Now that Michigan’s boating laws have been amended1 to include a lower legal limit and more draconian penalties, there is renewed interest in apprehending boaters thought to be under the influence of drugs or alcohol.  When compared with the apprehension, the investigation and arrest of intoxicated motorists, one of the limitations with an intoxicated boating investigation has always been that traditional field sobriety tasks, such as the walk and turn or the one leg stand, can’t be administered on a rocking boat. It is also often impractical to bring the boater to dry land to administer these tasks and wait the required 15 minutes for the boater to acclimate to dry land.  For these reasons, new field sobriety tasks have been developed for use by law enforcement in the marine environment.  These tasks were developed by the Southern California Research Institute, the same place that brought us the Standardized (roadside) Field Sobriety Tests.2

The objective of the Research Institute was to develop and validate sobriety tests that can be administered by law enforcement while the boat operator remained in a seated position with-in the boat.  In one reported validation study, officers administered four “standardized” field sobriety tasks to 330 boaters on the Lake of the Ozarks in Missouri.3  In total, four officers were involved and they had each undergone four 8 hour days of training.  This training included a live alcohol workshop during which the officers administered the tests to subjects that had BAC’s greater than .08.

Before developing the protocols for this study, the authors reviewed the literature relative to roadside sobriety tests and attempted to follow the same sort of approach.  They also examined the types of tests already in use. A total of 1,146 BUI reports were reviewed from agencies in Alaska, Arizona, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Nevada, Ohio, Tennessee, Texas, Virginia, and Wisconsin.  Although the authors sent FOIA requests to all 50 states, only these 14 states responded.

In this study, all stops were based on probable cause or as part of a check point, with or without probable cause. Stops occurred at virtually all hours of the day, but were primarily between 1:59 p.m. and 6:04 a.m.  Most of the stopped boaters were white males between 18 and 80 years of age.  The BACs of those stopped ranged from a low of 0.00 to a high of .32, with a mean BAC of .072.  The study does not indicate how the BACs were determined, but does indicate “as expected, the differences between lower BACs and higher BACs were statistically significant,” by which it is meant that it was easier to determine, using these tests, that a high BAC person was drunk.

The four standardized tasks administered in this study were:

1.  The Horizontal Gaze Nystagmus – This evaluation is well known as part of the battery of tasks assigned for roadside evaluation of suspected drunk drivers. The administration and evaluation of the HGN in intoxicated boating investigations is identical to that used on land.

2.  Finger-to-Nose – While not part of the three tasks associated with the NHTSA SFSTs4 in intoxicated motorist cases, this task is part of the DRE5 evaluation for motorists thought to be impaired by drugs.

3.  Palm Pat – this is new to the BUI investigation and consists of a modified “patty cake” type movement.  As indicated in this study, the procedure is as follows: “[T]he Hand Pat FST requires the subjects to place one hand extended, palm up, out in front of them. The other hand is placed on top of the first with the palm facing down. The top hand rotates 180 and pats the bottom hand, alternating between the back of the hand and the palm of the hand. The bottom hand remains stationary. The subject counts out loud, ONE-TWO, ONE-TWO, etc., in relation with each pat.”6 According to the study “two or more clues indicates impairment above .08.”7

4.  Hand Coordination – this task is thought to be a modification of the walk and turn task for use while seated in a rocking boat.  Here, the boat operator is supposed to start with his/her hands clenched into fists, the left fist is placed into the center of the chest, with the right fist in front of it.  The hands are then moved out by touching one to the next. Then, after the proper number of successive “steps” the hand position is supposed to memorized, the hands clapped, moved back to the memorized position, then moved back to the chest in reverse order.

According the study, this battery of tasks used in intoxicated boating cases is just as reliable in detecting drunk boaters as the roadside sobriety tasks are at detecting drunk drivers. Specifically, the study indicates: “[T]he overall correct percentages, sensitivity, and specificity of the tests were consistent with what is typically reported in literature on the roadside SFSTs.”8

Like roadside evaluations, there are many potential problems with the reliability of these drunk boating tasks.  The study itself indicates many general problems, and these include:

First, on some waterways, it is not illegal to drink while boating. An open container, therefore, is not probable cause for a stop. Second, on some water-ways, there are no speed limits, making excessive speed not necessarily a clue of impairment. Third, environmental conditions (wind, water choppiness, and glare) can make it difficult to determine boaters’ impairment. Finally, unlike land-based officers, water patrol officers do not have a validated battery of sobriety tests to be used on water.9

Secondarily, like roadside tests, officers are trained to administer them according to the standardized format.  It remains to be seen whether or not this happens, but if roadside tasks are any indication, it is unlikely that officers will follow their own training and administer these tasks correctly.

by Patrick T. Barone

Patrick T. Barone is an adjunct professor at Cooley Law School where he teaches "Drunk Driving Law and Practice."  Mr. Barone is also the co-author of two books on DUI-related issues, including Defending Drinking Drivers (James Publishing), a well-known and highly respected multi-volume national legal treatise.  He is a frequent lecturer on trial practice and drunk driving defense tactics. He can be contacted on the web at: www.baronedefensefirm.com

Endnotes

1.  M.C.L. 324.80176, et. seq.
2,  See, e.g., Appendix A, Standardized Field Sobriety Testing Student Manual, National Highway Traffic Safety Administration.
3.  Fiorentino, Validation of sobriety tests for the marine environment, Accident Analysis and Prevention 43, 870–877, (2011).
4.  National Highway Traffic Safety Administration Standardized Field Sobriety Tests; see, e.g., Standardized Field Sobriety Testing Student Manual, supra.
5.  Drug Recognition Expert, International Drug Evaluation and Classification Program
6.  Fiorentino, supra.
7.  Id.
8.  Id.
9.  Id.
 

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