NEVADA BUI LAWYER
Boating Under the Influence (BUI)
What to Expect If You Have Been Arrested For Boating Under the Influence.
I – THE INITIAL ENCOUNTER WITH LAW ENFORCEMENT
So why was your boat stopped? Was it Nevada Department of Wildlife or was it The National Park Service Rangers?
Did they need to see you BREAK the law to make contact with you? Sadly, the answer is typically, no.
The law says either agency has the “right to board your vessel in order to check if you are complying with state and federal laws” See link Page 27 https://www.boat-ed.com/assets/pdf/handbook/nv_handbook_entire.pdf
They can justify a stop to see if you have the required safety equipment, (listed in the link above at page 18) or – if they see you fishing or diving to check your fish size/bag limit and to check your dive flags etc.
It is difficult to allege that police had no reason to initiate an encounter with a another boat, however, there are things that can aid in your defense.
WHAT ARE THE MOST COMMON DEFENSES DEVELOPED IN THE INITIAL ENCOUNTER WITH LAW ENFORCEMENT OFFICERS?
MOST COMMONLY THERE MAY BE SUPPRESSION ISSUES AS TO YOUR STATEMENTS AND ANY EVIDENCE OBTAINED AS A RESULT.
According to Miranda v. Arizona, police must read you your rights – whenever two circumstances intersect: CUSTODY and INTERROGATION. I will address those two circumstances below separately.
CUSTODY – Is a subjective term. Was your freedom or liberty curtailed such that a reasonable person in the same or similar circumstances would feel that they were not free to leave? Did the police tie-off their boat onto yours? Did the police make you board their boat? Did they handcuff you? Did they start ORDERING you around? Did they draw down their weapons on you? Did they take your boat keys? Did they take your wallet? Did they separate you from your kids? Did they take your Driver’s License? One frequently unavoidable and important factor mitigating towards a determination that you were IN CUSTODY is the isolation of being out on the water. In other words – a reasonable person is NOT FREE TO LEAVE, since you cannot be expected to swim home, and even if you tried to – you technically would be disobeying a lawful command from a policeman – which is a separate offense. If the police ALSO do some of the things listed above, then it is all the more likely that a judge would be inclined to rule that for purposes of Miranda, you were “in custody”
INTERROGATION – Proving interrogation is typically much easier. This is determined by looking to see if you were asked questions “designed to lead to an incriminating response” i.e “Whose beer is this” “Who was driving the boat” “Whose fish are these” “When did you guys start drinking today” “Have you been drinking” “Whose boat is this” Typically police ask you these things almost immediately. Frequently they will not “read you your rights” before doing so. When that happens, they are potentially going to lose the ability to use the answers to all of those questions at trial, in addition to any evidence obtained as a result – since it would be considered “Fruit of the poisonous tree”.
We may be able to win your BUI case by suppressing evidence, such as admissions to drinking, obtained illegally by the police.
SO WHO ARRESTED ME?
The State of Nevada or the U.S. Government may file BUI charges against you.
The charge(s) can be made by State of Nevada law enforcement officers with The Nevada Department of Wildlife, or by federal officers of The National Park Service. If the State arrested you, you will be prosecuted in State court. If Federal law enforcement arrested you, you will be prosecuted in Federal court.
Why You Need To Meet WIth A BUI Attorney
Attorney Michael Anello is admitted in both Nevada and Florida. He is an aggressive trial lawyer, a former prosecutor, former probation officer and veteran of The United States Marine Corps. Michael has prosecuted and defended thousands of BUI’s and DUI’s and has litigated jury trials on those two subjects alone over 30 times.
Let us review your case. Michael is experienced in issue spotting as to the problems within your case after having read over 100,000 police and probation violation reports in the last 25 years. When we say “issues” we mean the mistakes that the police may have made in your case that implicate The United States Constitution or The Nevada Revised Statutes. It is these issues within your case than can allow us to suppress critical evidence which may result in your case being dismissed, or allow us to gain leverage in plea negotiations, or win at trial. One of the places that reasonable doubt comes from is a lack of evidence. Michael can initially negotiate your case, and then fight your case as far as it needs to go to achieve the outcome acceptable to you. Call us now for a free consultation – so we can spot the issues within your case, develop your defenses and allow you to make informed decisions to achieve the best outcome.
The Discovery is all the evidence the prosecutors will use against you. Our firm will comb through all the police reports, facts, videos, forensic reports and more. You need a law firm to go over all the facts and file any appropriate motions, such as motions to suppress, on your behalf.
Incomplete discovery is common, and out firm will request all the discovery to make sure no stone if left unturned. Sometimes items are lost or destroyed, we will file the appropriate motions to address this in your defense.
Your case may depend on the appropriate motion to defend your case. Our firm will file the appropriate motions if after going through the Discovery, we fin an issue that gives rise to a motion.
The common motions our firm files in BUI cases are motions to suppress statements and motions to suppress blood or breath sample. One motion can break the case and hep ensure a favorable outcome for you. Having a BUI lawyer is the best option to have on your side.
BUI Laws and Information
WHAT IS BOATING UNDER THE INFLUENCE Nevada Revised Statute 488.410 and 46 U.S.C section 2302 (c)
WHAT DOES THE PROSECUTION HAVE TO PROVE in any BUI?
A BUI is most-simply broken down into two parts (below) and is formally defined in Nevada Revised Statute 488.410 and Federally within 46 U.S.C. section 2302 (c) and (d). Every BUI prosecution requires the existence of the two elements below.
PART ONE – OPERATING a VESSEL under sail on the waterways of The State of Nevada i.e. Were you driving a boat or otherwise in a position to drive or control it?
This is typically the easiest part of the case for the prosecutors to prove. It can be proven by circumstantial evidence, perhaps as simply as by you standing near the steering wheel while the engine idles. It frequently becomes a question for the fact-finder (judge or jury). A VESSEL is every means of water craft other than a seaplane, used as or capable of being used as transportation on the water. Most commonly a vessel is a boat or jet ski.
PART TWO – WHILE OPERATING THEY CAN PROVE YOU WERE UNDER THE INFLUENCE i.e. impairment. While you were “operating a vessel” were you under the influence of alcohol or a controlled substance?
This part is more subjective. The legal limit for alcohol in your blood/breath is .08 – at that point the State is entitled to a PRESUMPTION that you are impaired. The police must allow for you to be tested within TWO HOURS of your arrest. The .08 presumption of impairment is a REBUTTABLE presumption, but traditionally not easy to rebut. There are certain standards for other drugs/substances as to how much is allowed in your blood before creating a PRESUMPTION of impairment. i.e Cocaine, marijuana, methamphetamine etc.
THE NEVADA STATE BUI STATUTE NRS 488.410
It is a crime in Nevada to drive a boat while either:
- impaired by drugs, alcohol, or other chemicals;
- having a blood alcohol content (BAC) of at least 0.08% even if the person is not impaired from the alcohol;
- having illegal blood levels of certain drugs even if the person is not impaired from the drugs.
SO WHAT ARE THE PENALTIES FOR STATE OF NEVADA AND FEDERAL BUI CONVICTIONS?
STATE BUI PENALTIES
THE FEDERAL BUI STATUTE
The Federal Statute is below under 46 U.S.C. section 2302 (c)
- c) An individual who is under the influence of alcohol, or a dangerous drug in violation of a law of the United States when operating a vessel, as determined under standards prescribed by the Secretary by regulation–
(1) is liable to the United States Government for a civil penalty of not more than $5,000; or
(2) commits a class A misdemeanor.
WHAT ARE THE PENALTIES FOR A FEDERAL CLASS A MISDEMEANOR?
The common penalties for Class A misdemeanor or the equivalent are:
- Fines. These may be as little as $500 or as much as several thousand dollars;
- Jail sentences of one year or less;
- Community service; and
- Rehabilitation programs.
***One important distinction between the federal statute and the Nevada statute is that the federal statute under subsection (d) lists the POSSIBILITY of IN REM FORFEITURE of your vessel i.e. The federal government MAY DECIDE to attempt to take your boat in a CIVIL proceeding, with the standard of proof being preponderance of the evidence (see statute below)
(2) operated principally for governmental purposes; and
BUI Sobriety Test
THE INVESTIGATION OF YOUR BUI, “AFLOAT TASKS” AND THE EVIDENCE THE PROSECUTION INTENDS TO USE
So how does the State intend to convict you?
They will attempt to do so using the results from what they call “Afloat Tasks” – which are very similar to roadside Field Sobriety Exercises. I will break down each exercise below.
The Finger Count Test – the officer will ask you extend one hand, then count 1,2,3,4 as you touch the fingers of the extended hand with your other thumb. The officer will ask you to speed up, and count backwards as well i.e. 4,3,2,1. He will be watching to see if you miss your fingertips, or count out of order, and if you refuse he can argue it’s evidence of you trying to HIDE the fact that you’re impaired.
The Palm Pat – The officer asks you to place your palms together – upright – like you might do to simulate an alligator chomp. Then he asks you to flip your top hand over as you say 1,2 ….1,2…He will soon ask you to speed up and will be observing to see if you miscount or imperfectly join and/or misalign your palms. If that happens, he will say it was drugs or alcohol that caused it to occur.
The Finger to Nose Test – The officer asks you extend your two index fingers and place your arms at your sides, close your eyes, tilt your head back slightly (Yes, this is actually on a boat – and yes the boat may be rocking due to wake from other boats while you attempt this). The officer will then ask you to extend either your Right or Left hand (one at a time) and touch the tip of your finger (not the PAD of your finger) to the tip of your nose. He will alternate Left and Right for a total of 7 times, and switch up the order to see if you are able to follow-along. If you miss your nose, or raise the wrong arm, the officer will make note of it and count it against you.
Horizontal Gaze Nystagmus – This is just a fancy name for the “follow the pen-light” test. The officer is supposed to place a stylus 12-15” away from your face and move it side to side. You are to be instructed to follow it ONLY WITH YOUR EYES, and not to turn your head, and told not to squint your eyes. The officer is looking for “smooth pursuit” of your pupils i.e. Do they jump as they move or do they keep going without interruption. A good analogy I once heard is that Nystagmus is like a marble across a cobblestone road – bumpy. If your pupils are bumping around as they move side-to-side – it’s considered evidence that you’re impaired.
So what are my defenses against any “afloat task” evidence?
- You were not driving or not in actual, physical control of the vessel – If this is found to be true, you cannot be convicted.
- The jury does not believe that afloat tasks accurately measured your ability to operate a vessel.
- The afloat tasks were not administered properly in your case – and the results were thus contaminated and skewed against you.
- The State’s witnesses are unavailable, or unbelievable.
- Your witnesses say you were not impaired.
- The State’s evidence was lost or destroyed.
You can prove scientifically that you were not not impaired and may be entitled to a rebuttable presumption to that effect i.e. This would be if your breath or blood results come back below .04 or are .00 and any blood test was also negative for controlled substances.
Other Potential Issues In Your Case
- How did your breath smell?
- What did your speech sound like?
- What did your eyes look like?
- Were there empty containers of alcohol on-board the boat?
- How do you appear on video tape?
- How did you look when you were booked at the jail?
- Was the Intoxylyzer properly maintained and calibrated on the day you were tested?
- Did the Intoxylyzer/Breathlyzer Operator do the test properly?
- Were you coerced into taking the breath or blood test?
- Did the officers misstate the law as to your blood, breath or right to a lawyer?
- Did you burp into the machine and cause an abnormally-high reading?
- Can you challenge the procedures used when your blood was drawn?
- Did you drink alcohol AFTER you had stopped driving?
- Were you were tired, sunburnt and hungry – but not impaired?
i.e Are there are alternative explanations for your performance of afloat tasks and how you look on videotape?
These are only a sample – let us discuss YOUR CASE with you.
Simply call/text us at (702) 724-3791
or fill out the contact form.
BUI Service Area
Our firm is licensed in the State of Nevada and Federally. We handle BUIs all over Nevada, however, the most common location is southern Nevada. Lake Mead is one of the busiest lakes in Nevada, so our firm handles this area more than others. If you have been charged with a BUI anywhere in Nevada we recommend calling for a free consultation.