Update: Sobriety Testing in Boating Under the Influence Cases

Understanding Your Rights: Recent Legal Precedent

What can boat operators expect during the Gasparilla celebration in Tampa, Florida?

Gasparilla Florida BUI Lawyer (Boating Under the Influence ) expects an uptick in enforcement for the Gasparilla Pirate Fest Weekend. Operating a vessel while impaired is a criminal offense. Under Florida boating laws, it is illegal to operate a boat or any type of watercraft while under the influence or impaired by alcohol. A BAC or blood alcohol content level of 0.08% or higher, can result in a charges also. Under the age of 21, a level higher than 0.02% can result in charges.

Quick Fact on Refusal to Submit to Testing

Vessel Operators who have previously refused to submit to chemical test can be charged with a separate misdemeanor crime. Learn more about the consequences of a second refusal to submit here.

In one recent Piratefest weekend there were 5 Gasparilla BUI Boating Under the Influence Arrests. The Police, Sheriff’s Office, Coast Guard, and Florida Fish and Wildlife will be using a Mobile Facility this year to process arrests made on the water. See Tampa Attorney BUI Tampa Lawyer BUI Video Below.

	Fla Stat 327.35  Boating under the influence

a. Not more than 6 months for a first conviction.

Order Suppressing Evidence in a Boating Under the Influence Case

STATE OF FLORIDA v. SAMUEL ROBERT MOONEY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2016-103309MMDL. July 20, 2017. Steven Henderson, Judge.

This case came before the Court on Defendant’s Motion to Suppress for a hearing held on July 20, 2017, and this Court having heard testimony from witnesses and the arguments of counsel does find as follows:

On June 4, 2016, Officer McKee of the Florida Fish and Wildlife Conservation Commission (FWCC) was on routine airboat patrol on Lake George in the St. Johns River near Marker 17. The officer was monitoring an area near that point that was marked as a slow speed zone, requiring operators of vessels to keep the bow of the boat in the water and to not create a wake. He observed a bass boat being operated by the Defendant proceeding through the zone in compliance with the no wake requirement. The officer testified that about 200 yards before the end of the slow speed zone, the Defendant accelerated his vessel, coming up on a plane and creating a wake in violation of the slow speed zone. The officer turned on his blue lights on his FWCC-marked airboat and proceeded to intercept the Defendant. The officer testified that the Defendant immediately complied with the officer’s directions to stop his boat and turn off his engine. The officer testified that he kept his boat about 10 feet away from the Defendant’s boat to avoid the boats colliding and causing any damage.

The officer testified that initially he couldn’t hear what the Defendant was saying because the airboat engine was too loud. He also said that he could see an open beer container in the boat near the Defendant, but also conceded that he never touched the beer can and had no idea how long the beer can had been in the boat. He also never asked the Defendant who was drinking the beer or whether they had been drinking at all. There was no testimony that the can had condensation on it, nor was there any testimony that the can actually even contained any alcohol whatsoever. The officer testified that he asked the Defendant some routine, questions like if he knew where he was at, to which the Defendant replied he wasn’t familiar with that area of Volusia County since he is from Putnam County. The officer asked for life jackets and the Defendant complied with his request. He asked who owned the boat, and the Defendant stated it was his boat.

The officer testified at the hearing that the Defendant’s speech sounded slurred and his responses to questions were incoherent, but the officer also conceded that he doesn’t know the Defendant and isn’t familiar with how the Defendant normally speaks. The officer also could not elaborate on what he meant when he said the Defendant was incoherent, and conceded that the Defendant was able to answer his questions appropriately. He testified that the Defendant’s appearance was that of a normal fisherman and that his eyes seemed glassy from the wind.

The officer testified that there was a passenger in the boat who was being belligerent and cursing, which caused the officer to be concerned for his personal safety. He testified that the Defendant occupied himself with getting the passenger to be quiet and to stop cursing the officer, which he finally was able to do.

Officer McKee admitted on cross examination that the bulk of his incident report was actually prepared 3 days after the initial contact and arrest was made, and that he had excluded from his report a number of details relating to the incident. He also admitted that given the passage of time since the arrest he could not recall all of the specifics relating to what exactly was said or done by the Defendant that seemed incoherent on the date of the arrest. He also admitted that it is not illegal to possess alcohol in a vessel in Volusia County, nor is it illegal to drink a beer on a boat.

Based on the presence of the beer can, the officer’s testimony that the Defendant’s speech sounded slurred, and his speeding in a no wake zone, the officer asked the Defendant to submit to field sobriety exercises (FSEs). The Defendant agreed and, at the officer’s request, stepped onto the officer’s boat to perform the exercises. There was no testimony that the Defendant had any difficulty with standing, walking, or jumping from one boat to the other. There was no testimony that the Defendant had any dexterity problems and there was no testimony that the Defendant had any odor of alcohol coming from his person. Furthermore, there was no testimony that the Defendant made any admissions or statements against interest relating to having consumed any alcohol prior to the request for the FSEs. Ultimately, the Defendant was arrested on suspicion of boating under the influence (BUI).

The defense filed this motion challenging the reasonable suspicion of the officer to detain the Defendant longer than reasonably necessary to issue him a citation for the speed zone violation and to begin conducting a BUI investigation.

Whenever any law enforcement officer encounters any person under circumstances which reasonably indicate that the person has committed, is committing, or is about to commit a crime, the officer may temporarily detail such person for the purpose of investigating the possible criminal conduct. See section 901.151(2), Fla. Stat. (2017).

In order to detain a defendant beyond the time necessary to issue a citation or warning, the officer must have “reasonable suspicion based upon articulable facts that criminal activity may be afoot.” Cresswell v. State, 564 So.2d 480 (Fla. 1990). (emphasis added) When reviewing the factors involved in determining whether reasonable suspicion existed, the totality of the circumstances must be considered and “include: the time of day; the appearance and behavior of the suspect; the appearance and manner of operation of any vehicle involved; and anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge.” Grant v. State, 7l8 So.2d 238, 239 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D1969a].

To justify temporary detention of a person, there must be a “founded” suspicion in the mind of the police officer that the person has committed, is committing, or is about to commit a crime. A “founded” suspicion is one which has some factual foundation in the circumstances observed by the officer when those circumstances are interpreted in light of the officer’s knowledge. “Mere suspicion . . . is . . . random selection, sheer guesswork, or a hunch; it has no objective justification.” Elliott v. State, 597 So.2d 916, 917-18 (Fla. 4th DCA 1992). “Both the founded suspicion standard and the probable cause standard require the officer to interpret a factual foundation in light of the officer’s knowledge and experience. The difference between the two lies in the degree of probability.” Id. at 918.

Absent an articulable suspicion of criminal activity, the time an officer takes to issue a citation should last no longer than is necessary to make any required license or registration checks and to write the citation. See Maxwell v. State, 785 So.2d 1277 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D1445b].

In the case at bar, the basis for the officer’s request to perform FSEs was the boating violation, the incoherent answers, the presence of the beer can, and the slurred speech. However, given the specific facts of this case viewed in light of the testimony presented at the suppression hearing, this Court finds that there was no reasonable suspicion of criminal activity to justify the detention beyond issuing the citation for the boating violation. There was no testimony of an odor of alcohol on the Defendant’s person, there was no evidence of alcohol consumption by the Defendant beyond the mere suspicions of the officer due to the presence of the beer can that may or may not have even contained any alcohol, and there was no evidence of any other indicators of impairment like glassy, bloodshot eyes due to intoxication, flushed face, poor balance, or anything of like nature. According to the testimony, there was nothing inherently dangerous or incongruous about how the Defendant was operating his vessel.

In this Court’s opinion, the testimony provided by the officer was contradictory. At first he testified that the Defendant was incoherent, but then he clarified and said he meant he couldn’t hear the Defendant due to the engine noise from the airboat. He then testified that the Defendant was incoherent when responding to other questions but couldn’t provide any specific examples of what he meant. At the same time he testified that the Defendant appeared to know where he was at, was able to provide proof of lifejackets immediately upon request, was able to answer questions about who owned the boat, was able to deal with the unruly passenger in an appropriate manner, and was able to move about both boats without any signs of impairment.

The only competent, uncontradicted evidence that was presented to the Court was that the Defendant had slurred speech. Without some additional evidence that the slurred speech was due to impairment by drugs or alcohol, this Court finds that to be insufficient evidence of impairment to establish the necessary reasonable suspicion of BUI to justify the continued detention of the Defendant.

WHEREFORE, based on the foregoing, Defendant’s motion to suppress unlawfully obtained evidence is hereby GRANTED. All evidence obtained by law enforcement as a result of the field sobriety exercises and the Defendant’s subsequent arrest for BUI are hereby suppressed as the fruits of the poison tree.