Georgia Boating Under the Influence Issues

Boating under the influence can be very serious, and it includes the same risks of injury and death that are associated with driving under the influence.  The court consequences can be very serious as well, although BUI does not currently bear any driver's license consequences.

The Basics

The conduct involves the operation, navigation, steering, or driving of any moving vessel or the manipulation of any moving water skis, moving aquaplane, moving surfboard or similar moving device.

This conduct occurs while the person is under the influence of:

• alcohol to the extent that it is less safe for the person to engage in such conduct
• any drug to the extent that it is less safe for the person to engage in such conduct
• a combination of alcohol and any drug to the extent that it is less safe for the person to engage in such conduct
• alcohol and has a BAC of .10% or greater (for 21 years of age or over) or .02% or greater (for under 21 years of age)

The code section OCGA 52-7-12 still includes a provision relating to mere presence of marijuana in the person's system.  This subsection is unconstitutional for the same reasons as in DUI cases.  The Love case litigated several years ago by Jessica Towne and David Clark resulted in that finding.

The code section also includes similar language to the DUI statute seeming to set a different, i.e. higher, standard for prescribed medications.  The case law has collapsed the distinction between these two standards for DUI cases, and the same analysis would probably apply in boating cases.

It should be particularly concerning that this statute embraces many things which most people would not consider to be boating, such as water skiing.  And, if water skiing qualifies, various other towed items, such as bananas, toboggans, or tubes, may qualify as well if the person is doing anything, dragging feet, pulling up on the float, or other actions, which might be considered as directing or manipulating the item.

The Stop

The first issue is whether the officer had articulable suspicion to stop the vessel.  There is very little case authority on this issue.  An officer seeing a boat operator with a beer can in his hand when the boat is being operated safely does not give articulable suspicion to stop the vessel.  

Officers will sometimes take the position that they are authorized to stop the vessel pursuant to the general authority of OCGA 52-7-25 to stop and board a vessel to inspect the vessel and determine compliance with the article -- Article 7 of Title 52.  

There is almost no guidance on the limitations of this statute.  It is almost certainly the case that boaters' constitutional rights do not end when they embark on a boat trip.  The Georgia Court of Appeals has gone so far as to state that DNR rangers can stop any boat without articulable suspicion.  

Implied Consent

Any person who operates a vessel on the waters of this state is presumed to have consented to a state chemical testing.  When an officer confronts a person with a charge of BUI, the officer is required to read an implied consent notice to the person in order to trigger the state chemical test.  It is the officer's choice of which test.  Generally, this means blood, breath or urine testing, or some combination of these tests.  

If the person is unconscious or dead or otherwise incapacitated, the officer can proceed with testing without the implied consent notice, if there is probable cause to make the charge.

Nolo Contendere Pleas

Nolo contendere means "no contest."  By entering such a plea, the person does not admit the conduct, but the person agrees to be treated as if they were guilty in order to dispose of the case.

Persons under the age of 21 years are barred by statute from pleading nolo contendere to BUI.  OCGA 52-7-12(l).

The only possible advantage of nolo contendere to any person, regardless of age, would be where the operation of the vessel may have resulted in injury or death to another person or damage to property.  A nolo contendere plea in that situation would not be treated as an admission in civil case related to the conduct.

Related Charges

A person can also be charged with reckless operation related to a water vessel, which is very similar to the traffic offense of reckless driving.

Where a person is BUI or is engaged in reckless operation of vessel and a death results, a charge of Homicide by Vessel may attach.  This is a felony charge which carries up to fifteen (15) years in the state prison system.

Similarly, there is also a feticide by vessel charge which applies when the conduct results in the death of a fetus which is sufficiently developed to be referred to as "quick."

Where the person's operation causes serious injury to another person, there is a misdemeanor charge of serious injury by vessel, which mirrors the traffic charge of serious injury by vehicle.

Administrative Procedure

Where an officer charges a person with BUI, homicide by vessel, serious injury by vessel,  there is a form that can be completed by the officer to request an administrative suspension of the person's privilege to operate a vessel on the waters of Georgia for a period of twelve months.

The administrative suspension only applies to persons operating a motorized vessel having 10 or more horsepower or a sailboat more than 12 feet in length.

When a person is charged with an offense which would trigger the suspension or is served with a notice of the request for suspension, it is very important that an appeal be made within ten business days.  

An appeal will trigger a referral of the case to an administrative hearing officer.

At the hearing, the officer will be required to show a lawful arrest for the underlying charge, that this was a vessel for which an administrative suspension would apply, that the proper implied consent notice was read, and that the person refused the testing or tested over the applicable legal limit.

An administrative suspension can be from one to five years depending upon the person's history for these types of offenses, and may require completion of the DUI Alcohol or Drug Use Risk Reduction Program (DUI School).

Punishment for BUI

BUI is a misdemeanor and carries up to twelve months in jail and $1000 fine ($1,500 for a second or greater offense).

A first offense has a minimum fine of $500.  The jail time is typically ordered to be served on probation, but judges have discretion to require incarceration for some or all of the period.

What to do if Stopped for BUI

Respectfully decline to participate in any field sobriety exercises or evaluations.  These evaluations have not been sufficiently validated for use in a marine environment.  These are voluntary exercises, whether the officer tells the boater that or not.  

Decline to blow into a handheld breath alcohol testing device.  This is a voluntary test.  You are not required to give a sample.  

Do not answer questions about drinking, use of drugs, or consumption of prescription medication.  Just say, I prefer not to answer that question.  Say as little as possible.  The officer will be listening to your voice and wants to be able to describe your manner of speaking as slurred or slow or mumbled or some similar description which suggests impairment.

Refusing field sobriety evaluations or the handheld alcohol test or not answering questions may result in your arrest, but the likelihood is that with any amount of alcohol in your system, taking these tests are extremely unlikely to result in the officer making a decision not to charge you.  Submitting to these exercise just gives the officer more evidence with which to convict you.

For most recreational boat users, an administrative suspension of boating privileges is of limited consequence.  If the boater has any alcohol or drug in their system, submission to a state chemical test will capture that evidence and allow it to be used against the boater in court.

Unless the boater depends on the ability to use a boat to earn income, it will probably make sense for the boater to refuse the state chemical test.  If you make the decision to take the state test, make it clear that after taking the state chemical test that you want an independent blood test at a facility of your choosing.  Your choice of facility must be a reasonable distance from the arrest location but does not have to be the closest facility.

Sex Offender Registration Laws in Georgia

GEORGIA SEX OFFENDER REGISTRATION LAWS

On May 20, 2010, Governor Perdue signed into law House Bill 571.  It made important changes to Georgia’s sex offender registry laws.  Because I believe that it is important for people effected by this legislation to know about it, I have put together a summary.  You should check with your county sheriff and/or your probation or parole officer before changing your behavior.

The clear purpose of the law seems to be to reduce the number of registrants to those who likely pose some risk to the community.

Employment and Residence Restrictions Were Reduced

The restrictions that apply to a person is now based on the restrictions which were in place in the law at the time of the offense conduct. 

If the offense conduct occurred prior to June 4, 2003, the employment and residence restrictions will not apply to the registrant.  O.C.G.A. §§ 42-1-15, 42-1-16, 42-1-17.

If the offense conduct occurred between June 4, 2003 and June 30, 2006, there are restrictions on the location of the registrant’s residence but not on the registrant’s place of employment.  

The residence cannot be within 1000 feet of any child care facility, school, public park, private park, recreation facility, playground, skating rink, neighborhood center, gymnasium or similar facilities providing programs or services directed toward persons under age 18.  

If the offense conduct occurred after June 30, 2006 and on or before June 30, 2008, the registrant has restrictions on place of residence and place of employment.  

The residence cannot be within 1000 feet of any child care facility, church, school, public park, private park, recreation facility, playground, skating rink, neighborhood center, gymnasium, school bus stop, or public or community swimming pool.  

The place of employment cannot be employed by any child care facility, schoo or church or by or at any business or entity located within 1000 feet of a child care facility, school, or church.

If the offense conduct occurred after June 30, 2008, then there are restrictions on place of residence and employment.

The residence cannot be within 1000 feet of a child care facility, church, school, public park, private park, recreation facility, playground, skating rink, neighborhood center, gymnasium, school bus stop, public library, or public or community swimming pool.  

The registrant cannot be employed by or volunteer at any child care facility, school or church, or by or at any business entity located within 1000 feet of a child care facility, school or church.

With regard to registrants whose offense conduct occurred after June 30, 2006, there is ongoing litigation about whether the school bus stop provision can be enforced.  Most counties do not have designated bus stops and those that do are not enforcing the bus stop provision while the litigation is pending.

If a registrant has established residence or employment and a facility such as a child care facility, church or school is established or moves within 1000 feet of the registrants residence or employment location, there is a procedure by which the registrant can petition to establish the right to remain at the residence or employment under certain circumstances.

It should be noted that the rules regarding church have been modified.  Registrants who are barred from volunteering at a church can still perform a number of roles in a church.  Volunteering at a church has now been defined to mean engaging in an activity which would ordinarily be employed for compensation which involves in working with, assisting or being engaged in activities with minors.  It does not include participation in activities for persons 18 years of age or older only, participating in worship services, or engaging in religious activities or activities at a place of worship which do not involve supervising, teaching, directing or otherwise participating with minors who are not supervised by an adult who is not a registrant.

The rules regarding homeless registrants have also changed.  A registrant who is or becomes homeless must register in person with the sheriff of the county in which he is sleeping within 72 hours of that status change, provide information on the location where he or she sleeps, maintain the required registration information for each sheriff of a county where he or she sleeps, report his or her registration within 72 hours of changing sleeping locations, and annually renew his registration within 72 hours prior to his or her birthday each year.  

Registrants are no longer required to provide their email addresses, usernames and user passwords to law enforcement as part of the registration process.

Some Registrants May Be Eligible to be Removed from the Registry

The prior law provided that a person on the sex offender registry could petition to be removed from the registry.  That process could only be initiated once ten years had elapsed from the completion of the person’s sentence.   The completion of the sentence would be the later of the person’s release from prison, parole, supervised release or probation.

The new law will allow for a petition to be made to be relieved of the employment and residence restrictions and from the registration requirement.   This can often be done prior to the previous ten year requirement. 

Risk Classification I

If the person is classified by the Sex Offender Registration Review Board as a level I risk assessment classification, then they may file a petition immediately, if the registrant has completed all prison, parole, supervised release and probation for the offense which required registration. The registrant must also meet the following criteria:

a. No prior offense which would be a sex offense under Georgia law or similar state or federal law;

b. No use of a weapon during the offense;

c. No relevant similar transaction;

d. Victim did not suffer any intentional physical harm;

e. The victim was not transported during the offense; and 

f. The victim was not physically restrained during the commission of the offense.

Other Risk Classifications

If the person is classified by the Sex Offender Registration Review Board as a level II risk assessment classification or as a sexual predator, the person is not eligible to file a petition until ten years after the person has completed all  prison, parole, supervised release and probation for the offense which required registration. 

Unclassified Registrants

If the person is classified by the Sex Offender Registration Review Board, a petition may be filed, but the court will stay the proceeding and direct the Board to make a classification in the person’s case.  The resulting classification would determine eligibility for relief.

Disabled Persons

Disabled or incapacitated persons may be eligible to be removed from the registry under the following circumstances.  The registrant must have completed all prison, parole, supervised release and probation for the offense which required registration and:

(a) is confined to a hospice facility, skilled nursing home, residential care facility for the elderly or

             nursing home; 

(b) is totally and permanently disabled; or 

(c) is otherwise seriously physically incapacitated due to illness or injury.

Level of Offense Change

If the registrant was convicted of an offense which was a felony on or before June 30, 2006, but is now a misdemeanor, the registrant can petition for removal from the registry.  This most typically involves offenders who were close in age to their victims. 

One example is that some registrants were convicted of sodomy prior to July 1, 2006, where the victim was at least 13 years old but less than 16 years old and the registrant was 18 years old or younger at the time of the offense.  These persons would now be eligible to seek removal from the registry.

Another example is that some registrants who were convicted of statutory rape prior to July 1, 2006, where the victim was at least 14 years old but less than 16 years old and the registrant was 18 years old or younger at the time of the offense, and no more than four years older than the victim at that time.  These persons could now petition for removal from the registry.

Non-Sexual Kidnapping or False Imprisonment of a Minor

If the registrant was subject to registration because of a kidnaping or false imprisonment charge where there was no sexual offense against a minor, the registrant may be eligible to petition for relief from the registry requirements.

Procedure for Petition for Removal

If a registrant was convicted in Georgia, then the petition would be filed in Superior Court in the county where the conviction occurred.  

If the conviction was from another state, the petition can be filed in the county of residence of the registrant. 

The court can order the person removed from the registry and can release the person from some or all of the employment or residence restrictions that may apply to the registrant.

If a person petitions for relief and the petition is denied, a new petition cannot be filed for two years from the order of denial.

The court can grant the petition if it finds by a preponderance of the evidence that the person does not pose a substantial risk of perpetrating any future dangerous sexual offense. 

In preparing such a petition and readying the case for presentation at a hearing, it will be important to document the facts of the underlying offense, including getting copies of warrants, incident reports, accusations, indictments, and sentencing documents.  It is also necessary to document all treatment programs completed by the registrant either in jail or prison or while on parole or probation or otherwise.  Any psychological or psychosexual evaluations will need to be obtained.  If there are none, depending on the facts of the case, such an evaluation may be recommended.  The registrant’s record while on parole or probation is important to demonstrate a lack of serious violations.  Finally, the facts and dispositions of any new offenses or violations must be examined.

Modification of Probation Conditions

Registrants who are still actively serving their probation sentences continue to be able to seek modifications of the conditions of probation.  Good cause must be shown to the court for such modifications.  In the past, my office has sought modifications to allow probations under sex offender conditions to have pictures of their children and grandchildren and to have contact with such relatives.  Obviously, the court must be convinced that such changes will not cause a risk of harm to others or a risk of allowing for a new offense to occur.

Our Office

Attorney Sean A. Black has been in practice since 1992.  During that time, he has handled numerous criminal and civil matters.  He has handled many cases involving the sex offender laws at the trial court level and on appeal as well as habeas corpus cases.   To seek help with a case, call us at 866-234-4481 or email me at seanblack@blacklawoffices.com.  Black Law Offices, LLC, is located at 141 West Savannah Street, Suite B, Toccoa, Georgia..

No More Expungement. Long Live Records Restriction

One of the big changes coming to Georgia law courtesy of the 2012 Criminal Justice Reform Act (HB 1176) is the elimination of expungement.  It will be replaced by a new concept called records restriction.  This change will not become effective until July 1, 2013.

Expungement, We Hardly Knew You

Expungement was of limited use in Georgia.  Firstly, it was not available if you had been convicted of any offense arising out of the incident conduct.  Say, you were arrested for aggravated assault, and you plead down to simple assault (verbal threats).  You would not have been eligible to expunge the records relating to the aggravated assault or the simple assault.  

Basically, you could get expungement if the charges were dismissed against you prior to being formally accused or indicted.  Since the case facts aren't always fully explored or examined prior to that point, that made a lot of people ineligible for expungement of their records even where the charges were dismissed against them.

The vast majority of people that I have spoken to about expungement over the years had to be told no.  

Records Restriction:  What Expungement Should Have Been

Under the new law, which goes into effect on July 1, 2012, the qualifications for restriction of records has been expanded.  

Cases Disposed of Prior to a Formal Charging Instrument Being Filed

In Georgia, a court prosecution is begun, in most cases, with the filing of an accusation or an indictment.  An indictment is a charge which has been voted on by a grand jury as a true bill.  

If the charge was never referred by the law enforcement agency to a prosecutor (Solicitor General or District Attorney) and was dismissed at the request of the agency, then the person is eligible for restriction of the records if a specified amount of time has passed.  That amount of time is roughly analogous to the statute of limitations.  So, for misdemeanors, the period is two years.  For most felonies, the period is four years.  For serious violent felonies or felony sexual offenses involving a victim under 16 years of age, the period is seven years.

Alternatively, if the case has been presented to a grand jury and no billed twice, then records restriction is available.  No bill means the grand jury voted against approving the criminal charges.

Cases Dismissed After Formal Charging Instrument

If all charges were dimissed or nolle prossed, then records restriction is available.

Conditional Discharge

The person received and completed as sentence on a drug possession charge under 16-13-2 (drug offense conditional discharge).  This disposition is a type of first offender treatment where the person ends up not being convicted of the offense.  The person must have successfully completed the probation.  

Drug Court of Mental Health Court

A person may also be eligible by completing a drug court or mental health court program successfully, had his or her charges dismissed or nolle prossed, and has gone five years from the dismissal with no serious arrests.

Defendant Acquitted of All Charges

Additionally, if a person goes to trial and is found not guilty of all charges, they may be eligible for records restriction.  However, the prosecutor can petition the court within ten days not to restrict the records.  In this event, the prosecutor must show by clear and convincing evidence that the public interest in the information being available outweighs the individual's interest in restriction because (1) the prosecution was barred form introducing material evidence against the individual on legal grounds or (2) the individual has been charged with the same or similar offense within the previous five years.

The first exception is basically there for situations where law enforcement screwed up the case somehow.  For instance, they conducted an illegal search and the murder weapon or contraband is excluded from evidence.  In some of these situations, records restriction can still be appropriate.  But the argument for not restricting may be strong in some cases.  Say, the murder weapon is restricted from evidence because the police searched a location without consent or a search warrant.  There may still be a public interest in knowing that this is a violent individual.  

The second exception makes less sense.  If a person has been charged with a drug offense within five years, and the original charge was dismissed, and then he or she is charged again and is found not guilty by a jury, it does not seem that the person should be barred from obtaining records restriction.  It would seem that the prosecution would need to overcome a strong presumption to get that relief.

Defendant was only convicted of misdemeanors

If a person is charged with one or more felonies but is only convicted of a misdemeanor offense or offenses, then the person can petition the Superior Court where the arrest occurred within four years to restrict the records. 

The language of this subsection is a little troubling.  Contextually, it would seem to be that the petition would be brought in the county where the charges were made.  That is not always the same location as where the arrest occurred.  A person could be charged in Rabun County and be arrested in Dallas, Texas, or Atlanta, Georgia.  I think most courts will base venue on where the warrant was issued.

This is an important practice pointer for criminal defense attorneys.  Where they plead a felony down to a misdemeanor or a felony trial ends with only misdemeanor convictions, they need to discuss with their clients this narrow window.

It is also not clear how this time limit will be applied to cases that predate the effective date of the law.  If a defendant went to trial in 1996 for aggravated assault and was acquitted of that charge but convicted of simple assault, will the person be barred from requesting records restriction or will the courts allow them four years from the effective date of the law?

The big obstacle on this provision is that the standard for relief makes no sense.  It is provided that the order will only be granted if the court finds that the charges in question did not arise out of the same underlying transaction or occurrence.  This is nonsensical.  If the misdemeanor charge was part of the indictment or accusation then it was part of the same underlying transaction or occurrence.  If the misdemeanor charge was a lesser included offense, then it arose from the same underlying transaction or occurrence.  In fact, the first sentence of the subsection states that you can only seek the relief if you were convicted of a misdemeanor or misdemeanors arising out of the same underlying transaction or occurrence.  It is a circular provision which may provide no relief.

Defendant Convicted, But Conviction Reversed on Appeal

Where a person is convicted and sentenced to something other than the death penalty, and successfully appeals the conviction, the person will be eligible for records restriction if the State does not retry the case within two years.  The court must determine whether records restriction is appropriate considering the reason for the reversal or vacating of the conviction, the reasons that the case has not been retried, and the public's interest in the information being publicly available.

Case Dead Docketed for More than Twelve Months

Where a case has been placed on the dead docket for more than twelve months, the person can petition the court to restrict the records.  This relief is not available if there is an active arrest warrant outstanding.  The court will consider why the case was placed on the dead docket in deciding if records restriction is inappropriate.

Youthful Offender Provision

Where a person is convicted of only misdemeanors at a young age, has completed all sentences and has not been arrested for five years (excluding minor traffic offenses), the person can petition for records restriction.

The big problem with this provision is the definition of youthful offender.  Youthful offender is defined as a person who was less than 21 years of age at the time of conviction.  Basing the decision on the age at the time of conviction is unfair for a number of reasons. 

First example.  Jay and Silent Bob get busted for misdemeanor marijuana possession outside the convenience store.  Jay is 20 years and five months old.  Bob is 20 years and eleven months old.  They both come to court for the first time three months later.  They both plead guilty, serve their sentence (not conditional discharge), and go five years without getting in trouble again.  Jay can have his records restricted as a youthful offender, Bob cannot.  Why?  It makes no sense.  It should be based on the age at time of arrest.

Second example.  Jay and Silent Bob have the same birth date and are the same age.  They both get arrested for marijuana possession.  Jay is arrested in Gwinnett County, he has no defense, and pleads guilty prior to turning twenty-one.  Silent Bob, is arrested in a rural county with a major case backlog.  His case sits on a prosecutor's desk for six months before an accusation is drafted and filed.  The case then doesn't get called for arraignment for several months.  He goes to court and gets an appointed lawyer.  The lawyer puts the case off to investigate whether there is a defense.  In the meantime, Bob turns twenty-one.  He returns to court, his lawyer tells him there is no defense, and pleads him.  Jay gets records restriction, but Bob does not.  Why?  Jay and Silent Bob were equally youthful at the time of their transgressions.  But Bob happened to be arrested in a jurisdiction where cases move slowly.

Records Restriction Not Appropriate for Certain Offenses

The statute sets out that records restriction will not be appropriate for convictions for:

1. Child Molestation
2. Enticing a Child for Indecent Purposes
3. Sexual Assault by a person with Supervisory or Disciplinary Authority
4. Keeping a Place of Prostitution
5. Pimping
6. Pandering by Compulsion
7. Masturbation for Hire
8. Giving Massages in Place Used for Lewdness, Prostitution, etc.
9. Sexual Battery
10. Offenses Related to Minors set out in Part 2 of Artticle 3 of Chapter 12 of Title 16
11. Theft (except misdemeanor theft by shoplifting)
12. Serious Traffic Offenses listed in Article 15 of Chapter 6 of Title 40.

The last section includes reckless driving, DUI, vehicular homicide, serious injury by vehicle, feticide by vehicle, Fleeing and attempting to elude, aggressive driving, and homicide or serious injury by interfering with traffic control device or railroad sign or signal.

This list of offenses must be considered closely when an attorney engages in charge bargaining on behalf of a client.  The possible availability of records restriction should be discussed with a client prior to entering a plea or prior to going to trial.  If a plea will result in the person being ineligible for records restriction, the attorney has a duty to convey that information to the person.  

While records restriction is a collateral consequence of a conviction, recent United States Supreme Court cases indicate that criminal defense attorneys have an obligation to advise their clients as to collateral consequences.

Sean A. Black is a Georgia licensed attorney practicing in Northeast Georgia.  His office is in Toccoa, Georgia.  Telephone number is 866-234-4481.  He was named in 2011 and 2012 to the Georgia Super Lawyers for Criminal Defense.  He is a 1992 graduate of the Emory School of Law.