Summer is here, and many of us want to get our boats out on the water and have a good time. A large number of those boats on the water are going to have coolers onboard. In South Carolina, it is not against the law to drink an alcoholic beverage while you are operating a boat. There is no “open container law” on boats in South Carolina, and in fact you can operate your boat and consume alcohol at the same time.
However, it is a crime to operate your boat while you are “under the influence of alcohol.”
So can you get a DUI on a boat in South Carolina? In a word, “yes” – but we don’t call it DUI in this state. Instead, South Carolina has a law forbidding Boating Under the Influence, or BUI.
What is the difference between a BUI and a DUI?
Besides the obvious difference – you’re “driving” a boat, not a car – there are some other differences between the two charges, the laws governing them, and the way law enforcement handles them. The idea is generally the same: it is against the law to operate a boat while you are under the influence of alcohol and/or other drugs.
So if you happen to be drinking a beer within view of a DNR agent or other law enforcement official, you can rest assured they will want to board your watercraft for a “safety inspection.” This can be a total pretext to investigate you for a possible BUI and the government will argue in court that “pretextual stops” are permissible under the Constitution.
Understand that this coming Fourth of July weekend especially, there will be a strong law-enforcement presence on Lake Murray in Columbia, on the intracoastal waterway, creeks, and rivers in Charleston and throughout the entire Lowcountry. In fact, there is a Heightened Enforcement Weekend throughout the United States this July 3-5, 2020. Law enforcement will be looking for an excuse to board your vessel.
What the law says
Under the South Carolina Boating and Safety Act:
- It is unlawful for a person to operate a moving motorized water device or water device under sail upon the waters of this State while under the:
- influence of alcohol to the extent that the person’s faculties to operate are materially and appreciably impaired;
- influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person’s faculties to operate are materially and appreciably impaired; or
- combined influence of alcohol and any other drug or drugs, or substances which cause impairment to the extent that the person’s faculties to operate are materially and appreciably impaired.
For purposes of this section ‘drug’ means illicit or licit drug, a combination of licit or illicit drugs, a combination of alcohol and an illicit drug, or a combination of alcohol and a licit drug.
In layman’s terms, “drunk boating” is illegal, just like drunk driving is illegal. However, there are some differences between BUI and DUI. . In South Carolina, you cannot consume an alcoholic drink of any kind while you are behind the wheel of your car at any time. You can, however, consume an alcoholic drink while operating a boat; you just can’t operate the boat while under the influence.
What are the penalties for BUI in South Carolina?
If you are convicted of BUI, you will have a permanent criminal record. The penalties for a BUI conviction increase depending on the number of prior convictions you have, and/or if anyone is hurt or killed as a result. Court costs will more than double the fines listed below:
- First offense. Fine of $200, and/or imprisonment for anywhere between 48 hours to 30 days.
- Second offense. Fine of $2,000 to $5,000, and/or imprisonment for anywhere between 48 hours and one year.
- Third offense. Fine of $3,500 and $6,000, and/or imprisonment for anywhere between 60 days to three years.
For your first or second offense, your jail time could be converted to community service.
Will my boating license be suspended?
Yes. If you are convicted of BUI, you will be “prohibited by the department from operating any water device within this State for six months for the first conviction, one year for the second conviction, and two years for the third conviction.”
If your boating privileges are suspended and you wish to have your boating license reinstated, you will have to complete an Alcohol and Drug Safety Action Program first. This is an additional cost to you.
You face greater penalties if someone gets hurt
When you are charged with a “traditional” DUI – one based on drunk driving a vehicle on land, that is – you face serious penalties if someone is hurt or killed. Those same enhancements will apply if your DUI is actually a BUI. Per the Act:
- A person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs operates a moving water device, or is in actual control of a moving water device within this State and causes great bodily injury or death of a person other than himself, is guilty of a felony and, upon conviction, must be punished by a mandatory fine of not less than:
- five thousand dollars nor more than ten thousand dollars and mandatory imprisonment for not less than thirty days nor more than fifteen years when great bodily injury results;
- ten thousand dollars nor more than twenty-five thousand dollars and mandatory imprisonment for not less than one year nor more than twenty-five years when death results.
No part of the mandatory sentences required to be imposed by this section may be suspended, and probation may not be granted for any portion.
- As used in subsection (A) “great bodily injury” means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
- A person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs operates or is in actual control of a moving water device within this State and causes damage to property other than his own, or injury other than great bodily injury to a person other than himself, is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not less than five hundred dollars or imprisonment for not more than thirty days, or both.
- The department shall suspend the privilege of a person who is convicted or who pleads guilty or nolo contendere under this section to operate a water device or be in actual control of a moving water device within this State for a period to include any term of imprisonment plus:
- three years in the case of death or great bodily injury; or
- one year in the case of property damage or injury other than great bodily injury.
What happens if law enforcement thinks I’m boating under the influence?
If law enforcement believes you are under the influence, at some point you may be asked to perform standardized field sobriety tests (SFSTs). These SFSTs should be performed on shore – for example, by taking the operator to a dock. However, there are still inherent problems, particularly with balance tests in a situation where the operator has been on a moving boat being tossed about in the water.
To address this issue, the government has developed The Afloat Test Battery or Seated Battery of SFSTs. These tests are perhaps even less reliable than the SFSTs, and you have every right to refuse to submit to them.
You also need to understand that the concept of “implied consent” applies to boating as well as driving. Implied consent means that by operating a watercraft of any sort, you are implicitly consenting to chemical tests of breath, blood, or urine to determine the presence of drugs or alcohol should you be arrested. You can read the full text of the law here, but these are the highlights:
- If you arrested for BUI, you implicitly agree to a chemical test. This is usually a breath test.*
- That chemical test has to be “administered by a person trained and certified by the South Carolina Law Enforcement Division (SLED), using methods approved by SLED.”
- You could be forced to pay the $50 fee for the breath test if you plead guilty or are convicted of BUI.
- If your test registers a .08 blood alcohol content (BAC) or above, the officer doesn’t need to run anymore tests. It is inferred that you were under the influence of alcohol.
- If your test registers a .05 BAC or lower, it is presumed you were not under the influence of alcohol
- If your test registers between a .05 and a .08 BAC, no inference is made, but it CAN “be considered with other competent evidence in determining the guilt or innocence of the person.”
*There are two important things to know about these tests:
- If you are unconscious, law enforcement can take a blood sample without your express approval. If they think you’re “on drugs,” they can take a urine sample.
- You can refuse to submit to the tests.
Why you want BUI defense lawyer Randy Hough on your side
I have received the same training as law enforcement in the administration of SFSTs, and I am certified to administer them through the authority of the National Highway Traffic Safety Administration (NHTSA). I know exactly what law enforcement is looking for in those tests – and I know when a test has been improperly administered.
My decades of experience handling more than 2,000 DUI cases, as a defense lawyer and as a prosecutor, gives you an advantage when it comes to building a case for your innocence and your freedom.
If you have been charged with BUI, you deserve an attorney who has the resources, skills, and experience to fight for you. You can find that attorneys at The Law Offices of A. Randolph Hough, P.A. in Columbia and Charleston. Don’t face BUI charges alone: Please call 803-771-4119, or fill out our contact form, and schedule your free consultation today.
Former prosecutor A. Randolph “Randy” Hough has a strong background in criminal law. Before entering private practice, he served as a prosecutor for the Fifth Judicial Circuit of South Carolina, handling numerous crimes ranging from drug trafficking to white-collar crimes to murder. A strong trial lawyer, A. Randolph Hough excels at building rapport with juries, and has extensive training and experience in DUI defense. Over the course of his career, he has handled thousands of cases — including both drug- and alcohol-related charges. Learn more about A. Randolph Hough.