“A six-pack of beer and boating go together like a peanut butter and jelly.” John Fetterman, law enforcement director with the National Association of State Boating Law Administrators explained. “There are still a lot of people that think that’s just the way it is.”
Since 2003, an average of 124 deaths occurs annually in the U.S. as a result of alcohol-related boating accidents. The Coast Guard has instituted a plan to reduce the overall death toll by five percent by 2016, taking careful measures in how it enforces boating laws. In 2019, 132 boaters were cited for boating under the influence of alcohol in Wisconsin. Law enforcement devoted more hours to boating activities than ATVs and snowmobiles combined. Law enforcement often conducts field sobriety tests on patrol boats with boaters seated.
Wisconsin Statute § 30.681 makes it illegal in Wisconsin to operate a motorboat while under the influence of an intoxicant or controlled substance to a degree which renders that person incapable of safe motorboat operation OR while the person has an alcohol concentration of 0.08 or more.
So what steps are taken to determine if you have been drinking and operating a motorboat in violation of Wisconsin Statute § 30.681? To begin with, you must understand what is a “motorboat.” “Motorboat” has a specific definition under Wisconsin law as “any boat equipped with propulsion machinery, whether or not the machinery is the principal source of propulsion.” Wisconsin Statute § 30.50 (6). This definition of “motorboat” includes “personal watercrafts” such as jet skis, see Wisconsin Statute § 30.50 (9d), but apparently excludes “nonmotorized boat” such as any canoe, sailboat, inflatable boat or similar device, rowboat, raft, and dinghy which are not motorboats. Wisconsin Statute § 30.50 (7). However, “no person may use water skis, an aquaplane or a similar device while under the influence of an intoxicant to a degree which renders him or her incapable of safely using water skis, an aquaplane or a similar device, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely using water skis, an aquaplane or a similar device.” Wisconsin Statute § 30.69 (4).
Next, pursuant to Wisconsin Statute § 30.683, any person who engages in the operation of a motorboat upon the waters of this state is deemed to have given consent to provide one or more samples of his or her breath, blood or urine for the purpose of authorized analysis. Further, under Wisconsin Statute § 30.682 a person shall provide a sample of his or her breath for a preliminary breath screening test if a law enforcement officer has probable cause to believe that the person that the person is violating or has violated the intoxicated boating law. The preliminary breath screening can only be used for determining probable cause to arrest not for trial. Id.
Are there other tests that can be administered to the operator of a motorboat to determine if they are operating a motorboat while intoxicated? Under Wisconsin Statute § 30.684, a person shall provide one or more samples of his or her breath, breath, blood or urine for the purpose of authorized analysis if he or she is arrested for a violation of the intoxicated boating law and if he or she is requested to provide the sample by a law enforcement officer.
There are field sobriety tests which are administered as screens to determine if someone is intoxicated and operating a motorboat on Wisconsin waters. “The standardized field sobriety tests (SFSTs) currently used at roadside are not suitable for the marine environment.” Development of Sobriety Tests for the Marine Environment. A combination of four tests—horizontal gaze nystagmus (HGN), finger to nose (FTN), palm pat (PP), and hand coordination (HC)—are now recommended field sobriety tests while on the water.
Penalties for intoxicated motorboat operation in Wisconsin are set forth in Wisconsin Statute § 30.80 as:
Penalties for a Boating DUI in Wisconsin:
- 1st motorboating DUI or violating the refusal law—fine of $150 to $300
- 2nd motorboating DUI—fine of $300 to $1,000 and jail time of 5 days to 6 months
- 3rd motorboating DUI—fine of $600 to $2,000 and jail time of 30 days to 1 year
- 4th motorboating DUI fine not less than $600 nor more than $2,000 and shall be imprisoned for not less than 6 months nor more than one year in the county jail.
License Penalties for a Boating OWI in Wisconsin:
- 1st offense DUI—license revocation of 6 to 9 months
- 2nd offense DUI—license revocation of 12 to 18 months
- 3rd offense DUI—license revocation of 24 to 36 months in addition to your jail sentence.
Additionally, if you are convicted of motorboat DUI, a court shall order you to submit to and comply with an assessment by an approved public treatment facility for an examination of the person’s use of alcohol, controlled substances or controlled substance analogs. Intentional failure to comply with an assessment ordered under this paragraph constitutes contempt of court.
In addition to any other penalty or order, a person convicted of motorboat DUI shall be ordered by the court to obtain a certificate of satisfactory completion of a safety course under s. 30.74 (1). If the person has a valid certificate at the time that the court imposes sentence, the court shall permanently revoke the certificate and order the person to obtain a certificate of satisfactory completion of a safety course under s. 30.74 (1).
If you find yourself in a situation where you are convicted of a motorboat DUI, contact Attorney Paul Ksicinski at 414-207-6345 for help.