At Futeral & Nelson, our Charleston attorneys handle boating under the influence (BUI) charges in South Carolina. In this article, we explain the laws and the penalties for BUI, felony BUI, and Reckless Homicide by Boat. We also explain the Afloat Battery Test (field sobriety tests) in BUI cases, your rights to refuse a breath test for BUI, the consequences for refusing a breath test, and defenses to a BUI.

What is BUI in South Carolina?

Boating is one of the most popular pastimes in South Carolina. For some, boating also involves alcohol and being stopped by law enforcement. Interestingly, these stops often come from “safety checks” on our waterways or as a result of some minor infraction. If a law enforcement officer has probable cause to believe the boat driver is impaired, the officer can arrest the driver for boating under the influence (BUI).  For this reason, we’ve written another article concerning South Carolina’s recreational boating laws. We encourage you to review these laws to avoid getting stopped in the first place.

To get a conviction for a BUI, the officer must prove that the driver was under the influence of alcohol, drugs, or both so that his or her faculties to operate the boat were “materially and appreciably impaired.”

Boating Under the Influence 1st – BUI 1st is a misdemeanor, and the judge can sentence a convicted person to imprisonment of 48 hours up to 30 days or a fine or community service. The person will also lose his privilege to operate a watercraft (aka boat) for 6 months. The person will have to complete the Alcohol and Drug Safety Action Program (ADSAP) as well, which usually costs about $500. Finally, he or she will have to complete a boating safety course. If the intoxicated boater causes property damage or bodily injury that is something less than “great bodily injury” as defined below, the person’s boating privileges will be suspended for one year.

BUI 2nd – The judge can sentence the person to imprisonment of 48 hours up to one year and a fine of up to $5,000. Heavy community service could come into play in lieu of the jail sentence. The person’s boating privileges will be suspended for one year, and the person must complete ADSAP and a boating safety course.

BUI 3rd – The judge can sentence the person to imprisonment of 60 days up to 3 years and a fine of $3,500 up to $6,000. The person’s boating privileges will be suspended for 2 years, and the person must complete ADSAP and a boating safety course.

Only violations that occurred within 10 years can cause later convictions to BUI 2nd, BUI 3rd, or greater.

What is Felony BUI in South Carolina?

Great Bodily Injury – If the intoxicated boater causes great bodily injury to someone else, then the boater is guilty of a felony, and the judge will sentence the boater to up to 15 years in jail and fine the person between $5,000 and $10,000. “Great bodily injury” is defined as “bodily injury which creates substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.”

Death – If the intoxicated boater causes someone’s death, the jail sentence for a conviction is between 1 and 25 years, and the fine will be between $10,000 and $20,000. In either case, the person’s boating privileges will be suspended for 3 years starting after the person is released from jail.

What is Reckless Homicide by Operation of Boat?

Even if a boater isn’t intoxicated, the boater can face serious criminal consequences if he or she isn’t careful. If a person operates a boat “in reckless disregard of the safety of others” and this reckless operation results in someone’s death, then the person can be charged with Reckless Homicide by Operation of Boat. The sentence for this charge is up to 10 years in jail, a fine up to $5,000, or both. The prosecution, in some cases, may attempt to charge the person with murder, involuntary manslaughter, or manslaughter, depending on how bad the facts of the case are. If convicted of any of these, the boater won’t be able to operate a boat for 5 years.

What are the Field Sobriety Tests in BUI Cases?

In South Carolina, one of the responsibilities of the Department of Natural Resources (DNR) or other law enforcement such as the City of Charleston is to enforce boating under the influence laws. Part of their training is based on the standards set forth by the National Association of State Boating Law Administrators (NASBLA). Due to the difficulty in administering standard field sobriety testing on the water, certain agencies such as DNR administer what is called the Afloat Test Battery.

The Afloat Test Battery for BUI’s is the “marine” version of field sobriety tests for DUI’s. In some situations, there isn’t an opportunity for an investigating officer to conduct sobriety tests on land. Instead, the officer conducts several tests while the subject is seated on their boat or the officer’s boat. The Afloat Test Battery consists of the following:

  • Horizontal Gaze Nystagmus (HGN) Test – The HGN test, also known as the “pen test,” requires the officer to move a pen or other object back and forth across the suspect’s line of sight in a particular manner. The officer then looks for an involuntary movement of the eye called nystagmus. Nystagmus can be an indicator that a person is impaired.
  • Finger to Nose (FTN) Test – During the finger to nose test, the officer asks the BUI suspect to bring the tip of the suspect’s index finger up to touch the tip of the nose while his/her eyes are closed and his/her head is tilted slightly back. The suspect must do this six times, three with each hand.
  • Palm Pat (PP) Test -In this test, the officer asks the suspect to extend one hand, palm up, in front of them with the other hand on top of the first facing down. Then, the suspect must rotate their top hand 180 degrees and pat their bottom hand alternating between the back of their hand and the bottom of their hand with the bottom hand remaining stationary. The suspect must count out loud – “One, Two . . . One, Two”, etc. in relation to each pat.
  • Hand Coordination (HC) Test – This test requires the suspect to perform a series of tasks with their hands. The suspect is required to make fists with both hands and to place their left fist thumb against their sternum and the thumb side of their right fist against the fleshy side of their left fist. From that position, the suspect must perform four tasks:
  1. First, count aloud from one to four, placing one fist in front of the other, in step-like fashion, making sure the thumb side of one fist is touching the fleshy side of the other fist at each step.
  2. Second, memorize the position of the fists after having counted to four, clap the hands three times (no aloud count required), and return the fists in the memorized position.
  3. Third, move the fists in step-like fashion in reverse order counting aloud from five to eight, and return the left fist to the chest.
  4. Fourth, return their hands, opened and palms down, to their laps.

Unlike driving under the influence (DUI), the BUI laws don’t require the arresting officer to video tape the suspect at the arrest scene, so it can be more difficult to defend an innocent person charged with BUI because evidence is often limited to the officer’s testimony of the events, which may not be accurate and can be biased because the officer is attempting to obtain a conviction. Merely allowing a client to give a different story may not be enough in a jury’s eyes. Therefore, it is important for your lawyer to be familiar with the Afloat Test Battery to successfully attack the administration and results of the FST’s administered on the water. Oftentimes, the officer makes many mistakes which compromise the validity of the tests.

Do You Have to “Blow” in a BUI Case?

A person arrested for BUI will be taken to a jail or police station where he or she will be asked to blow into the breath test machine (more formally known as the DataMaster DMT). The machine will give you a blood-alcohol content (BAC) reading. If you blow, your BAC will fall into one of these categories:

  1. 0.00% – 0.05% – It is conclusively presumed you were not under the influence of alcohol.
  2. More than 0.05% but less than 0.08% – If the case goes to trial, the jury can make no inference of intoxication from the reading.
  3. 0.08% or higher – If the case goes to trial, the jury will be told they can infer the defendant was under the influence of alcohol.

You can refuse to take the breath test. However, if you don’t take the test, then:

  1. Your boating privileges will be suspended for 180 days. We can fight this suspension at a hearing if you come to us soon enough so that we can request a hearing within 30 days of the arrest.
  2. The prosecution will be able to argue at trial “that only a drunk man would refuse the test.” As BUI defense lawyers, we’d rather deal with this than a high reading.

What are the Defenses to a BUI in South Carolina?

Every case is different, so there is no single answer to this question. At Futeral & Nelson, we do a complete investigation and gather all of the potential evidence in each case. This can include all sorts of things, but some of the more common are: the incident report in order to get the officer’s side of the story, the officer’s training records, reports from the breathalyzer DMT machine if our client blew, video from the breath site, dispatch logs from when the police or DNR called the stop in, records regarding the Afloat Test Battery and the officer’s conclusions, and records showing our client’s condition at the jail.

After we finish our investigation, we advise our clients as to the strengths and weaknesses of the case and begin to negotiate with the prosecutor. If the Afloat Test Battery was given, we attack the tests. If the client blew, we attack the machine. We make sure the file is ready for trial because we don’t want the prosecutor to perceive any weaknesses on our side. If we can get a dismissal or bring an acceptable deal our client, great. If not, we put our trial experience to work. While all of this is taking place, we make sure the procedural posture of the case is in good shape, such as dealing with the court rosters, a jury demand if appropriate, and pre-trials.

If the case goes before a jury for trial, we’re prepared to handle it. Before that happens, we try to bargain with the prosecution for a deal for our client. BUI cases can be resolved by a complete dismissal of the charges outright, a dismissal based upon a condition such as the completion of an alcohol class or boating safety class, a plea to negligent operation of a water device, or a plea to reckless boating. The best of these (dismissal) results in no fines or jail time and expungement of your criminal record. The worst of these (reckless boating) usually results in no jail time, a nominal fine, and the opportunity to expunge the BUI from your record, but the person will have to take DNR’s boating safety class before he or she can operate a boat again. Depending on the case, sometimes we have to get more creative when structuring a deal with the prosecutor.

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Charleston BUI Attorneys

At Futeral & Nelson, our criminal lawyers do not charge a consultation fee, so we urge you to take advantage of this FREE consultation. So if  you’re charged with BUI near Charleston, South Carolina, then please contact the attorneys at Futeral & Nelson.

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