DUI Defense: Lower Legal Limit but More Limited - June, 2015

The laws covering drunk boating are contained within the Marine Safety portion of the Natural Resources and Environmental Protection Act (the “Act”).1  Prior to the 2014 revision in the law, the Act made it unlawful for a person to operate a vessel while intoxicated or impaired by drugs and/or alcohol.  The Act was never updated in 1999 or in 2003, and so the 2014 amendments contained the old presumptions and legal limits.

Also, a vessel was defined broadly enough to include any watercraft capable of being used for transportation,2 and this term could easily extend to sailboats, canoes, paddle boats, or even inner tubes.  The term “operation” meant to be in control of a boat while underway.  For purposes of the Act, one did not operate a boat while it was secured to a dock or at anchor.3

Prior to the 2014 revisions, the Act allowed a drinking boater to be charged with either the common law “boating under the influence” or the statutory “boating with an unlawful bodily alcohol content.”  This has not changed. However, because these laws were not “updated” in 2003, the “legal limit” for drunk boating remained at 0.10, and because they were not updated in 1999, the presumptions remained until the 2014 revisions removed them.

Additionally, and also unlike the drunk driving laws applicable to motor vehicles operated on a roadway, there was no zero tolerance for under-21 operators, or having the bodily presence of a controlled substance while boating, and an operator could not be charged or convicted for being under the influence of prescription medication.

The new law was signed by Governor Snyder on December 27, 2014 and began being enforced earlier this year, with an effective date of March 31, 2015.4  Many prior attempts were made to lower the legal limit applicable to watercraft, and this new law appears to be the result of a compromise reached by Congress during last year's lame duck session.

While the legal limit was reduced to .085, bringing Michigan's drunk boating law into parity with that applicable to automobiles and other motor vehicles operated on the roadways, the new law applies to far fewer kinds of watercraft. This is because the new law replaced the word “vessel” with the word “motorboat.” 6  While sailboats and canoes are no longer covered, jet skis7 are, though the definition of “personal watercraft” was removed in favor of that contained in the Federal code.8

On the other hand, the new law does lower the legal limit to .089, and makes it easier for prosecutors to show intoxication at any bodily alcohol level.10 This is because the new drunk boating law removed the presumptions contained in the old law. This means there is no longer a presumption that a person below .07 is presumed not to be impaired.  Gone too is the presumption that a person is presumed to be intoxicated above a .10.

Because there is no longer a presumption that a person is not impaired if their blood alcohol level is below .07, a person can be convicted of intoxicated boating for alcohol levels well below the so-called legal limit.  Consequently, if the prosecutor can show that a person’s ability to operate a motor boat is significantly lessened at say, a .05, then that person is guilty of drunk boating.11  The new law also added a “costs of prosecution” provision.12

Additionally, the new law is now in near-parity with that applicable to land-based motor vehicles relative to intoxication by drugs.  Thus, one may be found to be guilty of drunk boating if they are under the influence of prescription drugs13, or have any amount of a schedule one drug14 in their system at the time of operation.  “Near parity” because it is not unlawful to operate a motorboat while under the influence of an “intoxicated substance” such as a homeopathic drug.15

While the new law applies to fewer types of watercraft, the penalties are stiffer for intoxicated operation.16  Practitioners familiar with the penalties applicable to motor vehicles will be very familiar with the new penalties because they appear to have been “cut-and-pasted” from the motor vehicle code.  They are now essentially in parity with those applicable to the intoxicated operation of a motor vehicle on the roadways.  The one exception is the impact to the license.  Just as before, a drunk boating conviction will not result in a loss of an operator’s motor vehicle driver license.

Also, just as with motor vehicles, there are enhanced penalties for second offenses and lifetime look back for felony drunk driving.17  There is now a zero tolerance provision for under-21 drivers.18 The laws and penalties applicable to the intoxicated operation of a motor boat causing death or serious injury are largely unchanged.

There is a significant difference between the legal defenses in drunk driving and drunk boating; however, they share scientific defenses as well.  A great example would be the definition of operation.  In a motor vehicle, it might be considered to be unlawful to be intoxicated while in the driver’s seat while the vehicle is running, even if it is in park. 19  However, as long as the motorboat is not “underway”, then it is irrelevant if the person in control is intoxicated or not.20  This means the motorboat is not “docked, at anchor, idol or otherwise secured.” 21  Further, in a motor vehicle, you must be physically in control of the vehicle to be operating.  Whereas, in the case of a motor boat, merely being “in control” of the vessel may subject you to prosecution for intoxicated operation.22

by Patrick T. Barone

Patrick T. Barone is an adjunct professor at Cooley Law School where he teaches "Drunk Driving Law and Practice."  Mr. Barone is also the co-author of two books on DUI-related issues, including Defending Drinking Drivers (James Publishing), a well-known and highly respected multi-volume national legal treatise.  He is a frequent lecturer on trial practice and drunk driving defense tactics. He can be contacted on the web at: www.baronedefensefirm.com.


1.  M.C.L. § 324.80176
2.  M.C.L. § 324.80104(q)
3.  M.C.L. § 324.80103(g)
4.  Public Acts of 2014, No. 402
5.  Sec. 80176 (1)(b)
6.  Sec. 80171 and et. seq.
7.  Sec. 80104(e)
8.  40 C.F.R. 1045.801
9.  Id.
10.  Secs. 80101(H) and 80176(1)(A)
11.  Id.
12.  Sec. 80178A(2)
13.  Sec. 80171 and Sec. 80171(C)
14.  Sec. 80171
15.  See M.C.L. 257.625(25)(i)
16.  Id.
17.  Sec. 80177
18.  Sec. 80171(6)
19.  See, e.g, People v. Wood, 399 Mich. 450 (1995). See also, People v. Lyon, 227 Mich. App. 599 (1998); People v. Burton, 252 Mich. App. 130 (2002).
20.  Sec. 80176(8)
21.  Id.
22.  Id.