Anchors Away......BWI and "Operating"
February 08, 2005, 15:13R. Scott McKee
Anchors Away......BWI and "Operating"
I have a BWI coming up where my defendant admits to drinking and does poorly on all FSTs after the 15 minute waiting period. His defense is that he was "anchored" and not "operating". Has anyone dealt with this issue or something similiar where the defendant is not actually running the boat? I have not dived into Lexis yet hoping someone out there has any experience on this issue.
February 08, 2005, 15:27A.P. Merillat
Shoot, it sounds like you're already there, Scott -- he says he was drinking, but was anchored. Evidently his boat was in mobile-mode, or the police wouldn't have stopped him. If he was "anchored" how was his boat moving? Now, if he was noodling, his boat probably was anchored, but at the same time he would have a built-in Penry defense, according to the pictures in the other thread.
February 08, 2005, 15:38R. Scott McKee
The officer did not see the watercraft in motion. He observed it from the bridge without the proper lights.
February 08, 2005, 17:08P.D. Ray
Are you in trial or negotiation for a plea offer?
If you're just posturing with the defense attorney, ask to see his paddles he'd planned on using to get himself around. Is the attorney seriously suggesting that the defendant drove out to a spot, dropped anchor, got sloshed, then intended to wait until he was sober to motor back?
None of my questions are really relevant if you're preparing for trial. If you're seriously going to argue the case, you sohuld consider that a car on the side of the road with the motor running is still 'operating'.
Was the engine on and in idle when the officer approached the watercraft?
February 09, 2005, 08:21R. Scott McKee
It is going to trial- and no the engine was not running. If he has all of his proper safety equipment, he probably should have paddles anyway. I figured I would have to argue that comon sense would tell us that he got there somewhow and he planned on getting home somehow. Basically the same argument you presented in your reply. Just testing the water to see if anyone had any luck on a similiar situation.
February 09, 2005, 08:59WHM
The boat is going to be a "watercraft" whether he has a motor or paddles. You're guilty of BWI simply by "operating" a "watercraft." The argument is going to be whether sitting in a boat qualifies as "operating" the boat. It seems to me that if he is the only one in the boat, then he must be "operating" it. If he wasn't, then the boat would be drifting with the current. Granted, you may have a problem with some jurors disagreeing with this definition, but I think you should be able to get past a directed verdict, and jurors with common sense should buy your argument. (Now the question is, do you HAVE any such jurors available?)
February 09, 2005, 09:01Neel McDonald
"Motored out, got drunk, gonna spend the night on the boat." You gotta know that the story is going to go something like that. I'd be worried that even if you did manage a conviction with no evidence of "operation" will it survive? Is there no evidence from any source of when he put the boat in?
February 09, 2005, 10:37R. Scott McKee
I am of the opininion that "operating" includes more that just driving the boat. As long as the boat is not moored to a dock someone is operating the boat. A floating boat is in constant motion and someone has to ensure that the current doesn't cause the boat to drift into another boat, the shore, etc. There are also other things that must be maintained including turning the lights on after dusk, checking battery status, and most important of all- keeping a steady supply of ice in the cooler- for the fish of course!
February 09, 2005, 10:39Ken Sparks
There is no proof that he was intoxicated while operating the boat.This case is no different from a person found in a parked car without the motor runnning and no evidence as to how long he had been parked to show he was intoxicated when he was operating the vehicle.
February 09, 2005, 10:46R. Scott McKee
I agree with that Ken, but what about my argument above on the definition of "operating". Do you think that survives directed verdict, especially when considering the definition of watercraft?
February 09, 2005, 11:09A.P. Merillat
Since the police were observing the boat from a bridge, the lights were off, etc. I wonder:
1) How did the D know to go to the shore and be questioned? I realize if he was simply anchored and chilling until he sobered up so he wouldn't be breaking the law, that in response to the cops' order to move to the nearest bank, then he was probably told to operate his boat while intoxicated;
2) Did the law folks watch him until he cranked up and went to the shore, then approach him and do the FST? If so, then he did "operate" as in "navigate" his boat to where ever he was confronted.
3) Did he see the cops, and try to get away, and that's how the police caught up w/ him?
4) While watching the guy from their vantage point, did the cops think, "He looks drunk, and he looks to be operating a boat?"
February 09, 2005, 11:23R. Scott McKee
From the bridge..I mean from under the bride in their own boat. They notice he does not have the required all around white light. Officer approaches boat in his boat and conducts watersafety inspection and notices the standard smell of alcoholic beverage.
February 09, 2005, 11:23P.D. Ray
You have a significant problem. You have to show the operation and the intoxication happening at the same time.
Your only shot is the loose definition of operation. I'd take the aforementioned description of operating and relate it back to a canoe. If you're intoxicated and paddling along, you're still BWI. The difference between a motor vehicle and a watercraft is quite clear: a watercraft is still in motion and dangerous if it is not under power. Surely the court doesn't anticipate proving that the defendant was actively sweeping their paddle through the water to maneuver the vessel. So, coasting or maneuvering must be equivelent with watercraft.
Adrift = operating.
Anchored? Well, that's an attempt to alleviate responsibility for the craft in motion by delegating operation to an inanimate cord/chain and anchor. Anchors fail all the time. Most often because of poor deployment. Anchors do not completely halt motion of the boat. The operator is still responsible for the craft if it drifts while anchored.
I'd look through the boaters safety course and other related materials for a definition that requires the operator of the vessel to maintain responsibility for the vessel even when anchored.
Either way, you'd lose if I was on your jury. No offense meant, but I'd have a hard time convicting a guy who got drunk and had the sense to try and park himself.
February 09, 2005, 11:44R. Scott McKee
I tend to agree with you Phillip that even if we survive a directed verdict we still have to convince a jury (in a county with a heavy lake population) that this is serious enough to warrant a guily verdict. My fear is nullification or their calling BS on my definition of operating. Either way I appreciate all the responses and will follow-up with the end result of all of this.
February 09, 2005, 12:14Martin Peterson
Aren't these situations (when parked cars are involved) normally handled by just charging the offense as a PI? Why is this case so different?
June 14, 2005, 15:25Boyd Kennedy
Can we have an update? Has the case been disposed of?
I just found your question, so this may be too late. The BWI law used to be located in the Water Safety Act (Ch. 31, Parks and Wildlife Code). That Act defines "operate" as "to navigate or otherwise use a motorboat or a vessel." If the court saw fit to borrow this definition, it might be helpful. P&W Code Sec. 31.003.
June 16, 2005, 14:33R. Scott McKee
This was a particular rewarding win since we had no tape or breath or blood. The defense attorney did argue on a motion for a directed verdict that we had not proved that the defendant operated the boat, however, on cross examination he admitted to me that he was the captain of the boat, not anchored and had to start the boat periodically to keep from drifting into the bridge. Then the blankety blank defense attorney wanted the Blacks law defintion of operate in the charge, but we prevailed with the correct and legal definition of operate which can be found at 724.001 of the Trans. Code which states Operate means to drive or be in actual control of a motor vehicle or watercraft. I guess control can mean alot of things, but this defendant was certainly in control when he started the engines to move away from the bridge, and I would argue that if he is anchored anywhere in open water, he is also in control.
Why did they put the defendant on the stand? W/o knowing anything more than what we've seen thru these posts, I would think he would have had a shot up until such time as the Def. admits to operating, no anchor, etc.
Congrats on the V.
June 17, 2005, 12:02P.D. Ray
I stated earlier I'd have a very hard time convicting on what we'd been told, but the 'starting and stopping' to avoid the bridge would have sealed the deal for me.