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Boating Under the Influence (BUI)

How do officers investigate boaters with suspected impairment? Do they use the same roadside tests that are used for DUI investigations? Sometimes they do! Obviously you cannot have someone perform tests that involve balance on a boat, but the person can be transported to land to administer the tests. The United States Coast Guard (USCG) recommends that officers wait at least (15) minutes prior to administering the Walk and Turn and One Leg Stand. There is no research behind this waiting period. Anyone who has been on a boat knows that they get “sea legs” and this would probably make tests involving balance unreliable.

So are there any other tests that officers can use? Yes, officers are now using the Seated Battery of Standardized Field Sobriety Tests (SFST’s). These tests were “validated” by research conducted by the Southern California Research Institute (SCRI) and was sponsored by the National Association of State Boating Law Administrator’s (NASBLA). There are (4) tests that are a part of the Seated Battery of (SFST’s); Horizontal Gaze Nystagmus (HGN), Finger to Nose, Palm Pat, and Hand Coordination. Just like the standing SFST’s, these tests were only “validated” to indicate if a person’s Blood Alcohol Concentration (BAC) was at or above 0.08 grams.

The Horizontal Gaze Nystagmus test is exactly the same test as is used in the standing SFST’s. The difference is that for the seated battery, (4) or more clues indicates that a person’s BAC is 0.08 grams or higher 80% of the time according to the research. Please refer to the article about HGN for further information.

Prior to administering any of the Seated Battery SFST’s, officers need to ensure that the person is in a stable seated position.

The second test that officers administer is the Finger to Nose Test. This test requires the person to tilt their head back and close their eyes. They will then be instructed to use their left or right index finger tip to touch the tip of their nose. The person will be required to attempt to touch their nose (6) times. There are a total of (48) clues possible for this test.

  • Instruction Stage

    • Unable to follow instructions

    • Started at the wrong time

  • Performance Stage

    • Did not close eyes

    • Did not tilt head back

    • Opened eyes during test

    • Moved head during test

The following require compliance with each attempt:

  • Wrong hand

  • Wrong finger

  • Hesitation

  • Searched

  • Not fingertip

  • Missed tip of nose

  • Did not bring hand down

When (9) or more clues are observed, the person’s BAC will be 0.08 grams or more 65% of the time according to the research.

The third test that officers administer is the Palm Pat Test. This test requires the person to hold their hands in front of them toughing palm to palm. The person will then turn the top hand over and count “one.” The person will then turn the top hand back over and count “two.” They will continue doing this while speeding up until instructed to stop. There are a total of (10) possible clues.

  • Instruction Stage

    • Unable to follow instructions

    • Started at wrong time

  • Performance Stage

    • Did not count as instructed

    • Rolled hands

    • Double pat

    • Chopped pat

    • Other improper pat

    • Did not increase speed

    • Rotated hands

    • Stopped before being told

When (2) or more clues are observed, the person’s BAC will be 0.08 grams or more 57% of the time according to the research.

The last test that officers administer is the Hand Coordination Test. This test requires the person to place the left fist at the center of their chest and their right fist against the left. The person will then perform (4) tasks. The first task requires the person to count out loud from 1 to 4 while moving their fists in a step like fashion. The second task requires the person to memorize the final position of their fists, clap three times and return their fists to the memorized position. The third task is to move their fists in step like fashion in reverse order while counting out loud from 5 to 8. They end with their left fist against their chest. The fourth task is to open their hands with palms down and place them in their lap. There are a total of (15) possible clues.

  • Instruction Stage

    • Unable to follow instructions

    • Started at wrong time

  • Performance Stage

    • Task One: Forward Steps

      • Improper count

      • Improper touch

      • Did not perform

    • Task Two: Hand Clapping

      • Improper count

      • Improper touch

      • Improper return

      • Did not perform

    • Task Three: Return Steps

      • Improper count

      • Improper touch

      • Did not return left fist to chest

      • Did not perform

    • Task Four: End Position

      • Improper position

      • Did not perform

When (3) or more clues are observed, the person’s BAC will be 0.08 grams or more 52% of the time according to the research.

When the required number of clues are observed for all the tests, the person’s BAC is 0.08 grams or higher 91% of the time according to the research.

Looking at the accuracy rates of these tests, we can see that they are less accurate than the Standing Battery of SFST’s. Clearly these are areas that could be attacked when addressing how much weight a judge or jury should give to these tests.

About the author: Joshua Ott operates Caselock Inc., specializing in expert testimony and reviews for cases involving alcohol and/or drug impairment. Joshua has extensive knowledge and training obtained from ten years as a police officer in Metro Atlanta. He has extensive experience training law training law enforcement officers as well as courtroom preparation and testimony. He resides in Woodstock, Georgia with his wife, daughter and Miniature Schnauzer, Gus. For more information, visit caselockinc.com.