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THE STANGL LAW BLOG

What Tests are Used to Determine Boating Under the Influence in Wisconsin?

Posted by Attorney Stangl on July 22, 2016

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Boating in Wisconsin is a fun and relaxing way to enjoy our lakes and rivers with friends and family. When planning an excursion on the water, no one expects the result will be criminal charges for boating under the influence (BUI), yet many boat operators end up facing such charges for just that reason and risk jail time, fines and impounding of your boat.

A study by The National Transportation Safety Board concluded a person consuming alcohol on the water is impacted sooner by its effects, impacting a person's judgment, balance and coordination. The effects may start immediatly upon drining, accellerating to significant impairment at a blood alcohol level (BAC) percentage of only 0.035. This is a much lower level than the number law enforcement recognizes on land for intoxication (0.08% BAC)

Because intoxication occurs sooner on the water, it is no surprise that most boating accidents are the result of intoxication. In fact, alcohol use on the water is the leading contributing factor in fatal boating accidents.

For that reason, law enforcement patrols Wisconsin waters closely, checking for intoxicated boating. How do they check?

This article will answer that question and present examples of on-water BUI sobriety tests which you may be asked to perform if you are stopped for drunk boating in Wisconsin. 

So, before you pack your cooler and hit the lake, take a moment to get more familiar with Wisconsin's law against intoxicated boating.

You may also want to read the following articles by Stangl Law to learn more about the legal consequences of drinking and boating in Wisconsin:

The Effects of Drinking On Boats in Wisconsin

The Challenge of Predicting Drunk Boating

The U.S. Coast Guard understands an operator of a boat becomes more impaired, drink for drink, as compared to a driver on the road, making it more challenging to gauge your level of sobriety as you consume what you know to be your usual acceptable amount.

However, patrolling Wisconsin's waterways presents more of a challenge for law enforcement than patrolling the roads as the usual indicators used on the road are more problematic to identify on water. For example:

  • Speed limits are not often marked on Wisconsin waters, so rarely enforced
  • There is no law against open containers on boats in Wisconsin
  • It is common for most people to have an altered sense of equilibrium on the water
  • Environmental factors such as wind and water condition can influence your operation of your boat

As a result, water patrols may simply pull you over and ask you to submit to BUI sobriety tests* to help them determine whether or not you are intoxicated.

Since they cannot rely on simply watching for behavior indicative of impaired boating to determine which boaters to stop and test, Wisconsin water patrols will set up safety checkpoints.

While these checkpoints might be set up anywhere, they are typically set up in areas known for high traffic, prior offenses and a high accident rate.

*Just as field sobriety tests are not legally required, neither are BUI sobriety tests. 

 

"Many people in Wisconsin, if they're pulled over for suspicion of operating while under the influence of an intoxicant don't realize that they are not legally required to do field sobriety tests." 

-Attorney Patrick Stangl

How Does Law Enforcement Test for BUI on the Water?

If you are stopped for suspicion of drunk boating or BUI in Wisconsin or as part of a safety checkpoint, including Operation Dry Water (an annual weekend of heightened enforcement sponsored by National Association of State Boating Law Administrators), you may be asked to perform any of a series of tests designed to gauge whether or not you show physical signs of being under the influence of drugs or alcohol.

Typically, you will be asked to board the patrol boat to perform these tests while seated, as it would take too long to allow a boat operator time to drive the boat to shore, dock the boat, step off of the water and adjust to land again.

While on the patrol boat, law enforcement may ask you to complete any number or combination of sobriety tests. The four most popular on-water sobriety tests include:

  1. Horizontal Gaze Nystagmus Test (HGN)
  2. Finger-to-Nose Test (FTN)
  3. Palm Pat Test (PP)
  4. Hand Coordination Test (HC)

Keep in mind that these tests are subjective and often unreliable on land. Even though you may be performing these tests while seated, you are still on the water, which further impacts the accuracy of these testing methods.

Next, we will take a closer look at these four sobriety tests for boating under the influence in Wisconsin.

Horizontal Gaze Nystagmus Test (HGN)

The horizontal gaze nystagmus test or HGN used to check for BUI in Wisconsin checks eye movement for uncontrolled eye movement which can occur with intoxication. This condition of uncontrollable eye movement can also result from numerous other causes including, but not limited to, health conditions, caffeine consumption and certain medications.

Finger-to-Nose Test (FTN)

In Wisconsin's finger-to-nose BUI test, you will be instructed to touch your nose with extended fingertips one at a time from both hands in an order the officer will call out to you as you go. You will be monitored for how well you follow instructions and how accurately you are able to complete the test.

Palm Pat Test (PP)

During the palm pat test used to test for impaired boating in Wisconsin, you will be asked to extend both arms with the palm of one facing upwards, then place the other hand on top, touching your hands palm to palm. You will then be asked to rotate the top hand 180 degrees to then pat the bottom hand and continue to alternate from palm to pat while saying, "One-two," "One-two." The officer will be watching both the speed and regularity of your pace for signs of impairment.

Hand Coordination Test (HC)

Similar to the popular walk-and-turn field sobriety test, the hand coordination test is used to determine if you have been boating under the influence in Wisconsin. In this test, you will be asked to place one fist with your thumb touching your chest, then place your other fist with thumb touching the first fist, continuing and counting out loud up to four, before following the reverse method to bring your fists back in progression to your chest. 

With all of these tests, you will be given instructions before you are asked to perform these tests and then monitored to see how you function within the test, as well as how accurately you are able to follow the instructions.

After a day in the wind and sun on the water, many people would have some difficulty remembering all of the instructions.

There are a number of factors which may undermine the accuracy of these tests and which should be taken into account when defending against charges of boating under the influence in Wisconsin. If you are facing BUI charges in Wisconsin, you should contact a proven defense attorney to help you fight against these charges.

Reasons BUI Sobriety Test Results Might Not Be Accurate

Just as results from field sobriety tests used to test drivers on the roadways are often unreliable, so too are the results of water-based sobriety tests used to check for boater intoxication in Wisconsin.

Drinking on the water can impair one's reaction time, judgment, vision and balance. However, other factors can impact these facilities, as well. Most people struggle with balance while on a boat. Spending time out on the water can also tire you out faster, as well as cause some level of mental fatigue as there are more stressors than usual while boating (the wind, noise, sun, motion and vibration).

Again, it is important to note that your participation in these sobriety tests is voluntary, just as submitting to field sobriety tests (FSTs) is voluntary when you are pulled over on the road for suspicion of drunk driving in Wisconsin.

Should you refuse to submit to these tests, you can expect to be arrested. However, you will not have added further evidence based on unreliable testing methods to your case.

As a condition of Implied Consent, you would be required to submit to chemical or blood testing to identify for BAC.

If you have been arrested for boating under the influence in Wisconsin, it is in your best interest to contact an aggressive and knowledgeable criminal defense attorney who specializes in OWI cases.

FREE 15-Minute Consultation

Assuming you are free from penalty for drunk boating because you are not on the roadway is a mistake. Law enforcement takes intoxicated boating seriously in Wisconsin and, if you operate a motorized boat while intoxicated, you risk arrest and serious consequences including jail time, fines and impounding of your boat.

If you have been arrested for boating while under the influence in Wisconsin, it is in your best interest to reach out to a lawyer who understands the complexities surrounding BUI charges in order to give yourself the best chances of prevailing in your case.

Madison Attorney Patrick Stangl, is happy to extend to you at no obligation a FREE 15-minute consultation if you would like to explore options for your legal defense against BUI, DUI, OWI, PAC, BAC or other charges relating to alcohol or drug offense in Wisconsin.

Get a FREE Consultation

Topics: Drunk Driving Charges (OWI)

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