In this series, I will discuss some of the common ways people find themselves in legal trouble on the water, as well as how to avoid being in that position to begin with. Issues discussed will include everything from boating while intoxicated (BWI) and driving under the influence (DUI) charges to boating and towing safety violations. A Missouri criminal defense attorney may be able to negotiate with the prosecutor to have charges dismissed or dropped depending on the evidence against you. For a free consultation with a Missouri DWI/ BWI attorney, call The Law Offices of Benjamin Arnold at (913) 777-HELP, or visit us on the web at kcdui.com.
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Boating While Intoxicated (BWI)
It should come as no surprise that boating while intoxicated, just like driving while intoxicated, is illegal and will result in an early end of your day on the water. RSMo. Section 306.111(2) provides “a person commits the crime of operating a vessel while intoxicated if he operates a vessel on the Mississippi River, Missouri River or lakes of this state while in an intoxicated condition”. However, there are many misconceptions about the laws surrounding the subject, such as the legal limit (which was once higher). The Missouri legislature originally intended to place a higher legal limit for intoxication for purposes of a BWI charge. However, as the public sentiment against drunk driving has changed, the legal limit is now the same for a BWI as a DWI, and someone can be charged if they are over .08. The consequences can range from a class B misdemeanor to a class D felony, depending on the circumstances of the offense and the offender’s past criminal record. It is imperative you hire a criminal defense attorney to help guide you through the process.
Common Ways People Get Arrested for BWI
1. Drinking while operating a boat. In Missouri, it isn’t illegal to drink on a boat, but if you are over operating the boat with a blood alcohol content in excess of .08, you can be arrested for boating while intoxicated (BWI). Thus, if police see someone driving a boat with a cold one in hand, it’s probably a dead giveaway that they are boating while intoxicated, and will likely find a reason to stop them.
2. Violating boating laws. People are often unaware of boating laws because of their limited experience operating a boat- unlike driving a car, there is no test drive required to operate a boat. Police don’t need to suspect a crime has occurred to stop a boat, they may stop a boat for safety reasons such as wake and light violations or exceeding the speed limit after sundown.
3. Being underage. Young people have parents and/ or friends with boats, and are likely to find themselves behind the wheel. The legal limit for an underage operator is reduced from .08 to .02 BAC. Other minors on the boat found to be drinking may also be cited for minor in consumption or possession (MIP).
4. Having a beer bong or a keg on board. In Missouri, it is illegal to have a device designed for rapid consumption of alcohol such as a beer bong, or any container of alcohol larger than four gallons. If police see this sort of party on a boat, they are likely to have a word with the driver and its occupants.
Consequences for a Boating While Intoxicated Charge
In Missouri, being charged with a first offense BWI is a class B misdemeanor, which carries a maximum punishment of six months in jail and a $1000 fine. However, even a first time offender may be charged with a class A misdemeanor, carrying a maximum sentence of one year in jail and a $2000 fine, if there are minors under the age of seventeen on the boat. Offenses involving injury, or committed by individuals with two or more prior convictions may be charged as felonies. Missouri follows the same sentencing scheme for prior, aggravated, chronic, and habitual offenders for DWI as it does for BWI charges.
Driving While Intoxicated (DWI)
A person commits the offense of driving while intoxicated (DWI) if he operates a vehicle in an intoxicated condition. Being on the water and drinking often go hand in hand, and the decision to drive after drinking is a bad one. I don’t know how true this is- but an old wise tale tells us that someone drinking on the water is likely to be more intoxicated than they think they are. Every summer, many people find themselves facing Missouri DWI charges after they have been drinking in the lake and decide they are fine to drive home.
Operation of a Vehicle
This element can be established even if the person is not actually driving the vehicle when the officer makes contact. In addition to using physical evidence to show the person was driving, such as hot tires, warm hood, or tailpipe, someone sitting in the vehicle with the keys and the engine not running may be charged with a DWI. In other words, it is not a good idea to try and sleep it off in a car if the keys are present. The Courts have interpreted a rather broad meaning for “vehicle”, so we could get pretty creative in naming vehicles people have been arrested for DWI in.
Intoxicated Condition
Intoxication can be by alcohol, drugs, or a combination thereof. In Missouri, someone who has a blood alcohol content in excess of .08 is presumed to be under the influence. If someone blows 0’s, refuses, or is suspected of being under the influences of drugs, a warrant may be issued for a blood draw. Even if someone refuses a breath test and there is no warrant for a blood sample, intoxication may be proven by other evidence such as performance on the field sobriety tests, explained in greater detail here.
Common Ways People Get Arrested for DWI
1. Drinking while operating a vehicle. In Missouri, it isn’t illegal to drink in a vehicle if you are not the driver, but if you are over operating the vehicle with a blood alcohol content in excess of .08, you can be arrested for driving while intoxicated (DWI). Thus, if police see someone driving a vehicle with a cold one in hand, it’s probably a dead giveaway that they are driving while intoxicated.
2. Violating traffic laws. People are often unaware of certain laws associated with towing a trailer because of their limited experience doing so. Often times, police will pull someone over for something relatively minor like an equipment or registration violation, smell alcohol, and begin a DWI investigation. You should take time to become familiar with the required lights, whether you are required to have a license plate for your trailer, and learn how to back a boat into the water.
3. Being underage and having alcohol present. Young people have parents and/ or friends with boats, and are likely to find themselves behind the wheel. If police pull over a car full of minors and smell or see alcohol, they may begin investigating to pursue criminal charges. The legal limit for an underage operator is reduced from .08 to .02 BAC. Other minors in the vehicle found to be drinking may also be cited for minor in consumption or possession (MIP).
Penalties for a DWI in Missouri
In Missouri, DWI charges increase in severity for subsequent offenses. There is a five year “lookback period” in which means that the state will enhance the charges for a DWI if there are any prior DWI convictions in the last five years. Note that this is not the same as the civil penalties for DWI apply in practice.
First Offense DWI
In Missouri, a first-time conviction for driving while intoxicated (DWI) is a class B misdemeanor which can result in up to six months of imprisonment and/ or a fine of up to five-hundred dollars. If the Court finds that there are aggravating factors such as an excessive blood alcohol content (BAC) it may impose a mandatory minimum sentence. If the accused individual has a BAC in excess of .15%, they will face a minimum 48-hour jail term, while a BAC .2% or greater will result in a 5-day mandatory minimum. However, in certain cases an accused individual may receive a Suspended Imposition of Sentence (SIS) which will result in the charges being dismissed with prejudice following successful completion of a probation program.
Probation for a DWI conviction or SIS may include:
- Two years supervised probation
- Fines and court costs
- MADD victim impact panel (VIP)
- Community Service
- Random drug and alcohol testing to verify sobriety
- Drug and alcohol treatment
- Installation of an ignition interlock device (IID)
- Secured Continuous Remote Alcohol Monitoring (SCRAM)
- Substance Abuse Traffic Offenders Program (SATOP)
Second Offense DWI
Missouri law classifies someone that has been previously found guilty of a DWI offense as a prior offender for purposes of sentencing. A prior offender will be charged with a Class A Misdemeanor (instead of a Class B misdemeanor which is a first offense). A Class A misdemeanor may result in a sentence of up to one (1) year in a county jail and a fine of up to $1,000. An individual convicted of a second DWI offense is prohibited from being granted probation until they have served a minimum of ten (10) days in jail or completed 240 hours of community service.
Third Offense DWI
Missouri law classifies someone that has been previously found guilty of at least two (2) DWI offenses as a persistent offender. A third DWI conviction in Missouri is a Class D Felony which can carry a potential sentence of up to four (4) years in the Missouri Department of Corrections (DOC) and/ or up to five years of probation. A persistent offender will be required to serve at least thirty (30) days in jail or complete 480 hours of community service to be granted probation.
Fourth Offense DWI
Missouri law classifies someone that has been previously found guilty of four (4) DWI offenses as an aggravated offender. An aggravated DWI offender will be charged with a Class C Felony which carries a sentence of up to seven (7) years in the custody of the Missouri DOC. An individual convicted of a Class C Felony DWI will be required to serve sixty (60) days in custody before they are eligible for probation.
Fifth Offense DWI
Missouri law classifies someone that has been previously found guilty of five (5) or more DWI offenses as a chronic offender. A chronic offender faces a mandatory minimum of two years in the custody of the Missouri DOC before probation may be granted.
The Takeaway
Despite a grim outlook, it is not impossible to beat a BWI or DWI charge in Missouri. A skilled attorney may be able to find error on the part of police which may result in evidence being suppressed, or even the case being thrown out in its entirety. Even if neither of these results are possible, an a criminal defense attorney may be able to make a case for diversion or suspended imposition of sentence if the prosecution is convinced there is a risk of going to trial. A criminal charge is not the end of the world, but it can have lasting consequences and be a giant hassle if you do not address it properly and keep the court satisfied. If you are in jeopardy of having your Missouri Drivers License suspended, it is in your best interests to act quickly and secure competent legal representation. For a free consultation from an affordable criminal defense attorney, contact The Law Offices of Benjamin Arnold by phone at (913) 777-HELP, by email at ben@kcdui.com, or by visiting kcdui.com for more information.
