Spring is here bringing with it slowly rising air and water temperatures. As a result, more and more people are headed to local lakes and reservoirs for boating activities. If you are one of them, be careful. Mississippi requires persons born after June 30, 1980 to complete a Boating Safety Course to operate a boat. So anyone roughly under the age of 34 should have taken a basic safety course to drive a boat.
On the other hand, most anyone you see driving a boat over the age of 34 probably hasn’t taken the class. Regardless of the safety class, boaters must also be on the lookout for other boaters driving while impaired. Pursuant to Miss. Code. 59-23-5 ” A person who operates a watercraft in waters over which this state has jurisdiction shall be deemed to have given consent to submit to a chemical test or test of his breath for the purpose of determining the alcohol content of his blood, as a condition of operating the watercraft in this state.” This is basically the boating version of the implied consent law applicable to motor vehicles on public roads. Miss. Code 59-23-7 states:
It is unlawful for any person to operate a watercraft on the public waters of this state who:
(a) Is under the influence of intoxicating liquor;
(b) Is under the influence of any other substance which has impaired such person’s ability to operate a watercraft; or
(c) Has eight one-hundredths percent (.08%) or more by weight volume of alcohol in the person’s blood based upon milligrams of alcohol per one hundred (100) cubic centimeters of blood as shown by a chemical analysis of such person’s breath, blood or urine administered as authorized by this chapter.
Some are under the mistaken belief that a boater can’t be charged with boating under the influence unless the blood alcohol content is .08 or greater, but the statute clearly has an “or” between sections (b) and (c). This means it is unlawful to operate a boat under the influence of alcohol or any substance which impairs the ability to operate the watercraft or if the operator has .08 blood alcohol content or greater.
The Mississippi Supreme Court handed down the case of Hardy v. State of Mississippi, NO. 2012-KA-01970-SCT yesterday where an individual with a blood alcohol content below the legal limit was convicted. The facts were tragic. Brad Hardy was driving a small boat while standing up. A witness testified:
Hardy came around Dead Man’s Curve and just turned . . . and hit the bank and went up onto
the bank . . . . He hit some boats, and then hit the bank, went up on the bank, and the boat
landed between two trees on the other side of the river.
The witness also testified “she overheard a little girl on the bank scream ‘you killed my daddy.’” Hardy admitted drinking six beers, but was .01 below then then legal limit of 0.10 (now .08). Nevertheless, Hardy was convicted of aggravated boating under the influence and manslaughter by culpable negligence. The trial court sentenced Hardy to forty-four years with twenty-six to serve. The Mississippi Supreme Court upheld the verdict and sentence.
This case brought back memories from seeing a friend die at almost the same location close to Ratliff Ferry over ten years ago. My friend jumped off of the back of a pontoon boat. As he swam in the Pearl River toward a sandbar, two ski boats rounded a curve at a high rate of speed following each other. The first boat narrowly missed him. Seconds later we heard the loud thud of the second boat striking my friend. The propeller sliced up his body starting at his ankle and ending at his neck.
The boat operator in that situation was accompanied by his wife and small child. I don’t know if he was ever charged or convicted, but he did have some amount below the legal limit of alcohol in his system when the Mississippi Department of Wildlife Fisheries and Parks officer administered the breathalizer. I will never forget seeing the muddy brown water of the Pearl turn blood red. A mother lost her son, a brother lost his brother and many of us lost a friend. It was a bad day on the water. I have never been back to that river and don’t intend to.
Be safe out there and watch out for the other guy. He may be under the influence and he may have little or no training in the proper operation of a boat.