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BUI Versus DUI: The Nitty Gritty Continued
E. Breath and Blood Testing
As mentioned earlier, the Operating a Vessel While Under the Influence of Alcohol Statute specifically states:
It shall be a violation for a person to operate a vessel while under the influence of intoxicating liquor or any drug. A person is considered to be under the influence of intoxicating liquor or any drug if:
(a) The person has 0.08 grams or more of alcohol per 210 liters of breath, as shown by analysis of the person's breath made under RCW 46.61.506; or
(b) The person has 0.08 percent of more by weight of alcohol in the person's blood, as shown by analysis of the person's blood made under RCW 46.61.506; or
(c) The person is under the influence of or affected by intoxicating liquor or any drug; or
(d) The person is under the combined influence of or affected by intoxicating liquor and any drug.
Since all chemical testing for alcohol or drugs accordance with the requirements of RCW 46.61.506, the gamut of challenges available in the DUI context are present in the BUI context too. Consequently, law enforcement must strictly comply with each and every statutory and administrative requirement prior to gaining admission of the test results in court.
A mouth check and at least 15 minutes of direct observation of the subject is required before a test may be administered. All mouth jewelry must be removed. If a subject chooses not to, or for some reason cannot remove the jewelry, he is deemed incapable of providing a sample. Usually, in such circumstances, the Implied Consent Statute will permit an officer to then request a blood test. The authority to request blood in lieu of breath test is derived from the Implied Consent Law and BUIs do not fall under that statute. Consequently, a boater's unwillingness to remove such objects will either invalidate the test or preclude law enforcement from obtaining one.
F. Observation of Accused Person
Experience reveals that the observation period is more challenging in the BUI context than with DUIs. While a driving case often times involves only one investigating officer, who stops, investigates, arrests, and administers the test, most BUI cases involve several police officers. Often, persons are stopped on the waterway by marine patrol. They may be contacted by one officer, administered field tests by another, and then, upon arrest, transported to shore for chemical testing. Breath testing is nearly always administered by another officer so that the marine patrol can get back out on the water to continue with its duties. During certain events, where emphasis patrols are in place, temporary facilities may be set up to handle chemical testing. These facilities constitute literal assembly line breath testing with often one operator conducting all testing. While one test is administered, that the officer may have several people, all of whom he is responsible for directly observing, waiting to take their test. Strict compliance with the statutory and administrative requirements can be very difficult for law enforcement in the marine environment. Accordingly, a pragmatic defense attorney can raise lots of reasonable doubt about the observation requirement's implementation.
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