Those in Position to Know: What Constitutes BWI???

[jocko_nc]

O.K. A new thread and I am still on this topic... BWI.

Those of you either "In the Know" or "In the Loop" please enlighten us with the facts or tell us your opinions. Lawyers and/or LEO's out there please tell us what the LAW ACTUALLY IS, or what your practical CONSIDERATIONS ARE, respectively. I expect a laywer would be in a position to say what CAN be and a LEO would be in a position to say what likely WOULD be.

Please, let's limit the discussion to boats and the operation of them. Please, let's stick to the facts, I think a lot of us would like to learn something.


1) What precisely constitutes "operating a vessel" where you live? Let's try to find a description that clearly delineates what actions constitute legal "operating" and what actions do not. There has to be a legal description somewhere.

To get it going:

Does a vessel have to be moving under power of some type to be considered operating?

Is a boat at anchor, engine off, considered operating a vessel?
Is a boat at anchor, engine on, considered operating a vessel?
Is a boat a dock, engine off, considered operating a vessel?
Is a boat at dock, engine on, considered operating a vessel?
Is a boat at acnchor, but dragging considered operating a vessel?
Is a boat at drift considered to be operating a vessel?
Does a "houseboat" have any special consideration? What makes a "houseboat"?
Is a boat beached or grounded considered operating a vessel?

If a boat full of drunks fits one of the above scenarios and is considered to be "operating", who is considered to be the "operator"?

Does a person have to be witnessed "operating"?


2) What precisely constitutes a "vessel"?

To get it going:

A swimmer?
A swimmer on a raft?
A canoe?
A row boat?
A boat less than _____ ft? What about a jet ski then?
A boat under sail?
A power boat less than 10 hp?

I am not trying to be sarcastic, quite the contrary, I have no idea about this and am curious. I doubt anyone really knows. Considering the ramifications, it would nice.

jocko

[Shag]

Like I posted over on the other thread I read where its illegal to swim drunk on Lake Lure.

NC Statutes state that its illegal to water ski drunk.

Not sure what their definition of this one would be though.

I think I read that most states parallel the DWI laws in that there must be some behavior/indication that the person is under the influence. I think most states use the .08 for BWI as well.

I too would like to hear from those who know.

[Shag]

Jocko, here's how the NC Statute reads:

75A-10. Operating boat or manipulating water skis, etc.,
in reckless manner; operating, etc., while intoxicated,
etc.; depositing or discharging litter, etc.
(a)No person shall operate any motorboat or vessel, or
manipulate any water skis, surfboard, or similar device on the
waters of this State in a reckless or negligent manner so as to
endanger the life, limb, or property of any person.
(b) No person shall manipulate any water skis, surfboard,
nonmotorized vessel, or similar device on the waters of this
State while under the influence of an impairing substance.
(b1)No person shall operate any motorboat or motor vessel
while underway on the waters of this State:
(1) While under the influence of an impairing
substance, or
(2) After having consumed sufficient alcohol that he
has, at any relevant time after the boating, an
alcohol concentration of 0.08 or more.

[PortHunter]

Here the definition of "opperate" from the same chapter of the NC General Statute:

"Operate" means to navigate or otherwise use or
occupy a motorboat or vessel, and shall be
applicable to any motorboat or vessel that is
afloat

It looks like if you're in the boat, and the boat is floating, and you're drunk you may be BWI. Obviously, if there is more than one person in the boat it becomes a bit more tricky. I would say that under this staute if you're the owner, you take the boat out with a bunch of friends, drive it to an achorage in a sober state, tie up and then proceed to get plastered with the rest of your buddies that you would be BWI, as the owner and as the person who brought the boat to that area, even if you intended to stay anchored till you sobered up. I think an argument could be made that as long as a boat is on a navigable waterway that there needs to be someone in it capable of operating it in case of ermegency. Obviously the calculus and the argument changes if you're in your boat, tied up at your dock or marina having a few drinks with friends and having no intention of going anywhere.

[PortHunter]

FYI - to answer your other question as to what a vessal is, here is the definition:

"Motorboat" means any vessel equipped with
propulsion machinery of any type, whether or not
such machinery is the principal source of
propulsion: Provided, that "propulsion machinery"
as used in this section shall not include an
electric motor when used as the only means of
mechanical propulsion of any vessel: Provided
further, that the term "motorboat" shall not
include a vessel which has a valid marine document
issued by the Bureau of Customs of the United
States government or any federal agency successor
thereto.

"Vessel" means every description of watercraft or
structure, other than a seaplane on the water, used
or capable of being used as a means of
transportation or habitation on the water.


The rest of the definitions and the NCGS can be found at: http://www.ncleg.net/statutes/genera...apter_75a.html

[Bullshipper]

Whether you, your vehicle, or vessel is at rest or is underway, the law will hold you responsible for any damage or harm it causes, so I don't see that its activity or lack of, will hold you safe. If your boat breaks or loosens its mooring ropes and sideswipes your neighbor in the night while you are miles away, you are still responsible to pay for damages.

When underway you have to abide by the law and more regulations than when at rest, but this diferential has more to do with your location (waterways) than if you have engines, if they are started, anchored, etc. So, once you move away from a dock or mooring ball you are under way, even if it is unadverted or by accident.

The operator, or responsible party in most civil liability claims will be the owner of the craft, and criminal charges will always be brought against the individual or party commiting the offense onboard or in the water.

[jocko_nc]

Damn, that is quite a read... Thanks, guys. Now I am really confused.

Taken literally, some of those definitions would include playing with Malibu Barbie skis at the beach or driving a remote control toy boat. A surfboard or other device? Jeez. Also, I see no distinction between driver and passenger, except where the vessel has US Customs papers. There is no allowance for a boat that is also a home. It makes no difference that you are tied up at dock. Thus, it is illegal- in some capacity- to drink a drop anywhere on the water. That is absurd. However, I am sure that is not what was meant and that the BWI offense is not what they are describing.

Is this the part that is pertinent to BWI in NC??????????

(b1)No person shall operate any motorboat or motor vessel
while underway on the waters of this State:
(1) While under the influence of an impairing
substance, or
(2) After having consumed sufficient alcohol that he
has, at any relevant time after the boating, an
alcohol concentration of 0.08 or more.

I can understand this language just fine. I see the qualifier "while underway" applicable to the .08 BAC limit, which is the statute I am after. All that other stuff must be for another infraction, more like like public intoxication. I think we are getting somewhere finally.


Thus:

One does needs to be "underway" At anchor, dock, or moor is fine.
Drifting could be problematic.
A "motor vessel" includes a sailboat or motorboat, whether or not machinery is being used, is even functional. A canoe or skiff with ONLY electric propulsion is exempt. i.e. a trolling motor setup.
A beached or grounded vessel is o.k., whether intentional or otherwise. Unintentionally grounded might not be the best one to argue with the officer!
"Underway" needs to be established. Again, probably not the best point to contend, but you really do need to be witnessed underway.


I understand about accidents and liability. I was curious when one is legal to be drinking on a boat (as per BWI only) and when one is illegal. I think I have a pretty good idea now.

Thanks, Guys.

jocko

[Bailey Boat]

So, you think you have it now????? Well, let’s stir something else in the pot, "under the influence". In actuality that could mean that if you have ONE beer that you are “under the influence” but yet not actually at the point of illegal intoxication. This one is open to interpretation by the officer at the scene of the alleged infraction. Bear something in mind, his/her “probable cause” is warranted in the name of checking for required safety equipment and once in THAT position he/she is warranted to ask questions about the days drinking activities. Since there are no “roadblocks” on the waterways they are allowed to single you out from the crowd and descend upon you with any damned lame excuse they want.

[sblunden]

Interesting stuff. When I was in Sea School working on my Masters license we were told that the CG defines underway as "not at anchor or made fast to the shore or aground". A vessel dragging anchor and a vessel being towed are "underway". You are "Underway Making Way" if water is moving over a control surface (rudder, keel) and "Underway Not Making Way" if you are becalmed, dead in the water, sinking or burning. I think the various states follow the Federal definitions, but I'm not sure.

[fish factory]

What constitutes BWI?

Several college age bikinis in boat,
Un-cooperative attitude while being stopped
Really nice Fountain or Cigarette (fast, expensive ride, intimidates)
Shortfall in public school budget
Increase in price of doughnuts
First nice weather day after a week of rain (quotas)

[bak@cha]

fish factory - 1/6/2005 4:04 PM

What constitutes BWI?

Several college age bikinis in boat,
Un-cooperative attitude while being stopped
Really nice Fountain or Cigarette (fast, expensive ride, intimidates)
Shortfall in public school budget
Increase in price of doughnuts
First nice weather day after a week of rain (quotas)

LOL Too funny!

[ko]

I thought it was British West Indies.

[Shag]

Bailey Boat - 1/6/2005 3:42 PM

So, you think you have it now????? Well, let’s stir something else in the pot, "under the influence". In actuality that could mean that if you have ONE beer that you are “under the influence” but yet not actually at the point of illegal intoxication. This one is open to interpretation by the officer at the scene of the alleged infraction. Bear something in mind, his/her “probable cause” is warranted in the name of checking for required safety equipment and once in THAT position he/she is warranted to ask questions about the days drinking activities. Since there are no “roadblocks” on the waterways they are allowed to single you out from the crowd and descend upon you with any damned lame excuse they want.

Lets get a little deeper. Bailey, lets say you are sober (really) and you jumped off your boat to take a pic of the bride who had already downed a few. From that pic it looks like there is at least some float to your boat. As PortHunter cited "operate" can mean to "occupy". If ya got a real SOB she may be technically BWI. Now if she is BWI then she could lose her driver's license. Is any of this starting to make sense now?

[PortHunter]

I think you can get a real SOB in all cases and situations. I once had an officer in the Mass Enviormental Police tell me (after he had boarded my boat and with his hand on his gun) that he "was the law out here." Point being you never know when you're going to get someone who has had a bad day. If you do, and they decide to haul you in your best advice (and I am sure someone is going to disagree) is to just shut up don't submitt to any tests, ask for the lawyer, and let things work out. Bottom line is that officers of the law are also called upon to interpret it. Sometimes they make bad calls, or calls motivated by a feeling they may have. Laws are drafted in such a way as to allow them to make those calls and most of the time it works.

While we're on this subject,
Does anyone know what standard applies to stopping a boat on a navigable waterway? Is it like a car stop on land (i.e. the police need reasonable suspicion or probable cause to pull you over unless it is part of a roadblock where they are pulling over all cars, or at least pulling in a random manner), or is it that the CG and state agencies can pull you for a safety inspecition if they feel like it regardless of your behavior? I think its the later, but I'm not sure. On that note, does anyone know what the standard is for a seach of the vessal once they have boarded it? Can they look at everything, or just containers and spaces that might hold a gun or weapon until they have probable cause to look everywhere for items other than a weapon (i.e. drugs)? Sorry for the rather tecnical legal questions, I'm just curious if any lawyer-birds out there may have had expirence with this.

[Shag]

The USCG has the broadest search authority of any law enforcement. At least it used to have before coming under the Dept of Homeland Security. They can board any US vessel or any vessel in US waters for absolutely no reason. They taught us in MLE school not to abuse it for fear of losing it. That was 20+ years ago.

I believe that other LE can do a "safety inspection" and can only go further with probable cause.

[fldmax]

Proper answer is if you are in control of the vessel engine on or tow rope attached Being in the captian seat. PWC's, also. If you drink a few beers like and average of 2 -3 per hr you will be BWI in any state I know of. In Fl you can drink beer and have an open beer in your hand unless you are under way. catch you .08 or above away you go. In Fl .08 on anything that you can steer or be incontrol of even in your own back yard driving the lawnmower and if they saw you they can get you. MADD is the cause of most of this. I agree as I have had to tell a parent their child is DEAD cause of a drunk driver. Guess after you see enough of this you worry about peope who don't understand the words DRINK IN MODERATION AND BE RESPONSIBLE. Just remember you are responsible for your own actions and choices hope you can live with them. You can't change the law but you can live with it. or you can do as you want.

[jocko_nc]

I would expect to be stopped, boarded, inspected, checked, etc., for any reason at any time. That seems to be the consensus. Besides, you really can't say "no", can you?

What I am concerned about it the "BWI" statute, the waterborne equivalent to DWI, what states have what laws, and what the ramifications are. As I read all that NCGS mumbo-jumbo, it is pretty clear: .08 BAC in a "vessel" "under way". I believe NC does NOT link the BWI to the drivers license.

Yes, those other statutes say one can be in violation of some code by being "impaired" in any way, on any water, on or with any device that floats on said water. You can even be holding the device in your hands, as in "manipulating" it. That must be a toy boat? ???. Note, you can also be in violation for being "impaired" in any way anywhere else in public, with or without any other land-based object. No spitting on the sidewalk or profanity on Sunday either. However, none of these is going to result in a serious penalty.

Can someone confirm that BWI does NOT affect drivers license in NC?

jocko

[jocko_nc]

We can only live with a law if we know what the law is. Amazingly, there is no consensus among the governed. The statutes themselves are meaningless, written to include everything and everyone at anytime. Read them.

Figures...

[brownskow]

A log is a vessel and the frog on that log is the operator. A swimmer is a self powered vessel that needs to be coast guard regulated. A vessel under the command of a drunk is a violation of the Nuremberg convention, while a vessel operated by an idiot is condoned by the UN and the Brazilian Coast Guard however such a vessel in the Bahamas will be confiscated and the owner shot on the spot while in Iceland it is common to operate a vessel blind drunk because the cold water can sober you up when you make contact. A houseboat is a vessel, covered also by the Real Estate Commision, and the coast guard but ruled by a witch, a sinking houseboat is considered real estate in Va but not Nebraska. Go figure. A boat adrift is considered a drifting vessel. A beached boat is just that a beached boat and if it is a houseboat it is real estate until it is on the water again then it is considered a vessel unless it sinks in which case it will once again be considered real estate depending on where you live.It can also be considered a reef. Houseboats in Hickory NC are considered to be floating logs in most areas unless a swimmer is attached to those logs for power then it is considered an estate. Any more questions?

[JJC]

A friend of mine who had a drinking problem and eventually killed himself was twice boarded on the water (that I know of) when drunk. In one case he was anchored fishing at night and the coast guard did not charge him but told him he needed to remain anchored in that spot overnight which he did (it was in view of the station so they would have seen if he left). In another case he was over the limit while fishing and because of a problem with the boat needed to dock in a town marina. He knew he was over the limit so tried to guide his sober but inexperienced boating friend who was with him through docking, but that didn't work and as soon as he touched the wheel the local police (who were watching the whole thing) pulled him over. He ended up with a BWI and in jail for a month (which was then reduced to 2 weeks) because of prior DWI convictions. So in these cases in NY they didn't bother him while anchoring or just being on the boat, but once he had the wheel and the boat was underway he was in trouble. I don't know all the official rules but these are a couple examples I knew of.

The problem though is I realize people sometimes feel harrassed when they are doing nothing wrong, but there are a lot of idiots out there who probably need to be harrassed to not do something stupid and those charged with enforcement probably can't tell the difference right away. A couple years ago I saw someone who had been drinking at a marina all day suddenly decide it was time to head home and couldn't even manuever the boat out of the marina, someone ended up in the water falling off a dock trying to help and luckily he didn't end up in the props. The last stats I saw were that 17,500 people in the US died in alcohol related car accidents in 2002. Throw in another 50% of the 800 or so boating deaths and you have 18,000 people a year in this country dying every year because people can't figure out for themselves when its unsafe to get behind the wheel of a car or boat after they've been drinking. We don't hear those numbers on the news every day yet they are totally preventable. My girlfriend's mother was nearly killed twice by drunk drivers on the road, she'll be in pain the rest of her life. Unfortunately too many people need to be reminded.

Personally I think if you are out on the boat and not tied to a fixed dock for the night you need to stay sober and competant to run the boat because you never know if the anchor will start dragging, someone will fall in, another boat drifts towards you and you have to move, etc.