What is BUI?
Unlike DUI, which is found under Title 42 of the traffic code, "operating a vessel while under the influence," or "boating under the influence" (BUI) as it is often called, is codified under Title 33 of the "Parks and Wildlife" section of the Colorado Revised Statutes. C.R.S. section 33-13-108.1. While there are many similarities between DUI and BUI, there are also many differences.
One of the most significant differences is that because BUI is not found in the traffic code, the Department of Revenue/Department of Motor Vehicles (DOR/DMV), has no jurisdiction, regardless of any alleged priors, blood alcohol content (BAC), or the allegation of a refusal of evidential chemical testing by law enforcement.
This is because, unlike other states, in Colorado boats or vessels are not included in the definition of a "motor vehicle" under Title 42. So for example, if an accused had a reported evidential chemical test above .08, or that person refused to submit to testing, this would not give jurisdiction to DMV for the purposes of a DUI per se hearing.
Nor, unlike DUIs, are points assigned to a BUI conviction for the purposes of a possible point suspension under DMV's jurisdiction. If the accused has refused testing, then obviously, just like the old common-law DUI, the prosecution can still prosecute the operator if they can show that he/she was impaired by any combination of alcohol or drugs to such a degree that it rendered the operator incapable of safely operating a vessel – and do so beyond a reasonable doubt.
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BAC Changes
In 2008, the legislature lowered the per se BAC from .10 down to .08. The legislature also eliminated the distinction that only operators of motorboats or sailboats can be arrested and charged for BUI. Now any person operating, or in physical control of any vessel can be arrested and charged.
So for example, now any person operating, or in physical control of a motor-less vessel such as a kayak, canoe or even a kid's raft can also be charged. Additionally, unlike the DUI statute, any owner or operator of a vessel who knowingly allows the craft to be operated, or come under the physical control of another who is incapable of safely operating that vessel due to impairment can also be charged. C.R.S. section 33-13-108.1(13)(a). This scenario is very common in BUI cases, as people in a boat will often switch places from the helm to another part of the boat and vice-versa.
Possibly, the most surprising difference between the DUI and BUI statutes is that in a prosecution at trial for a BUI, the prosecution is allowed by statute to introduce to the court or jury any past convictions of BUI as evidence against the accused. C.R.S. section 33-13-108.1(12)(h).
This aspect of the statute is arguably ripe for a constitutional challenge. Because BUI does not fall under the jurisdiction of Title 42 or DMV, another issue concerning prior BUIs arises at sentencing. At sentencing for a first conviction BUI, the court shall order the operator to not operate any vessel for a three-month period, and any second or subsequent BUI extends the period of suspension to one year. C.R.S. section 33-13-108.1 (12)(g).
Similar to DUI
Other sentencing issues are very similar to a DUI. For example, anyone convicted for a first offense BUI shall be imprisoned in the county jail for at least five days, but not more than one year. The jail sentence for a first-offender may be suspended upon satisfactory completion of a court approved substance abuse treatment program. Additionally, the court may impose a fine of not less than two hundred dollars, or more than one thousand dollars, and up to ninety-six hours of useful public service. C.R.S. section 33-13-108.1 (12)(a).
However, one requirement, which may surprise counsel and their clients, is that even on a first offense, during probation (which can be as long as two years), abstinence from alcohol or non-prescription drugs shall be monitored by any means the treatment facility deems necessary. C.R.S. section 33-13-108.1 (12)(c).
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