30 Pa.C.S. § 5502
OPERATING WATERCRAFT UNDER THE INFLUENCE
OF ALCOHOL OR CONTROLLED SUBSTANCES
PA BOATING UNDER THE INFLUENCE
Pennsylvania’s boating under the influence law (BUI) is, in many ways, very similar to Pennsylvania’s DUI laws. There are however, subtle differences that have a significantly impact on how these rules are applied.
Pennsylvania defined “watercraft” as “[e]very description of device used on the water or ice or capable of being used as a means of transport on water or ice. The term includes boats, motorboats, iceboats, all terrain or amphibious vehicles when they are operated on water and all such other devices. The term does not include seaplanes.”
Elements of Pennsylvania’s BUI Laws
30 Pa.C.S. § 5502(a) – BUI General Impairment (Alcohol)
To prove BUI of alcohol, general impairment, the Commonwealth must prove beyond a reasonable doubt that the defendant:
(1) operated or was in actual physical control of the movement of a watercraft after consuming a sufficient amount of alcohol that rendered them incapable of safely operating the watercraft; or,
(2) had a BAC of 0.08% but less than 0.10% within 2 hours of operating or being in actual physical control of the watercraft.
30 Pa.C.S. § 5502(a.1) – BUI High Rate of Alcohol
To prove BUI at the high rate of alcohol, the Commonwealth must prove beyond a reasonable doubt that the defendant had a BAC of 0.10% but less than 0.16% within 2 hours of operating or being in actual physical control of the watercraft.
30 Pa.C.S. § 5502(a.2) – BUI Highest Rate of Alcohol
To prove BUI at the high rate of alcohol, the Commonwealth must prove beyond a reasonable doubt that the defendant had a BAC of 0.16% or higher within 2 hours of operating or being in actual physical control of the watercraft.
30 Pa.C.S. § 5502(a.3) – BUI Controlled Substances
To prove BUI of controlled substance, the Commonwealth must prove beyond a reasonable doubt the defendant operated or was in actual physical control of the movement of a watercraft while:
(1) Having any amount of the following controlled substances in their blood:
(i) Any Schedule I Controlled Substance;
(ii) Any non-prescribed Schedule II or III Controlled Substance; or
(iii) Any metabolite of a Schedule I, II, or III Controlled Substance.
(2) They were under the influence of a drug or combination of drugs to a degree that impairs the person’s ability to safely operate or be in actual physical control over the movement of the watercraft.
(3) They were under the combined influence of alcohol and a drug or combination of drugs to a degree that impairs the person’s ability to safely operate or be in actual physical control over the movement of the watercraft.
(4) They are under the influence of a solvent or noxious substance in violation of 18 Pa.C.S. § 7303.
30 Pa.C.S. § 5502(a.4) – BUI Minors
For the purposes of Pennsylvania’s BUI law, a minor is any person under the age of 21 years old. For these individuals, the BAC limit is reduced to 0.02%.
Pennsylvania BUI Grading & Penalties
Suspension of Privilege of Operating a Watercraft in Pennsylvania
Pursuant to 30 Pa.C.S. § 928, the Pennsylvania Fish and Boat Commission must suspend the watercraft operating privilege of anyone convicted of a section 5502 BUI offense for one (1) year. 30 Pa.C.S. § 928(b).
Further, the Pennsylvania Fish and Boat Commission has the authority to revoke a watercraft operating license for up to five (5) years. 30 Pa.C.S. § 928(a).
Operating watercraft with a suspended license is a misdemeanor of the third degree. A second offense is graded as a misdemeanor of the second degree. 30 Pa.C.S. § 928(d).
BUI Mandatory Minimum Sentences
The penalties associated with BUI convictions are mandatory minimums set by statute. This means that a court must impose the minimum penalty, or the sentence is illegal.
The only legal ways to avoid the mandatory minimum period of incarceration for BUI convictions are successfully completing ARD or serving a period of home confinement. Both alternatives are subject to statutory eligibility requirements, the Commonwealth’s objection, and the court’s approval.
Sentencing Guidelines Apply to BUI
While BUI offenses have mandatory minimum terms of imprisonment, an offender is still subject to Pennsylvania’s sentencing guidelines. Here, the offender’s prior record score (PRS) and the offense gravity score (OGS) mater because they may require a sentence above the mandatory minimum penalty.
An offenders PRS is based on their prior criminal record. The offense gravity score for BUI offenses is determined by grading. BUIs that are ungraded misdemeanors (M) have an OGS of 1. BUIs that are graded as misdemeanors of the second degree (M2) have an OGS of 3. BUIs that are graded as misdemeanors of the first degree (M1) have an OGS of 5.
BUI ARD Eligibility
Acceptance into the ARD program will relieve a BUI offender of serving the mandatory minimum penalties. However, ARD requires a BUI offender to comply with the following terms:
- Suspension of watercraft operating privileges for at least 6 months, but not more than 1 year;
- Make restitution to anyone suffering a determinable financial loss resulting from the offense;
- Complete any recommended substance abuse treatment or counseling;
- Complete a boating safety course; and,
- Complete at least 6 months of pre-trial probation.
ARD is not permissible in BUI cases that involve an accident where death or serious injury occur.
A person accused of BUI is eligible for ARD provided that they do not have a prior BUI within 7 years of the date of the current offense. This is interesting because for a DUI offender to be ARD eligible, they must not have a prior DUI within 10 years of the current offense. When considering that BUI does not have a look-back period and DUI has a 10 year look back provision the 7-year BUI ARD rule is even more thought-provoking.
This 7-year rule is likely to soon change. On July 21, 2017, the General Assembly passed 2017 Pennsylvania House Bill No. 1673. If that amendment becomes law, it will change the 7-year ARD rule for BUI offenses by increasing it to 10-years.
BUI House Arrest
BUI offenders are eligible to serve their sentence, including any mandatory minimum, on house arrest with electronic monitoring. 30 Pa.C.S. § 5502(c.1)(4). However, for a court to grant house arrest, they must note in the sentencing order that the county jail population exceeds its capacity. This provision shall not apply to an individual who violates subsection (a)(1) where there was an accident resulting in serious bodily injury or the death of any person.
BUI Work Release
All BUI offenders are eligible for work release while incarcerated. 30 Pa.C.S. § 5502(m). In general, work release approval is managed by a County’s prison warden.
Aggravated BUI Cases
Minor BUI Offenders
Anyone under 21 years old, with a BAC in the general rate of impairment, is subject to the middle tier (high rate) penalties.
BUI Crashes Resulting in Death, Injury, or Property Damage
BUI violations at the general rate of impairment, that result in death, injury, or property damage are subject to the middle tier (high rate) penalties.
Aggravated Assault while BUI - 30 Pa.C.S. § 5502.3
In Pennsylvania, Aggravated Assault by Watercraft while Operating Under the Influence is a felony of the second degree. The OGS is 7. There is no specific mandatory minimum sentence that applies to this statute.
To convict a person of section 5502.3, the Commonwealth must prove beyond a reasonable doubt that: (1) the operated was BUI; (2) serious bodily injury (SBI) resulted; and, (3) the BUI violation caused the SBI.
Here, SBI means “any bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.”
Homicide while BUI - 30 Pa.C.S. § 5502.1
In Pennsylvania, Homicide by Watercraft while Operating Under the Influence is a felony of the second degree. The OGS is 10. The mandatory minimum sentence is three (3) years imprisonment. A consecutive three-year term of imprisonment must be imposed for each victim whose death is the result of a violation of section 5502.
To convict a person of section 5502.1, the Commonwealth must prove beyond a reasonable doubt that: (1) the operated was BUI; and, (2) the death was a direct result of the BUI violation. Thus, the Commonwealth must prove that the defendant operated the boat in an unsafe manner or caused the deadly accident. See Commonwealth v. Moyer, 648 A.2d 42 (Pa. Super. 1994).
Pennsylvania BUI Prior Offenses – PA BUI Law Has No Look-Back Period
The most stunning difference between Pennsylvania’s DUI and BUI laws is how subsequent offenses are penalized. While Pennsylvania DUIs have a 10-year look-back period for prior offenses, BUIs have no similar limitation for when a prior offense will be considered to enhance the penalty. In fact, PA’s BUI law does not offer any definition of what a prior offense is.
For example, if a person was convicted of DUI in 2002 and now has a pending DUI case, the pending case will be treated as a first offense. The reason for this is because Pennsylvania’s DUI law defines a prior offense as an offense within 10 years of the current violation. Since 2002 is more than 10 years ago, it is not counted as a prior offense for DUI mandatory minimum sentencing purposes.
However, if a person was convicted of BUI in 2002 and now has a pending BUI case, the pending case will be prosecuted as a second offense. The reason for this is because Pennsylvania’s BUI law does not limit the period to look back for prior offenses.
Contact Lampman Law to Defend BUI Charges in Pennsylvania
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