Operating

Operating the Boat for BUI Crimes

To understand what constitutes operating the vessel for purposes of BUI crimes, let us start by looking at Fla. Stat. § 316.193(1) imposes criminal liability for driving under the influence (DUI) and limits “operation” of a vehicle to those who:

are driving the vehicle; or
in actual physical control of the vehicle.

But what is required for boating under the influence (BUI) cases to show who is liable? BUI requires proof that a person was “operating a vessel within this state” while:

the person was under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
The person had a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
The person had a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

The term “operate” is defined in Fla. Stat. § 327.02(34) as follows:

“Operate” means to be in charge of, in command of, or in actual physical control of a vessel upon the waters of this state, to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

Attorneys for BUI Operating Defenses in Florida

For the last 20 years, the attorneys at Sammis Law Firm represent boaters accused of boating under the influence (“BUI”). BUI cases are difficult for the prosecutor. Most jurors don’t see the harms of operating a boat while drinking to be as serious as the harms of driving a vehicle while drinking.

When our attorneys take a BUI case, the first issue we investigate is whether the officers that made the arrest actually witnessed the person arrested “operating” the boat. If not, we file and litigate a motion to suppress.

If the officer did not see the BUI committed in his presence, then all evidence gathered as a result of the illegal detention or arrest can be suppressed including statement, the results of the breath, blood, or urine test, or the allegation that the boater “refused” the chemical test.

Did the Officer Witness the Defendant Operating the Boat?

In many of these cases, the arresting officer does not witness the person arrested for BUI to actually be behind the helm of the boat or otherwise directly controlling the navigation or operation of the vessel.

Instead, to establish criminal liability for BUI pursuant to Florida’s definition of vessel operation, the state might have circumstantial evidence that might include:

the defendant owned the boat
the defendant made statements that either: he was the captan or he was in command of the boat
no one else took responsibility for being in command
the defendant showed the officer the locations of safety equipment on the vessel, thereby indicating being responsible for the safety of the vessel

In State v. Burke, 33 Fla. L. Weekly Supp. 245a (Wakulla County, Case No. 25-MM-105, August 22, 2025) the court noted in a footnote:

“There is a dearth of case law in Florida regarding the issue presented in this case. The Court examined how other states defined operation of a vessel in the context of boating under the influence and found that (1) Florida has the broadest definition of “operate,” as most other states restrict operation to a person in actual physical control of a vessel, and (2) that even less case law regarding this issue exists in those states.”

Sufficient Evidence for Operation of a Vessel for BUI

Florida law provides that a person is guilty of the offense of boating under the influence if they operate a vessel while under the influence of alcohol to the extent that their normal faculties are impaired or have a blood alcohol level of 0.08g or more per milliliter of blood or 0.08g or more per 210 liters of breath. Fla. Stat. § 327.35(1).

Florida law defines a “vessel” as synonymous with a “boat” and includes every description of watercraft, barge, and airboat, other than a seaplane on the water, used or capable of being used as a means of transportation on water, without regard to the size of the vessel. Fla. Stat. § 327.02(46).

Florida Statute Section 327.02(34) has a broad definition of “operate” regarding a vessel. “Operate” includes five (5) separate definitions:

the person in charge of the vessel, or the person responsible at any given time for the operation of the vessel;
the person in command of the vessel, or the master, captain, or person with ultimate authority over the vessel;
the person in actual physical control of the vessel, or actually steering the vessel;
the person with control or responsibility for navigation and safety while underway, such as a navigator or pilot; and
a person controlling or steering a vessel while it is being towed by another vessel.

The analogous statute for driving under the influence (hereafter “DUI”) and prior BUI statutes that defined “operate.”

Previously, Florida defined “operate” to mean “navigate or otherwise use a vessel.” Fla. Stat. § 327.02(18) (1987).

The term “use” was held to be unconstitutionally vague, and the legislature amended the definition in 1988 to a person in the actual physical control of the vessel. State v. Corley, 558 So.2d 187 (Fla. 4th DCA 1990); State v. Kolacia, 558 So.2d 190 (Fla. 4th DCA 1990).

The definition of “operate” did not encompass situations where the navigator or pilot of a vessel could be impaired by alcohol or controlled substances and escape criminal liability because they did not physical steer the vessel.

The legislature could have continued the limitation of “operate” to be analogous to the DUI statute. They did not. The current definition of “operate” as cited above shows the legislature’s intent to broaden the definition of “operating” a vessel to distinct areas of responsibility outside of actual physical control.

Case Law on “Operating” a Boat for a BUI Prosecution

In Cardenas v. State, 993 So.2d 546 (Fla. 1st DCA 2008), the court noted that being a passenger on a vessel does not automatically make one an operator of the vessel and can be a valid defense to BUI.

In State v. Windham, 26 Fla. L. Weekly Supp. 53a (Fla. 10th Cir. 2017), Windham’s 13-year-old son was observed being in actual physical control of the personal watercraft the two occupied, with the defendant sitting directly behind his son directing his steering and navigation. The State also argued the Windham court considered the defendant’s handling of the safety check and improperly identifying safety equipment in its analysis of whether Windham “operated” the vessel as defined in Fla. Stat. § 327.02(34).

Public Policy Favors a Designated Operator on a Boat

As a matter of policy, the Florida legislature encourages designated operators of vessels and vehicles, and that an intoxicated person could be relieved of criminal liability if they allow a non-intoxicated person to be in actual physical control of the vessel, whether that person was authorized to operate the vessel or not.

This article was last updated on Friday, January 23, 2026.