Operating a Boat Under the Influence in Michigan

Michigan's boating OWI law is in the Natural Resources and Environmental Protection Act, at MCL 324.80176, not in the Vehicle Code. It makes it a crime to operate a motorboat on the waters of this state while under the influence of alcohol or a controlled substance, with an alcohol content of 0.08 or more, or with any amount of a Schedule 1 drug or cocaine in the body.^[1] A first offense is a misdemeanor of up to 93 days; a third offense at any time is a felony.^[2] The boating law has its own definition of "operate," its own breath-test and implied-consent rules, and court orders banning a person from operating a motorboat.^[1][3][6][5]

What counts as operating a boat?

For this section, "operate" means to be in control of a vessel propelled wholly or in part by machinery while the vessel is underway and is not docked, at anchor, idle, or otherwise secured.^[1] That is a different test from the Vehicle Code, where "operate" means being in actual physical control of a vehicle.^[7] A common mistake is to copy car rules onto boats, or boat rules onto cars; the two statutes are worded differently. The car rules are on what counts as "operating" a vehicle.

The offenses on the water

• Under the influence, 0.08, or drugs. Operating while under the influence of alcohol or a controlled substance, with 0.08 grams or more, or with any amount of a Schedule 1 substance or cocaine.^[1]
• Visibly impaired. Operating when, due to alcohol or a controlled substance, the person's ability to operate the motorboat is visibly impaired; a person charged with the first offense may be found guilty of this one instead.^[8]
• Causing death or serious impairment. Felonies of up to 15 years and up to 5 years.^[9]
• Under 21. An operator under 21 may not have any bodily alcohol content, meaning 0.02 up to less than 0.08, or any alcohol from drinking outside a religious ceremony.^[10] A first conviction is a misdemeanor of up to 360 hours of community service and/or a fine up to $250; within 7 years of a prior, up to 60 days of community service, a fine up to $500 and/or up to 93 days in jail.^[11]
• Child under 16 aboard. No one may operate a motorboat in violation of these rules while a person under 16 is aboard.^[10] For an adult-level violation this is a misdemeanor with a mandatory $200 to $1,000 fine plus 5 days to 1 year in jail and/or 30 to 90 days of community service, and a felony of 1 to 5 years (or probation with jail) within 7 years of a prior or after 2 or more priors.^[12]
• Letting an impaired person operate. The owner or person in control may not authorize or knowingly permit an intoxicated or visibly impaired person to operate the motorboat; that is a misdemeanor of up to 93 days and/or $100 to $500.^[13]

The boating statute has no separate 0.17 high-BAC tier like the one in the Vehicle Code.^[8][14] The under-21 and child-aboard rules have their own penalty sections, MCL 324.80178a and 80178b, which are close to, but not identical with, the Vehicle Code's zero-tolerance and child-endangerment penalties.^[11][12]

Marijuana laws do not change this. The medical marijuana act does not authorize anyone to operate or be in control of a motorboat while under the influence of marijuana, and the recreational marijuana act does not authorize operating a motorboat under the influence or consuming marijuana while operating one.^[15][16]

Penalties

Offense and record	Penalty
Under the influence / 0.08 / drugs, first offense	Misdemeanor: 1 or more of up to 45 days of community service, up to 93 days in jail, and a fine of $100 to $500[2]
Same, within 7 years of a prior	$200 to $1,000 fine plus either 10 to 90 days of community service or 48 consecutive hours to 1 year in jail[2]
Same, after 2 or more priors at any time	Felony: 1 to 5 years and/or $500 to $5,000[2]
Visibly impaired, first offense	Misdemeanor: up to 45 days of community service, 93 days in jail and/or a fine up to $300[17]
Visibly impaired, with 1 prior in 7 years or 2+ priors at any time	$200 to $1,000 fine plus either 10 to 90 days of community service or up to 1 year in jail[17]
Causing death	Felony: up to 15 years and/or $2,500 to $10,000[9]
Causing serious impairment of a body function	Felony: up to 5 years and/or $1,000 to $5,000[9]

Unlike the car offense, boating while visibly impaired never becomes a felony; even after 2 or more priors the maximum stays at 1 year.^[17] For the second-offense jail option and the felony, jail may not be suspended unless the defendant agrees to and completes a specialty court program.^[13] Community service is unpaid and the person reimburses supervision costs.^[13] The prosecutor must list prior convictions on the complaint to seek an enhanced sentence, and a prior is proved at sentencing by an abstract of conviction, the boating record, or the defendant's admission.^[18]

Before accepting a guilty or no-contest plea, the court must tell the defendant the maximum jail and fine and that the maximum sanctions will be based on the boating record kept by the Secretary of State.^[19] Before sentencing, the court must order a substance-abuse screening and assessment, may order rehabilitative programs, and the person pays for them.^[19]

Orders not to operate a motorboat

On a conviction the court must consider the person's prior convictions and impose operating bans.^[5]

Conviction	No prior in 7 years	Prior(s) in 7 years	2+ priors in 10 years
Under the influence / 0.08 / drugs	Court may order 1 to 2 years[5]	Court must order at least 2 years[5]	No expiration date[5]
Visibly impaired	Court may order 6 months to 1 year[5]	With 1 prior, court must order 1 to 2 years[5]	No expiration date[5]
Causing death or serious impairment	No expiration date[5]

Breath tests and chemical tests on the water

An officer who has reasonable cause to believe a person was operating a motorboat and that drinking may have affected the person's ability to operate it may require a preliminary breath test.^[20] Refusing is a state civil infraction with a civil fine of up to $500.^[3] The result of the roadside test is admissible only to help decide a challenge to the validity of the arrest.^[20] An officer may also arrest without a warrant a person reasonably believed to have been operating a vessel involved in an accident while violating the boating OWI rules.^[20]

A person who operates a motorboat on Michigan waters is considered to have consented to chemical tests of blood, breath or urine if arrested for a boating OWI offense.^[6] People with hemophilia, diabetes, or a condition requiring a prescribed anticoagulant are not considered to have consented to a blood draw.^[6] The arrested person must be told that a refusal will result in an order not to operate a vessel for at least 6 months.^[3] The order the statute actually directs the Secretary of State to issue is longer: 1 year, or 2 years for a second or subsequent refusal within 7 years, if the person does not request a hearing within 14 days of the notice or loses at the hearing.^[4] The person must also be told that a refusal means no test without a court order (though the officer may seek one), and of the right to have one of the tests given by someone of the person's own choosing.^[21] The car rules are covered in Michigan's implied consent law and the right to an independent chemical test.

How boating offenses connect to other records

A boating OWI is listed as a "prior judgment" for minor-in-possession enhancement.^[22] The Vehicle Code's prior-conviction list for car OWI names section 625 and other Vehicle Code offenses but not the boating statute.^[23] The boating law's own prior-conviction definition, in turn, lists boating offenses and vessel homicides, not car OWI convictions.^[24] For snowmobiles, ORVs and aircraft, see snowmobiles, ORVs and other vehicles, and for the full list of impaired-operation offenses see the penalties chart.

Practical point: on the water, plan the trip home before the trip out, with a sober operator named in advance.