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ARIZONA BOATING DUI DEFENSE

Many people take advantage of the great weather Arizona has to offer all year round by taking trips to the many lakes around the state.  Usually, these outings involve the operation of motorized watercraft such as wave runners, jet skis, Sea Doos and boats.  During these visits to the lakes, a lot of individuals choose to consume alcohol.  The lakes are routinely patrolled by police and sheriffs officers who are constantly on the lookout for people operating a motorized watercraft while impaired by alcohol.  If you are stopped and investigated for operating a boat while impaired by alcohol, you can be arrested and charged with a Boating DUI or Operating Under the Influence.  

Boating DUI Laws in Arizona

Pursuant to A.R.S. 5-395:

It is unlawful for any person to operate or be in actual physical control of a motorized watercraft within this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.

2. If the person has an alcohol concentration of 0.08 or more within two hours of operating or being in actual physical control of the motorized watercraft and the alcohol concentration results from alcohol consumed either before or while operating or being in actual physical control of the motorized watercraft.

3. While there is any drug as defined in section 13-3401 or its metabolite in the person's body.

4. If the motorized watercraft is a commercial motorized watercraft and the person has an alcohol concentration of 0.04 or more.

Common Police Boating DUI Enforcement Tactics

Police take great care to ensure that the lakes in Arizona are safe for people to enjoy.  Because of the importance placed upon making our lakes a safe and enjoyable place to visit, police commonly employ Boating DUI checkpoints to apprehend operators who may be impaired by alcohol or drugs.  These checkpoints are similar to those conducted on our state highways where police will contact drivers and question them concerning their activities, alcohol consumption, etc.  Police will also stop watercraft operators and potentially investigate them for OUI after observing unsafe driving, moving violations, littering or even proper licensing issues.

Penalties for Boating DUI in Arizona

The penalties and charges you risk after being arrested for operating a watercraft while under the influence in Arizona depend upon your blood alcohol concentration at the time of your arrest. If your BAC registered between 0.08 and 0.15, you can expect the following penalties for a first offense:

  • Maximum six months in jail (can be suspended upon completion of alcohol screening program)
  • Fines totaling around $2,500.00

For a second offense, non-extreme, occurring within five years of your first offense:

  • Minimum 90 days in jail (60 can be suspended upon completion of alcohol screening program)
  • Fines totaling around $2,500.00

Penalties for a third offense occurring within five years of your first offense:

  • Minimum six months in jail
  • Alcohol screening classes
  • Fines totaling around $2,500.00
  • Possible felony charge

Extreme Boating DUI in Arizona

If your blood alcohol content registers above a .15 within two hours of operating the watercraft, you can be charged with an Extreme OUI. Extreme OUIs involve very harsh punishment.  If you are convicted of an Extreme OUI, you can expect to face the following penalties in Arizona:

  • Minimum 30 days in jail (only 21 can be suspended)
  • Fines totaling around $2,500.00
  • Alcohol classes

Penalties for second Extreme OUI offense occurring within five years of your first offense:

  • Minimum 120 days in jail (only 60 can be suspended)
  • Fines totaling around $2,500.00
  • Alcohol classes

Defending a Boating DUI Charge

Successfully defending Clients against Boating DUI charges in Arizona involves recognizing the issues and using them to our advantage.  Attorney Raymond Kimble is a former police officer and DUI prosecutor who has focused on defending clients charged with Boating DUI for the past twenty years.

Potential Boating DUI Defenses Include:

1. Lack of Operation or Actual Physical Control:

In Arizona the State must establish you were operating or in actual physical control of a watercraft while impaired.  Consequently, the prosecutor must have a witness who observed you driving or show that you were in actual physical control of a a boat. 

2. No Reasonable Suspicion to Stop:

An officer must have a valid reason to stop you before making a OUI arrest.  This means the officer must have some reasonable suspicion that criminal activity has or is likely to occur, or the officer has witnessed an actual moving violation.  If the officer lacks a valid reason for stopping and detaining you, all evidence related to the OUI can be suppressed, thereby causing the Boating DUI charges to be dismissed.

3. No Probable Cause to Arrest:

The Officer must have reliable information which would lead a reasonable person to conclude that a suspect is impaired to operate a motorized watercraft.  The officer must perform a thorough investigation and have sufficient evidence before making an arrest.  If the officer fails to develop probable cause, the OUI charges are subject to dismissal.

4. Improperly Administered Field Sobriety Tests (FST's):

The National Highway Traffic Safety Administration (NHTSA) has established specific guidelines regarding the administration of FST's.  Commonly administered field tests include Horizontal Gaze Nystagmus (HGN), Walk and Turn, and the One Leg Stand.

Additionally, Field Sobriety Tests are voluntary and you can refuse to do any of the exercises mentioned above. Poor performance on FST's are commonly attributed to alcohol impairment.  However, few people can perform the tests perfectly. Police will generally argue that errors on the FST's are due to intoxication and will usually ignore other issues such as nervousness, anxiety, tiredness, etc. Moreover, FST's should never be administered on a watercraft as the boat is constantly moving and causes difficulty with balance regardless of alcohol consumption.  

5. Denial of the Right to Counsel:

When a Boating DUI suspect requests an attorney, the police must provide you with an opportunity to speak with a lawyer as soon as is reasonably possible.  The police must give you a private room to speak along with a telephone.  If the police fail to provide access to an attorney, the OUI charges can be dismissed or blood or breathalyzer results suppressed.

6. Violation of Miranda Warnings:

Before any questioning by law enforcement officers of a person in custody he or she must be warned that they:

  1. have a right to remain silent;
  2. any statement they make may be used as evidence against them
  3. they right to the presence of an attorney
  4. if they cannot afford an attorney, one will be appointed for them prior to any questioning. 

If police violate a person's Miranda rights, any statements the person makes during police questioning cannot be used against them.

7. Inaccuracy of the Breath Testing Device:

In order for breathalyzer tests to be used by the prosecutor, police must have followed the required procedures outlined by the Department of Health Services.  Among other things, these procedures include a fifteen minute deprivation period.  The breathalyzer instrument must be calibrated every 31 days and must also undergo periodic standard quality assurance testing.

If any of the maintenance checks appear out of tolerance, or if required procedures were not followed, the breath tests can be suppressed.

8. Portable Breath Testing Devices (PBT):

The PBT is a field test instrument designed solely to determine if a person has alcohol in their system.  The results cannot be introduced in court because the machines do not undergo scheduled tests for accuracy or reliability. People should not agree to take a PBT when stopped for OUI.

9. Intoxilyzer Results:

The Intoxilyzer Machine is a breath-testing device manufactured by C.M.I. to analyze your breath sample through an infrared spectroscopy for the purposes of determining the amount of alcohol present in your system. There are issues surrounding the potential accuracy and reliability of the Intoxilyzer. There are many ways to
challenge the breath result.

10. Retrograde Extrapolation:

Subtractive retrograde is a method which can be used to show that a person's alcohol concentration at the time he was stopped by police was lower than at the time they took a blood or breath test.  This issue is dependent upon many factors such as when alcohol was consumed, whether a person ate any food, the time the person last consumed alcohol, etc.

11. Deficiencies in Blood Alcohol Testing & Issues in Blood Cases:

Results of blood alcohol testing are admissible if the State can establish the blood was drawn by qualified personnel and the particular scientific analysis utilized complied with scientific standards.  A gas chromatograph is used to analyze blood samples and the State must show the machine was in proper working order.  Also important are issues regarding storage of the blood sample, integrity of the blood kit, preservatives used in the blood sample, etc.

12. Denial of Independent Test:

A person has a due process right to collect independent scientific evidence of their blood alcohol concentration (BAC). Independent chemical tests are exculpatory evidence and the State may not unreasonably interfere with your reasonable efforts to gain such evidence. If this occurs, dismissal or the OUI charge or suppression of the blood or breath tests may result.

Contact An Experienced Boating DUI Attorney

Call (480) 833-8613

If you were charged with an OUI in Arizona, Attorney Ray Kimble can provide immediate help. Mr. Kimble  has experience assisting clients across the State of Arizona and will work tirelessly to see that your charges and penalties are reduced as much as possible. A Boating DUI offense requires an aggressive and experienced lawyer who can recognize all of the issues and work effectively to achieve a favorable result. Attorney Raymond Kimble will have a clear understanding of all the circumstances in your case, along with the knowledge, skill and experience to obtain the best possible outcome for you.

Law Office of Raymond Kimble

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For a Free Consultation please call (480) 833-8613 or complete the form in the sidebar. Mr. Kimble can be reached 24/7 and is available for appointments during the evening and on weekends as well.

About Raymond Kimble

Raymond A. Kimble is a former police officer and felony prosecutor who has twenty years experience defending people accused of DUI and other criminal offenses throughout Arizona. Mr. Kimble represents clients seeking experienced and aggressive representation to help them fight the charges they face. For more information, contact The Law Office of Raymond A. Kimble today.