alright go and set up for me this time I'm gonna be under arrest for what I did do you have anything on the boat that belongs to you no no I'm gonna go and stand up and have to take your uh handcuffs off I gotta tell you man 9 5 4 7 9 8 9 5 4 7 9 8 8 0 2 5 8 0 OK wait I know you're waiting I know you're waiting are you uh yep I'll be Palm Beach County Jail Palm Beach Palm Beach are you the are you with her um no I just made it no and have we get your driver's license yet uh yeah you got it OK he's already in the car OK alright go ahead and give me a deep deep breath just blows blow blow blow blow blow blow blow blow oh my God man alright perfect I'm sorry my man give me one more blow huh are you sure I can't just get a warning a warning for boating under the influence no I I'm not under the influence yes you are ma'am absolutely are take a deep breath and give me a how you if we don't give warnings for boating under the influence that'd be like getting stopped on the road and say hey can I have a warning for driving under the influence there you go you got the click alright oh I hear the click alright alright I'm gonna read you some stuff reference the breath test okay I am now requesting that you submit to a lawful test your breath for the purpose of determining its alcohol content will you take the test what's your name user Mia this is you have a right OK I'm not asking you questions about your arrest you have a right to provide a breath sample it's just a simple yes or no OK do you want to provide a breath sample no I need an out loud no OK if you refuse to submit to the test I requested of you it will result in a civil penalty of $500 additionally if you refuse to submit to the test I've requested and you previously been fined under Section 3 2 7 point three five two one five Florida Statutes where if your driving privilege has been previously suspended for refusal to submit to a lawful test of your breath urine or blood you will be committing a misdemeanor in addition to any other penalties you can be imposed by law refusal to submit to this test at the request of a police officer is admissible in evidence in any criminal proceeding do you understand what I just read to you so basically it says if you refuse to test it's a 500 dollar civil penalty if you have a prior refusal on record it becomes a misdemeanor so do you have a prior refusal so if you refuse the test it would be 500 dollar civil infraction that's the penalty okay you understand what I read to you Mia do you understand what I read to you yes okay you do you still refuse to submit to the test do you want to submit to the test are you okay I just never been in a situation like this it's are you okay though because you're not you're not answering simple questions are you okay yes I am okay do you wanna take the test sorry can I take a moment to think about it yeah you can take a moment yep okay so just in summary cause I I wanna make sure you heard what I said if you refuse to take the test it's a 500 dollar penalty it's like a civil infraction okay if you wanna take the test you be happy to do it no I don't want to take you don't want to take the test okay you will get a copy of this form I'm gonna read you the the um your directions on the back okay take your life jacket off I'm gonna take it off your life jacket off when you get on the back make sure to wear your life jacket right now step back to the back of the boat alright what you're gonna do you're gonna step up here and we're gonna help you get up okay alright cool these two big guys will help out alright alright is there a table yep thank you you got it thank you you can take a seat right here ON APRIL 28TH 2,024 FLORIDA MARINE ENFORCEMENT ARRESTED A BOAT OPERATOR IN PALM BEACH COUNTY FOR BOATING UNDER THE INFLUENCE WITHIN MINUTES SHE ASKED THE OFFICER ON CAMERA IF SHE COULD JUST HAVE A WARNING AND REFUSED A BREATH TEST AFTER 10 MINUTES OF IMPLIED CONSENT ADVISEMENT THE UNDERLYING CHARGE IS GOVERNED BY FLORIDA STATUTE 327.35 WHICH MIRRORS THE STATE'S DUI FRAMEWORK UNDER SECTION 316.193 OPERATING A VESSEL WHILE IMPAIRED OR AT 0.08 BLOOD ALCOHOL OR HIGHER FIRST OFFENSE BUI IS A FIRST DEGREE MISDEMEANOR CARRYING UP TO SIX MONTHS IN COUNTY JAIL AND A $500 FINE FLORIDA TREATS IT WITH THE SAME CRIMINAL CLASSIFICATION AS DUI AND ENFORCES IT THE SAME WAY THE SUBJECT'S REQUEST FOR A WARNING IS DOCTRINALLY UNAVAILABLE WARNINGS EXIST FOR NON CRIMINAL TRAFFIC INFRACTIONS BUI HAS NEVER BEEN IN THAT CATEGORY AND NEITHER HAS DUI FOURTH AMENDMENT AUTHORITY FOR THE STOP RESTS ON UNITED STATES VERSUS VILAMONTE MARQUEZ WHICH RECOGNIZES BROADER INSPECTION AUTHORITY OVER VESSELS THAN OVER AUTOMOBILES BECAUSE OF THE MARITIME REGULATORY CONTEXT THE IMPLIED CONSENT FRAMEWORK IS THE LEGALLY DECISIVE PHASE UNDER FLORIDA STATUTE 327.352 ANY PERSON WHO OPERATES A VESSEL IN FLORIDA WATERS HAS BY THAT ACT CONSENTED TO CHEMICAL TESTING UPON LAWFUL ARREST FOR BUI THE OFFICER IS NOT NEGOTIATING CONSENT THE STATUTE HAS ALREADY ANSWERED THAT QUESTION THE ADVISEMENT IS INFORMATIONAL NOT A REQUEST FOR PERMISSION UNDER SOUTH DAKOTA VERSUS NEVILLE A STATE MAY ATTACH CIVIL AND CRIMINAL CONSEQUENCES TO REFUSAL WITHOUT VIOLATING THE FIFTH AMENDMENT BREATH IS PHYSICAL EVIDENCE NOT TESTIMONIAL AND IS BEYOND THE SELF INCRIMINATION PROTECTION BIRCHFIELD VERSUS NORTH DAKOTA RESOLVED THE REMAINING QUESTION BREATH TESTS ARE PERMISSIBLE AS A SEARCH INCIDENT TO LAWFUL ARREST AND CRIMINALIZING REFUSAL OF A BREATH TEST IS CONSTITUTIONALLY SOUND PENNSYLVANIA VERSUS MUÑIZ ADDS THE LAST PIECE ROUTINE IMPLIED CONSENT RECITATION IS NOT INTERROGATION FOR MIRANDA PURPOSES AND NO MIRANDA WARNING IS REQUIRED BEFORE THE ADVISEMENT IS READ REFUSAL TRIGGERS THREE AUTOMATIC CONSEQUENCES A $500 CIVIL PENALTY UNDER FLORIDA STATUTE 327.35215 EVIDENTIARY USE AT TRIAL AS CONSCIOUSNESS OF GUILT AND POTENTIAL ADMINISTRATIVE ACTION AGAINST THE VOTER'S SAFETY IDENTIFICATION CARD THE JURISDICTIONAL TWIST UNIQUE TO BUI IS THAT REFUSING THE BREATH TEST DOES NOT AUTOMATICALLY SUSPEND THE DRIVER'S LICENSE THAT CONSEQUENCE LIVES IN THE DUI STATUTE SECTION 322.2615 AND DOES NOT CROSS OVER TO THE MARINE SCHEME HOWEVER A BUI CONVICTION NOT MERELY A REFUSAL CAN STILL AFFECT DRIVING STATUS FOR REPEAT OFFENDERS AND FOR SENTENCING ENHANCEMENTS TIED TO PRIOR ALCOHOL RELATED OFFENSES THE OFFICER EARNS AN A THE ADVISEMENT WAS READ VERBATIM PARAPHRASED TWICE IN PLAIN LANGUAGE INTERRUPTED ONLY FOR A WELFARE CHECK WHEN THE SUBJECT GREW QUIET AND DELIVERED WITHOUT PRESSURE OR RAISED VOICE THE SUBJECT EARNS A C PLUS SHE WAS COOPERATIVE AND NON HOSTILE THROUGHOUT BUT OPERATING A VESSEL WHILE IMPAIRED IS THE UNDERLYING WRONGFUL ACT AND REFUSING THE BREATH TEST FORECLOSES ANY EXCULPATORY EVIDENCE SHE MIGHT OTHERWISE HAVE USED THE CENTRAL LESSON IS THAT IMPLIED CONSENT IS NOT A REQUEST EVERY VESSEL OPERATOR IN FLORIDA HAS ALREADY CONSENTED BY THE ACT OF OPERATING WHAT LOOKS LIKE A CHOICE ON THE WATER IS A CHOICE ABOUT CONSEQUENCES NOT ABOUT THE TEST ITSELF REFUSAL IS A LEGAL RIGHT WITH LEGAL COSTS IT ATTACHES A CIVIL PENALTY REMOVES THE ONLY OBJECTIVE EVIDENCE OF INTOXICATION OR SOBRIETY AND BECOMES ADMISSIBLE AT TRIAL AS CONSCIOUSNESS OF GUILT MARINE ENFORCEMENT IS NOT A LESSER TIER OF LAW ENFORCEMENT FLORIDA'S BUI FRAMEWORK TRACKS ITS DUI FRAMEWORK STATUTE BY STATUTE AND THE CRIMINAL EXPOSURE IS IDENTICAL ON FIRST OFFENSE AND FOR EVERY OPERATOR ON THE WATER THE GOVERNING PRINCIPLE IS SIMPLE IF ALCOHOL IS CONSUMED SOMEONE ELSE OPERATES THE VESSEL THERE IS NO WARNING THERE IS NO SECOND CHANCE THERE IS ONLY THE STATUTE LET US KNOW WHAT LEGAL TOPICS YOU'D LIKE US TO ANALYZE IN THE COMMENTS BELOW THANK YOU FOR WATCHING AND CHECK OUT OUR SECOND CHANNEL STREET BODY CAM FOR MORE CONTENT