Boating Under The Influence


The DMV wields a substantial amount of power over our driving privileges. When a person is arrested for driving under the influence, his or her license to drive is immediately suspended (with a 30-day grace period until the suspension takes place) unless the driver can successfully challenge the DUI arrest in an administrative per se (APS) hearing. As I have discussed on this website, the APS hearing is a completely separatefrom the criminal matter and, in virtually all DUI cases, the suspension of the arrested driver’s license to drive takes place before the DUI is adjudicated by the criminal court.

Although APS proceedings seem to fly in the face in the face of due process since the driver has not even been convicted yet of the alleged DUI, the appellate courts have consistently held that the administrative suspension is constitutional.

But drivers did win a victory of sorts against the DMV back in 2008 in a class action matter, Cinquegraniet al., v. DMV, 163 Cal.App. 4th741. In that case, two plaintiffs brought a lawsuit against the DMV after the DMV suspended their license to drive following a conviction for boating under the influence (BUI).

At the time, as now, the BUI statute made no provision for the suspension of a person’s license to drive upon being arrested and convicted of BUI.  However, the DMV based its authority to suspend the boaters’ licenses to drive based on what the DMV termed a “bridge” between the two statutes—DUI and BUI. That is, the DUI statute found in Vehicle Code section 23620(b), provided that (and still does), a separate BUI offense is counted as a violation of Vehicle Code section 23152. (Section 23152 makes it unlawful to drive under the influence.)  Section 23620 concerns the penalties for repeat DUI offenders.  The DMV argued that the meaning of section 23620 makes a BUI conviction the same as a DUI conviction for the purposes of punishment.

The appellate court disagreed. The court’s discussion is technical, but the bottom line is that the court refused to find that Vehicle Code section 23620 gave the DMV the power to suspend the driver’s license of a person charged or convicted with a BUI.  On very narrow grounds, the appellate court did find that the DMV’s suspension of the license of drive based on a BUI conviction violated due process rights, but only because the DMV had no statutory authority to do so. Until this ruling, the DMV routinely suspended the license to drive when a person was convicted of BUI. This case illustrates how a perceptive analysis by an experienced DUI defense attorney can preserve your rights under the law.

However, a BUI conviction can still affect the suspension of a person’s driver’s license under the DUI statutory scheme.  A BUI does count as a prior DUI. So, for example, if a driver is convicted on a first DUI but had a prior BUI (within seven years), the BUI will make the DUI a second DUI offense with the corresponding penalties.

Orange County DUI defense attorney William Weinberg will explore every component of your BUI or DUI arrest for a viable defense of the charge. He has successfully defended hundreds of individuals charged with these crimes for 25 years and offers a free consultation to explore your defense options. You may reach Attorney Weinberg at his Irvine office by calling 949-474-8008 or by emailing him at

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