28.14 BOATING UNDER THE INFLUENCE

To prove the crime of Boating Under the Influence, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) operated a vessel.

2. While operating the vessel, [he] [she]

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.

b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].

Give if applicable. § 327.35(4), Fla. Stat.

If you find the defendant guilty of Boating Under the Influence, you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while operating the vessel.

b. the defendant was accompanied in the vessel by a person under the age of 18 years at the time of the Boating Under the Influence.

*§ 327.35(6)(b), Fla. Stat. and § 327.35(6)(c), Fla. Stat.

See Comments regarding issue of whether a jury finding is required. The following instruction is suggested if the judge determines a jury finding required. The State’s allegation of a prior conviction should not be read to the jury, and the trial must be bifurcated if a jury finding is required. Note: BUI and out-of-state DUI/DWI convictions count as prior convictions. See §316.193(6), Fla. Stat.

Now that you have found the defendant guilty of Boating Under the Influence, you must further determine whether the State proved beyond a reasonable doubt that the defendant was previously convicted of [Boating Under the Influence] [(insert qualifying conviction(s)] and that the BUI for which you just found the defendant guilty was committed within [5 years] [10 years] after the date of a prior conviction.