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New Michigan Drunk Boating Law Might Result in More Dangerous Waterways

2014 Public Act 402 was signed by Governor Snyder on December 27, 2014, and began being enforced earlier this year, with an effective date of March 31, 2015.  Many prior attempts were made to lower the legal limit applicable to watercraft, and this new law appears to be the result of a compromise reached by Congress during last year’s lame duck session.

According to Michigan DUI Lawyer Patrick Barone, the new law may actually make our waterways more dangerous, and this is because fewer boats are now covered by the act.  While the legal limit was reduced to .08, bringing Michigan’s drunk boating law into parity with that applicable to automobiles and other motor vehicles operated on the roadways, the new law applies to far fewer kinds of watercraft. This is because the new law replaced the word “vessel” with the word “motorboat.”

On the other hand, the new law does lower the legal limit to .08, and makes it easier for prosecutors to show intoxication at any bodily alcohol level. This is because the new drunk boating law removed the presumptions contained in the old law. This means there is no longer a presumption that a person below .07 is presumed not be too impaired.  Gone too is the presumption that a person is presumed to be intoxicated above a .10.

Because there is no longer a presumption that a person is not impaired if below .07 a person can be convicted of intoxicated boating for alcohol levels well below the so-called legal limit.  If the prosecutor can show that a person’s ability to operate a motor boat is significantly lessened at say a .05, then that person is guilty of drunk boating.”

Also, while the new law applies to fewer types of watercraft, the penalties are stiffer for intoxicated operation.  Practitioners familiar with the penalties applicable to motor vehicles will be very familiar with the new penalities because they appear to have been “cut-and-pasted” from the motor vehicle code.  This means they are now essentially in parity with those applicable to the intoxicated operation of a motor vehicle on the roadways.  The one exception is the impact to the license.  Just as before, a drunk boating conviction will not result in a loss of an operator’s motor vehicle driver license.

Also, just as with motor vehicles, there are enhanced penalties for second offenses and life-time look back for felony drunk driving.   There is now a zero-tolerance provision for under-21 drivers.  The laws and penalties applicable to the intoxicated operation of a motor boat causing death or serious injury are largely unchanged.

There is a significant difference between the legal defenses in drunk driving and drunk boating; however, they share scientific defenses as well.  A great example would be the definition of operation.  In a motor vehicle, it is illegal to be intoxicated and in the driver’s seat while the vehicle is running, even if it is in park.  However, as long as the motorboat is not ‘underway’ then it is irrelevant if the person in control is intoxicated or not.  Further, in a motor vehicle, you must be physically in control of the vehicle to be operating.  Whereas, in the case of a motor boat, merely being in charge of the vessel, may subject you to prosecution for intoxicated operation.

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Patrick Barone

Patrick Barone

Patrick T. Barone is the Founding Partner and CEO of The Barone Defense Firm with offices throughout Michigan. Mr. Barone is the author of two books on DUI defense including Michigan DUI Law: A Citizen's Guide and the well respected two volume treatise Defending Drinking Drivers (James Publishing),a chapter in Defending DUI Vehicular Homicide Cases, 2012 ed. (Aspatore Books), an adjunct professor at the Thomas M. Cooley Law School, and a graduate of the Gerry Spence Trial Lawyer’s College. Mr. Barone has an “AV” rating from Martindale-Hubbell and since 2009 has been included in America’s Best Lawyers.

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