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, 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.