Ohio’s waterways, from Lake Erie to the Ohio River and every reservoir in between, are popular destinations for recreation. However, just like on the road, operating a vessel while impaired is a serious offense.
If you have been charged with Operating a Vessel Under the Influence (BUI) under O.R.C. § 1547.11, you are facing a complex legal battle that involves different science, different police protocols, and different laws than a standard drunk driving case.
Under Ohio Revised Code Section 1547.11, no person shall operate or be in physical control of any vessel underway, or manipulate any water skis, aquaplane, or similar device, if they are under the influence of alcohol, a drug of abuse, or a combination of them.
Similar to an OVI in a car, Ohio sets strict "per se" limits for alcohol and drugs. You are considered legally impaired if your chemical tests show:
The law also sets specific "per se" limits for controlled substances, including Amphetamines, Cocaine, Heroin, LSD, Marijuana, and Methamphetamine.
While the legal limits are the same, defending a BUI is fundamentally different from defending an OVI. The primary difference is the environment.
On the road, officers look for bad driving. On the water, boats naturally weave, drift, and rock due to wind, current, and waves. Furthermore, after spending hours on a boat, a person develops "sea legs"—the body’s natural adaptation to constant motion. When that person is brought to shore, their equilibrium remains affected for a period of time.
A BUI conviction is a first-degree misdemeanor, carrying mandatory jail time (minimum 3 days) and significant fines. However, unlike an OVI, a BUI conviction generally does not result in the automatic suspension of your driver’s license for operating a car, though it can result in the suspension of boating privileges and impoundment of the vessel.
Because standing balance tests are scientifically invalid on a boat (and often on a floating dock), marine patrol officers are trained to use a different set of tests known as the NASBLA Seated Battery.
These tests were developed to check for cognitive impairment and fine motor skills without relying on the suspect's balance. However, the scientific reliability of these tests is significantly lower than the roadside tests used for cars.
Overview: This is the only test shared between BUI and OVI investigations. The officer checks for an involuntary jerking of the eyes (nystagmus) as they track a stimulus (pen or light) side-to-side.
Procedure: The test is administered while the suspect is seated. The officer looks for three clues in each eye:
Accuracy: Research indicates this test is 80% accurate at detecting a BAC of .08 or higher in a marine environment.
Overview: Adapted from drug recognition protocols, this test checks for coordination and the ability to follow complex instructions.
Procedure: The suspect must sit with feet shoulder-width apart, make fists with index fingers extended, tilt their head back approximately 45 degrees, and close their eyes. They must touch the tip of their nose with the tip of their finger in a specific sequence commanded by the officer (Left, Right, Left, Right, Right, Left).
Potential Clues:
Accuracy: Research shows this test is only 65% accurate.
Overview: This test divides attention and checks for timing and coordination.
Procedure: The suspect extends one hand palm up and places the other hand on top, palm down. They must alternate patting the bottom hand with the top hand, rotating 180 degrees (Palm-to-Palm, Back-of-hand-to-Palm) while counting "One, Two, One, Two..." The officer will instruct the suspect to increase their speed.
Potential Clues:
Accuracy: Research shows this test is only 57% accurate. This is barely statistically better than a coin flip.
Overview: This is essentially a "seated" version of the Walk and Turn, testing short-term memory and sequential task processing.
Procedure: The suspect places their left fist at the center of their chest and the right fist against the left. They must perform four distinct tasks:
Potential Clues:
Accuracy: Research shows this test is only 52% accurate.
The statistics above reveal a critical weakness in BUI prosecutions: The physical tests used to arrest boaters are scientifically weak.
If the HGN (eye test) is challenged and removed from evidence, the remaining battery of tests (Finger to Nose, Palm Pat, and Hand Coordination) has a combined accuracy of only 76%—and individually, they are even lower.
At Brian Smith Law, we understand the specific NASBLA protocols that officers must follow. When reviewing body camera footage, we conduct a rigorous, step-by-step analysis to challenge every aspect of the state's case, scrutinizing whether the officer strictly adhered to the mandatory NASBLA protocols for seated sobriety tests—including verifying the subject's stability and proper seating position, confirming the precise administration of the Horizontal Gaze Nystagmus test from stimulus height to timing, ensuring the Finger to Nose test was instructed and performed exactly as required, and evaluating the Palm Pat and Hand Coordination tests for accurate instructions and clue identification, identifying any deviation to challenge the validity of the arrest.
If you have been charged with a BUI, you need an attorney who understands the science of the water. Contact us today for a consultation.
