1. What is BWI, DWI, DUI and BAC level?
In Texas, it is illegal operate a watercraft (boat, jet ski, and motorized ski-board, or Sea Doo) with a blood alcohol content of .08 or higher or when you have lost your normal physical or mental faculties. In a BWI or Boating While Intoxicated case, a watercraft is any motorized water craft that person can be carried on over water. However, crafts like rowboats, kayaks, inner tubes, and canoes are excluded from this offense as long as there are no attached motors and are only propelled by human power. On the streets or highways in Texas, it is illegal to operate any motor vehicle with a blood alcohol content of .08 or higher or when you have lost your normal physical or mental faculties. In a DWI or Driving While Intoxicated case, a motorized vehicle is defined as a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks. Anyone can receive a BWI or DWI at any age (above or below 21).
In Texas, both DUI or BUI or Driving or Boating Under the influence are crimes that can only be committed by a minor under 21. In order for the state to prove that someone is Driving Under the Influence of Alcohol, or Boating Under the Influence of Alcohol the state must prove that the minor was operating a motor vehicle in a public place or operating a watercraft while having any detectable amount of alcohol in the minor’s system. However, if the police believe the individual (minor) has a blood alcohol content (BAC) of .08 or higher or the individual has lost their normal physical or mental faculties, the individual may end up getting arrested for DWI or BWI, the more serious of the two crimes.
One difference between BWI and DWI is that officers on the water do not necessarily have to have reasonable suspicion or probable cause to stop a watercraft or boat operating on the waters in Texas. However, for a DWI (Driving While Intoxicated) officers must have probable cause to make a vehicle stop. On the water, officers may board a watercraft at any time for safety and security reasons such as operator license or flotation device checks, such as the proper number of life jackets. While checking for life jackets, the officers may smell alcohol on your breath. Officers always seem to read more into things than persons who are on the water enjoying themselves having a few beers. While drinking a few beers on the water is not illegal, that evidence alone may cause the officers to investigate you for BWI (Boating While Intoxicated).
Another difference between BWI and DWI is that it is not illegal to have open containers in a watercraft on the water, while it is against the law to drive or operate a motor vehicle on a roadway and have an open container of alcohol or beer in the passenger area of the motor vehicle. Furthermore, it does not matter whether the vehicle is operated, stopped or parked.
Other than the exceptions listed above, BWI and DWI have the same issues. For example, if you are stopped in the boat while the officers are checking to see if there are enough life jackets on the boat and they notice that you have been drinking, they probably will claim they smell alcohol on your breath. They may notice that your eyes are bloodshot, and they notice your red face. The reason you are red in the face is because you forgot sun screen and your blood shot eyes is because you have been on the water all day and forgot your sunglasses. Based on the open container, the smell of alcohol on your breath, the blood shot eyes, and the red face, you may be asked to perform sobriety tests. You will be headed to shore with the officers, to perform the sobriety tests. Remember, additional problems could be that the officer wants you to perform the tests on a pier that is uneven or you are exhausted from boating and water skiing all day which impairs ability to walk. This situation is just an example of the issues that can arise in a BWI or DWI arrest.
2. Is the BAC level for a BWI the same as a DWI?
If you are arrested for either BWI or DWI you will be asked to provide a specimen of your breath or blood. Under some circumstances and in certain areas in Texas, if you refuse to provide a specimen of either, the officers may try to complete a warrant affidavit and request a judge to grant them a Search Warrant to take your blood.
Alcohol Concentration means the number of grams of alcohol per: A) 210 liters of breath; B) 100 milliliters of blood; or C) 67 milliliters of urine. See §49.01, Texas Penal Code. Consequently, all persons arrested for either offense and who blow a .08 on an Intoxilyzer will be charged with an offense either DWI or BWI. Or, if the individual’s furnishes or has blood drawn under a Search Warrant and the results come back showing alcohol concentration over a .08, will also be charged with an offense of DWI or BWI.
3. What are the punishments for a BWI?
The punishments for BWI are the same as a DWI and are as follows:
a. First conviction carries a fine up to $2,000.00 and/or jail time of a minimum of three (3) days up to 180 days; However, if the BAC (Breath Alcohol Concentration) is more than a .15 for either DWI or BWI; the conviction increases the punishment and carries a fine up to $4,000.00 and/or jail time of up to one (1) year;
b. Second conviction carries a fine up $4,000.00 and/or jail time of a minimum of thirty (30) days up to one (1) year;
c. Third conviction carries a fine up to $10,000.00 and/or jail time of two (2) years up to ten (10) years.
4. If you are arrested in this State, remember that you are being videotaped by the arresting officers (almost every patrol car has a video camera) from the time of the stop including the time you are seated in the officer’s car, including the time you may be at a hospital for a blood draw, and while in the county jail until being turned over to the jailors. Consequently, no matter what the officer says or does, do not get angry or lose your temper! A lot of officers will try to instigate things to see if you will lose your temper and get angry because they know everything is being videotaped. You need to remain “polite and courteous no matter what may be happening.”
5. When you are in the jail, do not forget the jail is now videotaping and recording every conversation whether in person or by telephone, especially any telephone calls you make to the outside world. Including attorneys and bondsman. IN OTHER WORDS, DO NOT DISCUSS THE FACTS OF THE CASE, HOW YOU FEEL ABOUT THE STOP, THE INVESTIGATION, OR THE ARREST WITH ANYONE EXCEPT WHEN FACE TO FACE WITH YOUR LAWYER.
6. I would make arrangements with a family member or good friend long before going anywhere and write out who and where to call if an arrest may take place. Once you are arrested and placed in the county jail, call that family member or close friend so they can call people to help you get released as soon as possible. Unlike other counties, particularly Travis County (Austin) you are probably not going to see a magistrate for any night time arrest until the following morning in Williamson County.
7. Upon release from jail you will receive numerous pieces of paper, i.e., Notice of Court date, vehicle towing papers including a description of items located in your car when you were arrested, bonding papers, and if it is either a BWI or DWI, you will receive two (2) documents called “Statutory Warning” and “Notice Of Suspension And Temporary Driving Permit.” Keep all your papers do not lose them or throw them away. But the “Statutory Warning” and “Notice Of Suspension And Temporary Driving Permit” is your temporary driving permit for at least forty days from the date of your arrest. YES, even for a BWI! Contact the Law Offices of Jamie Balagia as soon as possible, if you are arrested for BWI or a DWI. You have fifteen (15) days from the date of your arrest to request a hearing to try to save your driver’s license from being suspended in either case. If you wait too long your license will be suspended forty (40) days from the date of your arrest for BWI or DWI.