Texas Boating While Intoxicated Lawyers

Texas has more lakes, rivers, and reservoirs than any other state in the contiguous United States, and law enforcement agencies (the Texas Parks and Wildlife Department, county sheriff’s offices, local marine units, and the U.S. Coast Guard) are active on the water throughout the season. A BWI arrest in Texas is prosecuted under the same statute and carries the same penalties as a DWI on the road, but the investigation that produces the evidence is conducted differently, the field sobriety tests are administered differently, and the defenses are different. Understanding those differences matters.

At Deandra Grant Law, Managing Partner Deandra Grant has been defending BWI and DWI cases across North and Central Texas for more than 30 years. She holds a Master’s Degree in Pharmaceutical Science and the ACS-CHAL Forensic Lawyer-Scientist designation. Partner Douglas Huff holds the same designation. The forensic science that underlies DWI blood evidence defense applies with equal force to BWI blood evidence.

Who Makes BWI Arrests in Texas

BWI enforcement in Texas is primarily conducted by Texas Parks and Wildlife Department (TPWD) game wardens, who have statewide jurisdiction on Texas waterways. County sheriff’s offices with marine units, municipal police departments operating on lakes within their jurisdictions, and DPS officers may also make BWI arrests. On navigable federal waterways, the U.S. Coast Guard has concurrent jurisdiction and can conduct stops, investigations, and arrests independently.

The agency that made the arrest matters because it determines which protocols governed the investigation, which officers are subject to cross-examination, and where the evidence was sent for analysis. A TPWD game warden conducting a BWI investigation follows different agency protocols than a county deputy or a Coast Guard officer, and the specific training and certification of the officer who conducted the field sobriety evaluation is directly relevant to the defense.

BWI Penalties in Texas

First BWI (Class B Misdemeanor)

Up to 180 days in county jail, fine up to $2,000. A first BWI is enhanced to a Class A misdemeanor — up to one year in jail and a fine up to $4,000 — if the operator’s BAC was 0.15 or above at the time of the offense.

Second BWI (Class A Misdemeanor)

30 days to one year in jail, fine up to $4,000.

Third and Subsequent BWI (Third-Degree Felony)

2 to 10 years in prison, fine up to $10,000.

BWI with a Child Passenger (State Jail Felony)

180 days to 2 years in state jail, fine up to $10,000. Triggered by any child under 15 in the vessel regardless of BAC.

Intoxication Assault and Intoxication Manslaughter

BWI that causes serious bodily injury to another person is intoxication assault is a third-degree felony. BWI that causes the death of another person is intoxication manslaughter is a second-degree felony carrying 2 to 20 years. Bentley’s Law (Art. 42.0375) applies to BWI intoxication manslaughter the same as it does to DWI intoxication manslaughter.

How a BWI Investigation Differs from a DWI

The Stop and Approach

On the water, officers do not pull over a vessel the way they pull over a car. Officers operating a patrol boat may approach a vessel for a safety inspection which Texas law and federal law authorize without reasonable suspicion of any criminal activity. This means the initial contact in a BWI case is often lawful even without the specific articulable facts required for a traffic stop. However, any detention beyond the scope of a routine safety check, and any investigation for intoxication, must still be supported by reasonable suspicion of criminal activity.

Field Sobriety Tests on the Water

Standardized field sobriety tests were not validated for marine environments.  The NHTSA-validated battery (HGN, Walk and Turn, and One Leg Stand) was developed and validated in studies conducted on dry land, with subjects standing on level, stable, non-moving surfaces. On a vessel, or on a dock immediately after a person has stepped off a vessel, those conditions do not exist. The normal motion of a boat produces vestibular disruption which is the same system the HGN and balance tests depend on. A person who spent several hours on a moving vessel may show nystagmus and balance impairment that has nothing to do with alcohol consumption, a phenomenon sometimes called “sea legs.”

Some officers use a modified marine sobriety protocol developed by the U.S. Coast Guard. Others use the standard NHTSA battery despite its inapplicability to marine conditions. In either case, the officer’s specific training and certification for marine sobriety evaluation is subject to examination and Deandra Grant, as a trained SFST instructor who administers and grades the ACS-CHAL Forensic-Lawyer Scientist exam and DUIDLA certification exams, brings the specific expertise to conduct that examination. She also has a chapter dedicated to Boating While Intoxicated in her book, The Texas DWI Manual.

Blood Evidence in BWI Cases

BWI arrests that involve a blood draw follow the same chain of custody and laboratory analysis process as DWI blood draws. The analysis is typically performed by a Texas DPS crime lab or another accredited forensic laboratory. The same issues that arise in DWI blood cases (sodium fluoride preservative adequacy, in vitro fermentation risk, chain of custody documentation, headspace GC methodology, and the gap between the time of the test and the time of operation) apply in BWI blood cases. The rising BAC defense  is equally available in BWI cases where the pharmacokinetic evidence supports it.