Boating under the influence is a criminal offense in Nevada. More specifically, it’s unlawful to operate a boat:
- When under the influence of alcohol or drugs, or
- With a blood alcohol concentration of 0.08% or higher.
Boating under the influence of alcohol or drug is abbreviated as:
- BUI,
- OUI, or
- BWI
A first-time BUI offense that doesn’t lead to any serious injuries is a misdemeanor. However, in other instances, it is a felony.
| BUI Offense in Nevada | Penalties |
| NRS 488.410 – First BUI offense where the victim wasn’t killed or seriously injured | BUI Misdemeanor Imprisonment of up to 6 months and/or fines up to $1,000. |
| NRS 488.420 – BUI resulting in serious injuries or death of the victim. | Categorized as Felony B Imprisonment of up to 20 years and fines of up to $5,000. |
| NRS 488.427 – BUI after a prior BUI felony | Categorized as Felony B Imprisonment of 2 – 15 years in state prison and fines of up to $5,000. |
| NRS 488.425 – BUI resulting in the another’s death when the defendant has 3 prior convictions. | Considered Homicide by vessel Categorized as Felony A Lifetime imprisonment with possible parole after 10 years; or Twenty-five years imprisonment with possible parole after 10 years. |
While there are stringent penalties for a BUI conviction, the charges can be reduced or dismissed in certain cases as part of a plea bargain. The possible defenses that the defendant can use include the following.
- Malfunctioning of the BUI breath or blood testing equipment,
- Misconduct of law enforcing agents when arresting the suspect or during an investigation, or
- A medical condition that led to a higher BAC test reading for the boat operator.
In this post, the attorneys at Bourassa Law Group provide insight into the crime of boating under the influence.
Understanding “Boating Under Influence” Offense in Nevada
Boating under the influence is a criminal offense in Nevada. It’s unlawful to operate or be in actual physical control of a vessel under power or sail on the waters.
- When under the influence of alcohol or drugs, or
- With a blood alcohol concentration of 0.08% or higher, even if the operator of the watercraft isn’t impaired due to alcohol intoxication, or
- Having prohibited blood levels of the following drugs even if the consumption of these drugs doesn’t cause impairment.
| Prohibited Drugs When Operating a Boat in Nevada | Prohibited Blood Levels (ng/ml) |
| Cocaine | 50 |
| Amphetamine | 100 |
| Cocaine Metabolite | 50 |
| Methamphetamine | 100 |
| Marijuana in case of second or third BUIs in 7 years. | 2 |
| Marijuana metabolite in case of second or third BUIs in 7 years. | 5 |
| Heroin | 50 |
| Lysergic acid diethylamide | 10 |
| Heroin metabolite morphine | 50 |
| Heroin metabolite 6-mono acetyl morphine | 10 |
| Phencyclidine | 10 |
Boat operators can be convicted with BUI charges regardless of the type of watercraft. Some examples of watercraft include:
- Motorboats,
- Sailboats,
- Ships,
- Yachts,
- Jet skis
Federal Law Regarding Boating Under Influence
Federal law prohibits operating a boat under the influence of alcohol or drugs under 46 U.S. Code § 2302.
A BUI suspect might experience prosecution both under state and federal law if the suspect committed the crime in federal jurisdiction. However, it’s unlikely that the convict is charged with the same BUI offense by both state and federal prosecutors.
Enforcement of Nevada Revised Statutes 488.410 – Boating Under the Influence (BUI)
Just like law enforcement officers patrol highways and freeways for driving violations, the police also patrol major rivers and lakes in Nevada for reckless boating. It’s particularly apparent on significant national celebrations like the Fourth of July and Memorial Day.
Nevada also participates in Operation Dry Water, a year-round BUI awareness and enforcement campaign. As part of this campaign, patrol boats heighten enforcement during high-traffic weekends.
One of the relatively recent high-profile BUI accidents took place at Lake Mead. A law enforcement officer suspected a consumer advocate Erin Brockovich was finding it difficult to control her motorboat.
She was suspected of BUI, and upon failing the breathalyzer test, she pleaded no contest in Henderson Justice Court.
Several drunk boating cases in Nevada occur in Lake Tahoe and Lake Mead. Other popular water landmarks in Nevada where potential accidents can take place include:
- Lake Tahoe (Washoe & Douglas)
- Lake Las Vegas (Clark)
- Lamoille Lake (Elko)
- Lake Mohave (Clark)
- Colorado River
- Washoe Lake (Washoe)
- Walker Lake (Mineral)
- Wild Horse Reservoir (Elko)
- Pyramid Lake (Washoe)
- Truckee River
- White River
- Lake Lahontan (Elko & Churchill)
- Topaz Lake (Douglas)
- Spooner Lake (Washoe)
- Overland Lake (Elko)
- Wilson Reservoir (Elko)
- Angel Lake (Elko)
BUI Breath and Blood Tests
Anyone who operates a boat in Nevada is legally required to undertake a breath or blood test in case a law enforcement officer suspects the operator of boating while impaired, as per the “implied consent law.”
Preliminary Breath Test
When a law enforcement officer first suspects an individual of impaired boating, they administer a preliminary breath test for alcohol.
In case a suspect refuses to submit a preliminary breath test, the law enforcement officer can arrest the suspect even if the test results for alcohol would have been negative.
The preliminary breath test results may not be considered valid evidence against the suspect if the case goes to trial. The only purpose of this test is to determine whether an officer has reasonable grounds to make an arrest.
After-Arrest Breath or Blood Tests
When a BUI suspect is arrested, they are required to submit to
- Blood test
- Urine test
- Breath test
- Other bodily substance test
The test result of after-arrest tests is used as evidence against the suspect if the case goes to trial.
If the police officer believes the defendant is only intoxicated with alcohol and not under the influence of drugs, then the suspect may be requested to take a breath test. They can request a blood test but if convicted, they incur charges for administering it if a breath test is reasonably available. In other instances, the suspect must go for a blood test, as breathalyzers only check for alcohol and not for the presence of other drugs in the system.
If a suspect refuses to take any test, the police may get a court order which authorizes a forced blood draw administration.
Is BUI the Same as a DUI in Nevada?
Both BUI and DUI are similar crimes; however, there are different laws for BUI (NRS 488.410) vs. DUI (NRS 484C.110).
While both laws prohibit operating a vehicle under the influence of alcohol or drugs, the primary difference is that DUI NRS 484C.110 pertains to driving vehicles on land. In contrast, BUI NRS 488.410 is related to operating watercraft.
The Penalties of BUI Under NRS 488.410
The penalties for BUI under NRS 488.410 increase with each subsequent conviction. Moreover, the penalties are more stringent if the accident results in serious injuries or death.
BUI Misdemeanor
Operating a watercraft in Nevada under the influence is considered a misdemeanor in case no one gets injured or hurt. In case of a misdemeanor, the penalties include up to six months of imprisonment and/or fines up to $1,000.
Additionally, the judge also orders the defendant to not operate a boat until they complete an online boater safety course.
BUI Felony
If the defendant is involved in a BUI incident causing serious injury or death or has a previous BUI conviction that led to serious injury or death of the victim, the incident is considered a BUI felony.
If the defendant’s boat had a passenger under the age of 15, it will be considered an “aggravating factor” by the court, which means a steeper sentence by the judge.
Moreover, apart from the other penalties, every defendant sentenced for a felony BUI will be required to undertake an evaluation for drug and alcohol abuse.
Furthermore, defendants sentenced to imprisonment following a BUI conviction are typically housed in a minimum-security facility which is often segregated from other criminal offenders.
Subsequent BUI After a Felony BUI
Getting a subsequent BUI after a defendant has been convicted of a prior felony BUI is a category B felony. The penalties include:
- imprisonment between two and fifteen years, and
- fines ranging between $2,000 and $5,000.
BUI Resulting in Serious Injuries or Death of the Victim
In the case where a BUI in Nevada causes the victim’s death or if the victim suffers serious injuries, it is considered a category B felony which results in the following penalties:
- An imprisonment ranging between two and twenty years, and
- Fines range between $2,000 and $5,000.
Homicide by Vessel
In the case where a BUI has resulted in the victim’s death when the defendant has three prior BUI convictions, it is a category A felony and considered homicide by vessel which results in the following penalties.
- Life imprisonment with possible parole after a decade,
- Twenty-five years imprisonment with possible parole after a decade.
BUI Plea Bargain
Prosecutors are only allowed to reduce or dismiss charges for violations of BUI statutes if it is known or obvious that the charge is not supported by probable cause or cannot be proved at time of trial. Contact the experienced lawyers at Bourassa Law Group to learn more about how to fight BUI charges.
One of the common plea bargains is when the BUI charge is reduced to “negligent or reckless” boating which is a lesser charge under NRS 488.400 compared to boating under the influence.
Boating Under Influence vs. Driving Under Influence
DUI in Nevada results in suspending the defendant’s driver’s license. However, that’s not the case with BUI.
Moreover, there is no “7-year wipeout” rule for BUI, as with DUIs in Nevada. In case of a BUI conviction, any subsequent charge will be considered a subsequent BUI charge even if seven years have passed and not as a first-time charge.
Furthermore, in the case of a DUI, a second-time DUI conviction is considered a misdemeanor in case there are no seriously injured victims. However, a subsequent BUI conviction after a previous felony conviction is always a felony.
For example, if years ago a person was involved in a BUI incident causing serious injury or death and was convicted as a felon, then present day were involved in a BUI incident where no injury or death was caused, they are still guilty of a category B felony even though no harm occurred on this particular incident.
BUI Conviction Defenses in Nevada
Similar to DUI convictions, there are several possible ways to fight BUI allegations in Nevada. A few common defenses that can be used include the following:
- The defendant was not operating the watercraft,
- The police officer did not have probable cause for arresting the defendant,
- The testing equipment was faulty,
- The defendant has a medical condition that led to falsely high blood alcohol concentration results,
- The police officer committed misconduct while administering the test or handling the suspect.
For every BUI defense case, the attorney would conduct a thorough investigation which will include all possible details, such as:
- The weather report,
- Insight from the witnesses,
- Defendant’s medical record,
- What the defendant ate before the accident,
- Any other possibly applicable factors
All these factors can make a significant difference when fighting a BUI conviction.
If your attorney can prove to the prosecutor that they have weak or insubstantial evidence to prove the charge, the court will dismiss the case.
Is BUI a Deportable Offense?
Boating under the influence is typically not considered a deportable offense in Nevada. However, since immigration laws are changing, the decision can be unpredictable.
Any immigrant facing BUI charges should consult an attorney to ensure that the conviction doesn’t affect their legal status in Nevada.
Sealing BUI Conviction Record
A BUI misdemeanor may be sealed one year after the case is closed. However, in case of a felony BUI conviction, the case may never be sealed from the defendant’s criminal record.
Dismissed BUI charges can be immediately sealed from the defendant’s record.
Connect with a Criminal Defense Attorney Today!
If you or your loved one has been arrested for BUI or DUI in Nevada, let The Bourassa Law Group attorneys take care of your case. We aim to support BUI convicts by helping them reduce their charges or dismiss their cases as quickly as possible without imprisonment. If you’ve been injured in a BUI at Lake Mead, call The Bourassa Law Group Today