Canoe capsizes, man charged with BWI

jrc · 04-03-2006, 11:58 AM

Quote:

Originally Posted by mcdude

....Follow the Concord Monitor Link to read about the drunken canoeist who was arrested at 6:40 a.m. off of Locke's Island. Do you think he'll lose his driver's license?

This should be interesting to watch. We had discussions before on this board, asking if BUI applies to paddle or sail boats. Now we may see. If you read the article something seems strange. Only one guy was arrested. If they both were drunk how come only one guy was arrested? If only one was drunk how did the police determine who was operating the canoe? Who is considered the operator, the one in back or in front, the owner?

ITD · 04-03-2006, 12:41 PM

Maybe he was the only one with a paddle?

GusMan · 04-03-2006, 01:02 PM

Interestingly, this very topic was raised in the NH Boater safety course I recently completed.

The marine patrol instructor for the course indeed said that operating a kayak, canoe, rowboat, sailboat etc under the influence is cause for arrest. The keyword was "operating".

He then relayed a story of a call he got one summer morning on Winnie (like 2:00AM) to investigate some rowdy boaters who were partying and being obnoxiously loud. When he arrived, he found three people on an inflatable raft (the huge one with the palm tree!) with a cooler full and tons of empties. The occupants readily admitted to being hammered but since they were adrift and not "operating" a craft, the officer simply told them to go home. The had the necessary life vests *and* a white 360 degree viewable light required for being out at night. Made up story??? Who knows.

I can confirm that there was a question on my safety exam that asked
what could a person legally "operate" while intoxicated... the correct answer was an inflatable PFD.

Gusman

SIKSUKR · 04-03-2006, 01:19 PM

Here's WMUR's story.http://www.wmur.com/news/8436685/detail.html

jrc · 04-03-2006, 03:24 PM

Quote:

Originally Posted by GusMan

...I can confirm that there was a question on my safety exam that asked
what could a person legally "operate" while intoxicated... the correct answer was an inflatable PFD.

Gusman

That seems like a crazy question for the safety exam. It's good to know that if I have a few too many, I can always put on the PFD and swim home.

Or if the raft story is true, I could cast off the lines and hope I drift home.

secondcurve · 04-03-2006, 06:03 PM

Drunk at 6:40AM? It was either one hell of a party the night before or these guys are incredibly hardcore and they decided to start partying early while fishing. Either way, they are lucky to be alive. Hypothermia is a deadly hazzard when the water is this cold.

jrc · 04-03-2006, 06:52 PM

Wow. I didn't even notice the time. You really have to work hard to be over the legal limit at 6:40 AM. Is the sun even up by then.

Skip · 04-03-2006, 08:03 PM

Interesting case, it will be well worth watching the outcome (if the defendant doesn't plead out his case).

Anyway, a few RSAs to ponder here....

First, the legal definition of a boat as it pertains to Boating While Intoxicated:

Boating While Intoxicated; Implied Consent for Boaters
Section 270:48
270:48 Definitions. – In this subdivision:
I. "Authorized agent" means any agent or inspector certified by the commissioner of safety, after training, to police the public waters of the state.
II. "Boat" means and includes every type of watercraft used or capable of being used as a means of transportation on the water.
III. "Commissioner" means the commissioner of safety, department of safety.
IV. "Peace officer" means "peace officer" as defined in RSA 594:1 or any properly trained personnel of the United States Coast Guard.

Given the above definition, the canoe clearly meets the legal definintion of boat as meant for BWI purposes.

Now, the Boating While Intoxicated RSA:

Boating While Intoxicated; Implied Consent for Boaters
Section 270:48-a
270:48-a Boating While Intoxicated; Penalties. –
I. No person shall operate or attempt to operate a boat while under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and a controlled drug....

Obviously the arresting officer was able to ascertain which of the two individuals met the legal definition of operate.

And in legal parlance the term operate is generally considered to be "in direct physical control"....most likely in this case the gentleman wielding the paddle.

Given the above, there is definitely a case to be brought by the enforcing agency. Where the legal question will arise, if challenged, may be in legislative intent. Basically, the defense may argue that the intent of the legislature was to regulate mechanized vessels, not human powered (as was the case in the bicycle DWI arrest challenge).

Definitely an interesting case to study and learn from!

Skip

Gilligan · 04-03-2006, 10:47 PM

If I am under the influence and operating a boat with paddles I could get BWI. If I were in the same boat and didn't have any paddles or other means of operating the boat, then I could be drunk as a skunk? Just have a designated boater come by and tow me home

Quote:

Originally Posted by GusMan

I can confirm that there was a question on my safety exam that asked what could a person legally "operate" while intoxicated... the correct answer was an inflatable PFD. Gusman

If it is operation on a boat I would say a cell phone or I would have answered, the head. Why would I want a drunk playing with CO2 cartridges that fill inflatable PFDs? I would want them to legally use the facilities and not foul the lake.

fatlazyless · 03-24-2019, 02:41 PM

Say-hey .....for $25 the Gilford Walmart has these very, very attractive, bright blue foam noodles that are huge ..... like about 5" diameter x 42" length, and probably have enough buoyancy so's you could sit on it, and paddle it forward or backward, like a small kayak. So, it seems like a large noodle, big enuf to support a paddler would qualify as a boat, here in NH.

Yes ...... Mr Bunky ..... you hereby are charged with operating a noodle, to wit a "vessel" while d.u.i. with a blood alcohol level greater than 0.08 on the waters of Lake Waukewan in Meredith.

Is really some great design for the human race how that foam noodle has improved over the last 13-years ...... my-my-my!

TiltonBB · 03-24-2019, 03:40 PM

Quote:

Originally Posted by fatlazyless

Say-hey .....for $25 the Gilford Walmart has these very, very attractive, bright blue foam noodles that are huge ..... like about 5" diameter x 42" length, and probably have enough buoyancy so's you could sit on it, and paddle it forward or backward, like a small kayak. So, it seems like a large noodle, big enuf to support a paddler would qualify as a boat, here in NH.

Yes ...... Mr Bunky ..... you hereby are charged with operating a noodle, to wit a "vessel" while d.u.i. with a blood alcohol level greater than 0.08 on the waters of Lake Waukewan in Meredith.

Is really some great design for the human race how that foam noodle has improved over the last 13-years ...... my-my-my!

FLL: If you still have a CDL it is .04 to be over the limit for DUI. Be careful out there!

04-03-2006, 01:02 PM	#3
GusMan Senior Member Join Date: May 2004 Posts: 131 Thanks: 1 Thanked 45 Times in 26 Posts	BWI in a non-motorized boat.... Interestingly, this very topic was raised in the NH Boater safety course I recently completed. The marine patrol instructor for the course indeed said that operating a kayak, canoe, rowboat, sailboat etc under the influence is cause for arrest. The keyword was "operating". He then relayed a story of a call he got one summer morning on Winnie (like 2:00AM) to investigate some rowdy boaters who were partying and being obnoxiously loud. When he arrived, he found three people on an inflatable raft (the huge one with the palm tree!) with a cooler full and tons of empties. The occupants readily admitted to being hammered but since they were adrift and not "operating" a craft, the officer simply told them to go home. The had the necessary life vests and a white 360 degree viewable light required for being out at night. Made up story??? Who knows. I can confirm that there was a question on my safety exam that asked what could a person legally "operate" while intoxicated... the correct answer was an inflatable PFD. Gusman

04-03-2006, 01:19 PM	#4
SIKSUKR Senior Member Join Date: Apr 2004 Posts: 5,075 Thanks: 215 Thanked 903 Times in 509 Posts	Here's WMUR's story.http://www.wmur.com/news/8436685/detail.html __________________ SIKSUKR

04-03-2006, 08:03 PM	#8
Skip Senior Member Join Date: Apr 2004 Location: Dover, NH Posts: 1,615 Thanks: 256 Thanked 514 Times in 182 Posts	Boating While Intoxicated in the Granite State Interesting case, it will be well worth watching the outcome (if the defendant doesn't plead out his case). Anyway, a few RSAs to ponder here.... First, the legal definition of a boat as it pertains to Boating While Intoxicated: Boating While Intoxicated; Implied Consent for Boaters Section 270:48 270:48 Definitions. – In this subdivision: I. "Authorized agent" means any agent or inspector certified by the commissioner of safety, after training, to police the public waters of the state. II. "Boat" means and includes every type of watercraft used or capable of being used as a means of transportation on the water. III. "Commissioner" means the commissioner of safety, department of safety. IV. "Peace officer" means "peace officer" as defined in RSA 594:1 or any properly trained personnel of the United States Coast Guard. Given the above definition, the canoe clearly meets the legal definintion of boat as meant for BWI purposes. Now, the Boating While Intoxicated RSA: Boating While Intoxicated; Implied Consent for Boaters Section 270:48-a 270:48-a Boating While Intoxicated; Penalties. – I. No person shall operate or attempt to operate a boat while under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and a controlled drug.... Obviously the arresting officer was able to ascertain which of the two individuals met the legal definition of operate. And in legal parlance the term operate is generally considered to be "in direct physical control"....most likely in this case the gentleman wielding the paddle. Given the above, there is definitely a case to be brought by the enforcing agency. Where the legal question will arise, if challenged, may be in legislative intent. Basically, the defense may argue that the intent of the legislature was to regulate mechanized vessels, not human powered (as was the case in the bicycle DWI arrest challenge). Definitely an interesting case to study and learn from! Skip

03-24-2019, 02:41 PM	#10
fatlazyless Senior Member Join Date: Apr 2004 Posts: 8,737 Blog Entries: 1 Thanks: 300 Thanked 1,007 Times in 735 Posts	Say-hey .....for $25 the Gilford Walmart has these very, very attractive, bright blue foam noodles that are huge ..... like about 5" diameter x 42" length, and probably have enough buoyancy so's you could sit on it, and paddle it forward or backward, like a small kayak. So, it seems like a large noodle, big enuf to support a paddler would qualify as a boat, here in NH. Yes ...... Mr Bunky ..... you hereby are charged with operating a noodle, to wit a "vessel" while d.u.i. with a blood alcohol level greater than 0.08 on the waters of Lake Waukewan in Meredith. Is really some great design for the human race how that foam noodle has improved over the last 13-years ...... my-my-my! __________________ ... down and out, liv'n that Walmart side of the lake!

04-03-2006, 12:41 PM	#2
ITD Senior Member Join Date: Apr 2004 Location: Moultonboro, NH Posts: 2,925 Thanks: 476 Thanked 691 Times in 387 Posts	Maybe he was the only one with a paddle?

04-03-2006, 06:03 PM	#6
secondcurve Senior Member Join Date: Jan 2005 Posts: 2,117 Thanks: 1,325 Thanked 559 Times in 288 Posts	Drunk at 6:40AM? It was either one hell of a party the night before or these guys are incredibly hardcore and they decided to start partying early while fishing. Either way, they are lucky to be alive. Hypothermia is a deadly hazzard when the water is this cold.

04-03-2006, 06:52 PM	#7
jrc Senior Member Join Date: Apr 2004 Location: NH Posts: 2,689 Thanks: 33 Thanked 439 Times in 249 Posts	Wow. I didn't even notice the time. You really have to work hard to be over the legal limit at 6:40 AM. Is the sun even up by then.