Throughout the state of Arizona, per A.R.S. §5-395 “Operating or In Actual Physical Control of a Motorized Watercraft While Intoxicated” or “OUI” involves operating a boat, jet ski, SeaDoo, Waverunner, or any other personal watercraft while impaired to any degree by the consumption of alcohol, or above a .08% blood alcohol concentration within two (2) hours of operating the watercraft. Additionally, an individual can be considered “Extreme OUI:” if he is above a .15% blood alcohol concentration within two (2) hours of operating the watercraft.
First Time OUI misdemeanor:
The consequences for a first conviction of OUI are: possible incarceration which can be suspended upon completion of required attendance at alcohol screening (approximately $100); any suggested classes (approximately $200-400); and a minimum fine and surcharge of approximately $2100.00. The maximum can be six (6) months’ incarceration.
Per A.R.S. §5-397 “Extreme OWI” – .15% and above BAC; holds a first offense mandatory minimum thirty (30) days incarceration-only twenty (20) of which can be suspended; a $2500.00 fine and alcohol classes double.
Second Time OUI misdemeanor:
A conviction for a second Non-Extreme OUI within five (5) years from the first conviction, the punishments are: at least ninety (90) days incarceration – sixty (60) days can be suspended only upon completion of the mandatory alcohol screening classes discussed above; a minimum fine and surcharge of approximately $2500.00. The maximum can be six (6) months’ incarceration. Per A.R.S. §5-397, “Extreme OWI” – .15% and above BAC (with a prior OUI conviction within five (5) years of this offense); mandatory minimum one hundred and twenty (120) days incarceration– only sixty (60) can be dismissed; fine of approximately $2500.00 and alcohol classes double.
Third Time OUI misdemeanor:
A conviction for a third OUI or Extreme OUI within five (5) years from the first violation can bring about: six (6) months incarceration along with the additional penalties of alcohol screening classes; and a minimum fine and surcharge of approximately $2500.00.
WARNING: the prosecutor has the option of charging a third infringement misdemeanor as a first offense felony… and they usually do!
If the Prosecutor chooses to charge a third offense misdemeanor as a first offense felony, then this would be called a “Aggravated OUI” per A.R.S. § 5-396. If convicted, there is a required minimum sentence of four (4) months in prison with a maximum of one (1) year of incarceration. If the Defendant has three (3) prior convictions of misdemeanor OUI, and this would be his fourth, now he is subject to a mandatory minimum prison sentence of eight (8) months, and a maximum of two (2) years of incarceration.
Possible Defenses for OUI/Boating DUI & DWI in Arizona
“No Reasonable Suspicion to Stop” Officers are not allowed to stop or detain someone based on pretexts regarding race, religion, gender, age, sexual orientation nor on a list of other possible unjustifiable reasons.
“No Actual Physical Control” If a person has had too much to drink, pulls off the main water-way, leaves the motor running with the A/C or heater on, and tries to “sleep it off”, then he is not in “actual physical control” of his vehicle and are not guilty of Boating OUI or OWI.
“No Probable Cause for Arrest” If an officer did not have probable cause that a person was really under the influence of alcohol, then the arrest will be invalidated (i.e. if the Field Sobriety Tests (FSTs) were improperly performed). The National Highway Traffic Safety Administration (NHTSA) has set rules regarding FSTs. The checks should not be given if the suspect:
- is 50 pounds or more overweight
- is 65 years of age or older
- has any back, hip, leg, knee, or ankle injuries
- has any disability effecting balance
- is wearing footwear with heels two (2) inches or higher
Important: If the Horizontal Gaze Nystagmus (HGN) or “eye test” was given by an officer not yet certified to give that test, it will be inadmissible in court.
“Denial of Right to Counsel” When arrested for Boating OUI or OWI, upon requesting a DUI Lawyer in Arizona, the police must get you to a phone as quickly as it is reasonably possible. If they disregard your request, or delay too long, this could be grounds for dismissal. (See also THE RIGHT TO REMAIN SILENT-USE IT! Section).
“Inaccuracy of the Breath Testing Device” The AZ Department of Health Services (DHS) has set forth requirements for the proper maintenance of breath testing devices. They must be calibrated to within a 10% accuracy range every 31 days. Additionally, the device goes through a seven (7) test Standard Quality Assurance Procedure (SQAP) every 90 days. If any of the maintenance checks are “out of tolerance”, then all breath tests given within the time span between the two maintenance checks will be inadmissible. The prosecutor will not make this obvious for you.
“Miranda Rights Violation” In Arizona, the standard of whether any incriminatory statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “Voluntariness” standard. If we can show that the police coerced you (i.e., intimidated or tricked you) into making a confession or exculpatory statement, or that they did not properly read you your Miranda Rights, then we can conceal those declarations and any evidence gathered as a direct result. Also, “Denial of right to Counsel” is another common defense which is often used. This is used when a suspect is in custody and asks to speak to their Lawyer, but is ignored and questioning proceeds.
“Forensic Flaws” Depending on what you have been charged with, this could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; etc.
Finally, one of the most common defenses is exposing sloppy or misleading police reports encompassing everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction. It is crucial to hire an experienced Boating OUI & OWI Attorney who has knowledge of both the specific defenses and the common defenses involved in an Boating OUI & OWI case.