The Water Changes Everything.

Boating While Intoxicated cases share the same legal definition of intoxication as a DWI, but the investigations are very different.

A roadside DWI investigation occurs on stable ground in a controlled environment. A BWI investigation takes place on moving water, often under conditions involving wind, waves, sun exposure, heat, fatigue, and dehydration. These factors can influence balance, coordination, appearance, speech, and physical performance regardless of whether a person is intoxicated.

Behavior that appears unusual during a roadside stop can have a very different explanation after hours on the water. At Denuna & Westbrook, PLLC, we approach BWI cases with a focus on the evidence, the environment in which that evidence was gathered, and whether the State can actually prove intoxication beyond a reasonable doubt.

How Texas Defines Boating While Intoxicated

Under Texas Penal Code Section 49.06, Boating While Intoxicated occurs when a person operates a watercraft while intoxicated in a public place. Like a DWI, the offense focuses on intoxication and operation. Operating a boat doesn’t, on its own, support a criminal charge. The State must still prove intoxication under Texas law.

A first-time BWI with no aggravating circumstances is charged as a Class B misdemeanor, carrying a punishment range of up to 180 days in jail and a maximum fine of $2,000. Prior convictions, serious bodily injury, or a fatality can elevate the charge significantly.

Texas law defines intoxication three ways: loss of normal mental faculties, loss of normal physical faculties, or a blood alcohol concentration of 0.08 or greater, each caused by alcohol, drugs, controlled substances, dangerous drugs, or a combination of substances. Prosecutors may attempt to prove intoxication through officer observations, witness testimony, float tests, chemical testing, and statements made during the encounter.

Why BWI Investigations Differ Significantly from DWI Cases

A day on the water is physically demanding. Boat operators are exposed to constant motion, changing weather, wind, sun exposure, glare, heat, fatigue, and dehydration. Even experienced boaters may feel physically exhausted after hours on rough water. These conditions can influence balance, coordination, reaction time, and overall appearance, none of which means a person is intoxicated.

Officer Observations on the Water

BWI investigations often begin with an officer’s observations about a person’s appearance, balance, speech, or coordination. An officer may note that a boater appears unsteady, has bloodshot eyes, or seems fatigued. However, these observations may be consistent with spending a full day on the water. Sun exposure affects the eyes. Wind and waves affect balance. Fatigue and dehydration affect coordination and concentration.

The issue isn’t whether an observation was made. The issue is whether that observation reliably demonstrates intoxication under these specific circumstances.

Float Tests and Their Limitations

Because traditional field sobriety testing is impractical on a boat, marine law enforcement officers sometimes rely on alternative evaluations called float tests. Unlike standardized field sobriety tests used in DWI investigations, float tests are not standardized and depend heavily on officer interpretation. A person who has spent hours adjusting to the motion of the water may perform differently than someone standing on stable ground. The reliability of these evaluations deserves scrutiny before any conclusions about intoxication are drawn.

Chemical Testing

Breath and blood testing may still play a role in BWI investigations. An issue that often arises is whether the test result accurately reflects the person’s condition at the time they were operating the watercraft. In many cases, testing occurs after the individual has returned to shore and the boating activity has ended. Time delays, collection procedures, maintenance records, and laboratory analysis can all become relevant when evaluating the evidence. A chemical test result should be considered alongside the totality of the evidence rather than viewed in isolation.

The Type of Watercraft Can Affect the Case

One issue sometimes overlooked in BWI cases involves the vessel itself.

The type of vessel involved, its classification, registration requirements, motor configuration, and applicable statutory definitions may all become part of the analysis. Horsepower ratings, vessel specifications, registration records, and ownership documents can affect how a case is investigated and prosecuted, and in some situations, can affect related administrative consequences.

Before focusing exclusively on intoxication, it’s worth determining whether the State can prove every required element of the offense and whether the vessel involved satisfies the applicable legal requirements. Denuna & Westbrook has handled cases where a detailed review of the vessel’s specifications uncovered issues that significantly changed the prosecution’s position.

A BWI Arrest Can Result in a Driver’s License Suspension

A BWI arrest triggers an Administrative License Revocation (ALR) proceeding that is separate from the criminal case, and the deadlines are the same as a standard DWI. In most situations, the officer issues a Notice of Suspension at the scene, and you have 15 days to request a hearing. If you consented to a blood draw, the clock starts when DPS mails a notice after receiving the lab results. If you fail to request a timely hearing, DPS will suspend your license.

The Legality of the Investigation Still Matters

As with any criminal prosecution, law enforcement must comply with constitutional requirements governing stops, detentions, arrests, and the collection of evidence. Probable cause, the basis for the initial contact, witness credibility, search procedures, and the handling of evidence may all affect the strength of the State’s case. The fact that an investigation occurred on the water doesn’t minimize those legal requirements.

When BWI Charges Become More Serious

Most BWI cases are prosecuted as misdemeanor offenses. Allegations involving serious bodily injury, death, or certain prior convictions can result in more serious charges. When a boating accident results in serious bodily injury, prosecutors may pursue Intoxication Assault. When a death occurs, the charge may become Intoxication Manslaughter. These cases involve additional legal and factual issues around causation, accident reconstruction, and medical evidence, all of which require careful examination.

Experience on the Water and in the Courtroom

BWI cases require an understanding of the unique evidentiary and environmental issues that don’t exist in standard DWI prosecutions. Chris Denuna and Nick Westbrook examine every aspect of the investigation: officer observations, conditions on the water, float test reliability, chemical testing procedures, vessel specifications, and the constitutional basis for the stop.

The goal is the same in every case: evaluate what the evidence actually shows, challenge what doesn’t hold up, and hold the State to its burden of proof.

Frequently Asked Questions — BWI in Texas

Is Boating While Intoxicated treated the same as DWI in Texas?

The offenses share the same definition of intoxication and many of the same legal principles. The difference is that boating investigations occur in a different environment, which creates unique factual and evidentiary issues that don’t exist in a standard traffic stop.

Can I be charged with BWI even if I wasn’t speeding or operating recklessly?

Yes. The State doesn’t need to prove reckless operation. Prosecutors must prove that a person operated a watercraft while intoxicated.

Are float tests reliable?

Unlike standardized field sobriety tests, float tests aren’t standardized and depend heavily on officer interpretation. Their reliability should be evaluated in light of the specific conditions present during the investigation.

What if my breath or blood test is over the legal limit?

A chemical test result doesn’t determine the outcome of a case. Timing, collection procedures, testing protocols, and the interpretation of results may all be relevant issues.

Can a BWI become a felony?

Yes. Allegations involving serious bodily injury, death, or certain prior convictions can result in felony-level charges.

Contact a Houston BWI Defense Lawyer Today

BWI investigations present issues that simply don’t exist in traditional DWI cases. Environmental conditions, officer observations, float testing, chemical testing, vessel specifications, and constitutional issues may all affect whether the State can prove intoxication beyond a reasonable doubt.

Denuna & Westbrook, PLLC represents individuals facing BWI charges throughout Houston and the Gulf Coast region, including Harris County, Fort Bend County, Montgomery County, Galveston County, Brazoria County, and Waller County.