Saturday, July 11, 2009

Summer is Officially Here! The BWI (Boating While Intoxicated)

Being on the water does make you thirsty

Practicing DWI defense in the Fingerlakes region of New York State, and living in Ithaca allows me the privilege of experiencing some amazing lake views. I love to witness Lake Cayuga go through the glory of all four seasons. Everytime I get in my car to appear in another town court in one of the many counties that surround the lakes I am taken back by the the incredible beauty of this area of the country. But of course, that is why I live and practice here, not by chance but by choice.

Summer does have it's drawbacks for me, there will be humid days and nights, lost tourists driving the wrong way down one of our many downtown one way streets, and the pain of yet again changing all the car tires from snows back to all seasons.

I kinda mark the beginning of "my" summer not with the end of school for my kids but by my first BWI phone call. To those not familiar, B.W.I. stands for, Boating While Intoxicated. It is a real criminal charge, and has alot of similarities to it's close cousin the NY DWI.

NY BWIs fall under Navigation Law section 49-a. If you want a sleep aid, forget Ambien, go read through section 49-a.

My surfing has led me to conclude that there is little information about NY BWI on the web. There is also some confusing, and wrong information on the internet concerning New York BWI. I am planning on writing a more in depth article about it in the near future. In the meantime I wanted to hit the highlights:

1. Similar to DWI and DWAI there are a BWI (misdemeanor) and a BWAI (violation).
2. The legal standard (definition) for BWI (intoxication) and BWAI (impairment) for water operation of a craft are comprable to operation of a car or motorcycle on land.
3. You are only in danger of losing (suspension) your license to operate a boat not your car. The suspensions are 6 months and up for the BWAI, and a year for the BWI.
4. There are specific boating safety classes required with both BWAI and BWI.
5. The classes have to be either state sanctioned, US Coast Guard, or US Power Squadron safety classes.
6. There is a "contribution" (around $200) to the "I Love New York" Safe Boating Fund.
7. The fines range from $350- $500 for a BWAI, and $500- $1,000 for a BWI.
8. The BWI and BWAI will be reported on your New York DMV driving abstract, so your auto rates will eventually be affected by your boating charges. If you are from out of state it is likely that this will also go on your state's DMV record because NY has an interstate compact with many adjoining states.
9. The BWI is a criminal charge and will affect your entry into Canada in the future.
10.The BWAI violation is also going to affect your ability to enter Cananda because it is an alcohol related offense.
11. If you refuse the Breath Test back at the station (not to be confused with the preliminary breath test on the roadside) you will face many of the same consequences, ie. increased boating license loss, additional fines, as a DWI test refusal.
12. The BWI has a .08 BAC or >(breath alcohol concentration) standard, same as a DWI.
13. There will be additional NY state surcharges of around $240 for a BWAI, and $400 for a BWI.
14. There are two types of BWI, a BWI "per se" offense based only upon your BAC (.08 or >) and a BWI "common law" based upon the officer's observations, field sobriety testing, and other evidence of intoxication.
15. Since NY state has no expungement statute a BWI (misdemeanor) will remain on your permanent criminal record forever.
16. BWIs are defended much the same way as DWIs. The state (the prosecutor) still has the burden of proving you were intoxicated at the time of operation. The breath machine can be challenged for accuracy, validity, and reliability. The officer's tests can be shown to be administered improperly or scored with bias.

So my thoughts for today, let some else drive your boat, a designated "captain" so to speak. Enjoy the beauty of the lakes as a "passenger" if you want a few cold beers on a hot sunny day.

The 9 Most FAQ About NY DWI, here:

The New York Up State DWI Survival Guide, here:

Winning The NYS DWI Refusal Case, here:

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 550 blog posts, dozens of articles, and over 520 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.


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