Ithaca Lawyer Boating with a DWI Conditional License

I do get lots of interesting questions, here is a recent query:

I have a question that no one seems to have the answer to or wants to answer in any definitive manner, not other laywers, probation department, or any authorities I have spoken to thus far. My question is this: 

I am a NYS resident and I have been convicted of DWI in NYS, scentencing adjourned for 1 year upon completion of interim probation. I am currently using a conditional driver's license. 

AM I ALLOWED TO OPERATE MY RECREATIONAL FISHING VESSEL AT THIS TIME??? 

One source claims absolutely not, that I am not allowed to operate any motorized vehicle or vessel except for the specific outlines of my conditional license. Another source claims I can because a license is NOT required to operate a recreational boat in the first place, and my current driver's license status has no bearing on operating a boat.

Thank you so much for any time you take to answer this question if possible..

Kindest regards,

Billy Bob (name has been changed to protect the guilty)

My response (this is what I do in my spare time, not boating but answering stuff about boating):

That's an excellent question, one I would ask to the DMV for the definitive answer 

but if I may think legally on it, 

1. by analogy one can ride their snowmobile or recreational vehicle with a cond license (the snow definitely recreational) so I would think the boat is similar, 

2. in addition, the cond license is a limited license (privilege) and only because work, school, and med care are vitally important and necessary, to get to these places only by a CAR or other motor vehicle. I think the definition of motor vehicle is the key here.

NOTE: NYS defines "motor vehicle" as car or truck or Motorcycle  NOT boat, snowmobile, or recreational vehicle

3. lastly, BWI (boating while intoxicated) doesn't "usually" affect your driver's license merely your boating license. Unless it is a boating accident, this is in the discretion of the DMV commissioner.

Similarly, a DWI should only affect your motor vehicle license and NOT your boating license

I finally went into the call the DMV and they feel similarly, 

 all the best

Larry

         Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Summer is Officially Here! The BWI (Boating While Intoxicated)

Practicing DWI defense in the Fingerlakes region of New York State, and living in Ithaca allows me the privilege of experiencing some amazing lake views. I love to witness Lake Cayuga go through the glory of all four seasons. Everytime I get in my car to appear in another town court in one of the many counties that surround the lakes I am taken back by the the incredible beauty of this area of the country. But of course, that is why I live and practice here, not by chance but by choice.

Summer does have it's drawbacks for me, there will be humid days and nights, lost tourists driving the wrong way down one of our many downtown one way streets, and the pain of yet again changing all the car tires from snows back to all seasons.

I kinda mark the beginning of "my" summer not with the end of school for my kids but by my first BWI phone call. To those not familiar, B.W.I. stands for, Boating While Intoxicated. It is a real criminal charge, and has alot of similarities to it's close cousin the NY DWI. NY BWIs fall under Navigation Law section 49-a. If you want a sleep aid, forget Ambien, go read through section 49-a.

My surfing has led me to conclude that there is little information about NY BWI on the web. There is also some confusing, and wrong information on the internet concerning New York BWI. I am planning on writing a more in depth article about it in the near future. In the meantime I wanted to hit the highlights:

1. Similar to DWI and DWAI there are a BWI (misdemeanor) and a BWAI (violation).
2. The legal standard (definition) for BWI (intoxication) and BWAI (impairment) for water operation of a craft are comprable to operation of a car or motorcycle on land.
3. You are only in danger of losing (suspension) your license to operate a boat not your car. The suspensions are 6 months and up for the BWAI, and a year for the BWI.
4. There are specific boating safety classes required with both BWAI and BWI.
5. The classes have to be either state sanctioned, US Coast Guard, or US Power Squadron safety classes.
6. There is a "contribution" (around $200) to the "I Love New York" Safe Boating Fund.
7. The fines range from $350- $500 for a BWAI, and $500- $1,000 for a BWI.
8. The BWI and BWAI will be reported on your New York DMV driving abstract, so your auto rates will eventually be affected by your boating charges. If you are from out of state it is likely that this will also go on your state's DMV record because NY has an interstate compact with many adjoining states.
9. The BWI is a criminal charge and will affect your entry into Canada in the future.
10.The BWAI violation is also going to affect your ability to enter Cananda because it is an alcohol related offense.
11. If you refuse the Breath Test back at the station (not to be confused with the preliminary breath test on the roadside) you will face many of the same consequences, ie. increased boating license loss, additional fines, as a DWI test refusal.
12. The BWI has a .08 BAC or >(breath alcohol concentration) standard, same as a DWI.
13. There will be additional NY state surcharges of around $240 for a BWAI, and $400 for a BWI.
14. There are two types of BWI, a BWI "per se" offense based only upon your BAC (.08 or >) and a BWI "common law" based upon the officer's observations, field sobriety testing, and other evidence of intoxication.
15. Since NY state has no expungement statute a BWI (misdemeanor) will remain on your permanent criminal record forever.
16. BWIs are defended much the same way as DWIs. The state (the prosecutor) still has the burden of proving you were intoxicated at the time of operation. The breath machine can be challenged for accuracy, validity, and reliability. The officer's tests can be shown to be administered improperly or scored with bias.

So my thoughts for today, let some else drive your boat, a designated "captain" so to speak. Enjoy the beauty of the lakes as a "passenger" if you want a few cold beers on a hot sunny day.