It’s a position no one wants to be in, but needs to be dealt with immediately if you find yourself in it: arrested for boating under the influence. Boating under the influence comes with similar consequences as a DUI in Arizona but is charged under the term OUI, or Operating Under the Influence. There may be multiple defenses available in your case depending on the specific facts surrounding your arrest. Read on to learn more about potential defenses against Arizona OUI charges, and if you would like to schedule a free phone consultation on behalf of yourself or a loved one, call our firm at 480-833-8000. 

Constitutional Defenses

Arizona’s state Constitution guarantees us rights that can only add to, not subtract from, those granted to us by the United States Constitution. Most constitutional arguments for defense cases will arise from the Fourth Amendment or the Constitution’s guarantee against unreasonable searches and seizures. There may be unique defenses available based on someone’s specific circumstances, so a person arrested for OUI in Arizona should discuss their case in full with an Arizona criminal defense lawyer as soon as possible. 

Lack Of Reasonable Suspicion

A boating police officer can’t pull someone over on the lake simply because they feel like it. There must be some type of demonstrable reasonable suspicion to stop someone and investigate them for a criminal offense. Reasonable suspicion can be difficult to specifically define, but it can be any general behavior that gives the police cause to believe someone is operating a motorized watercraft while under the influence. If someone is operating their boat in an erratic manner, violating water traffic laws, or even has an open can of beer at the driver’s seat of the boat, this can give the police probable cause to pull the boat over and check the driver’s sobriety. However, this defense may not be as strong if the defendant was arrested at a lawful OUI checkpoint. Convictions obtained through OUI and DUI checkpoints have consistently been upheld in court, deeming those checkpoints constitutional. 

Lack Of Probable Cause

After the police have developed reasonable suspicion and pulled someone over to investigate for OUI, the next step toward OUI charges would be to develop probable cause to place that person under arrest. Probable cause means that it needs to appear more likely than not that the defendant committed the offense in question. 

Failure To Read Miranda Rights

Most people are already aware of their Miranda rights but are still entitled to be read them while being placed under arrest. These rights include the right to remain silent, the right to legal counsel, and more. The Supreme Court has held that a defendant must be read these rights as soon as possible during or after an arrest in most situations. Without being read their Miranda rights, that person might make statements and other actions while in police custody that they otherwise would’ve had the knowledge to avoid. However, the effect that a failure to read Miranda rights defense has on a criminal prosecution may be limited. It can only be used to exclude statements and evidence obtained after the police’s failure to read the defendant their rights. 

Challenging Chemical Results

15-Minute Waiting Period

A police officer must observe a 15-minute waiting period before performing a breathalyzer test on an OUI or DUI suspect. This is because actions like burping, eating, drinking water (or alcohol), puking, etc., can all affect the accuracy of the breathalyzer test. A defendant who can prove that this 15-minute waiting period wasn’t observed may be able to get their breath test results excluded from court.

Improper Chain of Custody

A chemical sample needs to be stored and maintained according to strict procedures, or it may not be usable in criminal prosecution. Your attorney should make sure that all of the evidence being used against you has been stored, transferred, and maintained up to standards. 

Denial of Independent Testing

A defendant accused of operating a motorized watercraft has the right to have their chemical sample tested by an independent laboratory. Denial of the right to independent testing can invalidate the sample’s results in court. A defendant must invoke this right- i.e., request to have the sample independently tested and pay for it- for it to be a valid defense. 

Invalid Test Results

Some medications, like albuterol, budesonide, and salmeterol can affect the reading of a breathalyzer test. So can some medical conditions, especially those that affect the gastrointestinal system, such as acid reflux. If someone has diabetes, they can have a buildup of ketones which can cause acetone on the breath and skew breathalyzer results. 

Statutory Language

No Actual Physical Control

Section 5-395 allows a boat operator to be placed under arrest for OUI in Arizona if they are operating the watercraft or if they have actual physical control over the watercraft. There are several factors that can be analyzed when determining whether or not someone had actual physical control over a watercraft. If the keys are in the ignition, the operator almost certainly has actual physical control over a watercraft. The police may also observe a boater do everything up to placing the key in the ignition and have sufficient proof that the defendant had actual physical control of the watercraft. 

Not A Motorized Watercraft

Section 5-395 only applies to motorized watercraft. If for some reason a defendant was mistakenly placed under arrest for OUI for impaired operation of a non-motorized watercraft such as a kayak or a canoe, this would be a defense. 

Legal Prescription

Section 5-395 provides that a person who is charged with OUI for having a drug or its metabolite in their system- but not necessarily being impaired by said drug- has a valid defense against the charges if they have a valid prescription for the drug. The defendant should be able to show that the amount of the drug or its metabolite in the system was not enough to actually be intoxicating. It is illegal to drive while impaired by any substance, whether or not a doctor has written a prescription for it. 

You Have The Right To Choose Your Own Legal Counsel When Facing Criminal Charges

Many defendants facing OUI charges in Arizona end up using a public defender, either by default or because they believe they can’t afford a private defense attorney. However, there are innumerable benefits that come with hiring your own choice of Arizona criminal defense lawyer. First of all, there is a greater sense of control over your fate when you pick an attorney you feel confident in, rather than settle for whoever the court appoints. Hiring a lawyer from our firm means that you will be defended by an attorney with extensive knowledge and experience regarding DUIs and OUIs in Arizona. They will be backed by attentive and diligent staff who can make sure no details in your case are left by the wayside when your attorney has obligations with other clients. Hiring a private defender could give you results that save you far more than your retainer fee in the long run. If you would like to schedule a free phone consultation with our firm, contact us today to get started at 480-833-8000.