BUI Investigations by Officers with FWC
BUI Case Result at Trial
“Not Guilty” Jury Verdict for Boating under the Influence (BUI) in Pasco County
On March 30, 2017, the jury returned a “not guilty” verdict for Boating under the Influence (BUI). The presiding judge was the Honorable Debra Roberts in the West Pasco County Judicial Center in New Port Richey, FL.
An officer with the Florida Fish and Wildlife Conservation Commission (FFWCC or FWC), Officer Damon J. Pulaski, arrested our client for BUI after seeing him operating a boat and loading it onto a trailer at a boat ramp in Pasco County.
FWC Officer Damon Pulaski is particularly experienced with BUI cases having served with the FWC since 2005 and completed the NASBLA BUI Training Course. Officer Pulaski is also certified as the agency inspector for several of the Intoxilyzer 8000 breath test instruments maintained by FWC.
After completing a safety, equipment and fishery inspection, Officer Damon Pulaski reported that the client admitted to consuming “10 beers.” During the BUI investigation, the officer administered a series of seated battery exercises after taking our client from the boat ramp area to his patrol vessel that was docked nearby.
As a result of the investigation, the officer arrested our client for BUI. Although the client blew a .091 and .091 on the Intoxilyzer 8000 at the Land’O’Lakes jail several hours later (which was slightly above the legal limit).
We had previously filed and litigated a motion to suppress the breath test results because we were able to show that the agency inspector at the Pasco County Sheriff’s Office was deleting error / exception messages during monthly inspections by hitting the backspace button.
Although the court ultimately found the lack of compliance was not substantial enough to suppress the breath test reading, prosecutor ultimately decided not to introduce the breath test results at trial in this case. Instead, the prosecutor proceeded under a theory that our client’s normal facuilties were impaired by alcohol or a criminal or controlled substance.
The jury rejected that theory when it returned the “not guilty” verdict.
Attorney for BUI Arrests by FWC in Florida
If you were arrested by an officer with the Florida Fish and Wildlife Conservation Commission (FWC), then contact an experienced criminal defense attorney at Sammis Law Firm.
We understand the standard operating procedures used by these officers when conducting BUI investigations including the seated battery of field sobriety tasks. Whether you took the breath test or refused, we can help you fight the charge.
The best result is getting the prosecutor to drop the charges, getting the court to dismiss the charges, or getting the jury to return a “not guilty” verdict at trial.
NASBLA’s BUI Seated Battery Exercises
In BUI cases, FWC officers are trained to complete NASBLA’s BUI Seated Battery Exercises. The term NASBLA stands for National Association of State Boating Law Administrators.
A few of the FWC officers have completed the NASBLA BUI Seated Battery Transition Training Course. According to the 2011 Student Manual for the training course,
The exercises include the “hand coordination test (HC)” which is a seated field sobriety test that requires the subject to perform four tasks with his hands in front of the chest. This test is adapted from the walk and turn test.
The “palm pat test (PP)” is a seated field sobriety test that requires the subject to place the palms of his hands together and alternate patting the back and palm of the top hand while counting each pat.
Boating / Driving under the Influence Enforcement Packet
During BUI investigations, officers with the Florida Fish and Wildlife Conservation Commission (FWC) use Form FWCDLE 108A (11/05) known as the “Boating / Driving under the Influence Enforcement Packet.”
The packet form acts as a worksheet listing all of the documents in the packet including:
- SFST PERFORMANCE REPORT –
- Include copies of the Standardized Field Sobriety Testing Screening Procedures and Field Notes pages or complete included form to describe the subject’ s performance on SFSTs.
- IMPLIED CONSENT WARNING –
- Must be completed when requesting a blood, breath, or urine sample. If the subject refuses then ALSO complete the “Refusal to Submit to Blood, Breath, or Urine Testing” form.
- REFUSAL TO SUBMIT TO BREATH, URINE, OR BLOOD TESTING –
- Officer must complete the appropriate portion of the ” Notice of Civil Penalties” form (back of yellow defendant’s copy) and read the “Notice of Civil Penalties” portion to the defendant.
- Stress the 30-day response requirement.
- Blue copy must be mailed to FWC Headquarters.
- Defendant must receive the yellow copy at the time of the arrest.
- VEHICLE/ VESSEL STORAGE RECEIPT and WRITTEN HOLD ORDER –
- Complete if the vehicle/ vessel is seized or towed.
- CITATION(s) –
- Final charge to be determined following breath test results or refusal.
- PROBABLE CAUSE/ BOOKING AFFIDAVIT –
- County form usually available at the detention facility.
- See the reverse of the envelope for guidelines on preparing a probable cause statement.
- OPERATOR APPRAISAL and INTERVIEW –
- Advise Miranda Warnings from the prepared text and ensure the defendant understands.
- Quote defendant’s answer during the interview.
- INCIDENT REPORT –
- Complete incident/ case report and include a copy in the packet.
- BOATING ACCIDENT INVESTIGATION REPORT
- INSPECTION / WARNING FORM
Florida BUI / DUI Impairment Report – Form FWCDLE 108
Another form used in the BUI case is the “Florida BUI / DUI Impairment Report Form, FWCDLE 108,” which includes the following sections:
PHASE I: OBSERVATION OF VESSEL/ VEHICLE IN MOTION
Document initial observations which describe the vessel/vehicle maneuvers or the operator/occupant behaviors that may be associated with alcohol influence and give an officer a reason to stop the vessel or vehicle.
** NOTE: If no Phase I observations are made, describe initial contact with vessel/ vehicle. Examples: Careless or Reckless Operation, Speed Zone Violation, Obvious Safety Equipment Violation, Moving Traffic Violation, Other Traffic Violations.
PHASE II: PERSONAL CONTACT
Document observations made during the face-to-face contact with the vessel/ vehicle operator. The following may be observed during the face-to-face contact:
- Operator Actions
- *Cannot find registration/wallet
- *Tries to conceal something
- *Produces wrong documents
- *Fumbles, drops wallet, license, papers, etc.
- *Excessive movement in vessel/vehicle
- *Forgets to respond to request
- *Avoids conversation
- *Incorrect answers to questions
- *Cannot retrieve documents with fingertips
- *Avoids eye contact
- *Inconsistent answers
- *Ignores questions
- *Instantly lights cigarette or eats something
- *Denies drinking
- *Angry/abusive language
- *Admits to drinking (how much?)
- *Cannot describe vessel/vehicle
- *Has difficulty locating safety equipment
- *Makes unusual statements (list)
- Odor of alcoholic beverage:
- Odor of alcoholic beverage:
- *Sun Burned
- *Dilated Pupils
- *Constricted Pupils
- *Droopy Eyelids
- Unusual Actions
- *Gagging/Dry Heaves
- Ability to understand questions:
- *Had to repeat questions
- Ability to understand questions:
- *Fumbling Fingers
- Unusual Odors
- *Body Odor
- *Cigarette Smell on Non-Smoker
- Other Odors
- *Breath Freshener
- *Air Freshener
- *Small Cuts
- *Bar Stamps on Hands
- *Not Understandable
- *Excessive Spitting
- *Mush Mouthed
- *Low and Raspy
- *Confusing Speech
- Describe Condition:
- Describe Condition:
- *Mood Changes
- *Abusive Language
- *Sits Down
- *Supports Against Object
- *Needs Help
- *Wide Stance
- *Support Against Vessel/Vehicle
- *Needed Assistance
- Physical Evidence
- *Empty alcoholic beverage containers
PHASE III: PRE-ARREST SCREENING
Document all observations made during field sobriety testing in an effort to describe the ultimate finding of probable cause to place the subject under arrest for boating/ driving under the influence.
FWC’s OPERATOR APPRAISAL & INTERVIEW – Form FWCDLE 108E (11/05)
In a BUI case, FWC uses Form FWCDLE 108E (11/05) to document the operator appraisal and interview. The form contains the following:
- DEFENDANT’S NAME:
- CASE NO.:
- MIRANDA WARNING
- 1. You have the right to remain silent.
- 2. Anything you say can and will be used against you in a court of law.
- 3. You have the right to talk to a lawyer and have him present with you while you are being questioned.
- 4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.
- 5. If you consent to answer questions now, without a lawyer present, you will still have the right to stop answering at any time.
- After the warning, ask the following questions and secure an affirmative answer to each to obtain a waiver.
- 1. Do you understand each of these rights? ___YES ___NO
- 2. With these rights in mind, do you wish to talk to us now? ___YES___NO
- INTERVIEW (quote answers)
- Defendant advised of Miranda Warning on:
- DATE: __________
- TIME: __________
- Ask the following questions:
- Were you operating a vehicle/vessel?
- Where were you going?
- Was the vehicle/vessel in good condition?
- If No, what is wrong with it?
- What road/waterway were you on?
- Where were you coming from?
- What time did you leave there?
- Without looking at a watch or clock, what time is it now?
- Actual Time:
- What is today’s date?
- What day of the week is it?
- Actual Date:
- Actual Day:
- When did you last eat?
- What did you eat?
- Where did you last eat?
- What have you been drinking?
- How much have you been drinking?
- Where have you been drinking?
- Who were you drinking with and were they drinking?
- What time did you start drinking?
- What time did you stop drinking?
- Do you feel the effects of alcohol (or drugs)?
- Do you feel that you are impaired?
- Were you involved in an accident today?
- When did you last sleep?
- How much sleep did you get?
- Are you currently under the care of a doctor or dentist?
- For what?
- Have you used any type of drugs recently, prescription, non-prescription, or otherwise?
- If so, what kind of drug did you take?
- What was your last dose and when?
- Do you think you should have been operating a vehicle/vessel?
- If yes, Why?
- Interviewing Officer’s Signature
- Interviewing Officer’s Name (Printed)
What Happens in a Typical BUI Investigation by FWC?
Officers with Florida Fish and Wildlife Conservation Commission (FWC) conduct water patrol in a marked patrol vessel in the waterways in Florida.
During these water patrols, the officers might observe a vessel in the waterway. The officer might then conduct a vessel stop to perform a vessel safety inspection. In these cases, the FWC officer will activate their emergency lights on the patrol vessel in an attempt to gain the attention of the operator.
The FWC officers will make observations about who is in actual physical control of the vessel. The officers will then identify the operator of the vessel by requesting his or her Florida Identification Card.
Then the officer will conduct a vessel safety inspection. During the safety inspection, the operator of the boat might be used to locate the appropriate number of life jackets.
The officer will note whether the operator has bloodshot and watery eyes, slurred speech, and whether the odor of an alcoholic beverage can be detected coming from the operator’s breath.
The subject might be provided with a life jacket and instructed to put it on. The FWC officer will then determine whether the subject has difficulty putting the life jacket on or problems with finger dexterity while buckling it.
Seated Battery of the SFSTs for BUI Investigations
The officer might ask to conduct Standardized Field Sobriety Task (SFST) after asking the operator to board the patrol vessel and sit on a seat located towards the bow of the vessel in front of the helm.
While moving to the front of the vessel, the FWC officer will note whether the operator is observed grabbing the side of the vessel several times to steady himself or herself.
If the subject was recently on a vessel, the officer will use the Seated Battery of the SFSTs. These tasks can be conducted on the patrol vessel with the subject sitting in front of the helm.
Before beginning the field experiences, the officer will attempt to rule out any medical impairment before beginning looking for any clues by asking the following questions:
- do you have any physical defects or disabilities?
- do you have any defects with your eyes?
- are you sick or injured?
- are you under the care of a doctor or dentist?
- are you taking any medication or drugs?
For the field tests, the FWC officer will often read the instructions verbatim from a prepared text and demonstrated each task prior to the subject attempting the task. The FWC officer will then ask the subject to acknowledge that he or she understands how to properly perform the task.
In a BUI case, the seated battery of field tasks includes:
- Horizontal Gaze Nystagmus
- Finger to Nose Task
- Palm Pat
- Hand Coordination
The Arrest for BUI by FWC
If the officer makes an arrest for BUI, the officer will request the subject to submit to a breath test on the Intoxilyzer 8000, the only evidentiary instrument used for breath testing in Florida.
If the subject refuses, the officer will read the implied consent warning. If the subject continues to refuse, then the officer will issue a “notice of civil penalties” form.
If the subject agrees to submit to the breath test, then the result will be noted. The subject will then be booked into the jail.
This article was last updated on Friday, May 21, 2022.