IS IT BUI? — NEGLIGENT OPERATIONS? — OR BOTH?

Written by CDR M. Hammond

Consider this hypothetical scenario: A small boat crew discovers a 

16-foot recreational boat with one person on board, adrift, and 

without its navigation lights energized after sunset. Based on that 

and additional observations during a boarding of the vessel, the 

boarding officer has reasonable cause to suspect the operator is 

intoxicated. Following the administration of field sobriety tests and a 

breath test, the operator is determined to be intoxicated and is 

subsequently charged for operating under the influence of alcohol or 

a dangerous drug (BUI), under Title 46 United States Code 2302(c). 

The operator is also charged under 33 CFR 83.20 for failing to 

comply with the rules for lights after sunset. Further, the operator is 

cited for a third charge under 46 U.S.C. 2302(a) – negligent 

operations. However, the only evidence in the case file to support the 

third charge is the brief statement “subject operated vsl with no 

lights and BAC of .086.” When the case is reviewed by the Hearing 

Officer, the negligent operations charge is dismissed. Why? 

Cases involving BUI are unfortunately common amongst the cases 

received by the Hearing Office for adjudication. Generally speaking, 

charging units are doing an excellent job of 

thoroughly documenting the critical factual elements of each case 

and providing the necessary evidence to support a charge of BUI. 

Hearing Officers routinely receive cases in which a charge under 46 

U.S.C. 2302(a) for “Negligent Operations” is also included in addition 

to the BUI charge. However, more times than not, these cases do not 

contain additional evidence beyond that pertaining to the BUI 

charge and therefore the charge under 2302(a) is typically dismissed. 

That’s not to say that negligence did not occur in a particular 

circumstance; only that the case file did not contain sufficient 
evidence to support a prima facie case in order to proceed with a 

charge under 46 U.S.C. 2302(a). 

According 46 U.S.C. 2302(a), a person operating a vessel in a 

negligent manner or interfering with the safe operation of a vessel, 

so as to endanger the life, limb, or property of a person is liable to 

the U.S. Government for a civil penalty. Negligence is the omission 

to do something which a reasonable person, guided by those common 

sense considerations which ordinarily regulate human affairs, would 

do; or the doing of something which a reasonable and prudent person 

would not do. It is the failure to use such care as a reasonably 

prudent and careful person would use under similar circumstances. 

Negligence can also be established by showing that a person violated 

an applicable safety law. But 46 U.S.C. 2302(a) also requires proof 

that the negligent act endangered the life, limb or property of a 

person. In the example given above, the party is already charged for 

operating under the influence and for failing to have navigation 

lights energized after sunset. However, the case file does not contain 

evidence to show that these alleged violations of safety law 

endangered the life, limb or property of a person. And, even if there 

was such proof, the Hearing Officer would have two violations based 

on the same failure to comply with a safety law. That may be 

considered a case of multiplicious charging (see the accompanying 

article), which means that the Hearing Officer may consider the two 

violations as a single violation for purposes of assessing an 

appropriate penalty. That would not be the case if the alleged 

negligent operations violation was based on an act that was 

independent of the already-charged BUI and navigation lights 

violations. 

Generally, in a case where BUI or another safety law violation is 

alleged, it may be appropriate to also charge a negligent operation 

violation if it is based on an independent act that would support 

pursuing a civil penalty case by itself. Some examples could include: 

colliding with properly moored or anchored vessels; operating 

erratically in dense traffic causing other boaters to take evasive 

action to avoid collision; operating at a high rate of speed in a no 
wake zone; and allowing children without PFDs to bow ride at a high 

speed, etc. 

As always, careful attention to ensuring that civil penalty cases 

forwarded to the Hearing Office contain good and sufficient evidence 

to support each element of each charge cited will assist in the timely 

and proper notice to parties.