Minnesota Boating While Impaired (BWI)
In the spring, summer, and fall, Minnesota is a paradise for fishing, water sports, and boating enthusiasts. However, with the pleasures of boating come responsibilities and legal obligations, particularly concerning Boating While Impaired (BWI) (sometimes referred to as “Boating While Intoxicated”). Similar to driving under the influence (DUI), a BWI is a serious offense with potentially severe penalties, both criminal (jail, fine) and civil (license revocation, boat forfeiture). This article discussed the various BWI laws in Minnesota, the implications of a BWI charge or charges, and the importance of having a competent, experienced BWI lawyer in your corner from the very start.
Understanding BWI Laws in Minnesota
Minnesota’s BWI laws are arguably enforced more rigorously than DWI laws on Minnesota’s roads. This is probably because of the nexus between boating and drinking, but also because there are often specific task forces from various police departments and sheriffs offices tasked with interdicting and investigating BWI offenses throughout Minnesota. In other words, while law enforcement are on the watch for impaired drivers, they are even more on the watch for impaired boaters.
The laws on BWI in Minnesota are similar to the laws on DUI/DWI. In fact, the crime of BWI stems from the existing DWI laws, and extends the laws on DWI to “motorboats in operation.” Before discussing “motorboats in operation,” we should first define what a motorboat is. After all, if the vessel that a person is operating or in control of does not meet the legal definition of “motorboat,” then a person cannot be convicted of BWI in the first place.
“Motorboats” and “Motorboats in Operation”
Minnesota law defines a “motorboat” as “a watercraft propelled in any manner by machinery, including watercraft temporarily equipped with detachable motors.” This definition is quite broad, and is intended to include all kinds of boats that are moved about by machinery in any manner. This would even include a boat being moved by something as small as a trolling motor.
Unlike the definition of motorboat, Minnesota law defines a “motorboat in operation” by what it is not. Specifically, a motorboat in operation “does not include a motorboat that is anchored, beached, or securely fastened to a dock or other permanent mooring or a motorboat that is being rowed or propelled by other than mechanical means.” As can be gleaned from this definitional language, it is possible to be charged with a BWI offense while seated at the wheel or controls of a stationary motorboat. This is because the BWIs are prosecuted as DWIs (the definition of a motor vehicle includes a motorboat in operation). Because of this, a person at the controls of a motorboat on the open water can be charged with a BWI for merely being in “physical control” of the motorboat. If the motorboat is not anchored, beached, or securely fastened to a dock or other mooring, it is possible to be charged with BWI for simply sitting at the controls of the boat, even when the motor is not running.
Law Enforcement on the Water – First Contact
Make no mistake, BWI laws are strictly enforced on Minnesota’s waterways. Police and sheriffs patrols are very active with respect to enforcement, and are constantly on the lookout for the slightest infraction in order to come into contact with boaters. There are scores of laws governing the operation of watercraft, including lighting and equipment requirements, rights-of-way, no-wake laws, and a vast number of other duties and responsibilities that are on the books. The Minnesota Boating Guide, published by the Minnesota Department of Natural Resources, is 60 pages long, and has many of these laws indexed and explained. 
Take this illustration from the guide. These renderings and the associated information depict the lighting requirements applicable to the average speedboat or pontoon. Many boats are manufactured to comply with most states laws, but state laws can differ, and boat owners and operators will not be excused from equipment or lighting violations simply because they purchased a boat and didn’t know any better. Law enforcement patrolling the water know these laws like the back of their hand, and they are eager to pull up alongside any boat that is not in conformity in order to make contact with its operator. Once they do, if there is evidence of alcohol use, they will likely attempt to expand their activity into a BWI investigation.
There are numerous other ways that law enforcement may come into contact with boaters in their efforts to investigate BWI offenses. Most of the popular metro-area lakes, such as Lake Minnetonka, White Bear Lake, Eagle Lake, Prior Lake, Medicine Lake, Lake Waconia, as well as the Mississippi and St. Croix Rivers, are highly regulated with regard to speed, wake, navigation, and rights-of-way. Anyone who has boated knows just how easy it is to run afoul of the signs and markings directing boaters in their course and speed of travel. Various buoys and signs are easily mistaken. For example, a person might easily mistake a keep out buoy for a danger buoy, and enter a prohibited area by mistake. The same could occur with shore and mid-channel buoys. Any violation, however slight, of waterway markers will provide the basis for patrol officers to make contact with a boater. This is common on Lake Minnetonka, which is discussed below as an example.
The Lake Minnetonka Conservation District
Lake Minnetonka is one of the busiest lakes in Minnesota. In 1967, the Minnesota Legislature created a regional governmental agency, known as the Lake Minnetonka Conservation District (LMCD), to regulate Lake Minnetonka’s use and to develop a comprehensive plan to eliminate pollution. In 1977, the LMCD entered into a formal partnership with the Hennepin County Sheriff’s Office to provide law enforcement services on Lake Minnetonka. The Sheriff’s Water Patrol Unit provides law enforcement services on Lake Minnetonka, including uniformed patrol boats tasked with ferreting out BWI crimes in all of the many bays, channels, and launch sites on and around the lake. It is commonplace to see Sheriff’s Office water patrols on the lake, and they are very active in enforcement.
As of January 1, 2023, boats are required to abide by a five-mile-per-hour speed limit within 300 feet from shore on Lake Minnetonka. Additionally, boats must abide by this same speed limit within 150 feet of docks, anchored boats, swimmers, and scuba divers’ warning flags. This new “buffer distance” applies to all watercraft on Lake Minnetonka, including personal watercraft, such as jet skis.
In an effort for public awareness, the LMCD installed distance buoy markers at the Cook’s Bay public launch at Surfside Park to help you test the public’s skill at ascertaining distance.
It goes without saying that assessing specific distances of 150 and 300 feet on the open water in a moving, or even idle, watercraft would be a difficult task. And the above map does not do justice to the full scope of obligations, because it only represents the buffer zones that remain static, namely, the shoreline of the lake. But the 150-foot buffer distance law applies to all watercraft within 150 feet of docks, anchored boats, swimmers, and scuba divers’ flags. Despite best intentions, it is foreseeable that any given boater could run afoul of the buffer distance law by traveling too quickly past a boat before realizing it is anchored, or traveling in excess of five-miles-per hour 140 feet (instead of 150 feet) from a dock. Doing so would provide law enforcement with a basis to conduct a temporary detention for violation of this new ordinance.
One of the problematic features of the buffer distance law on Lake Minnetonka is that it vests law enforcement with far greater opportunity to stop boats on the water than cars on the roads. To effectuate a stop of a car or boat, an officer needs to have either a reasonable suspicion of criminal activity, or probable cause of a crime or traffic/boating law violation. In the instance of a car on the road, an officer will be justified if, for example, a vehicle fails to maintain a single lane and travels over the center line or fog line of its lane of travel. In such a case, an officer will observe the prohibited conduct, which will include the tires of the car going onto or over the line, in violation of the law. Additionally, the driving conduct is often captured by squad video, leaving little to dispute about the veracity of the officer’s observations. None of this can be said about an officer on the water pulling a boat over for appearing to travel too fast near or in a buffer distance area. And under existing law, so long as the officer reasonably believes he perceives a violation, the stop of a boat will survive challenge in court. What we are left with is a situation in which it is much easier for officers to stop boats on the water than vehicles on the street.
Legal Penalties for BWI
The penalties for a BWI conviction in Minnesota largely mirror those for driving while impaired offenses. Under existing law, the charges range from misdemeanor to felony, and the potential sanctions range from probation to imprisonment. We have previously written about the different degrees of charges, aggravating factors, and the various civil consequences of DWI offenses, such as license revocation, license plate impoundment, and forfeiture. That article is available here.
Examples of Defense Strategies for BWI Charges
At our law firm, we pursue a robust defense strategy in every BWI case. This begins with a comprehensive review of all of the prosecutor’s evidence, including police narrative and incident reports, body worn camera recordings, other audio and video recordings, and a host of information and material related to the testing device used in obtaining the sample of a client’s breath, blood, or urine specimen for testing. No matter what type of test was taken, we ensure that we receive all of the additional evidence and material from the testing laboratory (most often, the Minnesota Bureau of Criminal Apprehension) in order to review whether challenges can be made to the type of testing utilized.
We take the position that no two DWI or BWI cases are the same. And we also take the position that every case is defendable, whether on a pretrial basis, or at trial. We are not afraid to take cases to jury trial, and regularly do. Below are examples of two common defenses that may be raised as part of a BWI defense strategy.
Challenging the Stop and/or Arrest
A key aspect of defending against BWI charges is examining the circumstances of the stop (or boat detention) and arrest. Law enforcement officers must have a reasonable suspicion of criminal activity, or probable cause, to legally stop your boat. As alluded to above, reasonable suspicion may arise from any number of observations made by an officer with respect to a boater’s conduct, whether it be erratic driving, speeding in a slow or no-wake zone, failure to have proper lights illuminated, or other operating conduct or offense. If an officer does not have the required reasonable articulable suspicion or probable cause to justify the stop of your boat, you can rest assured that we will make the appropriate legal challenge. We have had great success in the past litigating pretrial constitutional issues, and we are ready and prepared to do so in your case.
In addition to challenging the stop of your boat, it may be possible to challenge the officer’s arrest decision. In order to arrest a person for a BWI, an officer must possess probable cause that the arrested person committed the crime for which the arrest is being made. This decision often includes conclusions the officer may have made during the course of field sobriety tests, which may be difficult to administer on a boat. Unlike the traditional car-based DWI situation, a person on a boat likely cannot undertake to perform the nine-step walk-and-turn test, nor the one-legged stand test. Field sobriety tests on a boat may include the horizontal gaze nystagmus test, the finger to nose test, and/or a reverse alphabet test. All of these tests are subject to scrutiny and challenge. Our attorneys meticulously review the the reports by officers and any available audio and video evidence to identify areas where legal challenges can be made.
Challenging Breath Test Results
Maintenance and Calibration Issues
The reliability of scientific testing is another critical area of defense. Minnesota uses the DataMaster DMT-G breath-testing instrument for evidentiary breath-testing in BWI cases. The instrument must be properly maintained and calibrated to provide accurate results. Any deviation from standard maintenance or testing procedures can (and will) cast doubt on the reliability of results. Blood and urine tests also require strict adherence to handling and processing protocols. In the case of breath tests, we request maintenance and use records directly from the Minnesota Bureau of Criminal Apprehension, along with data demonstrating the varying certainties of measurement that accompany any given breath-test result. These items may assist in challenging the accuracy and reliability of testing in your BWI case.
Issues Arising from Human Error
In addition to maintenance and calibration issues, human error is another factor that can compromise the reliability of the DataMaster. Operators must be adequately trained to administer the tests correctly and understand the machine’s operational functions and prompts. Mistakes in the testing process, such as improper breath sample collection or failure to follow procedural protocols, can result in inaccurate readings. For example, in any breath-test administration, an officer is required to perform an observation period of a suspect before taking the two, required samples of the person’s breath. The observation period is meant to avoid situations where a person burps, belches, or vomits, thus introducing alcohol into their mouth which can impact the test results. During the observation period, an officer is supposed to keep a suspect in their field of vision to look for signs of burping or belching, or to see if the person places anything in their mouth. In reality, officers are usually busy with a computer and tasks related to computer data entry prior to the breath test. If an officer fails to conduct the required observation period, the entire test can be invalidated. This is one example of human error in the testing process.
Environmental Factors
Environmental factors and conditions can also impact the accuracy of the DataMaster. Factors such as temperature, humidity, and the presence of interfering substances can affect the machine’s performance. For example, volatile substances like paint fumes or certain chemicals can potentially skew results. Radio frequency interference can also play a role in effecting the accuracy of test results. Ensuring a controlled testing environment is critical, but this is not always feasible in real-world scenarios.
While the DataMaster remains a crucial tool in BWI enforcement, its reliability is guaranteed. Each DataMaster used must be scrutinized on a case-by-case basis. Calibration and maintenance, operator competence, environmental factors, and technological limitations all contribute to the potential for error.
Steps to Take If You Are Charged with BWI
Contact an Attorney. Time is of the essence in building a strong defense. An experienced criminal defense attorney who focuses on BWI cases can provide critical guidance and representation.
Document Everything. Keep detailed records of the incident, including the events leading up to the stop, the interaction with law enforcement, and any tests administered. We will ensure that copies of all reports, recordings, videos, and other information is received and reviewed, but we are always interested in hearing additional details and information from our clients.
Ask Questions and Follow Our Advice. Questions are good. We are here to answer them. We give each client our attention and we never lose sight of the fact that we have been chosen by someone to help them through a particularly difficult period of their life. We are here for you, as legal counselors and advocates, and as a steady hand throughout the court process.
Lundgren & Johnson | Minnesota BWI Lawyers
Boating while intoxicated is a serious offense in Minnesota, and depending on the circumstances, can carry signficant criminal and civil consequences. Retaining a competent BWI attorney with a proven track record of success is crucial for both the short term and long term gains that can be enjoyed by ensuring that the best outcome is reached. Our attorneys are passionate about their work, and we treat each case as if it is our most important. Our client testimonials are a testament to the hard work we put in to all of our cases. If you have been arrested for a BWI anywhere in Minnesota, feel free to contact our office for a free, no obligation consultation today.