Highland Lakes BWI/DWI Task Force
Officials announced this week the creation of a BWI/DWI task force intended to curb and deter people drinking too much and boating in the Highlands Lake region this season. The focus will be to increase the law enforcement presence in order to make arrests for BWI and DWI. Participating in the task force are the Lower Colorado River Authority, Texas Parks and Wildlife department, the Burnet County and Llano County Sheriff’s Departments, the Texas Department of Public Safety, and prosecutors from Llano and Burnet counties. The areas for concentration will be Lakes Marble Falls, LBJ, Buchanan, and Inks Lake, and all roads and highways in between.
Most people are unaware that a Boating While Intoxicated is just as serious as Driving While Intoxicated Case. Both charges fall under the same Penal Code statute meaning, if you have a DWI conviction, and then are arrested for BWI, the subsequent charge is treated as a “second” offense enhancing it to a Class A misdemeanor. Not only is the potential punishment more severe, but also the statutory requirements for pretrial release (after you are bonded out of jail). These include an alcohol evaluation and potential classes, and most importantly, the Ignition Interlock Device to be installed on your vehicle. A third arrest following two convictions in any combination of BWI or DWI, is charged as a Third Degree Felony, carrying 2 to 10 years imprisonment in the Institutional Division of the Texas Department of Corrections. In other words, if you are ever arrested for Boating While Intoxicated, it is essentially the same as getting arrested for Driving While Intoxicated.
However, there are a couple minor differences. For instance, if you’re in your vehicle, a police officer must have a lawful reason to pull you over and seize you even if only momentarily. This is called “reasonable suspicion”. Reasonable suspicion requires police officers to observe you commit a traffic violation in their presence or have “reasonable and articulate facts that suggest a crime has been or is about to be committed”. Indeed, many DWI cases are thrown out for lack of reasonable suspicion to pull over a vehicle. In the BWI context, the law enforcement agency does not need reasonable suspicion to make contact with your vessel. Texas law permits the stopping of boaters for “safety checks” at any time. If you have ever been stopped on the water by a game warden or law enforcement officer, you know these safety checks are used to count your life vests, and to check your floatation devices and fire extinguisher. If you are arrested for BWI, the arresting officer will likely make contact with you during one of these completely legal “safety checks”.
Another key difference between DWI and BWI involves field sobriety testing. In a DWI investigation, once the officer has you exit the vehicle, he finds an immediate location and conducts FSTs on the suspect. The FSTs include the Horizontal Gaze Nystagmus (HGN) test, the Walk and Turn (walk the line) test, and the One Leg Stand (OLS). When you are suspected of BWI, typically the law enforcement agency will transport you to the shore, and then wait for short period of time prior to administering the FSTs. This is intended to give your “land legs” back after being on the boat, but depending on how long you have been in your boat and the sun, it may not be a sufficient amount of time. This is particularly true when you consider nervousness and unfamiliarity with the investigative process. Another difference between BWI and DWI worth mentioning is the lack of a video in a BWI case. Some agency boats carry cameras, but many or most do not. In most DWI cases, we have an officer’s in-car video recording of the events to corroborate or impeach his version of the events. This luxury is not present in most BWI cases.
Be careful in your boats this spring/summer out on the Highland Lakes, there will be more law enforcement present than in years past. If you or someone you know is arrested on Lake LBJ, Marble Falls, Buchanan, or Inks Lake, contact me right away so we can get to work defending your rights.