Boating While Intoxicated (and Other Recreational Crimes)

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A recent story in the Utica Observer Dispatch reminds us that it isn’t always winter in upstate New York. Spring will come, the piece suggests – a time when snowmobilers will regretfully put away their noisy machines, and boaters will again take to the mountain waters.

It also reminds us that alcohol and just about any recreational activity don’t mix.

The story concerns Janelle Nixon, who was accused last summer of ramming another boat with her own, while drunk, and injuring two people. She was not accused of harming anyone intentionally. “Very simply,” said her attorney, who was quoted in the article, “she had never driven a boat before, was unsure where the controls were and what they actually did.” There was also evidence, apparently, that she had been drinking.

Ms. Nixon ultimately pled guilty in Herkimer County Court to assault in the third degree and ‘boating while intoxicated’; these are misdemeanors. She had faced even more serious charges, according to an earlier article in the Adirondack Express.

Those original charges had included operating a vessel while intoxicated; operating a vessel with .08 percent or more of 1 percent of alcohol; and two counts of vehicular assault in the second degree. The alcohol-related charges are both misdemeanors, but vehicular assault 2nd is an E felony; the maximum sentence is 1 1/3 to 4 years in state prison.

‘Operation of a vessel while under the influence of alcohol or drugs’, more commonly known as ‘boating while intoxicated’, is defined in Section 49-a of New York’s Navigation Law, and its language closely tracks that of the state’s DWI/DUI statute, Section 1192 of the Vehicle and Traffic Law. Operating a vessel when you’re impaired by alcohol to any extent is a violation. This parallels subsection (a) of Section 1192. And, as in subsections (2), (3) and (4) of 1192, operating a vessel with .08 percent or more of 1 percent of alcohol and/or ‘in an intoxicated condition’ and/or ‘impaired by the use of a drug’ is a misdemeanor, if it’s a first offense. A second conviction of any of these – initially misdemeanor – offenses within 10 years is a felony.

Unlike an impaired driving conviction, however, a conviction for boating while intoxicated doesn’t carry automatic ramifications for your driver’s license. In fact, it isn’t currently reported to DMV. Vehicle and Traffic Law Section 514(6) allows DMV to exempt courts from reporting certain convictions. By regulation (15 NYCRR 93.1) DMV has announced that it doesn’t want to hear about “[a]ny conviction involving the operation, registration or equipment of a snowmobile or a motorboat.”

For a primer on ‘boating while intoxicated’, take a look at a recent decision, People v. Anello. Of particular interest, by the way, was the stop in that case. In its inception, the stop was illegal. If the boat’s operator hadn’t panicked, it would have been suppressed and the resulting charges dismissed. But when the boat’s operator saw that he was about to be stopped and boarded by a police officer, he abandoned the helm. Abandoning the helm while the boat was in motion was a violation, committed in the officer’s presence. So by the time the officer reached the boat, he actually had a legal basis for the stop.

What is a ‘vessel’, for purposes of this law? Well, subsection 1(a) of the statute itself includes

every description of watercraft or other artificial contrivance propelled in whole or in part by mechanical power and, which is used or capable of being used as a means of transportation over water….

This would definitely include anything that has a motor. The definition might not, however, include craft powered by oars or paddles.

It would make sense if it didn’t, and there’s at least indirect evidence that it doesn’t. According to New York regulation 21 NYCRR 150.2, for instance, “[v]essels propelled in whole or part by mechanical power shall be charged a toll for use of locks and lift bridges.” However, according to its web page, the authority that administers the canal system does not charge canoes or kayaks fees. Since vessels propelled by mechanical power must be charged a toll – but canoes and kayaks aren’t – it looks like canoes and kayaks aren’t vessels ‘propelled in whole or part by mechanical power’.

To be on the safe side, though, don’t drink and then try to operate anything more complicated than a boogie board.