Boating While Drunk – Harbor & Navigation Code § 655

It seems to many that sailing or driving a motorboat naturally lends itself to consuming alcohol at the same time.

The stereotype of the wealthy, good-looking and fit sailor with a glass of wine in his hand while behind the helm of his boat has been glamorized for decades. It is equally well known that on national holidays during warm weather, alcohol and boating are inseparable.

However, alcohol and boating can be not only a danger to oneself, but others, too, and California Harbor & Navigation Code § 655 prohibits operating a boat in a dangerous way or while intoxicated.

Harbor & Navigation Code § 655(b) prohibits operating a boat under the influence of alcohol and § 655(c) prohibits operating a boat with a blood alcohol concentration (BAC) of 0.08% or higher, analogous to Vehicle Code §§ 23152(a) and 23152(b).

Harbor & Navigation Code § 655(f) makes it a crime to operate a boat while under the influence of alcohol and causing injury to another, much like Vehicle Code § 23153(a).

Harbor & Navigation Code § 655.6 is analogous to Vehicle Code § 23140, except that it prohibits operation of a boat by a person under the age of 21 with a BAC of just 0.01% or higher.

Operating a boat is more broadly interpreted than driving a car as defined under Mercer v. DMV (1991) 53 Cal. 3d 753 (requiring volitional movement and control of a car), but a good defense attorney will raise the issue of who is operating the boat when there is more than one person aboard, as more than one person often affects the direction and speed of a boat. Moreover, the police who report on such crimes often are not proficient at explaining or testifying to these issues.

It is worth noting that Penal Code § 853.1 allows a California peace officer concurrent jurisdiction for “those crimes that are established in common” with Arizona on land and water within 25 air miles of the Colorado River or on a lake formed by the Colorado River, i.e., Lake Havasu.

It is also worth noting that under Harbor & Navigation Code § 655(g), the Coast Guard may transfer probable cause for a drunk boating arrest to a California peace officer who then can make the arrest, similar to how a private citizen who observes a DUI driver and participates in helping the officer make an arrest can be permissible under certain conditions.

Fortunately, a drunk boating offense does not trigger any DMV admin per se action either the excessive BAC statute (Vehicle Code § 13353.2) or a chemical test refusal statute (Vehicle Code § 13353). Cinquegrani v. DMV (2008) 163 Cal. App. 4th 741.

A conviction for violating Harbor & Navigation Code § 655(b) or (c) is punishable by up to six months in county jail with no minimum amount required and a fine of up to $1,000, also with no minimum fine required, analogous to DUI penalties. Defendant will also have to complete and pass a boating safety course under Harbor & Navigation Code §§ 668.1 and 668.3.

If probation is granted, the judge may order that defendant enroll in and complete an alcohol and / or drug education or treatment program.

Judicial diversion of a drunk boating case may be difficult to obtain, as the current law on the new judicial diversion law excludes DUI.

A drunk boating conviction is also “priorable” like a DUI insofar as if, within seven years of the current offense, defendant suffered one or more prior conviction(s) for violation of Harbor & Navigation Code § 655(b), (c), (d) or (e), Vehicle Code § 23152 or 23153, or Penal Code § 191.5 or Penal Code § 192.5, punishment may include up to one year in county jail and / or a fine of up to $1,000. Unlike in a second time or third time DUI, there is no minimum jail time required and no minimum fine required. If probation is granted, the judge may order the drunk boater to complete an 18-month (SB 38) or 30-month (SB 1365) drunk driving program.

Interestingly, trial courts do have discretion under Harbor & Navigation Code § 655(j) to strike a prior conviction for purposes of sentencing.

If a person in injured in a drunk boating case, Harbor & Navigation Code § 655(f) is a wobbler. Defendant may be sentenced to state prison (served in county jail under AB 109) for sixteen months, two years or three years, or alternatively, to county jail for a minimum 90 day term and a maximum 364 days, with a mandatory minimum $250 fine to a maximum $5,000 fine.

Lastly, it is work noting that a drunk boating conviction “counts” as a drunk driving prior (Vehicle Code § 23620).