Staying Above Water: What You Need To Know About Drinking While Boating

Mark Mandell, Esq.

As we approach Labor Day, many Michiganders will be flocking to their cottages and their boats for the final time this summer. Michigan actually has one of the highest rates of boat ownership per capita in the nation.¹

And have you ever stopped to think, “Is it really legal to drink while driving a boat?” If you’ve been a spectator at Jobbie Nooner at Lake St. Clair, MI, surely this thought might have crossed your mind at some point.

The short answer is, yes. It is lawful to drive a boat with an open container or two of alcohol. But you have to be careful not to cross the line.

Indeed, the rules for drinking and boating differ in some important ways from drinking while driving. The laws for drinking while boating are governed by the Marine Safety section of Michigan’s Environmental Protection Act

Many Michigan boaters will be surprised to find out that the legal limit for Blood Alcohol Content (BAC) on the water is .10, as opposed to .08 on the roads.

Further, Zero Tolerance laws do not apply on the water as they do on the road. That means you cannot be charged for boating while intoxicated (BUI) if you have taken a prescription medication, and boaters under 21 are held to the same standards as adults.

All this might sound great and more lenient, but boaters should also take caution. When you’re out in the sun all day, just a few drinks could get you to that .10 threshold quickly if you don’t hydrate with water. And just like on the roads, there’s implied consent on the water. (Check out our Fraud Blog’s latest post on Implied Consent in Michigan: click here)

Under implied consent on the water, when you get behind the wheel of a boat you are considered to have consented to a BAC test. Even if you don’t take a breathalyzer test, you can still be detained and taken back to shore if you appear to be disorientated, confused, smell of alcohol, or were driving recklessly.

It’s also important to note that these laws not only apply to boats. Jet skis, kayaks, canoes, and any other type of water craft that can be used for transportation fall within the reach of these laws.

It is also unlawful for the owner of a vessel to allow anyone else to operate their vessel if that person is under the influence of alcohol or drugs.

The penalties for a BUI? 

• For a first conviction, up to 93 days in jail, 45 days of community service, a fine of up to $500, or any combination of those penalties.
• Another offense within seven years may lead to jail time up to one year, with a minimum of 48 hours of consecutive jail time, fines ranging from $200-$1,000, and up to 90 days of community service.
• Upon a third conviction within 10 years, a person will be guilty of a felony, saddling you with a punishment of no less than one year and up to five years of jail time, a fine of $500 to $5,000, or both.
• Enhanced penalties for causing death or disfigurement for another are sentences of up to 15 years and 5 years respectively. 

It’s important to note that a prior drunk-driving offense cannot be used to enhance a drunk-boating offense, and vice-versa. And while drunk driving offenses have a lifetime “look back” period for felonies, the drunk-boating look back period cuts off at 10 years.

So if you and your family head out on the water this summer, as many Michigan families do, boat safely and drink responsibly. A few Corona and limes on a nice summer day could get you into more trouble than you think if you’re not careful, even with a BAC limit of .10 on the water.

¹ Keeping Your Head Above Water in Drunk Boating Cases, Patrick Barone. https://www.michbar.org/journal/pdf/pdf4article1300.pdf

Open Carry & Police Stops in Michigan: Context Matters

Mark Mandell, Esq.

Young men adorned in black garb with rifles slung across their backs walking by a hospital are sure to raise some eyebrows, especially in the suburbs – but it’s not necessarily illegal if you’re over 18 in Michigan. But is it a violation of your constitutional rights if the police temporarily stop and disarm you to ensure you are not unlawfully carrying?

District Court Judge Robert H. Cleland recently handled such a case out of Sterling Heights, MI, and his answer was a resounding, “No” – it is not a violation of constitutional rights for police to temporarily stop you if they have probable cause to believe you might be breaking the law.

Sterling Heights police had received at least six phone calls from concerned residents about individuals who looked like teenagers, dressed in all black with sunglasses, and who were also openly carrying rifles and handguns. Police stopped the individuals, peacefully disarmed them, and then confirmed they were indeed over 18 and lawfully carrying. The guns were returned, and police went on their way.

However, following the incident, the two men who were stopped sued Sterling Heights, its police department, and several officers. They alleged that the officers violated their First, Second, and Fourth Amendment rights.

Judge Cleland sided with the officers. The police officers have what is called “qualified immunity,” whereby government officials are shielded from civil liability when actions performed in their official capacity do not violate “clearly established” rights. And the right to bear arms, like many rights, is not absolute.

In this case, the police officers also had probable cause to believe that the individuals were violating the law – specifically a Michigan law which prohibits people under the age of 18 from openly carrying firearms in public without supervision of an adult. Given their youthful appearance, and one call that refereed to the young men as teenagers, the officers were justified in stopping and searching the individuals to confirm their age.

The individuals who were stopped also alleged their First Amendment rights were violated and that their open carrying of rifles constituted speech. They referenced this year’s Memorial Day Parade where members of a group called Michigan Open Carry marched while carrying guns. However, the Open Carry group had registered in the parade and given prior notice that they would be open carrying, while these two individuals were simply walking the streets in all-black, foreboding attire.

In the words of Judge Cleland, the two were clearly, “trolling for confrontation.” But the overall point is that context matters, especially in lieu of recent mass-shooting events in suburbs where the perpetrators were wearing similar outfits. On the other hand, had these individuals been walking on a street in the UP during hunting season, they may not have had any second looks.

It is important to note that Michigan law does prohibit the carrying of firearms in certain locations, and private establishments can also prohibit firearms. If you are over 18, then you can open carry in some public spaces. However, depending on the circumstances and context, you may be subject to a search from law enforcement.

In the (colorful) words of Judge Cleland’s opinion:

“…in the contemporary reality of a settled, peaceful suburban environment, where most of the hunting is done between aisle three and the frozen food section, the sight of commandos with AK-47s marching along the highway predictably grabs the attention of citizens and law enforcement alike.”

If you have questions about your rights, you can contact Mark Mandell or Don Knapp with Fausone Bohn, LLP at (248) 380-0000. 

Fausone Bohn Scores a Win at Michigan Court of Appeals

Two years ago, then-Congressman Thaddeus McCotter of Michigan’s 11^th District got caught up in a petition fraud scandal that threw him off the ballot and led him to resign from Congress.

It also led to two of his staffers being charged with “conspiracy to commit a legal act in an illegal manner” – a felony. A team of lawyers at Fausone Bohn handled the matter successfully from the trial court all the way to the Michigan Court of Appeals.

The trial judge agreed that the Michigan Attorney General over charged in the case, and dismissed the conspiracy charges. The decision was upheld by the Court of Appeals.

A job well-done by attorneys Mark Mandell, Keith Madden, and Jim Pelland!

Read more on the case here: http://www.hometownlife.com/apps/pbcs.dll/article?AID=%2F201408061723%2FNEWS10%2F308060029

Are you in need of legal help? Our firm has a breadth of experience, from criminal law and family law, to business and corporate matters. Check out our website, www.fb-firm.com, to see if we can be of assistance to you. Or give us a call at 248-468-4536.