Washington State and Tacoma BUI
  Boating Under The Influence

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Tacoma, WA 98402

Tacoma BUI Attorney Information

BOATING UNDER THE INFLUENCE
PAGE 4

Refusals and Coast Guard Hearings

Refusals have two different meanings in the eyes of the Coast Guard. If arrested by law enforcement, a refusal to submit to chemical testing is automatically admissible and is presumed to be evidence of intoxication. (If however, the refusal is obtained by a marine employee it is only automatically admissible.
A boater is not told that per Coast Guard regulation that a refusal will constitute evidence of intoxication, nor is he or she even told that it will be used against them in any way.

Consequently, while, it would appear that refusals will most certainly result in the imposition of a civil fine before the Coast Guard, the arguments against that are only limited by my imagination and the rules of ethics.

Breath and Blood Testing

As mentioned earlier, the Operating a Vessel While Under the Influence of Alcohol Statute specifically states:
It shall be a violation for a person to operate a vessel while under the influence of intoxicating liquor or any drug. A person is considered to be under the influence of intoxicating liquor or any drug if-
The person has 0.08 grams or more of alcohol per 210 liters of breath, as shown by analysis of the person's breath made under RCW 46.61.506-, or
The person has 0.08 percent or more by weight of alcohol in the person's blood, as shown by analysis of the person's blood made under RCW 46.61.506, or
The person is under the influence of or affected by intoxicating liquor or any drug; or
The person is under the combined influence of or affected by intoxicating liquor and any drug.
Clearly then, since all chemical testing must be conducted in accordance with the requirement of RCW 46.61.506, the litany of challenges available in the DUI context are present in the BUI context as well. Consequently, law enforcement must strictly comply with each and every statutory and administrative requirements prior to gaining admission of the test results in court  Analysis of the person's blood or breath to be considered valid under the provisions of RCW 46.61.506 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose it is the state toxicologist who is directed to approve satisfactory techniques or methods for proper administration of a breath test.
Therefore, a mouth check and at least 15 minutes of direct observation of the subject is required before a test may be administered. All mouth jewelry must be removed. If a subject chooses not to, or for some reason cannot remove the jewelry, they are deemed incapable of providing a sample. Usually, in such circumstances, the implied consent statute will permit an officer to then request a blood test. However, the authority to request blood in lieu of breath is derived from the implied consent law and BUIs do not fall under the purview of that statute. Consequently, a boater's unwillingness to remove such objects will either invalidate the test or preclude law enforcement from obtaining one. It would not appear that this would constitute a refusal either under the requirements of the implied consent law.
The operator of the test must be certified by the state toxicologist. All blank tests must read .000 and the simulator solution must read between .072 and .088 in order for a BUI breath test to meet foundational requirements. Two samples which lie outside of ten percent of their mean, inadmissible in the DUI context, will not gain admission in the BUI context either.

Breath testing is nearly always administered by another officer so that the marine patrol can get back out on the water to continue with marine patrol. During certain events, where emphasis patrols are in place, temporary facilities maybe set up to handle chemical testing. These facilities constitute literal assembly line breath testing with often one operator conducting all testing. While one test is administered, that officer may have a half dozen people, all of whom he/she is responsible for directly observing, waiting to take their test. Strict compliance with the statutory and administrative requirements can be very difficult for law enforcement in the marine environment.
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