Operating a Watercraft While Under the Influence (OUI) in Arizona: ARS 5-395 click for a free consultation

Posted on November 1, 2021 in OUI

Under Arizona Revised Statute (ARS) 5-395, it is illegal to be in actual physical control of a motorized watercraft while under the influence of drugs and/or alcohol. A conviction for this crime, known as OUI (operating under the influence), can have serious penalties.

If you have been charged with ARS 5-395 (OUI), please call Rosenstein Law Group at (480) 248-7666 to get premium legal defense.

Is Boating Under the Influence a Crime in Arizona?

Yes. According to Arizona Revised Statutes Section 5-395, it is unlawful to operate or be in actual physical control of a motorized watercraft while under the influence of any intoxicating liquor or drug. 

In many ways, the Arizona OUI law is like Arizona’s driving under the influence (DUI) laws for motor vehicles. For example:

• Like with DUI, Arizona classifies multiple levels of OUI based on blood alcohol content.
• A “standard” OUI is based on a blood alcohol concentration (BAC) of at least 0.08 up to a BAC of 0.149.
• The presence in an operator’s body of drugs identified in ARS 13-3401 and/or drug metabolites qualifies as an OUI violation. The legality of the drug under Arizona law, like marijuana, is not a defense.
• Commercial boat operators are held to a stricter standard of a BAC of 0.04.
• Under ARS 5-397, an extreme OUI is based on a BAC between 0.15 and 0.199, and a super extreme OUI results from a BAC of 0.20 or more.
• Under ARS 5-396, it is an aggravated OUI if a boater has two OUIs within an 84-month period and is charged with a third OUI offense, and/or if a passenger in the boat is under age 15.
• Being in actual physical control of a boat is like being in actual physical control of a motor vehicle—it is possible even when the boat is idle or shut off and anchored.

Under Arizona’s OUI law,  if an operator of a motorized watercraft has a blood alcohol concentration less than 0.051 within two hours of operating or being in actual physical control, then the law presumes that the boater was not under the influence. 

If the watercraft operator’s BAC level is at least 0.051 but less than 0.08, then the law makes no presumption of impairment of the operator, and the prosecution must present evidence to prove beyond a reasonable doubt that you were impaired by alcohol and/or a drug(s) while in actual physical control of a motorized watercraft.

If the operator’s BAC is 0.08 percent or higher within two hours of operating or being in actual physical control, then he or she is presumed to have been under the influence while operating a watercraft.

Arizona Boating Under the Influence Penalties

Arizona takes boating under the influence crimes seriously. Under state law, the penalties for a first-offense BUI are at least $1,250 in fines and a minimum of 10 days in jail (a class 1 misdemeanor). A second offense within 84 months is also a class 1 misdemeanor, but it carries at least $3,000 in fines and a minimum of 90 days in jail. 

A third or subsequent offense within 84 months is an aggravated OUI that is elevated to a class 4 felony, with up to $4,000 in fines and a minimum of 4 months in prison. If you are found guilty of extreme BUI (a BAC at or above 0.15 percent), the penalties are more severe.

What Happens After You’re Arrested for Boating Under the Influence?

Arizona takes boating under the influence crimes seriously. Depending on the circumstances, you could face Class 1 misdemeanor, Class 6 felony, or Class 4 felony charges for an OUI.

Class 1 Misdemeanor OUI

Under Arizona law, an OUI, extreme OUI, or super extreme OUI conviction is a Class 1 misdemeanor.  The penalties for a first-offense misdemeanor OUI are:

• At least $1,500 in mandatory minimum fines, fees and assessments and carries a minimum of 10 days in jail. A second offense within 84 months is also a class 1 misdemeanor, and it carries at least $3,000 in fines, fees and assessments and a minimum of 90 days in jail.
• For an extreme OUI, carries a minimum of 30 days in jail and approximately $3,500 in mandatory minimum fines, fees and assessments.
• For a super extreme OUI, carries a minimum of 45 days in jail and approximately $5,750 in mandatory minimum fines, fees and assessments.

Additional penalties for each of these violations can include community restitution and court-ordered alcohol or drug screening and counseling. 

Felony OUI

A third or subsequent offense within an 84 month period is an Aggravated OUI. 

• If the basis of an aggravated OUI is a third conviction of OUI within 84 months, then this is a Class 4 aggravated felony punishable by up to 3.75 years in prison with a mandatory minimum of four months in prison must be served before eligibility for probation, pardon, commutation, or suspension of sentence.
• For more than three prior misdemeanor OUI violations, a minimum of eight months of the prison sentence must be served.
• If an aggravated OUI is based on the presence of a passenger under 15 years old, then this is a Class 6 aggravated felony punishable by up to two years in state prison.
  • If the underlying OUI is a misdemeanor OUI, then at least 10 consecutive days must be served.
  • If the underlying OUI is an extreme OUI, then at least 30 consecutive days must be served.
  • If the underlying OUI is a super extreme OUI, then at least 45 consecutive days must be served.
• If the court orders probation, this also carries a requirement to attend and complete drug or alcohol screening, counseling, and education, and a possible treatment requirement.

The maximum fine for a felony OUI conviction in Arizona is $150,000, not including applicable statutory surcharges, fees, and assessments.

What Happens After You’re Arrested for Boating Under the Influence?

If you are found by law enforcement to be under the influence of an intoxicating substance while in actual physical control of a motorized watercraft in Arizona, you may be arrested for suspected OUI. Like a standard vehicle DUI, you will be taken to the local police department for processing, meaning they will take your fingerprints and mugshots and request that you consent to chemical testing of bodily fluids and/or breath to determine your BAC.

At the department, you should be given the opportunity to make a phone call. You should generally use this call to contact a criminal defense lawyer.

Legally, you have the right to have an attorney present when being questioned by the police. 

Next, you will attend an arraignment hearing, where you will hear the charges against you and enter a plea, I.e., guilty or not guilty (you almost always want to plead “not guilty”).

If you enter a plea of “not guilty”, the judge will set a court date for what’s commonly referred to as a “pretrial conference”. You may have one or several pretrial conferences before your case is set for trial, whereupon your OUI lawyer will present a defense(s) to the charge(s).

What Are Possible Defenses to an OUI Charge?

Possible defenses to OUI charges in Arizona are the same as defenses available in DUI cases.

These include:

• No impairment
• Faulty or improper drug or alcohol testing 
• Improperly calibrated or maintained scientific test equipment
• Improper administration of field sobriety tests
• Failure to inform you of your Miranda rights prior to being questioned by police while in police custody
• Denial of legal counsel during custodial questioning
• Obtaining coerced or other involuntary statements or confessions

Contact an OUI Defense Lawyer in Scottsdale

The right operating a motorized watercraft while under the influence attorney in Arizona can help you avoid the most serious consequences of this crime. Your OUI lawyer may be able to negotiate a favorable plea deal or beat the case at trial. 

If this is your first operating under the influence charge, an experienced OUI defense attorney may be able to convince the prosecutor to reduce the charge from an OUI to a lesser charge like negligent operation of a watercraft. Your OUI defense lawyer may also be able to have the charges against you dismissed or obtain an acquittal of the charge(s) with the right defense strategy.If you or a loved one has recently been charged with operating a watercraft while under the influence, contact Rosenstein Law Group for a free consultation to learn more about your case. You can reach us by phone at (480) 248-7666 at any time, or use our online contact form to ask us a question or set up an initial free case evaluation.