Portland Criminal Defense Attorney Blog

This is the blog for James F. O'Rourke, Jr. and Associates. In this blog we will present information, commentary and our own opinions and philosophy regarding the areas of law in which we practice. It is the purpose of this blog to be informative, helpful and thought provoking. The dynamic interface between the individual and the government is the law. What we mean by that is that when the government sets certain goals, it creates laws to achieve those goals. Those laws touch the lives of the people under the jurisdiction (power) of the government. As criminal defense lawyers, it is our job to make sure that the people we represent receive all of their rights and protections under the law. In some cases, that involves advocating for changes in the law or reinterpretation or correct application of the existing law. As personal injury lawyers, it is our job to make sure that our clients receive all their rights under the law and to secure compensation for the people we represent for injuries and damages they suffer which are caused by the intentional, reckless or negligent acts or omissions of others.

Posts tagged: DUII Diversion

Similarities and Differences between DUII and BUII

The crimes of Driving Under the Influence of Intoxicants and Boating Under the Influence of Intoxicants share many similarities. However, there are also some peculiar differences.

The offenses are similar in terms of the severity of the punishment. Both are Class A Misdemeanors carrying a possible maximum jail term of one year and/or a possible maximum fine of $6,250.00. Convictions for either offense results in suspension of a person’s privilege to drive a vehicle or operate a boat. Also, both offenses are subject to their own “Implied Consent Law.” Under the Implied Consent Law a person is deemed to have consented to taking a breath test in advance, simply by choosing to operate a vehicle on a public highway (or “premises open to the public;” e.g. parking lots) or operates a boat on “any waters of the state.” Under this law, a person’s refusal to take a breath test can be used against them in court; a jury can be told that a person’s refusal of the breath test is evidence of guilt.

These offenses also share an unusually broad scope in terms of the types of vehicles and water craft that are covered by the law. Many people don’t know, and are surprised to discover, that a person can commit a DUII while riding on a bicycle, because a bicycle is included in the legal definition of “vehicle.” Similarly, the term “boat” is not limited to motor boats and sailboats, it also includes row boats and inflatable rafts (thankfully, inner tubes are excluded).

BUII also carries some odd differences from DUII. For instance, a person can commit BUII by merely being in “actual physical control” of a boat. So if you are guiding a boat that is simply adrift you can still be charged with the crime. More importantly, BUII applies to the owner of a boat who knowingly allows an intoxicated person to operate his boat. So a sober owner who turns the helm of his motor boat over to an intoxicated friend can be arrested and charged with BUII along with the actual operator. Moreover, if two people are intoxicated and jointly rowing a raft, both can be charged with BUII because both are in “actual physical control” of the boat.

Also, there is no specific legal provision for Diversion in a BUII case as there is with a DUII. So, a BUII first offense is potentially more serious than a DUII where a person is eligible for the formal Diversion program. There are, however, ways to negotiate a Diversion type disposition with the state as a part of the process of resolving the case which is essentially the same effect as a DUII Diversion.

We at James F. O’Rourke Jr. and Associates offer high quality legal services to persons charged with DUII and BUII. We have a detailed knowledge of the similarities and differences of the offenses and we aggressively defend clients charged with these serious crimes.

Tags: BUII, DUII Diversion