Texas BWI consequences are the same as Texas DWI consequences, but there are significant differences in the law between DWI and BWI. If you or a loved one were arrested and criminally charged with the crime Boating While Intoxicated, contact The Law Offices of Tad Nelson & Associates in Galveston at 409-765-5614 or in Houston at 281-280-0100.
Reason for Stop
The police must have a reason to stop you if you are driving a car. They have to have information that you have a warrant, witnessed you violate a traffic or equipment law, or have some other legal justification for stopping you. If you are in a boat, however, they can stop you to ensure you are in compliance with safety laws. They do not need a reason to stop a boat being operated on waters within the jurisdiction of Texas, but once they stop you they can investigate you for any violation of law they reasonably suspect you are violating.
BWI & Field Tests
Texas officers are trained to administer the same field sobriety tests that Texas police officers administer to suspected drunk drivers on the road.
While one study claims that these balance and coordination tests are as reliable in the marine environment as they are in a driving environment, there are serious questions that should be explored when defending you against a Texas BWI charge.
1990 Marine SFST Study
A study was conducted in 1990 that purported to test the SFST battery of tests on subjects in the marine environment. This study was originally designed to test 96 test subjects – i.e., people who would be dosed with alcohol, driven around on a boat, and given the SFST battery of tests. The test administrators claimed they could not get a commitment from 96 people who would agree to be tested, so reduced the number of people from 96 to 49.
The test subjects were given a set amount of alcohol, then driven around on a boat for 90 minutes. None of the test subjects – including those who were not given any alcohol at all – were allowed to operate the boat. They were all just passengers. The test criteria clearly stated that these tests were not designed to test boating handling, but only field sobriety test performance.
The Horizontal Gaze Nystagmus test was administered to all test subjects while they were on the water. The HGN, however, requires stable ground. Any movement of the head or body can affect the validity of the HGN test.
Under Section 2.3.1 of this report the writers claim that 97 people participated in this study, despite saying in Section 2.1 that only 49 Test Subjects were used.
All of the people who participated in this study did so voluntarily and were recruited from the Coast Guard’s Yorktown, VA Reserve Training Center, the Naval Weapons Station, and Army personnel from Fort Eustis.
Everyone who participated in this study was a male between the age of 21 to 50. There were no females, and no one with reported medical disabilities or injuries.
On Boat Testing
During the 1990 study, officers and test subjects stayed on their respective boats during the testing. The study findings said this was because in the field officers rarely boarded the vessel of those they stopped for officer safety reasons. The two vessels were tied together during the testing phase.
Since the HGN requires the officer to hold the stimulus 12 to 18 inches from the BWI suspect’s face, and to move the stimulus in a straight line across the front of the test subject’s face, it seems nearly impossible that this test was administered in the proscribed manner.
When Are You Arrested?
One question that arises in BWI cases is the determination of when you are under arrest. Normally, if the officer removes you from one location and transports you to another, courts will find that he “constructively” arrested you. You do not have to be told you are under arrest in order for a court to find you have been arrested. When a police officer restricts your movement so that a reasonable person would believe he has been arrested, then you are generally found to in fact be under arrest.
In a BWI case, the officers typically ask you to step aboard their boat and transport you to shore. There they perform a variety of field sobriety tests on you before notifying you that you are under arrest.
In the proper case, it may be possible to successfully argue to a court that you were arrested and not read your Miranda Rights before the officer notified you that you were under arrest. If so, then we may be able to suppress anything you said during that time after you were actually arrested, but before you were read the Miranda Warning.
If you or a loved one are facing criminal charges for BWI in Houston, Clear Lake, or Galveston, we’ll help you.