Can I be asked to take a breathalyzer on my boat in Texas?

The weather is great. You are out with friends and family on Lake Conroe, Lake Houston, Clear Lake, Seabrook, Kemah or maybe you drove to Galveston for the day to enjoy the bay. While on your boat, you pop open a beer and take in the sunshine. Then, a police officer spots you with the beer in hand while steering the boat. Before you know it, the officer boards your boat and after some initial questions, asks you to take a breathalyzer test. Is that even possible, you wonder? It is.

Here is what you should know about drinking and boating in Texas.

Can you drink alcohol and operate a boat at the same time in Texas?

The first thing to know, consuming alcohol on your boat is not illegal in Texas. The second thing to know, consuming alcohol on your boat even if you are the one operating the boat is not illegal in Texas -- to a certain extent. You can be arrested for consuming alcohol and operating a boat in either of two scenarios:

  1. You take a breathalyzer test that indicates your blood alcohol content (BAC) is at or exceeds 0.08%; or
  2. Your BAC is less than 0.08% but you do not exhibit "normal use of mental or physical faculties."

In either of these two situations, you can be arrested and charged with boating while intoxicated (BWI). Unlike driving, however, where open containers of alcohol can also get you arrested even if you do not have alcohol in your system, open containers on a boat is not illegal.

Why would an officer pull a boat over in Texas?

Many times in Texas, game wardens -- who are considered by the State of Texas to be state police officers just like DPS troopers -- will perform safety checks on boats. Though these checks can occur any time of the day and year, the most likely time you can expect it is during the holidays, like Memorial Day or Labor Day weekends when outings on boats are high.

Safety checks are conducted to ensure each person on a boat has a life jacket and each child 12 or younger is wearing his or her life jacket -- in accordance with Texas law. These safety checks can turn into a BWI investigation if the game warden or another police officer suspects the operator is drinking while operating the boat. At that time, you could be asked to take a breathalyzer test, among other things, like perform a float test.

What happens if you fail a breathalyzer while boating in Texas?

If a police officer requests you take a breathalyzer, then if you consent you will blow into a portable instrument that analyzes your breath for alcohol. If you blow 0.08 or more, then you failed the breathalyzer test, and you will likely be arrested for boating while intoxicated. What follows is generally the same as what follows if you are arrested for driving while intoxicated:

  • You will be taken to the police station.
  • You may or may not have a second breath test.
  • You may be requested to provide a blood sample for a blood test.
  • You may be booked into jail for the night.
  • You may lose your driver's license. In fact, if the boat you were operating had an engine over 50 horsepower, then your license will automatically be suspended.
  • You will need to request an ALR hearing within 15 days if you want to contest your driver's license suspension.
  • You will have to attend an arraignment hearing to be formally charged with the offense and plead guilty, not guilty, or no contest.
  • You will have to -- or should -- find an experienced BWI lawyer in Houston to help you with the legal and possible administrative processes.

Can I refuse a breathalyzer test while boating in Texas?

Just like if you were pulled over on the highway for suspicion of drinking and driving, you have the right to refuse the breathalyzer and refuse to provide a blood sample for alcohol testing. Refusal, however, has its consequences.

First, refusal can be used against you in court to prove your guilt.

Second, your driving privileges will automatically be suspended for 180 days if you have never had a BWI or driving while intoxicated offense before or within the last 10 years.

Third, the officer will likely request a warrant to require you to provide a breath or blood sample -- only in these circumstances, it will likely be a blood sample. Blood tests are more accurate than breath samples, which can mean they are harder to be challenged. That said, they can be challenged, and a skilled BWI attorney will challenge it, unlike other attorneys who will turn away cases with failed blood tests.

How do I find the best BWI attorney for me in Houston TX?

Texas is home to more miles of inland water than any other state. It's no wonder people love being out on their boats to enjoy time together. Unfortunately, law enforcement agents can be overzealous in their efforts to identify persons boating while intoxicated and mistake people having a good time in the sun for intoxication. Sometimes police are wearing and other times they are not. In either case, you deserve the best defense for you.

At Doug Murphy Law Firm, P.C., we understand that being charged with a Boating While Intoxicated (BWI) offense can be extremely stressful, especially because (1) you never guessed in a million years you could be arrested for a BWI; and (2) the penalties of a conviction mirror the harsh penalties for a DWI conviction. A skilled and specialized Houston Texas BWI attorney like Doug Murphy can help you understand how to defeat a boating while intoxicated charge. Doug Murphy is the only lawyer in Texas with numerous published BWI defense treatises in national, state, and local criminal defense legal publications. He has also presented BWI defense lectures in Texas and throughout the United States. Contact our law office today to schedule a free initial consultation to discuss your case.

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If you are facing DWI or other criminal charges in Texas, contact our office today to discuss your case, so we can begin working on your defense. Please provide only your personal email and cell phone number so that we can immediately and confidentially communicate with you.