Author Archives: admin

Buoys and BUI: Boating Under the Influence

As boating season nears us, it is important that boaters remember marine traffic laws in order to avoid accidents and injuries. Law enforcement officials routinely patrol waterways with the hopes of stopping and arresting people for boating while intoxicated the same as they could if they were driving a vehicle on a traditional road.

Every state has a set of driving under the influence (DUI) laws to help keep drivers, passengers, and the community safe. Many people, however, don’t realize that DUI laws apply to more than cars and trucks. In fact, today, every state and the federal government have laws against Boating Under the Influence (‘BUI’). These boating under the influence laws allow officers to stop boats and other watercraft to make sure that the operators and their passengers are sober and safe enough to be allowed on the water.

A stark rise in alcohol and drug-related boating injuries and fatalities prompted state legislatures to enact BUI laws. More than half of all boating accidents involve some level of alcohol or drug consumption, and alcohol is the leading contributing factor in fatal boating accidents, according to the Insurance Information Institute and the U.S. Guard.

The Basics of a BUI

For the same reasons that the legislature enacted driving under the influence laws, BUI regulations exist to hopefully minimize the possibility that a person will operate a boat or watercraft while drunk or under the influence of narcotics. The U.S. Coast Guard warns that “alcohol is more hazardous on water than on land.” Perhaps they’re correct. There are no lanes, few signs, and just open water.

Law enforcement authorities can pull a boater over, just like a driver on the road, if they are suspected of a BUI. Law enforcement officials are also permitted to set up BUI checkpoints on the water, similar to roadside DUI checkpoints, to question boat operators for boating under the influence.

Additionally, boaters face other factors (sometimes referred to as “boater’s fatigue”) that car drivers don’t need to worry, which include heat, sun, noise, wind, and the general effects of being on the water for a long period of time. When alcohol and drugs are also involved, the ability to operate a vessel on the water can be severely affected and become very dangerous.

As you can see, the basics of a BUI are very much like a DUI, possibly even more dangerous.

BUI: Elements of the Offense

Most state laws define crimes of drunk boating as follows: operating a watercraft on a body of water while under the influence of alcohol or drugs. Some state laws also provide a per se BUI offense when a BAC is over a certain amount. Other water related laws apply as well—for instance, in California, people younger than 21 years-old with BAC levels of at least .01 percent cannot even use water skis.

More specifically, California’s BUI law makes it a crime to operate a water “vessel” or a “similar device” while under the influence of alcohol, or drugs, or both, or with a blood alcohol content of 0.08 percent or more.

The Harbors and Navigations Code also provides a zero tolerance for aquaplanes and water skis.

Consequences of a BUI Conviction

Convictions for boating under the influence can have severe consequences. These consequences are due in part to the rise in boating injuries and fatalities. In addition to a possible criminal conviction, boat operators can have their boating licenses suspended or revoked. It is also common for your driver’s license to be affected by a BUI conviction. Aggravating circumstances, such as repeat offenses or boating with minors on board, could face higher consequences. However, a standard BUI in California are similar to those for a California DUI; up to six months in jail, up to $1,000 in fines and fees, and a California DUI program.

Boating Safety Tips

To avoid situations that could affect not only your own rights and safety, but that of friends, family, and others on the water, boaters should be cognizant of the following:

  • Exercise increased caution during major holiday weekends: Holiday weekends are usually considered the deadliest weekends for accidents involving alcohol, both on the water and on the road.
  • Know your local boating regulations: If you travel to another state, understand what the local regulations say about both open containers and BUI laws.
  • Make sure that you and all passengers on the boat wear life vests: Life vests, in general are always a good idea. Many boating deaths and accidents could have been avoided operators and their passengers had worn their life vests.

Additional tips to avoiding a BUI include:

  • Take along a variety of non-alcoholic drinks. Having no alcohol while aboard is the safest way to enjoy the water;
  • Bring food and snacks;
  • Stay cool and hydrated;
  • Plan to limit your trip to a reasonable time to avoid fatigue.
  • If you dock somewhere and drink alcohol, wait a reasonable time before operating your boat.

Of course, the only failsafe way to avoid a BUI is to avoid alcohol altogether before and while operating a boat, or any vessel for that matter.

DUI for Controlling Your Vehicle or Driving it

Many people would be surprised to find out that a person can get a DUI as they pull into their own driveway. One might wonder, after happening to miss all the checkpoints and managing not to get pulled over by law enforcement en route, how it’s possible to get arrested at the destination; home, sweet home. The fact of the matter is this: if a person drove drunk, even if all they did was pull into the driveway, and the prosecution can prove it, they can still get arrested, charged, and convicted of a DUI.

But what if a person doesn’t even drive the vehicle? What if they don’t even turn the vehicle on?

Imagine a scenario where a person is drinking at home and they step outside to get something from the inside their car. If an officer happened to be driving by and noticed them stumble into their car, would that be sufficient evidence to warrant a DUI?

In most states, a driver can be charged with a DUI for being in “actual physical control” of a vehicle while under the influence. In other words, actual driving is sufficient but not required to be convicted. What determines whether a person had “actual physical control” of a vehicle? The answer is not always simple. Courts often look at a totality of the circumstances to determine whether the driver’s current or anticipated control of the vehicle presented a danger to himself or others at the time.

Many states list “actual physical control” as an element for the crime of DUI but often don’t fully describe what the phrase actually means. In Arizona, for example, a person can get a DUI they are 1.) under the influence while in actual physical control of a vehicle, or 2.) have a BAC of 0.08 percent within two hours of having actual physical control of a vehicle (consumption must have occurred during or prior to being in actual control of the vehicle).

The statute goes on to explain other aspects of Arizona’s DUI laws but does not clearly define “actual physical control.” While a jury must eventually decide whether a person is in actual physical control of a vehicle, they usually take into considerations such as:

  • Whether the engine was running
  • The location of the key
  • The location of the driver at the time he or she was found in the vehicle
  • Whether the person was awake or asleep
  • The location of the vehicle
  • Whether the headlights were on or off
  • Whether the heat or air conditioner was running
  • The time of day

In practice, actual physical control is meant to apply to situations where an inebriated person is found in a parked vehicle that, without too much difficulty, might become a danger to him or herself, others, or property.

Unlike Arizona and other “actual physical control” states, being in actual physical control isn’t enough in California. In California, a prosecutor must prove that a person actually drove their vehicle for there to be a conviction. While California does not necessarily deal with the intricacies of the “actual physical control” determination, there are some small nuances to existing California DUI laws.

Under California law, a driver must cause the vehicle to actually move, even if the distance is slight. Interestingly, in California, the car engine does not have to be on in order for the movement element of DUI to be satisfied. Even a person sitting in a car in neutral can be charged with DUI if that car rolls forward.

As you can see, the distinction between “slight movement” and “actual physical control” might seem trivial. However, the difference between them may be the difference between a person getting a DUI and not, depending on what state you’re in. Nonetheless, if you’ve been drinking, whether it’s in Arizona or California, just stay away from your vehicle altogether. Why leave it to the cops, prosecutors, and jury to determine whether you “slightly moved your car” or were in “actual physical control” of it?

Booze and the Shelter-in-Place Blues

Amidst the new Shelter-in-Place orders, some states have relaxed the restrictions against alcohol delivery from restaurants. For some businesses, alcohol sales can make up to 30% of their revenue. The news is welcomed by those in the restaurant industry who have been struggling to stay afloat while their patrons try to comply with the shelter-in-place orders. For example, Maryland issued an executive order, allowing the sale of alcohol for delivery and take-out “if promptly taken from the premises before consumption.” Similarly, Texas Governor Greg announced Wednesday that restaurants can deliver alcohol, including beer, wine, and mixed drinks, alongside food.

California is amongst those states that have eased up on the rules. These relaxed rules make it easier for restaurants to sell beer, wine, and pre-mixed cocktails for pick-up and delivery throughout the state. The California Department of Alcoholic Beverage Control (ABC) released the following statement:

This regulatory relief is designed to support the alcoholic beverage industry in its efforts to assist California in slowing the spread of the virus while assisting the industry in dealing with the economic challenges it is facing as a result. The Department has carefully considered the public’s health, safety, and welfare in providing this relief, and the Department has concluded that none of these measures, exercised on a temporary basis, will jeopardize the public’s health, safety, or welfare.

The Notice of Regulatory Relief delineates a number of issues and the full text of the temporary suspensions can be found at https://www.abc.ca.gov/notice-of-regulatory-relief/.

It is important to note that ABC has only temporarily suspended its enforcement of specific prohibitions, and has every authority to rescind a businesses’ liquor license if a licensee abuses the temporary regulations:

The relief provided by this notice is temporary and may be withdrawn by the Department at any time. The Department intends to provide a 10-day notice of the termination of any such relief, although such relief may be withdrawn immediately should the needs of public safety dictate. In addition, licensees are directed to use the relief provided by this notice responsibly without compromising the public’s health, safety, or welfare. Notwithstanding any other provision of law, if the Department determines that any licensee is found to be abusing the relief provided by this notice, or if the licensee’s actions jeopardize public health, safety, or welfare, the Department may summarily rescind the relief as to that licensee at any time.

In California, not all licenses allow the sale of distilled spirits but instead can only allow the sale of wine or beer for delivery. Regardless, the restaurant must post open-container warnings in the restaurant and online for both the delivery driver and the customer.

ABC requires that the following verbiage be posted in a manner that puts the consumer on notice of still applicable open-container laws:

Alcoholic beverages that are packaged by this establishment are open containers and may not be transported in a motor vehicle except in the vehicle’s trunk; or, if there is no trunk, the container may be kept in some other area of the vehicle that is not normally occupied by the driver or passengers (which does not include a utility compartment or glove compartment (Vehicle Code Section 23225)). Further, such beverages may not be consumed in public or in any other area where open containers are prohibited by law.

California Vehicle Code sections 23221-23229 are collectively referred to as California’s “open container” laws and prohibit driving with an alcoholic beverage that has been opened, even if not consumed. Generally, an infraction of this nature carries a maximum fine of $250.00. In California, whether the beverage has been partially consumed or simply has a broken seal, having an open container in the car is illegal.

While the verbiage that must be posted by restaurants notes that it is illegal to have an open container in a vehicle and to consume in pubic (i.e. drinking in your vehicle while driving), it does not refer to or make any reference to drunk driving. Drunk driving, however, is a natural consequence of drinking while driving, which has been made easier to accomplish with these loosening of the restrictions.

During these trying times, it is important to support your local restaurant industry. However, if you are going to purchase alcoholic beverages with your take-out order, be sure to transport your alcohol in the trunk or bed of your vehicle. A person will not be guilty of violating an open container law if the alcoholic beverage is transported in the trunk of your car or in a place that is not ordinarily occupied by passengers, such as the bed of a truck or lockbox container. If you are not able to transport the alcohol in such a place, try to purchase beverages that are truly sealed, such as an unopened box, and remind your passengers not to drink while you are driving.

More importantly, if alcoholic beverages are in the trunk of a vehicle, or otherwise inaccessible place, a driver is incapable of taking a sip before getting home, thus eliminating the risk of getting a DUI.

Tractor Pulls and Alcohol Pulls: Drunk Driving on Private Property

The urban dictionary defines an alcohol pull as “taking a swig of alcohol, directly from the bottle.” This type of alcohol consumption usually leads to some wild stories.

Tractor pulling, on the other hand, is a competitive motorsport in which modified farm tractors, modified tractors or trucks drag a metal sled along a prescribed course. Unfortunately, not everyone can afford the expenses of the “world’s heaviest motorsport.” This is why low-stakes, private back road to an empty farm field, truck pull competitions also make for wild stories.

Is drunk tractor pulling reckless and dangerous like drunk driving? Absolutely.

Is it illegal? Not necessarily because most of the time, it is done on that private back road or that private farm field.

The DUI laws of all states prohibit driving under the influence of drugs or alcohol on public streets and highways. But whether you can get a DUI for operating a vehicle while drunk on private property depends on what state you live in and the type of private property that you are occupying.

Private Property – Open to the Public

Some states have expansive DUI statutes to include driving under the influence anywhere in the state. These statutes make no distinction between driving on public and private property, and courts often find DUI laws apply to both. For example, both Kentucky and Mississippi’s DUI laws say it’s unlawful to drive under the influence anywhere within the state.

Current California Vehicle Code 23152 prohibits a person to drive a vehicle while under the influence, without any reference to location. However, before its amendment in 1982, the law prohibited driving under the influence while driving on California highways or other areas “open to the general public.”

Similar to California’s pre-1982 law, Texas law states that it’s illegal to drive in a “public place” while intoxicated. Texas law goes further to define a public place as “any place to which the public or a substantial group of the public has access.” The definition includes streets, highways, and “common areas” of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. It follows then that you can get a DUI on private property.

In 1982, however, the California legislature removed any language referring to the specific locations where a person could be arrested for a DUI. Courts subsequently concluded that it was the intent of the legislature that, by removing that language, the law prohibiting drunk driving could extend to anywhere in California that could pose a danger to the public, including some private property.

Private Property – Not Open to Public

The practical effect of California’s current DUI law means that a person can get a DUI even if they are on land not designated as a public road.

While law enforcement can issue citations for DUI on lands other than highways that are open and accessible to the public it cannot issue citations for DUI on private lands under the immediate control of the owner or his or her agent where permission is required and has been granted to operate a motor vehicle.

However, if the land is accessible to the public and is not within the immediate control of the owner, you can still be cited for DUI. This essentially gives the police the authority to arrest and charge you with driving under the influence in the parking lot of your favorite restaurant or nightclub.

Would hosting a truck pulling competition on private property where people are drinking fall under the private property exception? It is rather unlikely that a person would be able to defeat a DUI charge in this situation given the nature of the activity. But it would also seem as though it would depend on whether the “competition” was open to the public, even if it is on private property. Perhaps a DUI charge stemming from a competition on private property would be better fought if the officer did not have the authority to enter the property in the first place.

Although it is less likely that you will be stopped by an officer on private property than on a public road, California DUI laws are far-reaching and are intended to prevent people from creating a risk to themselves or others. Laws like these have started to gain popularity because of accidents on rural or remote private property. In Arkansas, for example, the House greenlighted a new piece of legislation that would give the authorities the right to test blood alcohol levels of farm equipment drivers if injury or death occurs as a result of a farming accident. In Iowa, a driver can be arrested on the charge of “Operating While Intoxicated.” While it is the functional equivalent to California’s “Driving Under the Influence,” the use of the word “operating” instead of “driving” is broader and applies to the operation of any motorized vehicle on any type of land, public or private.

In California, DUIs carry strict consequences. It is important to consider that a situation like the one described above might be considered an aggravating factor. Aggravating factors include, but are not limited to, reckless driving, excessive speeds, threat of great injury to others, and property damage. These considerations can warrant an even greater punishment.

While it is not advisable to engage in dangerous activities like those listed above, sometimes mistakes happen. If you find yourself fighting a DUI battle related to what has been discussed here, it is important that you not only know your rights but that you find a knowledgeable attorney who can help you navigate such an intricate area of law.

Medical Marijuana vs. Probation

With the legal use of medical marijuana on the rise, many states are being faced with the issue of what to do with their probationers who are medical marijuana card holders.

While unclear how often petitions are granted, California allows anyone on probation or in jail to petition a judge for lawful use of medical marijuana. Since 2014, the state of Washington stopped testing for marijuana in their parolees and allows them to use legal marijuana like any other citizen. Rhode Island state laws explicitly allow for parolees to continue using medical marijuana.

A recent Colorado case has pushed back on what judges are allowed to order in their courtroom when it comes to medical marijuana. Back in 2017, Alysha Walton pled guilty to driving under the influence of alcohol and speeding and agreed to probation as part of her sentence. During the process of Walton’s case, her legal team requested a hearing to allow her to continue using medical marijuana during her probation. The judge required the presence of a medical professional at the hearing in order to properly address her concerns.

When Walton appeared at the hearing without the presence of her doctor, stating that she was unable to get anyone to appear in person or by phone, the judge stated that her probation required her to abstain from medical marijuana. He did not find the presence of her medical marijuana card and a letter written by her doctor to be valid substitutes of his request for a doctor’s in-person testimony.

The Colorado Public Defender’s office took up the fight, arguing that this restriction was an abuse of the court’s power. They argued that, while she may not have brought a physical person to the courtroom as requested, she still provided adequate documentation to support her need for medical marijuana.

In 2015, Colorado passed a law dealing specifically with conditions of probation relating to the use of medical marijuana which states in pertinent part that probationers are to “[r]efrain from excessive use…of [an] abusable drug without a prescription; EXCEPT THAT, THE COURT SHALL NOT, AS A CONDITION OF PROBATION, PROHIBIT THE POSSESSION OR USE OF MEDICAL MARIJUANA…UNLESS…THE COURT DETERMINES…A PROHIBITION AGAINST THE POSSESSION OR USE OF MEDICAL MARIJUANA IS NECESSARY AND APPROPRIATE TO ACCOMPLISH THE GOALS OF SENTENCING…”

So, while Colorado state law specifically addressed the use of medical marijuana for probationers, whether a probationer was allowed to use medical marijuana rested solely within the discretion of the judge. There is, however, a problem with this.

“A person’s sentence always has a lot to do with who the judge is. And while you can never pick who your judge is, you can’t change who your judge is, you always have to know who your judge is. And if you’ve been doing this for as long as I have, you’re going to know what judges completely frown on marijuana no matter what. And you’re gonna [sic] know what judges have an open mind and are willing to follow the law because that’s what the legislature tells them to do,” Denver attorney Jay Tiftickjian told CPR News.

In Walton’s case, her lawyers argued that her case was about alcohol, not marijuana, and that the courts should not have restricted its use in the first place. They argued that inquiry of the facts of her medical marijuana use and requiring a doctor to present those facts was an abuse of the court’s power.

The court, fortunately, agreed with Walton’s attorneys in a decision issued late last year. The Court held that people sentenced to probation may use marijuana while on probation unless the prosecution can provide evidence that the use of marijuana during probation would be counter to the objectives of the person’s sentence.

While the decision to allow a probationer to use medical marijuana still rests within the discretion of the judge, their discretion to deny medical marijuana use is, at least, limited to only when the prosecutor can prove that its use would be a detriment.