About This Policy: Blood Alcohol Concentration (BAC) Limits: Operators of Recreational Watercraft

Period Covered: 1/1/1998 through 1/1/2023

This policy topic covers laws addressing blood alcohol concentration limits applicable to operators of recreational watercraft.

Blood alcohol concentration (BAC) is a measure of the amount of alcohol in a person's bloodstream. BAC is commonly expressed in percentage terms. For instance, having a BAC of 0.08 percent means that a person has eight parts alcohol per 10,000 parts blood in the body. State laws generally specify BAC levels in terms of grams of alcohol per 100 milliliters of blood (often abbreviated as grams per deciliter, or g/dL). BAC levels can be detected by breath, blood, or urine tests. The laws of each jurisdiction specify the preferred or required types of tests used for measurement.

BAC statutes establish criteria for determining when an operator of a vehicle (including, e.g., a boat) is violating the law. This section provides information on State and Federal BAC laws that apply to operators of recreational watercraft.

The majority of jurisdictions have enacted per se BAC laws for operating recreational watercraft. A per se BAC statute establishes a BAC limit for a violation. If the operator has a BAC level at or above the per se limit, a violation has occurred without regard to other evidence of intoxication or sobriety. In other words, exceeding the BAC limit established in a per se statute is itself a violation. By limiting the use of evidence by defendants, per se laws make conviction more likely. [1].

States without a per se law may have established other standards for using BAC levels as evidence of being under the influence of alcohol. In these jurisdictions, the weight given to the BAC evidence varies. Some laws provide that a BAC at or above a particular level creates a presumption of being under the influence of alcohol. Other laws provide that such evidence is prima facie evidence of being under the influence, or is admissible in making this determination. These evidentiary standards are even weaker than a presumption. Defendants in jurisdictions without a per se standard may provide evidence that, in spite of the BAC level, they were not under the influence and therefore not in violation. This differentiates other statutes from per se statutes, which provide that exceeding the BAC limit is itself a violation and only the validity of the BAC measurement is at issue.

Most jurisdictions have adopted per se standards. APIS distinguishes between per se and non-per se States but does not distinguish the evidentiary weight of BAC evidence in States without a per se standard.

1. Cowan, J. and Joffie, S. "Proof and disproof of alcohol-induced driving impairment through blood alcohol testing," 4 Am. Jur. POF 3d 229 (July 2002)

Explanatory Notes and Limitations Specifically Applicable to Blood Alcohol Concentration Limits: Operators of Recreational Watercraft

1. This review examines only the specific recreational watercraft statutes in each State and the District of Columbia and the specific Federal legislation cited.
2. This review does not address the following issues related to BAC limit laws:
   • Penalties for violations of BAC laws.
   • State and Federal laws related to enforcement of BAC laws.
   • Provisions covering enhanced sanctions for violators whose BAC exceeds a specified level that is higher than the legal limit (e.g., BAC > 0.20 g/dL).
   • Provisions related to repeat offenders.
   • Provisions that create a rebuttable presumption of impairment or other evidentiary standards at lower levels of BAC than the per se limits.
   • BAC limits applicable specifically to persons who have not yet attained the legal drinking age (21 years of age).
   • BAC limits applicable specifically to operators of commercial watercraft (motorized or nonmotorized).
   • Federal law pertaining exclusively to the military.
   • Laws that may pertain to BAC limits for those who operate nonmotorized watercraft.
   • Separate laws for Indian Reservations. Approximately 200 tribes across the Nation have jurisdiction and responsibility for laws affecting their reservations. Many have passed their own BAC laws.

Explanatory Notes and Limitations Applicable to All APIS Policy Topics

1. State law may permit local jurisdictions to impose requirements in addition to those mandated by State law. Alternatively, State law may prohibit local legislation on this topic, thereby preempting local powers. For more information on the preemption doctrine, see the About Alcohol Policy page. APIS does not document policies established by local governments.
2. In addition to statutes and regulations, judicial decisions (case law) also may affect alcohol-related policies. APIS does not review case law except to determine whether judicial decisions have invalidated statutes or regulations that would otherwise affect the data presented in the comparison tables.
3. APIS reviews published administrative regulations. However, administrative decisions or directives that are not included in a State's published regulatory codes may have an impact on implementation. This possibility has not been addressed by the APIS research.
4. Statutes and regulations cited in tables on this policy topic may have been amended or repealed after the specific date or time period specified by the site user's search criteria.
5. The operation or enforcement of statutes or regulations affecting the policies addressed on APIS may have been suspended or modified by executive or administrative orders issued in response to the COVID-19 pandemic. With the exception of the COVID-19 Digest and Dataset, APIS research does not address these orders or the effects they may have on the policies covered by APIS.
6. Policy changes in APIS are presented as of the date these changes take effect as law. Users should be aware that in some situations there may be a delay between the effective date of a law and the time a corresponding policy change occurs in practice. Because APIS research is based entirely on primary legal source materials (codified statutes and regulations and, on rare occasions, published court opinions), APIS is unable to accurately determine when policy changes may appear in practice.
7. If a conflict exists between a statute and a regulation addressing the same legal issue, APIS coding relies on the statute.
8. A comprehensive understanding of the data presented in the comparison tables for this policy topic requires examination of the applicable Row Notes and Jurisdiction Notes, which can be accessed from the body of the table via links in the Jurisdiction column.

(Policies in effect on: 1/1/2023)

The Federal Government's statutes and regulations regarding Blood Alcohol Concentration (BAC) limits related to Operators of Recreational Watercraft (displayed below) specify a 0.08 per se rule for all Federal waterways except "within the geographical boundaries of any State that has established" a separate and different BAC limit.  In those cases, "… a standard established by State statute … is applicable to the operation of any recreational vessel on waters within the geographical boundaries of the State."

FEDERAL CITATIONS AND RELEVANT TEXT EXCERPTS

33 C.F.R. § 95.020
Code of Federal Regulations
Title 33 - Navigation and Navigable Waters
CHAPTER I - COAST GUARD, DEPARTMENT OF HOMELAND SECURITY
SUBCHAPTER F - VESSEL OPERATING REGULATIONS
PART 95 - OPERATING A VESSEL WHILE UNDER THE INFLUENCE OF ALCOHOL OR A DANGEROUS DRUG
§ 95.020. Standard for under the influence of alcohol or a dangerous drug

An individual is under the influence of alcohol or a dangerous drug when:

(a) The individual is operating a recreational vessel and has a Blood Alcohol Concentration (BAC) level of .08 percent or more, by weight, in their blood;

* * *

(c) The individual is operating any vessel and the effect of the intoxicant(s) consumed by the individual on the person's manner, disposition, speech, muscular movement, general appearance, or behavior is apparent by observation.

33 C.F.R. § 95.025
Code of Federal Regulations
Title 33 - Navigation and Navigable Waters
CHAPTER I - COAST GUARD, DEPARTMENT OF HOMELAND SECURITY
SUBCHAPTER F - VESSEL OPERATING REGULATIONS
PART 95 - OPERATING A VESSEL WHILE UNDER THE INFLUENCE OF ALCOHOL OR A DANGEROUS DRUG
§ 95.025. Adoption of State blood alcohol concentration levels

(a) This section applies to operators of recreational vessels on waters within the geographical boundaries of any State that has established by statute a blood alcohol concentration level for purposes of determining whether a person is operating a vessel under the influence of alcohol.

(b) If the applicable State statute establishes a blood alcohol concentration level at which a person is considered or presumed to be under the influence of alcohol, then that level applies within the geographical boundaries of that State instead of the level provided in § 95.020(a) of this part.

(c) For the purposes of this part, a standard established by State statute and adopted under this section is applicable to the operation of any recreational vessel on waters within the geographical boundaries of the State.

1 U.S.C. § 3
United States Code
Title 1 - GENERAL PROVISIONS
CHAPTER 1 - RULES OF CONSTRUCTION
§ 3. “Vessel” as including all means of water transportation

The word “vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.

Source for all citations on this page: www.govinfo.gov/, a service of the U.S. Government Publishing Office (GPO). Excerpts from the United States Code are current as of 2022. Excerpts from the Code of Federal Regulations are current as of 2023. Excerpts from Public Laws of Congress are current as of the year of enactment. The GPO’s Public Domain & Copyright Notice is available at https://www.govinfo.gov/about/policies#copyright .

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Blood Alcohol Concentration (BAC) Limits: Adult Operators of Noncommercial Motor Vehicles

Blood Alcohol Concentration (BAC) Limits: Youth (Underage Operators of Noncommercial Motor Vehicles)