In Minnesota, one of the best ways to spend the summer is boating on one of our state’s many lakes. Boating and enjoying an adult beverage seem to go hand in hand, and while it is not illegal to drink on a boat, it is illegal to operate the boat under the influence of alcohol or another controlled substance.
What is BWI?
Boating While Intoxicated (BWI) is a subset of Minnesota DWI laws. In Minnesota, it is illegal for any person to drive, operate, or be in physical control of any motor vehicle while under the influence of alcohol or a controlled substance. The term “motor vehicle” applies to more than just cars and motorcycles — it refers to any vehicle that is not moved solely by human power. This means that the law also applies to boats, jet skis, and any other self-propelled watercraft.
BWI vs. DWI
While BWI is a part of the same law that governs DWIs in Minnesota, they are not exactly the same. There is one key difference between the two:
- Open container law: Under Minnesota DWI law, It is illegal to have an open alcoholic beverage in your possession while in a private motor vehicle on a street or highway. This, however, does not apply to boats. You are allowed to have open containers and consume alcohol on your boat.
Just as with a DWI on a roadway, if you test over the legal limit or are convicted of a BWI, not only is your privilege to operate a motor boat revoked, but so is your driver’s license. The law requires the revocation of all privileges, including boats, snowmobiles, ATVs, and automobiles, regardless of what type of motor vehicle you were driving when the offense occurred.
Moreover, DWI and BWI both carry the same criminal penalties. Therefore, the long-term consequences of having a BWI on your record are just as serious as a DWI. That’s why it’s important to fight against a BWI accusation just as you would fight a DWI.
Degrees and penalties of BWI
A fourth-degree BWI is a standard first-offense charge. It is a misdemeanor and carries a maximum of $1,000 in fines and up to 90 days in jail.
A third-degree BWI is a gross misdemeanor. It carries up to $3,000 in fines and one year in jail. A person can be convicted of third-degree BWI if they have:
- One prior BWI or DWI conviction within the past ten years,
- A child under the age of 16 on board,
- A test result of 0.16 or greater, or
- Refused to submit to chemical testing.
A second-degree BWI is a gross misdemeanor. It carries up to $3,000 in fines and one year in jail. A person can be convicted of second-degree BWI if they have:
- two or more prior BWI or DWI convictions in the past ten years,
- A child under the age of 16 on board and one other aggravating factor,
- A test result of 0.16 or greater and one other aggravating factor, or
- refused to submit to chemical testing and one prior BWI or DWI conviction within the past ten years.
A first-degree BWI is a felony. It carries up to $14,000 in fines and 7 years in prison. A person can be convicted of first-degree BWI if they have:
- three or more prior BWI or DWI convictions in the past ten years
- a prior first-degree BWI or DWI conviction, or
- a prior felony conviction for certain types of vehicular homicide.
Aggravating Factors for BWI
Both DWIs and BWIs are “enhanceable” offenses in Minnesota. This means that, under certain conditions (known as “aggravating factors”), an existing charge can be elevated to a more serious offense with heavier sanctions.
These aggravating factors include having:
- A blood alcohol concentration of 0.16 or more
- A prior conviction or license revocation for DWI or test refusal in the past 10 years
- A passenger under age 16 on board at the time of the offense
Note that refusing field sobriety tests or refusing a preliminary breath test on the water is not a crime and is often the wisest choice. Field tests are unreliable enough on firm ground. They are nearly impossible for anyone to perform on the water, drunk or sober. Taking field tests under any circumstance is generally a bad idea. But they should never be attempted on the water.
How common is BWI?
According to the Minnesota Department of Natural Resources, nine of the 16 boating fatalities in 2020 involved alcohol. Still, it’s not very common — in 2012, 158 people were arrested for BWI, but in the same year there were 28,418 impaired driving incidents.
Why you need an attorney
A BWI conviction has serious consequences, exactly the same as those for a DWI. To avoid these consequences, it’s critical you work with an attorney who knows how to fight for you. At Sheridan, Dulas, Hunstad & Kins, P.A., we always fight for a complete acquittal of charges and the restoration of your driving and boating privileges. To learn what’s possible for you, schedule a consultation with us to review your case.