In NY, BUI as a passenger?

[jrc]

Here is the link from an Oswego newspaper:

http://palltimes.com/articles/2010/09/02/news/doc4c7da3b03180d176380654.txt

The man was too drunk to drive his boat, so his sober wife drives it. She crashes the boat (thankfully no one is killed) and he gets charged with BUI becuse he gave her directions.

Could this happen in NH?

Doesn't this really undermine the fight against drunk boaters? I mean some people will think "if I'm just as guilty driving or not, I might as well drive."

[RailroadJoe]

I wonder if you were on shore and was guiding her in using a cell phone if they could get you for BUI?

Typical rules is rules, unless your a politician or lawyer.

[ApS]

Could this happen in NH?

We kicked this around a few years ago: except for the age of the operator, we still have only guesses. :confused:

http://www.winnipesaukee.com/forums/showthread.php?p=18540#post18540

[NoRegrets]

This really brings a whole new meaning to the term "back seat driver"! Thanks for posting this interesting incident. I hope my wife doesn't read it. :emb:

[LIforrelaxin]

This is very interesting and a great subject matter. I am sure that there are many many fine points in the laws that will eventually lead to this many getting out of this charge on a technicality or pleading down to a lesser charge and I don't know that I am necessarily totally against that as an outcome.

However I think what a case like this brings about is the differences in Maritime law vs. normal motor vehicle driving laws, especially in regards to Alcohol. With that said I would take a case like this as a sign that quite possible all states need to start evaluating how to deal with this particular issue. Do we change Maritime law and make the person behind the wheel completely and totally responsible for the operation of recreational boat like we do with an automobile?

[BroadHopper]

I believe the captain or owner of the ship is responsible for the ship. Not the Helmsman or driver. The captain will be charged.

[Skip]

He is being charged Federally by the Coast Guard, which has clear jurisdiction in the waterway where the accident happened.

This is the applicable section of Federal Regulation (CFR) that allows him to be charged, while not actually operating (hands on the wheel) of the vessel in question:

33 CFR 95.015 Operating a vessel.
For purposes of this part, an individual is considered to be operating a vessel when:

a.The individual has an essential role in the operation of a recreational vessel underway, including but not limited to navigation of the vessel or control of the vessel's propulsion system.


In New Hampshire we have a similar take on this Federal Regulation:

265-A:1 Definitions. – In this chapter:
I. ""Authorized agent'' means any agent or inspector certified by the commissioner, 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. ""OHRV'' means an off highway recreational vehicle as defined in RSA 259:69 or a snowmobile as defined in RSA 259:102.
IV. ""Peace officer'' means ""peace officer'' as defined in RSA 594:1 or any properly trained personnel of the United States Coast Guard.
V. ""Operate,'' when used in relation to a boat, means to drive, paddle, row, or exercise control over any boat unless the boat is at anchor, docked, made fast, or moored.

In short, while this is a rare occurence, you indeed can be charged with BWI while not being at the helm if the prosecution can show that you had command of the vessel. In this case it is apparent that the "Captain" readily admitted to investigating authorities, and did so again to the press, that he was directing his wife's operation when the crash occured.

As a sidenote, the laws covering Boating While Intoxicated in New Hampshire do not fall under the Boating RSAs, but are actually a subsection of this State's motor vehicle regulations.

[Kracken]

Skip,

I know you are the unofficial law expert for Winni.com but doesn’t this seem a little unjust?

The great Captain J.J. Hazelwood was charged and rightfuly so even thought he was not at the helm (or even on the bridge) but that was a commercial vessel. With a non-commercial vessel, liability for damage will most often fall upon the operator and the owner but shouldn’t adherence to the laws of operation be the sole responsibility of the person behind the wheel?

I don’t doubt it is the law but it seems a little silly.

[Lake Fan]

So the "designated driver" idea is inoperable when in a boat? Isn't he captain (operator) of a boat the one driving it? Especially if the "owner" is incapacitated due to alcohol consumption? Interesting....

[Skip]

Skip,

I know you are the unofficial law expert for Winni.com but doesn’t this seem a little unjust?

The great Captain J.J. Hazelwood was charged and rightfuly so even thought he was not at the helm (or even on the bridge) but that was a commercial vessel. With a non-commercial vessel, liability for damage will most often fall upon the operator and the owner but shouldn’t adherence to the laws of operation be the sole responsibility of the person behind the wheel?

I don’t doubt it is the law but it seems a little silly.

Not unjust or silly at all, in my humble opinion.

The intent of the legislation is to only pursue this charge when it can be proven that the person at the wheel could not have possibly been able to control the vessel without command by another party.

If the person at the helm was a competent operator, regardless if a third party was acting as a captain, then this law does not apply. That is why it is so rare to see charges for pleasure boat operation under these regulations.

Commercial operation, as you cite, falls under a different subsection of the Coast Guard CFR.

In this case it appears that the intoxicated Captain clearly indicated to investigating authorities that even though his wafe was operarting he had full command of the boat. He, or she, also had to relate that she was incompetent to operate the vessel on her own. Looks like the booze, bravado or a combination of both got the best of him. In this limited circumstance I agree with the authorities charging him with BWI.

Additionally we are only talking about the actual BWI offense. Civilly the rules change, and both individuals along with whoever the boat owner my be, are liable for damages, recovery and repair. The burden of proof and responsibility are much less on that side of the Courthouse!

[Skip]

So the "designated driver" idea is inoperable when in a boat? Isn't he captain (operator) of a boat the one driving it? Especially if the "owner" is incapacitated due to alcohol consumption? Interesting....

The designated driver, if given that responsibility by the "Captain", has to be able to take full responsibility for the vessel including any licensing and competency issues.

I would ask that everyone go back and read the CFR & the RSA. The "Captain" of the vessel is the person excercising control over it's operation. That does not mean that it is always the one with the hand on the wheel and throttle.

Don't confuse maritime law with the motor vehicle code. In many cases there are clear differences.

In reality in almost all instances that an intoxicated boat owner gives the wheel to a sober adult, it would be extremely difficult for the State to prove that the operator was totally incompetent and that the drunk was in command. That is why this case is so rare that it is making headlines across the nation.

But if the authorities pull up to the scene and have the drunk "Captain" admit he was in control, and the operator indicates incompetence, then these regulations do pertain.

It's called having your case handed to you on a silver platter.

The State really isn't asking a lot hear folks. They are simply requiring that if you, as the owner, want to get intoxicated and hand control of the boat over to a third party....great for you (and all of us). Just make sure your operator can drive the boat! It's as simple as that....:)

[LIforrelaxin]

Skip,

Thanks for pointing the details of the law. And the fact that the laws in NH, do indeed allow for something like this to happen here under state jurisdiction.

Now back to some food for thought... Here is the thing... if I am operating the boat, especially if I have been handed the helm by someone that has be their own self admission had to much to drink, am I going to allow them to be responsible for the navigation of the boat. Now before commenting on that, we would Someone take control of a boat, from someone that is knowingly admittedly drunk, and probably not in a position to help, if they themselves are not able to confidently handle the vessel and safely navigate.

In short here is my point. In the case JRC brings to our attention I feel the wife is every bit as much at fault for the accident and for listening to her intoxicated husband. And if she didn't have the skill or knowledge to get the boat back to safe Harbor without his help she shouldn't have gotten behind the wheel either.... in short there where two wrongs that night... and it made for a worse....

[AC2717]

This is very interesting and a great subject matter. I am sure that there are many many fine points in the laws that will eventually lead to this many getting out of this charge on a technicality or pleading down to a lesser charge and I don't know that I am necessarily totally against that as an outcome.

However I think what a case like this brings about is the differences in Maritime law vs. normal motor vehicle driving laws, especially in regards to Alcohol. With that said I would take a case like this as a sign that quite possible all states need to start evaluating how to deal with this particular issue. Do we change Maritime law and make the person behind the wheel completely and totally responsible for the operation of recreational boat like we do with an automobile?

I say yes, if they have a boating license, then they are approved to operate a boat, just like if they were driving a vehicle

[jrc]

I don't think this is a cut and dry as you say Skip. A person has to be more than just giving directions to be in control of the vessel.

Building on Railrod Joes question, if I'm drunk and on shore and my wife calla from the boat and asks for directions am I guilty of BUI?

I also think theres a lot of sexism in these answers. Just becuse she's the wife doesn't mean that he's the captain. Many married couples own a boat jointly, so there's no automatic assumption that he's the owner and captain. Now if one person has a license (or equivalent) maybe that tilts the tables. But the police can't say "hey, he's a man, he must be the captain"

[Lakepilot]

Skip,

Great explanation!

[Skip]

I don't think this is a cut and dry as you say Skip. A person has to be more than just giving directions to be in control of the vessel.

Building on Railrod Joes question, if I'm drunk and on shore and my wife calla from the boat and asks for directions am I guilty of BUI?

I also think theres a lot of sexism in these answers. Just becuse she's the wife doesn't mean that he's the captain. Many married couples own a boat jointly, so there's no automatic assumption that he's the owner and captain. Now if one person has a license (or equivalent) maybe that tilts the tables. But the police can't say "hey, he's a man, he must be the captain"

Of course not. You're not in the boat. You have to be in the boat to meet one of the elements of the offense.

I try to keep my answers short and in layman terms, but there is always much more to the actual prosecution and elements of the offense/crime thaen what I can cover in a few paragraphs.

Back to the original question posed. Yes, if the authorities can develop enough probable cause after investigating the incident, then a person "on the vessel" that is intoxicated can be deemed "in command" and if not at the helm still charged with an offense.

Once again, it is a very tough case to prosecute and very rarely pursued. But it is the law both Federally and Statewide here in New Hampshire, whether we agree with it or not.

[SIKSUKR]

I was reading this thread with my girlfriend and after having consumed too many cocktails I was getting dizzy so I handed off the mouse to her while I told her how to navigate this site. And then it happened, my computer crashed and now I'm being charged with PUI.:laugh: It's not fair I tell you.

[hancoveguy]

I know this is probably not related but it is relevant and interesting. In Ipswich Ma, a driver's ed instructor in a company owned automobile was charged and convicted of OUI as the passenger in the vehicle, while a sober student drove. The student only had their learners permit and was not impaired in any way. This case is less than 2 years old and the conviction stands as of now...

Just another thought on who is ultimately responsible for a vehicle/vessel regardless of who is in the driver's seat/at the helm...


HCG

[VitaBene]

I know this is probably not related but it is relevant and interesting. In Ipswich Ma, a driver's ed instructor in a company owned automobile was charged and convicted of OUI as the passenger in the vehicle, while a sober student drove. The student only had their learners permit and was not impaired in any way. This case is less than 2 years old and the conviction stands as of now...

Just another thought on who is ultimately responsible for a vehicle/vessel regardless of who is in the driver's seat/at the helm...


HCG

HCG in this case it is open and shut- the licensed driver is always responsible when driving with a learning permit holder. It is similar to boating with a non safety certificate holder- the certificate holder is still responsible.