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Basics of Boating while Intoxicated (BWI) cases in Minnesota

by Richard P. Ohlenberg, Attorney at Law

In recent years, the Minnesota legislature passed legislation creating the Boating While Intoxicated (BWI) crime. Basically, they extended the DWI laws to the waterways. Now, if a person is stopped on a river or lake in Minnesota for operating a boat in an improper manner, the police may determine that they have probable cause to believe the person is under the influence of alcohol or controlled substances, then the police can request that the driver of the boat submit to a blood, breath or urine test, as they would in a DWI case involving a motor vehicle.

There are two basic elements that the State must prove to convict someone of boating while intoxicated:

1) Operation of a boat
2) Having a blood-alcohol content as measured within two hours of operating the boat of .08 or higher.

The same general procedures are followed as when a DWI arrest is made on the roadways. If the person refuses to take a breath test, he or she will be charged by test refusal which is typically a more serious gross misdemeanor level offense. If the person has three or more prior offenses within the past 10 years, he or she can be charged with a felony level offense.

If the boat operator is asked to submit to a blood or urine test, he may decline to take one test, but must submit to the alternative test that is offered. The reason that persons who are offered the blood or urine test may refuse one test, but then must submit to the alternative test in order to avoid being charged with Test Refusal is that these tests are far more invasive than breath tests. If the boat operator is offered a breath test, the police do not have to offer him any alternative test. If the person refuses a breath test, then he will be charged with test refusal which is generally a more serious crime than a standard DWI offense. This is because test refusal is considered to be an aggravating factor. Other aggravating factors which make a DWI offense more serious include:

1) Operating a boat or motorized vehicle on water with a BAC of .16 or more;
2) A passenger in the boat who is under the age of 16;
3) A prior DWI or BWI offence or an alcohol related driver's license revocation within the past ten (10) years.

As with DWI charges on the public roadways, there are two sides to a BWI offense: the criminal case and the Implied Consent civil case to contest the revocation or cancellation of the boat driver's license to operate a motor vehicle. A driver must appear in court to address the criminal case and he ultimately has the right to a jury trial in that case because there is the possibility of jail time. In contrast, the Implied Consent case to contest the revocation of the driver's license in a civil case. As such, the person does not have to contest the revocation or cancellation of that license, and he or she only has a right to a hearing in front of a judge, not a jury. However, in most cases, I strongly urge my clients to pay the filing fee of approximately $325 (varies by county) and file the petition to contest the revocation/cancellation of the driver's license because:

1) We may be able to get the driver's license temporarily reinstated pending the outcome of the criminal case, or better yet ...

2) There may be a legal argument to allow the court to order that driver's license revocation/cancellation be rescinded. So generally, it is in the client's best interest to contest the driver's license revocation/cancellation.

Penalties for boating while intoxicated are similar to those for operating a car while intoxicated, and the prior offenses for boating and for operating a motor vehicle while intoxicated are aggregated together in order to determine how many prior alcohol related offenses the person has. BWIs & DWIs are enhanceable offenses which means that each offense is treated more seriously than the previous one. There is no mandatory penalty for a typical first time DWI or BWI unless there are aggravating factors, such as: a prior offense within 10 years. A second boating and/or operating a motor vehicle within 10 years of a prior offense has a mandatory jail penalty of 30 days of which at least 48 hours must be spent in the local jail. The rest of the sentence may be served on electronic home monitoring. See Minn. Stat. 169A.275, Subd. 1. A third offense has a mandatory penalty of 90 days in jail, of which 30 days must be spent in custody. See Minn. Stat. 169A.275 Subd. 2. A fourth offense within 10 years is a felony level offense. Typically, the court will sentence the person to 36 months in prison with the prison sentence stayed for a period of time. The person will then have to serve a minimum of 180 days in the local jail or on electronic home monitoring, or a combination thereof. However, a minimum of thirty (30) days must be served consecutively in the local correctional facility. See Minn. Stat. 169A.275 Subd. 3. Where a fifth DWI offense occurs within 10 years, a defendant is actually looking at actually being sent to prison to serve out his or her sentence. See Minn. Stat. 169A.275 Subd. 4.

There is some good news regarding boating DWIs as follows:

  • In Minnesota, open container laws do not apply to boats. Passengers and boat operators can have an open containers containing alcohol. However, boat operators must operate their boats safely and not in a careless manner, or they risk being stopped and cited.
  • A boat operator has to be a) over the legal limit and b) actively operating a motorized boat to be charged and convicted of a BWI--boating while intoxicated.
  • If a person is cited for a DWI in his car and he is required to have the ignition interlock system installed in his car, that does not automatically mean he must install an ignition interlock system in his boat. A person living in Minnesota does not need a driver's license to operate a boat so the driver would not need to install an ignition interlock system on his boat, unless the court placed a specific restriction on the person's ability to operate a boat in its sentencing order. When
    imposing sentences for DWI offenses, judges do not generally impose restrictions on that person's ability to operate a boat on the waterways.

Don't Wait. Call For Experienced BWI Defense Today.

If you have been cited for a BWI, call Attorney Richard Ohlenberg with offices in St. Louis Park and Richfield, Minnesota for a free initial consultation to discuss your case. Mr. Ohlenberg can be reached at: 612-804-4512.
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Disclaimer: It is strongly recommended that legal counsel should be consulted in any DWI or BWI case. In any event, this article should not be relied upon as a substitute for appropriate legal counsel and advice that addresses the specific facts and circumstances surrounding the case, and the charges filed by the State or County or City Attorney.