. All while staying out of legal trouble.

What is BWI?

Under NCGS § 75A-10, Boating While Intoxicated (BWI) is the operation of any motorboat or vessel (this includes jet-skis, surfboards or similar devices) while under the influence of an impairing substance or while having an alcohol concentration of 0.08 or more. Violation of this statute results in a Class 2 misdemeanor and a fine of no less than $250 if found guilty. Under this same statute, throwing trash in the water as well as any medical waste results in a Class 1 misdemeanor. If the medical waste proximately caused risk of death or serious bodily injury to someone not involved, then you are looking at a Class F felony, a charge more serious than a misdemeanor.

What Can Law Enforcement Pull Me Over For?

Under NCGS § 75A-17, officers can pull you over on the water without having any reasonable suspicion of any illegal activity. In comparison to a Driving While Impaired (DWI) charge, officers don’t need to have any reasonable suspicion to pull you over. State v. Pike, a 2000 case from the North Carolina Court of Appeals, shows us that this ability for officers to pull you over for any reason is within the confines of the U.S. Constitution. The main reason why officers can’t pull you over in your car on the road for anything they want is because it violates the 4th Amendment that prohibits unreasonable search and seizures. However, boats on the water are treated significantly differently.

The Court of Appeals said in Pike that boats on the water are significantly different than cars on the road. One example is that boats require safety equipment, such as life jackets, that every boat needs to have by law. There also aren’t any license plates or things of that sort for law enforcement to identify the vessels or their operators. It is also a lot more difficult for law enforcement to verify that safety is being practiced among boat owners and enjoyers alike. For these reasons, law enforcement is permitted to pull any boat or vessel for the simple reason of maintaining safety on the water.

How Does This Play Out on the Water? What Can Be Used Against Me?

Let’s say you are out on the water on your boat with a few of your friends. Nothing out of the ordinary, just a bright sunny day out on the water having fun. Law enforcement stops you and has some kind of suspicion that you, as the driver of the boat, are intoxicated or under the influence of a substance. What happens next?

The officer, more likely than not, will need to verify his suspicions. In doing so, he may chose to go a few different routes. If the officer is certified to conduct a Standardized Field Sobriety Test (FST), he would ask you to pull the vessel into a dock or shore in order to conduct the test on land. This test is the same test law enforcement conducts when doing a DWI stop on the road. It consists of either a Horizontal Gaze Nystagmus test, Vertical Gaze Nystagmus test or both. This is the test where the officer will ask you to keep your eyes on something like a pen the officer will be holding, while he moves it left to right or up to down, depending on whether he conducts the vertical or horizontal test. The next test is the Walk-and-Turn. This test consists of putting your feet one after the other in a straight line, then turning and doing the same on the way back. The final test is the One Leg Stand. The officer will ask you to raise one leg and count to 30, or until he tells you to stop. If the officer at any point determines that you are too intoxicated to operate your vessel, they can arrest you for BWI.

If the officer is not certified to conduct the Standardized FST, they will probably conduct a Non-Standardized FST. The scope of these tests varies based on the officer. These tests are not endorsed by the state and are often, if not always, argued against in court due to lack of standardization and lack of scientific backing. Although they are not endorsed by the state, the state may still use this test in court as evidence against you and the judge must take it into consideration when ruling.

Officers also carry body worn cameras (BWC), which the state can use as evidence towards showing that you, as the vessel operator, were intoxicated. They can also use this as evidence that your demeanor gave rise to his suspicions that you were intoxicated.

The final, and frankly the most accurate, piece of evidence law enforcement can obtain towards showing that you were intoxicated is a blood sample test or breathalyzer test. This consists of either drawing blood or breathing into a machine. Both of these methods produce a Blood Alcohol Content (BAC) number and if that number is 0.08% or higher, you are deemed to have been intoxicated.

How Can I Avoid This? What Should I Do If I Am Charged With A BWI?

The easiest way to avoid getting your summer ruined by a BWI is to simply not drink while conducting a vessel. It may be easier said than done, especially when your friends are boozing while your stuck driving. But refraining from drinking as the conductor of the vessel eliminates any and all possibilities of getting a misdemeanor charged against you. Actions

always have consequences, and a BWI comes with a consequence that could be on your record permanently.

In the unfortunate circumstance that you are charged with BWI, building your defense is crucial. If you find yourself in this predicament, the attorneys at Jetton & Meredith are more than qualified to help you with your defense. Summertime is in full swing, don’t let legal troubles plague you from enjoying the sunny days and cool waters.