Boating While Intoxicated: Loophole Lets Drunken Sailors Boat

By Gina Curreri, State House correspondent

If you are caught driving drunk in Massachusetts your right to operate a car is quickly put in jeopardy. But if you do are found to be intoxicated while boating there are few legal safeguards to keep you from going out on the water again.

Since you don’t need a license to operate a boat, there is no license to revoke. Your boat registration could be taken away, but buying a new boat and re-registering it is no problem for those who have been caught operating while drunk, either on land or sea – even those who have had multiple stops.

Officials say there’s nothing they can do about it.

“We don’t have boating licenses, though a lot of states do,” said Environmental Police Sgt. Matthew Bass, who covers the Upper Cape and Martha’s Vineyard. “We can suspend their boat registration, but there’s nothing to prevent them from going out to operate a boat not registered to them or buying a new boat.”

It is hard to fathom the impact of “boating while intoxicated.” Records are spotty, both nationally and in Massachusetts. Rivers and coastal waters are not patrolled with the intensity the finite number of highways receive. It can be harder to determine if a boat operator is intoxicated from the long distances on the water.

In 2012, there were 651 deaths nationwide resulting from recreational boating accidents, according to data from the Coast Guard.

Massachusetts boating fatalities accounted for 2.6 percent of the nation’s — the third highest percentage on the East Coast, behind Florida (7.7 percent) and North Carolina (3.5 percent).

In 2012, 10 Massachusetts boating accident reports listed alcohol as a contributing factor, according to Coast Guard records. Five of those resulted in fatalities and eight in injuries. Alcohol was the primary contributing factor in more than 100 fatal boating accidents nationwide.

The Massachusetts Environmental Police responded to 33 BUI incidents from 2009 to 2012, according to data from spokeswoman Amy Mahler. Of those, 10 were in the waters of Cape Cod, Martha’s Vineyard and Nantucket.

Although Harwich Harbormaster John Rendon said arrests for boating under the influence are rare, he believes the problem is greater than records indicate.

“I’m not naive to think that it doesn’t happen because I think it probably does,” he said.

State law treats drivers and boaters the same – up to a point. Operators of cars and boats must have a blood-alcohol content level below .08 to legally operate a car or boat. Those convicted of BUI for the first time are fined up to $1,000 and can face up to 2½ years of jail time.

Those convicted of a motor vehicle OUI for the first time typically face a fine up to $5,000 and license suspension for one year.

A person found guilty of BUI who has been previously convicted or assigned to an alcohol education or rehabilitation program by a state court because of a “like offense,” in the preceding six years receives a stricter punishment.

The law does not explicitly state that a “like offense” includes motor vehicle DUIs.

However, those found guilty of boating under the influence multiple times could have a judge revoke their motor vehicle licenses, boat registrations or have their boat impounded, Bass said.

But there is no requirement that records of drunkenness on land or sea must be combined.

Bass said that there was intent to incorporate motor boats and vessels under Melanie’s Law, a measure intended to crack down on repeat drunk drivers. The law, however, is written primarily for drivers of motor vehicles.

“In some of the small print, the word vessel isn’t included in a lot of sections, so penalties don’t apply,” Bass said.

Cape Cod lawmaker Rep. Cleon Turner, D-Dennis, has filed bills over the past few sessions that would put operating-under-the-influence convictions for boating on a person’s motor vehicle record.

“It’s fairly logical,” Turner said. “We as a Legislature have demanded over the past many years stricter enforcement of operating motor vehicles under the influence of alcohol.”

Turner’s legislation didn’t progress through the Legislature in the last session. It is under review again, but Turner is not optimistic about the outcome.

“It just isn’t an economic necessity to push every bill out of the committee,” Turner said.

The idea for the bill came from his constituents on Cape Cod.

In 2009, the Cape Cod Times reported that although Jeffrey Daluz, 53, had five previous alcohol-related convictions and his motor vehicle license had been revoked, there was no legal prohibition to keep him off the water.

He was arrested for boating under the influence when officers stopped his boat as he headed toward a secure July 4 fireworks display area.

Daluz pleaded guilty in 2010 and was sentenced to two years in jail. He served 90 days and was given two years probation and ordered to remain drug- and alcohol-free.

The state does not collect specific data regarding how many boat operators have been found guilty of multiple operating under the influence convictions, at sea or on land.

A number of law enforcement officials say they just don’t come across drunken boaters that often while on patrol.

Coast Guard officer Josh Perkins, who is based in Chatham, said his patrol unit has not issued a BUI in the past year.

“I think depending on the location of the boating, depending on where you’re at, might dictate how many you come across,” Perkins said.

Yarmouth Harbormaster Edward Tierney said enforcement is even more difficult on the water because it is not illegal to drink while operating a boat in Massachusetts.

“You can drive down Bass River with a beer in your hand as long as you’re not legally intoxicated,” Tierney said. “I would say there’s a high percentage of boaters actively enjoying a beer or cocktail out there.”

Tierney said Yarmouth-area harbormasters, who are sworn law enforcement officers, encounter about 80 to 100 boaters a year who appear drunk, but only 1 percent or 2 percent are determined to be legally intoxicated after a field sobriety test.

Tierney said that low number of boaters found to be drunk may be due to the fact that 90 percent of the harbormasters are seasonal and not as well-trained as full-time officers.

However, he said issuing boating licenses might help curb repeat drunken boating violators.

“I’d like to see that come to fruition, and I think it eventually might,” he said. “BUIs are just a tough case.”

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