Boating Under the Influence in Florida

Overview
We interviewed subject matter expert Robert Malove, a Board Certified criminal trial attorney (one of fewer than 400 in Florida) and founding member of the National College for DUI Defense, of The Law Offices of Robert David Malove, to give you the best possible answers on boating under the influence in Florida. This article covers what the State must prove under section 327.35, the penalty ladder, and where a BUI charge and a DUI charge part ways.

A Note Before You Read
This article answers the question the way Florida law answers it for most people. Your case has its own facts, and small details change outcomes. Nothing here is legal advice for your specific situation. If you want an answer about your case, call The Law Offices of Robert David Malove at (954) 861-0384. There is no pressure to hire anyone; you will simply get a straight answer.

An officer came alongside your boat this weekend, checked the registration and the life jackets, then asked you to step through sobriety exercises at the dock. You spent a night in county jail, a friend handled the boat, and you drove yourself home in the morning because nobody took your driver’s license. Now the citation sits on the kitchen counter with a court date on it. If that is you, this article lays out what boating under the influence in Florida actually carries, in plain numbers.

The short answer is that BUI mirrors DUI almost element for element, runs on nearly the same penalty ladder, and counts against you later the way a DUI would, while leaving your driver’s license alone. The sections below cover the proof, the penalties, the water-specific rules, and when to bring in a defense lawyer. Robert Malove, a Board Certified criminal trial attorney and former assistant public defender in Miami, named BUI as Florida’s on-the-water variation of DUI in our recorded interview, and the statute fills in the numbers.

Boating under the influence in Florida means operating a vessel with normal faculties impaired or with a blood or breath alcohol level of .08 or above. It is a crime under section 327.35, punished on a ladder that tracks DUI, and it carries no driver’s license suspension.

That charge breaks down into a few moving parts:

• The elements: impaired normal faculties, or .08 by blood or breath, while operating a vessel
• The base ladder: $500 to $1,000 and up to 6 months in jail on a first conviction, felony exposure from the third
• The enhancers: a level of .15 or higher, or a passenger under 18, raises every fine and jail ceiling
• The felony tiers: a third conviction within 10 years, a fourth conviction, serious bodily injury, and BUI manslaughter
• The water rules: implied consent under section 327.352, a $500 refusal penalty, vessel impoundment, no license suspension
• The long tail: a BUI conviction counts as a prior if you ever face a DUI charge on the road

According to Board Certified criminal trial attorney Robert Malove of The Law Offices of Robert David Malove, Florida prosecutes impaired boating as a variation of DUI, built on the same proof paths and much of the same penalty structure. The controlling statute is section 327.35, and every figure in this article comes from its current text on the Florida Legislature’s site.

TL;DR

• Same proof paths as DUI. The State proves impaired normal faculties or a .08 blood or breath alcohol level, applied to a vessel instead of a car.
• Jail ceilings match DUI. Up to 6 months on a first conviction, 9 months on a second, and a third within 10 years is a third-degree felony.
• Your license survives. Section 327.35 contains no driver’s license suspension, and refusing a breath test on the water draws a $500 civil penalty.
• It counts later. Section 316.193 treats a BUI conviction as a prior conviction if you are ever charged with DUI on the road.
• The manslaughter floor is 4 years. BUI manslaughter is a second-degree felony carrying a 4-year mandatory minimum prison term.

Florida Proves BUI the Same Two Ways It Proves DUI

Under section 327.35(1), the State convicts by showing either that alcohol or drugs impaired your normal faculties while you operated a vessel, or that your blood or breath alcohol level was .08 or higher. Those are the same two proof paths Robert Malove walks DUI clients through.

“There’s two ways to establish that someone was driving under the influence,” Robert Malove explained, and “the legal limit for a breath test in Florida is .08.” He named the water variation in the same breath: “And of course, you have variations of that. You have boating under the influence.”

One number moves for younger operators. The Florida Fish and Wildlife Conservation Commission notes in its boating regulations that any vessel operator under 21 with a breath alcohol level of .02 or higher violates Florida law.

BUI Penalties Start at a $500 Fine and Climb to a Third-Degree Felony

A first BUI conviction carries a fine of $500 to $1,000 and up to 6 months in jail under section 327.35(2), and each conviction after that raises both numbers until the charge becomes a felony. The ladder:

• First conviction. $500 to $1,000 fine, up to 6 months in jail. Probation and incarceration combined may not exceed 1 year, with at least 50 hours of community service, a substance abuse course, and 10 days of vessel impoundment or immobilization.
• Second conviction. $1,000 to $2,000 fine, up to 9 months. Within 5 years of a prior, the statute requires at least 10 days in jail and 30 days of vessel impoundment.
• Third conviction more than 10 years after a prior. $2,000 to $5,000 fine, up to 12 months.
• Third conviction within 10 years of a prior. A third-degree felony, up to 5 years in prison under section 775.082, with at least 30 days in jail and 90 days of vessel impoundment.
• Fourth or subsequent conviction. A third-degree felony with a minimum fine of $2,000.

Two facts raise every rung. A level of .15 or higher, or a passenger under 18 on board, pushes a first conviction to $1,000 to $2,000 and up to 9 months, a second to $2,000 to $4,000 and up to 12 months, and sets a $4,000 minimum fine from the third on. The community service, probation cap, and 10-day impoundment mirror the DUI plea minimums Robert describes.

BUI Manslaughter Carries a Four-Year Mandatory Minimum

Under section 327.35(3), a BUI that causes serious bodily injury is a third-degree felony carrying up to 5 years in prison, and a BUI that causes a death is BUI manslaughter, a second-degree felony carrying up to 15 years with a mandatory minimum of 4 years. The charge rises to a first-degree felony, up to 30 years, when the operator knew or should have known the accident occurred and failed to give information or render aid.

Robert has defended these cases on the road side for decades, and the manslaughter sentences he describes from his own practice begin around 12 years, because “the penalties go up because they’re on the … criminal punishment code, score sheet.” Each victim adds points, so the statutory minimum is a floor. Injury cases also arrive on a lab’s timeline, and Robert has seen people released from the hospital and then arrested a month or two afterward, once the blood work has been evaluated.

A BUI Leaves Your Driver’s License Alone

Section 327.35 contains no driver’s license suspension, and chapter 327 has no counterpart to the administrative suspension that follows a DUI arrest. That single difference reorders the first week of the case.

For DUI, Robert describes a system that comes at you on two tracks at once, one administrative and one criminal, because Florida treats driving as a privilege. On the road, the administrative track starts a 10-day clock to challenge or waive a license suspension. A BUI citation starts no such clock, because there is no suspension to contest. Board Certified criminal trial attorney Robert Malove of The Law Offices of Robert David Malove spends the opening conversation with a DUI client on the 10-day license deadline, and a BUI client does not carry that deadline.

Refusal works differently on the water too. Under section 327.352, operating a vessel in Florida is deemed consent to breath and urine testing once you are lawfully arrested. A first refusal draws a $500 civil penalty. Refusing again after a previous refusal fine or refusal suspension is a first-degree misdemeanor. Compare the road, where Robert puts it plainly: “If you refuse, your license gets suspended for 12 months with no driving for 90 days.”

One caution before you relax about your license. Your position comes from the statute number printed on each citation you are holding. A charge under section 327.35 does not touch your license; a companion charge under section 316.193, if you drove a vehicle that day, brings the entire DUI license apparatus with it. Sort every document you were handed by statute number.

BUI Cases Begin With Officers Who Are Already on the Water

Section 327.70 places enforcement of Florida’s boating laws with FWC’s Division of Law Enforcement, county sheriffs and their deputies, and municipal police, and those officers patrol registration, safety equipment, and speed zones as ordinary work. FWC’s boating regulations state that operators suspected of BUI “must submit to sobriety tests and a physical or chemical test,” and section 327.70(2) preserves an officer’s authority to stop a vessel on probable cause of a boating violation.

The practical consequence is that a BUI case usually opens with an equipment check, a speed zone, an anchorage, or an accident, and the investigation builds from what the officer observes alongside your boat. Robert’s standing advice about sobriety exercises applies with full force: “nobody performs them like a gymnast and does them perfectly, and they will point to the slightest flaw.”

This is a geography issue as much as a legal one. Sandbar anchorages, charter docks, Gulf passes, and busy bay weekends produce these files, and the firm defends them where they start. It keeps offices in Key West, Fort Myers, and Sarasota, with a Key West DUI lawyer, a Fort Myers DUI lawyer, and a Sarasota DUI lawyer handling impaired-operation cases on both the road and water sides of each market.

A BUI Conviction Follows You Onto the Road

Florida’s DUI statute counts “any conviction for a violation of s. 327.35” as a previous conviction, so a BUI on your record enhances a later DUI exactly the way an earlier DUI would. Section 327.35 returns the favor and counts prior DUI convictions when it ranks a new BUI.

The enhancement is not cosmetic. A prior conviction moves a second offense into higher fine and jail ranges, triggers mandatory jail inside the 5-year window, and opens the third-degree felony door at conviction three within 10 years. When Board Certified criminal trial attorney Robert Malove of The Law Offices of Robert David Malove screens a new DUI file, an old BUI conviction changes the mandatory minimums the same way an old DUI would.

What to Do the Week After a BUI Arrest

Read every citation you were handed and confirm the statute number on each, because that number determines whether your driver’s license is in play. If you are holding a section 327.35 charge and nothing else, the court dates are your only clock, so calendar the arraignment today.

Then preserve the day while it is fresh. Write down who operated the vessel and when, what you drank and at what times, what the officer asked, and what happened at the dock. Alcohol keeps absorbing after you stop drinking, and as Robert puts it, “somebody might have it on board, but it might not have hit their system yet.” A test taken an hour after you left the helm measures your level at that later hour, even though your condition while operating is the question the charge turns on.

Names and cameras matter too. Robert’s office treats scene evidence as a first-week job: “we go out to a scene, look at what the place was like to see if there were any ring cameras or anything else that might have recorded what happened.” Marinas and fuel docks hold the water-side equivalent, and passengers scatter, so collect names and numbers now.

And for every weekend after this one, Robert’s DUI answer translates to the dock without editing: “the best way to beat a DUI case is called Uber.” On the water, that means a sober operator at the helm before the cooler opens.

The Right Time to Call a Defense Lawyer Is Before Arraignment

The charging decision is where a BUI case takes its shape, and it happens early. Robert files a notice of appearance and reaches the prosecutor’s office quickly because, in his words, “they’re going to take a few weeks to make a decision about what they’re going to file.” After that, “we’ll pull the case apart and figure out what is … what are the strengths and weaknesses?” On a BUI file that means the test equipment’s records, the sobriety exercises on video, the drinking timeline against the operating timeline, and who actually had the helm.

Robert is just as candid when the file points to something deeper. When a client’s record shows a substance problem, he says so and pushes toward treatment, because “It’s just a shame when you see people who are addicts or alcoholics, and they know it, they don’t seek help, and they … reoffend.” The goal he describes for the practice reaches past any single case. He wants every client to leave the firm in a better position than the one they were in when they found it.

Frequently Asked Questions

What is boating under the influence in Florida?

Boating under the influence is the crime of operating a vessel with normal faculties impaired by alcohol or drugs, or with a blood or breath alcohol level of .08 or higher. It is defined by section 327.35 of the Florida Statutes, and a first conviction carries a $500 to $1,000 fine, up to 6 months in jail, probation, 50 hours of community service, a substance abuse course, and 10 days of vessel impoundment.

Is a BUI as serious as a DUI in Florida?

On the criminal side, yes. The fines, jail ceilings, felony thresholds, and manslaughter provisions in section 327.35 track the DUI statute rung for rung, and each conviction counts as a prior under the other statute. The difference is administrative, because a BUI arrest does not trigger the license suspension machinery that a DUI arrest does.

Does a BUI suspend your driver’s license in Florida?

No. Section 327.35 contains no driver’s license suspension, so there is no 10-day deadline to request a hearing after a BUI arrest. The vessel is what gets impounded after a conviction, starting at 10 days for a first offense.

Can you refuse a breath test on a boat in Florida?

Under section 327.352, operating a vessel is deemed consent to breath and urine testing after a lawful arrest, and a first refusal brings a $500 civil penalty rather than a license suspension. A refusal after a previous refusal fine or refusal suspension is a first-degree misdemeanor.

Does a BUI count as a prior offense for a later DUI?

Yes. Section 316.193 counts any conviction under section 327.35 as a previous conviction, so a BUI on your record moves a later DUI up the penalty ladder. The counting runs in both directions.

Talk to a Florida DUI Lawyer About Your BUI Charge

Robert Malove is a Board Certified criminal trial attorney, one of fewer than 400 in the state out of more than 100,000 active members of the Florida Bar. The distinction requires at least 25 contested cases and a minimum of 20 jury trials every 5 years.

If you are under investigation, have been arrested for DUI, are facing a second charge, or have a conviction on your record and want an expert criminal defense attorney on your side, fill out this form or call us now at (954) 861-0384.

The Law Offices of Robert David Malove serves clients across Florida, with DUI defense teams in nine offices: Fort Lauderdale, Miami, Orlando, West Palm Beach, Fort Myers, Fort Pierce, Gainesville, Key West, and Sarasota.