Texas Penal Code 49.06 – Boating While Intoxicated

WHAT IS BOATING WHILE INTOXICATED IN TEXAS?

The Texas law against boating while intoxicated, or “BWI,” prohibits driving or operating a boat, aquaplane, water skis, sailboat, or any other motor-powered vessel or device for transporting or carrying a person on water.

• What is the legal limit for boating while intoxicated (BWI) in Texas? Texas Penal Code Section Section 49.01 defines “intoxication” in two ways: (1) a blood alcohol concentration (“BAC”) of 0.08 or more; or (2) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.The subjective definition, or one’s loss of normal use of mental or physical faculties, does not require proof that a person’s blood alcohol concentration was above 0.08.

  For example, in Aguirre v. State, the defendant was arrested for DWI, and his blood test later showed a 0.075 blood alcohol concentration. But the other evidence showed he was going 102 miles per hour, had bloodshot eyes, slurred speech, and a can of beer in the car. The defendant also showed several clues of intoxication during the Standardized Field Sobriety Tests (SFSTs). Based on the evidence, the jury found him guilty, and the appellate court affirmed.

WHAT IS THE BOATING WHILE INTOXICATED LAW IN TEXAS?

Tex. Penal Code § 49.06. BOATING WHILE INTOXICATED.

(a) A person commits an offense if the person is intoxicated while operating a watercraft.

(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

Tex. Penal Code § 49.09. ENHANCED OFFENSES AND PENALTIES.

(a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.

(b) An offense under Section 49.04, 49.045, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:

(1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or

(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.

. . .

(g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D. For purposes of this section, a person is considered to have been convicted of an offense under Section 49.04 or 49.06 if the person was placed on deferred adjudication community supervision for the offense under Article 42A.102, Code of Criminal Procedure.

(h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant’s own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Subchapter I, Chapter 42A, Code of Criminal Procedure, this subsection controls.

WHAT IS THE PENALTY CLASS FOR BOATING WHILE INTOXICATED IN TEXAS?

Boating while intoxicated is enhanceable, meaning the penalty classification depends on a person’s prior convictions, if any.

• Class B misdemeanor, punishable by 72 hours to 180 days in county jail:
  • first boating while intoxicated offense (BWI 1st);
• Class A misdemeanor, punishable by 30 days to one year in county jail:
  • a subsequent boating while intoxicated arrest with one prior intoxication-related conviction or deferred adjudication (BWI 2nd);
• Third degree felony, punishable by two to ten years in prison:
  • boating while intoxicated with at least two prior intoxication-related convictions or deferred adjudication (BWI 3rd or more); or
  • boating while intoxicated with a prior conviction for intoxication manslaughter.

WHAT IS THE PUNISHMENT RANGE FOR BOATING WHILE INTOXICATED IN TEXAS?

The punishment range for boating while intoxicated corresponds to the penalty classification, which depends on a person’s prior convictions, if any.

• Class B misdemeanor boating while intoxicated, first offense:
  • three days to 180 days in jail, maximum $2,000 fine;
• Class A misdemeanor boating while intoxicated, second offense:
  • 30 days to one year in jail, maximum $4,000 fine;
• Third degree felony boating while intoxicated third or more, or BWI with a prior conviction for intoxication manslaughter:
  • two to ten years in prison, maximum $10,000 fine.

WHAT ARE THE PENALTIES FOR BOATING WHILE INTOXICATED IN TEXAS?

A person charged with Class B misdemeanor BWI 1st will be eligible for probation or deferred adjudication for up to two years. A person charged with a Class A misdemeanor or third degree felony BWI is not eligible for deferred adjudication.

The probation period for Class A misdemeanor boating while intoxicated may not exceed two years. A person may be placed on probation for a third degree felony boating while intoxicated for up to ten years.

• Is a person charged with BWI eligible for deferred adjudication in Texas? Texas Code of Criminal Procedure article 42A.102 allows a judge to grant deferred adjudication to a person accused of boating while intoxicated, unless the person held a commercial driver’s license at the time of the offense, has a previous intoxication-related conviction or deferred adjudication, or had a blood alcohol concentration of 0.15 or higher. A person may be placed on deferred adjudication for up to two years.

• Does a boating while intoxicated charge result in a suspended driver license? Generally, no. The Texas Transportation Code does not automatically require a driver license suspension for a single boating while intoxicated charge.

WHAT ARE THE DEFENSES TO BOATING WHILE INTOXICATED IN TEXAS?

The statute does not authorize specific defenses to boating while intoxicated. A person accused thereof may attempt to negate at least one of the elements the State must prove at trial.

• What does it mean to “operate” a boat while intoxicated in Texas? Texas law requires proof that a person was “operating” a boat while intoxicated, not that the person was actively driving at the time. The statute does not define “operating,” but Texas courts have determined whether a person operates a vehicle or watercraft when, based on the totality of the circumstances, the accused “took action to affect the functioning” of the vehicle or watercraft in a manner that would enable its use. See Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012). In practice, police and game wardens generally do not stop boats to conduct routine safety checks unless the boat is speeding, aggressively turning, driving without lights at night, or other violation of safety rules.

  For example, in Mabry v. State, the defendant was charged with boating while intoxicated after the arresting deputy saw him traveling on Lake Conroe, sitting in the driver’s seat of the boat, then watched him stand and turn on the boat’s front navigation lights. The defendant’s girlfriend testified another occupant was driving, but when the arresting deputy arrived, no one was driving and they were “just floating.”

  The defendant was convicted of boating while intoxicated, and the appellate court affirmed. The jury was free to believe the deputy that he saw the defendant driving the boat, and reject the girlfriend’s testimony.

WHAT IS THE STATUTE OF LIMITATIONS FOR BOATING WHILE INTOXICATED IN TEXAS?

The limitation period for boating while intoxicated classified as a misdemeanor is two years. If categorized as a felony, the limitation period is three years.

BOATING WHILE INTOXICATED IN TEXAS

Texas law punishes operating a boat, watercraft, aquaplane, or any other vessel used to transport people on water while intoxicated. A first and second offense are misdemeanors in Texas, while the third intoxication-related offense is punished as a felony.

TEXAS BOATING WHILE INTOXICATED COURT CASES

The case law regarding boating while intoxicated in Texas illustrates how boats may be stopped at any time for routine safety checks, without reasonable suspicion.

• In Neale v. State, a Texas Parks & Wildlife warden night-patrolling the Trinity River near Anahuac, Texas, saw the defendant’s boat speeding towards her. She flashed her flashlight at the defendant, who decelerated and approached her patrol boat. She conducted a water safety inspection on the defendant’s boat pursuant to Section 31.124 of the Texas Parks & Wildlife Code, noticed the defendant smelled like alcohol, and exhibited signs of intoxication. The defendant’s blood was ultimately tested, which revealed a .16 BAC. He was convicted of boating while intoxicated, and the appellate court affirmed.