The Common Law
Criminal law boating while intoxicated
Although the two offenses are similar, the Texas Penal Code distinguishes between "driving while intoxicated" and "boating while intoxicated." The Texas Penal Code provides that a person commits the offense of "driving while intoxicated" when he or she operates a motor vehicle in a public place while intoxicated. The offense of "boating while intoxicated" occurs when a person operates a watercraft while intoxicated. Both offenses are Class B misdemeanors and require a minimum confinement term of 72 hours. In addition, for the commission of both DWI and BWI, the "operator" of the vehicle must have been proven intoxicated. Police generally administer many of the same tests in attempting to detect whether a BWI or DWI violation has occurred. These may include field sobriety and blood alcohol level tests.
Texas law does not include a "no tolerance" provision for BWI. To commit BWI, a person must operate a watercraft while intoxicated. "Intoxicated" means either "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration of 0.08 or more." Taking the requirement of intoxication into account, whether an individual consumes one beer before getting behind the wheel of a boat is not a very good indicator of whether in operating the watercraft he or she will commit BWI. Since each individual is different, and many factors play a part in reaching the criminal level of intoxication (i.e., height, weight, alcohol tolerance, strength of drink, etc.), such determinations are best made on a case-by-case basis. One should take the same precautions he or she would take when driving on the highways when making decisions about navigating the Texas waterways. Ultimately, the only certain way to avoid a BWI conviction is to not drink while driving a boat.
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The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.