A harbor evening, a cooler and a short run back to the slip: it is easy to forget that Maryland treats operating a boat under the influence much as it treats driving. Section 8-738 of the Natural Resources Article sets the offenses and penalties, and it borrows the testing rules and the alcohol limit from the state’s traffic laws. This guide explains what the section says. It is not legal advice; anyone charged should speak to a lawyer.
What is prohibited
A person may not operate or attempt to operate a vessel while the person:
- is under the influence of alcohol;
- is impaired by alcohol;
- is so far impaired by any drug, combination of drugs, or drugs and alcohol that they cannot operate a vessel safely; or
- is impaired by a controlled dangerous substance, unless entitled to use it under Maryland law.
Being legally entitled to use a drug is not a defense to the third offense unless the person did not know the drug or combination would make them incapable of operating safely.
Which boats it covers
The section applies to vessels required to be registered with the Department of Natural Resources, vessels required to carry a number under federal law or another state’s approved system, and vessels from a foreign country using Maryland waters. That covers most motorized boats.
Testing and implied consent
Anyone who operates or attempts to operate a vessel on Maryland waters is deemed to have consented to take a test if detained by a police officer who has reasonable grounds to believe they were operating under the influence or impaired. The statute says a person may not be compelled to take a test, except as another section provides, and that an alcohol concentration meeting the traffic law’s definition of under the influence per se is prima facie evidence of operating under the influence.
Penalties
| Offense | First offense | Second offense | Third or later |
|---|---|---|---|
| Under the influence of alcohol | Up to $1,000 and/or 1 year | Up to $2,000 and/or 2 years | Up to $3,000 and/or 3 years |
| Impaired by alcohol, drugs or a controlled substance | Up to $500 and/or 2 months | Up to $1,000 and/or 1 year | Up to $1,000 and/or 1 year |
All of these are misdemeanors. For counting prior offenses, a prior conviction under this section or under the traffic law’s drunk and drugged driving section counts. In other words, a past driving conviction can make a boating charge a second offense.
Losing the right to operate a boat
On a conviction for operating under the influence of alcohol, the court may prohibit the person from operating a vessel on Maryland waters if they refused a test when an officer asked or tested at an alcohol concentration of 0.08 or more. The prohibition may last up to two years, or up to five years if the violation resulted in another person’s death. The statute requires the Department and the Natural Resources Police to keep a database of people under such a prohibition, accessible to officers on patrol.
Tip: Treat the boat like the car: pick a skipper who does not drink before the trip starts, not at the end of the evening.
Guests and the operator
The offenses apply to the person operating or attempting to operate the vessel. That makes the question of who is at the helm on the way back to the slip an important one. The duties after a collision are explained in Boating Accidents: What Maryland Law Requires of the Operator.
Lesser included offenses
If a person is charged under the section, the court may find them guilty of any lesser included offense under any of its subsections. A charge of operating under the influence can therefore end in a conviction for operating while impaired.
Prescriptions and other drugs
Alcohol is not the only concern. The statute covers impairment by any drug or combination of drugs and alcohol that leaves a person unable to operate a vessel safely, and impairment by a controlled dangerous substance unless the person is entitled to use it under Maryland law. Read the warnings on any medicine that causes drowsiness, and treat a prescription the same way you would a drink before taking the helm. If you are unsure how a medicine affects you, ask your doctor or pharmacist before a day on the water, and let someone else run the boat until you know.
A plan for harbor nights
- Agree on a sober operator before casting off.
- If plans change, stay in the slip, take a water taxi or leave the boat for the morning.
- Keep life jackets for everyone aboard, as described in Life Jackets and Required Safety Equipment for Recreational Boats.
- Make sure the operator holds a boating safety certificate if required; see Maryland’s Boating Safety Certificate: Who Needs One.