Missouri Boating While Intoxicated (BWI) Cases
April 20, 2021
Every summer as people get out on the water, we receive numerous inquiries about Missouri Boating While Intoxicated offenses (BWI) at lakes such as Lake of the Ozarks and Smithville Lake in the Kansas City Metro area, and the differences between BWI and normal DWI cases.
There are important differences between a normal Missouri DUI / DWI case involving a vehicle, and a Missouri Boating While Intoxicated case (BWI) while on watercraft.
There are a couple of Boating While Intoxicated Statutes in Missouri. RSMo. Section 306.111(2) provides “a person commits the crime of operating a vessel while intoxicated if he operates a vessel on the Mississippi River, Missouri River or lakes of this state while in an intoxicated condition.” It is important to note that rivers and ponds other than those specified in the statute seem to be excluded.
RSMo. Section 306.111(5) defines intoxicated as “under the influence of alcohol, a controlled substance or drug, or any combination thereof.” A vessel is defined in RSMo. Section 306.010(7) as a watercraft twelve foot long powered by a sail or machinery. This Missouri law does not provide for paddle boats or canoes or other boats that do not have motors or sails.
Like Missouri DUI / DWI / or other drunk driving cases involving a car, Missouri Boating While Intoxicated cases (BWI) also have a “per se” statute which comes into play if the operator of a vessel tests “above the legal limit,” usually with a breath test. RSMo. Section 306.112 is the BAC statute for boating while intoxicated cases.
The range of punishment for Missouri Boating While Intoxicated cases (BWI) is also similar to Missouri DUI / DWI / or other drunk driving cases involving a car. Section 306.112(2) BWI and 306.112 provide:
a first conviction is a Class B Misdemeanor (carrying up to six months in jail and up to a $500.00 fine);
a second conviction is a Class A Misdemeanor (carrying up to a year in jail and up to a $1000.00 fine);
a third conviction is a Class D Felony (carrying up to four years in jail and up to a $5000.00 fine).
Note that the statute provides for convictions to have a prior enhance you up to greater punishment, not for prior cases which resulted in probation being given such as a Suspended Imposition of Sentence (SIS) that did not result in a conviction if the terms of probation were successfully followed. In other words, a prior Missouri boating while intoxicated (BWI) which does not result in a conviction will not be used to enhance a new BWI charge.
There are also presumptions in Missouri boating while intoxicated similar to presumptions in Missouri DUI / DWI or other drunk driving cases involving a car: if you blow below 0.05% BAC, it is presumed that you are sober.
There is an old Missouri Statute regarding boating while intoxicated, RSMo. 306.112(2) which provides “no person shall operate any motorboat or watercraft, or manipulate any water skis, surfboard or other waterborne device while intoxicated or under the influence of any narcotic drug, barbiturate or marijuana.”
Section 306.010(8) defines watercraft as “any boat or craft, including a vessel, used or capable of being used as a means of transport on waters.” This apparently does cover paddle boats and canoes.
Another way that Missouri boating-while-intoxicated offenses are similar to Missouri DUI / DWI or other drunk driving defense cases involving a car is that there are set rules that must be followed by law enforcement in administering chemical tests.
In other words, the breath test you are given in Missouri boating while intoxicated cases must be administered according to similar rules for DUI / DWI cases with a car.
For a chemical test (a breath test) to be considered valid under RSMo. Section 306.111 to 306.119 (the Missouri boating while intoxicated statutes) RSMo. Section 306.114(2) states that the breath test must be performed according to the methods and devices approved by the Missouri Department of Health.
Further, also like Missouri DUI / DWI or other drunk driving cases involving a car, RSMo. Section 306.114(3) requires that “the Department of Health shall approve satisfactory techniques, devices, equipment or methods to conduct tests required by RSMo. Sections 306.111 to 306.119.” Operate means to physically control the movement of a vessel in motion under mechanical or sail power in water.”
Note: prior to 2001, the Missouri Department of Health breath testing regulations that apply to a normal Missouri DUI / DWI or other drunk driving case involving a vehicle did not apply to Missouri Boating While Intoxicated cases.
Since 2001, these regulations DO apply. In other words, the same challenges can now be made to breath tests in Boating While Intoxicated cases as normal DWI cases. The operator of the breath testing machine must have a valid permit. The breath testing machine must have been maintained in the last 35 days, etc. The Missouri Department of Health breath testing regulations are particularly important in Boating While Intoxicated cases, perhaps even more so than in a normal DWI case involving a car.
This is because the breath testing machines in Boating While Intoxicated cases are moved around frequently making them more susceptible to not functioning properly and requiring more frequent recalibration.
Also like Missouri DUI / DWI or other drunk driving cases involving a car, Missouri boating while intoxicated cases have similar implied consent provisions which only allow the operator of the vessel or boat to be given two chemical tests.
In boating while intoxicated cases, you do NOT, however, get 20 minutes to contact an attorney to ask them whether to blow or refuse like you do in Missouri DUI / DWI or other drunk driving cases involving a car.
You should be aware that Missouri water patrol on Missouri lakes such as Smithville Lake or Lake of the Ozarks will NOT give you 20 minutes to contact an attorney even when you ask. You will likely be deemed to have refused to blow if you ask in a Missouri Boating While Intoxicated case, even though this is a right you have if the case was with a car instead of a boat.
There are other Implied Consent type provisions in Missouri Boating While Intoxicated cases that are similar to Missouri DUI / DWI or other drunk driving cases involving a car.
The right to refuse a chemical test is similar in both types of cases. RSMo. Section 306.119(1) provides that the arresting officer is required to advise the arrestee of the reason for requesting the test, the right to refuse the test and that if the arrestee refuses, the refusal can be used against him at trial.
Another big issue is Missouri boating while intoxicated cases (BWI) is that it is virtually impossible for the water patrol to administer standardized field sobriety tests in a boat without going onto land.
These tests are the HGN horizontal gaze nystagmus test where the officer tests your eyes for jerking when he moves his finger in front of your face, the walk and turn test, where you take nine steps heel-to-toe, turn, and take nine heel-to-toe steps back with your hands at your sides, and the one-leg stand test, where you raise one leg off of the ground six inches for 30 seconds to test your balance.
Standardized field sobriety tests are discussed in the other sections of this site regarding normal Missouri DUI / DWI or other drunk driving cases involving a car. However, there are a few general observations to consider for standardized field sobriety testing in Missouri boating while intoxicated cases that are different than in normal Missouri DUI / DWI or other drunk driving cases involving a car (where you are on dry land).
First, to administer the HGN horizontal gaze nystagmus test, where the officer is moving his finger back and forth in front of your eyes to see if your eyes are jerking, allegedly from alcohol consumption, your head must be kept still for the HGN test to properly be conducted according to NHTSA’s protocol, and this is virtually impossible in a rocking boat.
Second, NHTSA’s protocol requires that the walk and turn and the one-leg stand test be conducted in a location that is well lit so you can see. Their own standardized field sobriety test validation studies have shown that these tests conducted in the dark are too hard for even for sober people to perform.
Further, all the tests must be conducted on a reasonably dry, flat, level surface, free from debris. A rocking boat in the middle of party cove at the Lake of the Ozarks hardly qualifies for obvious reasons.
It is also amazing the number of times that water patrol will take the time to take a driver to “dry land,” and then give them these sobriety tests on a dock, which is also rocking from the waves, instead of on the shore.
Water patrol will often resort to employing what NHTSA deems as “non-standardized” field sobriety tests in an attempt to overcome these problems—“non-standardized” meaning that NHTSA deemed them not near as reliable as the three standardized field sobriety tests in determining whether or not someone is above the legal limit.
The non-standardized field sobriety tests employed by water patrol in Missouri Boating While Intoxicated cases often include the alphabet test, a counting test, a finger dexterity test, a Rhomberg Test, or the use of a Portable Breath Test (NOTE: a portable breath test is NOT the same as a real evidentiary breath test you are asked to take after being arrested.
The results of PBTs are so unreliable that they are not even admissible in court against you to show the actual number you blew, only to show the presence of alcohol and probable cause to arrest you (if administered by a regular police officer in a normal Missouri DUI / DWI or other drunk driving case involving a vehicle, NOT by water patrol. PBTs are discussed extensively elsewhere in this site).
While arresting officers may use PBT’s for the limited purpose of establishing probable cause to arrest to make you go to the station to take the REAL breath test in normal DWI cases with a car, the PBT statute specifically does not include water patrol.
NHTSAs own validation research indicates that these non-standardized field sobriety tests are not to replace the standardized tests. NHTSA does provide that these tests may be used to supplement standardized field sobriety tests, and that they may be given as partial grounds to ask someone to take the “real” tests.
Even assuming, however, that the “non-standardized” field sobriety tests are valid for any purpose, it is not at all uncommon to find that water patrol does not know how to correctly administer these tests, that they have no training experience with these tests on drinking subjects, that they do not know how to testify at trial about the reliability of the tests or the percentage of accuracy of the tests, etc.
An attorney must file a motion to suppress or a motion when seeking to suppress these types of “non-standardized” field sobriety tests in Missouri Boating While Intoxicated BWI cases for the reason that there is no scientific basis to show that these tests are reliable and such a motion can usually show that the arresting officer does not have training or the ability to administer, score, or interpret these tests and usually does not know the percentage of accuracy of any of these tests.
In addition to the NHTSA DWI arrest manuals that are used in Missouri DUI / DWI or other drunk driving cases involving a car, there is also a Missouri Watercraft Manual which governs Missouri Boating While Intoxicated (BWI) cases.
Boater fatigue is discussed throughout this manual, and should be brought up in your case. Many things cause boater fatigue which might make a sober person unable to complete sobriety tests, including: long-term exposure to wind, sun, glare on the water and rocking of the boat.
Mr. Guilfoil has completed the 40-hour NHTSA (National Highway Traffic Safety Administration) Standardized Field Sobriety Testing Course, and is a NHTSA-certified Standardized Field Sobriety Testing Instructor. He has lectured to Clay County Water Patrol on the proper administration, demonstration, interpretation, and scoring of Standardized Field Sobriety Tests in Clay County Circuit Court, Division 6.
Here are some of the most common questions we receive in our office about Missouri boating while intoxicated (BWI) cases:
If I have a Boating While Intoxicated (BWI) conviction on my record, can I have my Missouri driver’s license suspended like in a normal driving while intoxicated charge (DUI / DWI) with a car?
No. A Missouri Boating While Intoxicated (BWI) charge is not sent to the Missouri Director of Revenue, and a BWI conviction will not show on your Missouri driving record.
If I have a Boating While Intoxicated (BWI) conviction on my record, will it appear on my criminal record or criminal history if my employer does background checks as part of my employment?
Missouri Boating While Intoxicated (BWI) cases are governed by RSMo. 306. While the law provides that a Missouri Boating While Intoxicated (BWI) case will be reported to the Missouri Police MULES computer system for processing, and even cases that result in a Suspended Imposition of Sentence (SIS) probation being granted (where the conviction does not show on your record if you successfully complete your probation) are supposed to be reported, our office has not ever seen a Missouri Boating While Intoxicated (BWI) case show up on a client’s permanent record where they were given a Suspended Imposition of Sentence (SIS) probation).
RSMo. Section 306.114 provides “no person convicted of or pleading guilty to a violation of Section 306.111 or 306.112 shall be granted a Suspended Imposition of Sentence, unless such person is placed on probation for a minimum of two years and a record of the conviction or plea of guilty is entered into the records of the Missouri uniform system maintained by the Missouri state highway patrol.”
I was just driving along without doing anything wrong, and water patrol at Smithville lake was on me asking about drinking and boating while intoxicated, and then I was under arrest. Why did they stop me?
The most common reason stated for stopping operators of boats in Missouri boating while intoxicated cases is wake violations.
You are not allowed to make a wake within posted wake buoys. You are not allowed to make a wake within 100 feet of docks and anchored boats. Of course, this is totally open to interpretation and can be used as a pretext at any time to stop just about anyone. Be careful with your wakes.
The next most common reason stated for stopping operators of boats in Missouri boating while intoxicated cases is a light violation. Your lights must all properly work when it’s dark. They will also often stop you for using docking lights while out on the lake when you are not docking.
You will often be stopped if people are sitting along the gunnels of the boat and are not in seats.
Another very common ground in a Missouri boating while intoxicated case is speeding. If you exceed the nighttime speed limit of 30 MPH between the time of ½ hour after sunset to one hour before sunrise, you will likely be stopped. An attorney in a Missouri boating-while-intoxicated case involving speeding should challenge the stop as having no proper basis if the officer cannot show that the radar gun was not properly calibrated.
I was stopped at a “sobriety checkpoint” in my boat at Smithville Lake where I was not speeding or in any way violating the law. Is this type of sobriety checkpoint legal in Missouri Boating While Intoxicated cases?
Missouri Boating While Intoxicated “sobriety checkpoints” are sometimes legal, subject to the following inquiries:
Was a checkpoint plan for the sobriety checkpoints in question in this Missouri Boating While Intoxicated case prepared in advance?
Was the plan a written plan?
Was the plan prepared with input from both field and supervisory personnel?
Did the plan provide the name of the author of the plan?
Was there a showing that the plan was not authored by the same person or persons whose actions the plan purported to limit? In other words, did their plan provide for neutrality?
Was there a showing that the location of the checkpoint effectively promoted the State of Missouri’s purpose of getting intoxicated boaters off of the water?
Was there a showing that the checkpoint location was chosen by supervisory personnel?
Did the plan set forth specific guidelines that limited the officer’s discretion in regard to operating the checkpoint?
Was there a showing that the location and layout of the checkpoint was safe for boaters to stop?
Was there a showing that the plan was designed to alleviate fear, concern or fright on the part of boaters?
Was there appropriate lighting to advise boaters of the upcoming checkpoint to alleviate fear and concern and to provide for boater safety?
Was there a showing that a plan existed setting forth where checkpoint lights would be placed?
Was there a showing that a plan existed setting forth where checkpoint signs would be placed?
Was there a showing that the intrusion upon boaters was minimal?
Did the plan provide the name of the senior officer in charge of the checkpoint?
Did the plan provide a list of officers that were to conduct the checkpoint?
Was there a showing that the terms of the plan were adequately disseminated to field personnel prior to the operation of the checkpoint?
Was there a showing that the checkpoint location was chosen for some non-arbitrary reason?
Was there a showing that each of the checkpoint officers who stopped and detained the driver of the boat followed the guidelines of the checkpoint plan for this checkpoint?
Was there a showing of how many vessels were stopped at the checkpoint in question?
Was there a showing of how many vessels were found to have violated any Missouri boating while intoxicated laws?
Was there a showing of how many ordinary crimes, other than Missouri boating while intoxicated crimes, were uncovered as a result of the checkpoint?
Was there a showing that the plan provided specific instructions as to which vessels were to be stopped, i.e—every boat, every other boat, etc.
Was there a sufficient showing that the plan was properly effectuated and that the people effectuating the plan did not use their discretion to decide which boats would be stopped and which boats would not be stopped?
As you can see, these Missouri Boating While Intoxicated (BWI) cases can often be more complicated than the garden variety DWI case, because there are many more variables present on the water than at the side of the road.
Our office can be reached by phone for a free consultation regarding Missouri Boating While Intoxicated cases.