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BWI Information

Grant M. Scheiner - Houston Criminal Defense Lawyer

BWI Information

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Texas BWI Information: Boating While Intoxicated

The state of Texas is rich with inland waterways and generous amount of coastline on the Gulf of Mexico. Naturally, boating is a popular recreational pastime. When you are out on the water in a boat, enjoying the sunshine and having some alcoholic beverages, you feel so far away from the “real world” that it is easy to get carried away and fool yourself into thinking that normal rules do not apply. Well, they do. Boating while intoxicated is a major factor in boating accidents and arrests for boating-related offenses.

Boating While Intoxicated

It is a little-known fact that, like Texas DWI offenses, boating while intoxicated, or operating a watercraft while not having the normal use of mental or physical faculties by reason of the introduction of alcohol or any other substance into the body, is an offense under Texas law. For the purposes of the statute, a watercraft includes a vessel, one or more water skis, an aquaplane, or any other device used to carry a person on water, apart from those powered solely by the water current. Some interpret this as meaning that someone operating a sailboat is exempt from BWI charges, but as these are powered by the wind, and not the prevailing water currents, sailboats are included in the definition of watercraft.

The legal limit for BWI is the same as that for DWI,  .08 percent alcohol. The penalties for BWI are also the same as those for driving while intoxicated. Under Section 49.09 of the Texas Penal Code, boating while intoxicated is a Class B misdemeanor with a minimum custodial sentence of 72 hours and a maximum of 180 days. In addition, there may be a fine of up to $2,000 and a suspension of driving privileges.

If there are prior convictions or certain other circumstances, the charge may be enhanced to a felony, with correspondingly higher penalties. The laws for boating while intoxicated are enforced by marine safety environment officers and game wardens. Be aware that a conviction for boating while intoxicated may come back to haunt you later in the form of a “prior conviction,” if you are later picked up for DWI while driving car or other motor vehicle. This can increase the charge and may lead to a longer jail or prison sentence or a higher fine.

BWI Defense Strategies

Jury selection

Your BWI defense begins with your first telephone call to a DWI lawyer, who may advise you not to talk without your attorney present and to decline to take a blood or breath test. Later, if your lawyer is not able to get your case dismissed or resolved to your satisfaction, a case might be set for trial. A crucial stage during trial is the process is voir dire, or jury selection. Your lawyer may reject a prospective juror for any of a number of reasons, including if the person cannot understand or follow the law, or perhaps is a member of an anti-DWI lobby organization. A prospective juror might have been the victim of an alcohol-related accident, which might make it difficult for the person to be a fair and impartial juror. An experienced DWI attorney should know which prospective jurors to avoid, in the event of a trial.

Mistaken signs of intoxication

Some physiological signs of intoxication, e.g., red, glassy eyes and unsteadiness, may also be the result of spending hours on a boat in the hot sun. It is important for your lawyer to be able to distinguish between signs and symptoms of intoxication versus ordinary behavior that police and prosecutors may mistake for evidence of guilt.

Standardized Field Sobriety Tests

Obviously, it is impractical to conduct the one-leg stand test and the walk-and-turn test on the water. Not only should these be performed on land, but the arresting officer is required to observe a 15-minute observation period while the suspect regains his equilibrium. A BWI defense lawyer will demand proof that this interval was observed and seek to explain why apparent symptoms of intoxication are more likely signs of innocent behavior.

Chicago Bears running back BWI

Chicago Bear running back, Cedric Benson, was arrested by the Lower Colorado River Authority in May 2008 for BWI in the course of a routine late night safety inspection. Benson accused the police officers of spraying him with mace and striking his feet and ankles to prevent him from walking properly. A passenger on the boat had numerous photographs to back up the ball player’s account of events. In the end, an Austin grand jury decided not to indict Benson and the case was dropped.

Scheiner Law Group

For further BWI information, contact Scheiner Law Group, P.C., defending the rights of residents in the Houston-The Woodlands-Sugarland-Galveston areas.