Troubled waters

Attorney helps decipher the new BUI laws

By Debra Talcott
Legal News

During prom and graduation season, high school students receive reminders about the perils of drinking and driving from national groups such as Mothers Against Drunk Driving (MADD) and Students Against Destructive Decisions (SADD). All drivers see television ads that underscore the point that drinking and driving don't mix. What is less often discussed, however, are the laws regulating the consumption of alcohol by operators of watercraft.

Attorney Patrick Barone, CEO and founding partner of Barone Defense Firm in Birmingham, hopes Michigan's waterways will be safer than in previous years now that the state legislature has adopted stricter boating under the influence (BUI) laws. The laws took effect in January and mirror Michigan's drunk driving laws, which set the legal limit for blood alcohol levels while operating watercraft at 0.08 percent, the same as for operating a motor vehicle. Under the old laws, the level for intoxication was 0.10 percent, and the level for impairment more than 0.07 percent.

On the heels of National Safe Boating Week, Barone, whose firm exclusively represents clients charged with Driving Under the Influence (DUI), wants to increase public awareness about safe boating, public safety risks associated with impaired boating, and the legal consequences anyone charged with BUI could face. According to statistics for 2013 provided by the Safe Boating Campaign, the U.S. Coast Guard reported 4,062 boating accidents, which resulted in 560 deaths, 2,620 injuries, and $39 million in property damage. It was determined that alcohol use was the cause of 236 of those accidents, which resulted in 75 deaths and 187 injuries.

"Operating a motor boat is a divided attention task, and even a small amount of alcohol can impact this ability. And, because Michigan's waterways are so busy during our short summer season, a boating accident can have a high human cost," says Barone, who grew up water skiing and power boating on Walnut Lake in West Bloomfield.

Now the owner of both a power boat and a sailboat, which he keeps on Mullett Lake, Barone says Michigan's lawmakers have taken safety seriously in an effort to ensure that our waterways continue to offer some of the best and safest summer recreation in the country.

Barone is the author of two books on drunk driving defense, "Defending Drinking Drivers" and "The DUI Book-A Citizen's Guide to Understanding DUI Litigation in America."

"My book, 'Michigan DUI Law,' contains a chapter on drunk boating, and I've previously authored an article on this topic in the December 2007 publication of the Michigan Bar Journal. That article is titled, 'Keeping Your Head Above Water in DUI Boating Cases: A Lawyer's Guide to Michigan's Drunk Boating Laws.'"

The most noteworthy changes since Barone's article are that the new laws significantly change what kinds of boats or "vessels" are covered, and the definition of intoxication is almost completely different.

"Gone is the 'old' or pre-1999 structure and definition for intoxication, including all of the presumptions. This old definition of intoxication is replaced with the relatively straightforward 0.08 limit. Because there is no longer a presumption that a person is not impaired if below 0.07, a person can be convicted of intoxicated boating for alcohol levels well below the so-called legal limit. If the prosecutor can show that a person's ability to operate a motor boat is significantly lessened at say a 0.05, then that person is guilty of drunk boating. The concept that a boat operator can be intoxicated by drugs-prescription or illegal-also was incorporated, again bringing the law in concert with that applicable to automobiles and other motor vehicles. Also, there is now a zero-tolerance provision for alcohol use by under-21 motor boat operators."

Barone says the new laws apply to far fewer sorts of watercraft. The wording no longer includes the very broad term vessel, which could have included canoes, kayaks, and even inner tubes. Now the laws apply only to motorboats. Although the new laws apply to fewer types of boats, the penalties are stiffer for intoxicated operation.

"I suppose you could say there was a bit of give-and-take here," says Barone, "because the penalties for drunk boating are much more like those applicable to the intoxicated operation of a motor vehicle on the roadways. What hasn't changed are the laws and penalties applicable to the most serious cases, those involving the intoxicated operation of a motor boat causing death or serious injury. These felony charges are still punishable by up to 5 years in prison."

If an adult or minor is cited for BUI, Barone says his best advice is to seek the assistance of an attorney who specializes in this area.

"Just one moment of bad judgment can change everything, leaving you in a position to have to fight very hard to win back your life."

Barone explains the many nuances in the intoxicated boating laws that can make these cases what he calls "very defendable."

"These defenses and nuances are in addition to the more traditional legal or even scientific defenses that might apply. For example, the definition for operation of a vehicle on the highway or place generally open to the public is significantly different from the definition of operation ("being underway") applicable to a motorboat."

In a motor vehicle it is illegal to be intoxicated and sit in the driver's seat while the vehicle is running, even if it is in park.

"However, as long as a motorboat is not 'underway,' then it is irrelevant if the person in control is intoxicated. Further, in a motor vehicle, you must be physically in control of the vehicle to be operating, whereas in the case of a motorboat, merely being in charge of the vessel may subject you to prosecution for intoxicated operation. To be successfully prosecuted, however, the motor boat must be underway, which now means that it is being propelled by mechanical means."

When he was in law school at what was then Detroit College of Law (now Michigan State University College of Law), Barone intended to do patent litigation that would combine his undergraduate biology/premedical studies with the practice of law. His first job after passing the bar was in a law firm handling the defense of medical malpractice cases.

"However, I left there and struck out on my own in 1992. After handling a small number of DUI caes, I quickly realized the value of a science background when trying to understand and defend a breath or blood test ostensibly over the legal limit. This came from my studies of human physiology and the hard sciences of chemistry and physics. These science courses are also applicable to the pharmacokinetics of alcohol and drugs, which is just a fancy way of saying the metabolism of alcohol and drugs. An understanding of these topics is also very important to the effective defense of these cases."

Barone says his pursuit of a legal career was not inspired by any one person but rather by his interest in philosophy during his undergraduate days. However, he has fond memories of the thoughtful discussions he had with his supervisor while working and going to school.

"I worked at the old record store, Harmony House, and the store manager had an undergraduate degree in philosophy. We would talk about various issues when there were no customers in the store, and this lead to further interest in the subject. So I studied the philosophy of science and, more broadly, the great worldly philosophers, such as Kant, Hegel, and Marx; but I was far more interested in and captivated by the objectivist philosophers, such as Thomas Aquinas, Karl Popper, and Adam Smith. Eventually, I decided to forego medical school and pursue law."

At that time, Barone could not have predicted that he would one day employ five lawyers (and be looking to hire another) or that the Barone Defense Firm would become one of the largest law firms in the country dedicated exclusively to the defense of intoxicated drivers, including those cases involving serious injury.

"We are also one of the only criminal defense firms in the state with three Super Lawyers on staff."

An adjunct professor at the Auburn Hills campus of Cooley Law School, Barone teaches the course on Drunk Driving Law and Practice. Although he and his wife and their two daughters enjoy sailing, boating, and cycling up north as well as traveling outside of Michigan, he says his favorite hobby is still the one he engages in on a daily basis at his law office.

"That is where I try to fulfill the firm's mission statement-to win our clients' lives back."

Published: Thu, Jul 02, 2015

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