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BUI Versus DUI: The Nitty Gritty

While it would appear the BUIs are just like DUIs, but only on the water, in actuality, there are several differences.

A. Whether The Implied Consent Law Applies

Of greatest import to both the boater and the attorney defending a person accused of BUI is that the Legislature has not associated these charges with Washington's Implied Consent Law. This provides relief for the boater because his or her driver's license will not be subject to a civil hearing in which a DOL hearing officer will summarily suspend a driver's license based solely upon allegations contained in a police report.

B. Civil and/or Coast Guard Hearings

This however, does not mean that all boaters accused of BUI are immune from civil hearings. If local or state law enforcement makes a report of an operator's arrest to the Coast Guard for BUI, it is likely that a civil hearing will be scheduled to determine if a fine is imposed by a federal government. Whereas DOL hearings on DUIs pertain only to one's driving privilege in the State of Washington, Coast Guard Civil Hearings pertain only to the imposition of monetary fines and legal requirements for a vessel. Also, Coast Guard hearing officers are given considerably more latitude in determining the appropriate penalty than their DOL counterparts. Equitable grounds exist for Coast Guard hearing officers whereas equity does not exist for the Department of Licensing purposes.

C. Field Sobriety Testing (FST)

While field sobriety testing creates legal and factual issues in DUIs, FSTs on the water provide the defense attorney with a plethora of legal and factual issues. Yet, the BUI Statute specifically states that an officer shall administer field sobriety tests only when circumstances permit. What that means is an enigma. Rarely, are BUI arrests commenced by routine stops, effectuated without the use of some form of field sobriety testing. For a DUI, field sobriety testing is voluntary, but oftentimes requested in a mandatory manner. When in doubt with a BUI or DUI, you should decline to take FSTs.

While FSTs for DUI are administered under the most strenuous of circumstances imaginable, performance of these tests while on the water, or after spending the better part of the day on the water, create issues limited only by the attorney's imagination. A Coast Guard study suggests that only two of these tests need to be conducted on land; the walk and turn and one leg stand test. Of course, bifurcated FSTs for BUI will certainly create legal issues because one
would need to be detained, removed from their boat, subjected to a series of tests on the water, then transported to land by the police and then subjected to further testing, all prior to arrest. However, whenever a person's freedom is curtailed to the extent associated with a formal arrest, Miranda warnings are required. Consequently, any test administered on land is subject to suppression.

D. Breath Test Refusal

Like driving cases, breath/blood test refusals present the attorney with several challenges. Furthermore, unlike DUIs, where over 90 percent of the time an attorney would advise a driver to take the breath test; boating cases are not as clear-cut. Unlike DUIs, where a refusal will result in greater administrative and criminal sanctions, a refusal following an arrest for BUI could benefit one in the criminal court, and have less adverse consequences in the civil forum.

Breath test refusals in driving cases can have a devastating impact on those accused of DUI. They increase the mandatory jail time, regardless of criminal history. They lengthen the mandatory license suspension imposed by both the court and the Department of Licensing. However, in the BUI context, not only does a refusal have no effect on mandatory penalties, it potentially has no relevance and can be suppressed.

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