Ohio prohibits operating or being in physical control of any vessel underway under the influence of alcohol, marijuana, or other controlled substances under Ohio Revised Code § 1547.11. While Ohio's BUI statute closely mirrors the OVI statute (O.R.C. § 4511.19) in its per se BAC and THC thresholds, the two laws differ significantly in their penalties, license suspension consequences, and implied consent procedures. Field sobriety testing on water is uniquely problematic, and Ohio courts have specifically accounted for the challenges of the aquatic environment. Marijuana use on a boat carries the same per se limits as on land under Ohio law, but boaters on Lake Erie face the additional exposure of concurrent federal jurisdiction—and marijuana remains a federally controlled substance regardless of Ohio's 2023 legalization. On Lake Erie specifically, both Ohio state law and federal maritime law apply simultaneously.
Ohio's Boating Under the Influence Statute (O.R.C. § 1547.11)
Ohio Revised Code § 1547.11 prohibits any person from operating or being in physical control of any vessel underway, or from manipulating water skis, aquaplanes, or similar devices on Ohio waters, when any one of several impairment conditions exists OH ST § 1547.11. The prohibited conditions are structurally parallel to Ohio's OVI statute and include: (1) being under the influence of alcohol, a drug of abuse, or a combination; (2) having a whole blood alcohol concentration (BAC) of 0.08% or more; (3) having a blood serum or plasma alcohol concentration of 0.096% or more; (4) having a urine alcohol concentration of 0.11 grams or more per 100 milliliters; or (5) having a breath alcohol concentration of 0.08 grams or more per 210 liters OH ST § 1547.11.
The statute also establishes a lower threshold for persons under 21 years of age, prohibiting any operation of a vessel with a BAC of at least 0.02% but less than 0.08% in whole blood, mirroring the underage OVI prohibition OH ST § 1547.11. For purposes of the statute, a vessel "operates" on Ohio waters when it is not securely affixed to a dock, shore, or permanent structure, or not anchored in a designated anchorage area—meaning even a drifting or idling boat can support a BUI charge OH ST § 1547.11. Ohio courts have interpreted "physical control" to require that a person be in a position physically capable of causing the boat to move State v. LePard, 52 Ohio App.3d 83 (1989).
Ohio's BUI enforcement is primarily carried out by the Ohio Department of Natural Resources, Division of Watercraft, pursuant to O.R.C. § 1547.51. Under O.R.C. § 1547.61, the watercraft laws of Chapter 1547 govern all vessels operating on Ohio waters, and local jurisdictions may not adopt watercraft operating rules inconsistent with state law.
Ohio BUI Versus Ohio OVI: Key Differences
Although Ohio courts have held that O.R.C. § 1547.11 and O.R.C. § 4511.19 "should be construed in a consistent and harmonious fashion" State v. LePard, 52 Ohio App.3d 83 (1989) State v. Deters, 128 Ohio App.3d 329 (1998), the two statutes differ in several important respects.
Subject Matter and Defined Terms. The OVI statute applies to vehicles, streetcars, or trackless trolleys within this state OH ST § 4511.19, while the BUI statute applies to vessels underway on Ohio's waters OH ST § 1547.11. Because watercraft do not require a motor vehicle operator's license to operate, BUI enforcement raises distinct licensing and administrative issues.
Penalties and Mandatory Jail. Both statutes classify a first offense as a misdemeanor of the first degree. Under the BUI statute, a first offense carries a mandatory jail term of three consecutive days and a fine of $150 to $1,000 OH ST § 1547.99. A second offense within ten years carries a mandatory ten consecutive days in jail, and a third or subsequent offense within ten years carries a mandatory thirty consecutive days, with a potential sentence of up to one year OH ST § 1547.99. By comparison, the OVI statute imposes a mandatory three-day jail term for a first standard offense, but also provides a higher-tier penalty structure when BAC reaches 0.17% or more, triggering a mandatory six days (three days jail plus three days in a drivers' intervention program) OH ST § 4511.19. There is no analogous enhanced BAC tier under the BUI statute OH ST § 1547.99.
License Consequences. A critical practical distinction is that an Ohio BUI conviction does not automatically suspend a defendant's driver's license. Instead, the administrative consequences of a BUI refusal or conviction flow through the Division of Parks and Watercraft, which can prohibit the person from operating any vessel and from registering any watercraft for one year OH ST § 1547.111. By contrast, an OVI conviction results in mandatory suspension of the offender's motor vehicle driver's license or permit for one to three years on a first offense, up to 12 years on a third offense, with ignition interlock and limited driving privileges available OH ST § 4511.19. The BUI statute contains no ignition interlock equivalent.
Cross-Statute Enhancement. Despite these differences, a BUI conviction constitutes an "equivalent offense" under O.R.C. § 4511.181 and can be used to enhance penalties in subsequent OVI prosecutions OH ST § 4511.181. Likewise, a prior OVI conviction can be used to enhance BUI penalties. The practical consequence is that a boater with a prior OVI conviction who later commits BUI faces enhanced mandatory jail time, and vice versa.
Vehicle Immobilization. The OVI statute allows for vehicle immobilization (90 days for a second offense) and criminal forfeiture of the vehicle (third offense), reflecting that a motor vehicle can itself be used as an instrumentality of further offense OH ST § 4511.19. No analogous boat immobilization or forfeiture is available under the BUI statute, though upon refusal to submit to chemical testing, the vessel's registration certificate and tags may be seized OH ST § 1547.111.
Implied Consent—Different Consequences. Under O.R.C. § 1547.111, any person who operates a vessel on Ohio waters is deemed to have given consent to chemical testing OH ST § 1547.111. Refusal results in a one-year administrative prohibition on vessel operation and watercraft registration—not a driver's license suspension. The OVI implied consent law leads instead to driver's license suspension. Both statutes provide a two-hour window within which the person must submit to testing OH ST § 1547.111.
Field Sobriety Tests: Water Versus Land
Field sobriety testing in the BUI context presents unique legal and practical challenges that Ohio law expressly acknowledges. Ohio Revised Code § 1547.11(E)(1) provides that field sobriety test results are admissible in BUI prosecutions if the officer administered the test "in substantial compliance with the testing standards for reliable, credible, and generally accepted field sobriety tests for vehicles that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that have been set by the national highway traffic safety administration, that by their nature are not clearly inapplicable regarding the operation or physical control of vessels underway." Ohio Revised Code § 1547.11. This critical qualifying phrase—that NHTSA standards apply only insofar as they are "not clearly inapplicable" to watercraft operation—acknowledges that some land-based standardized tests simply cannot be meaningfully administered on a moving boat.
Ohio courts have grappled directly with this problem. In State v. Deters, 128 Ohio App.3d 329 (1998), Ohio Department of Natural Resources officers initially administered the horizontal gaze nystagmus (HGN) test while both the officer and the defendant were aboard boats bobbing on rough water in the middle of the Ohio River. The trial court gave "no weight" to that water-based HGN result because the two boats were bobbing up and down on rough water, a condition fundamentally incompatible with the stable visual tracking required for a valid HGN test. The appellate court affirmed this evidentiary determination, noting that "it was within the trial court's prerogative to give little or no weight to the HGN and alphabet tests conducted in the middle of the river." However, the Court of Appeals held that the officers could still establish probable cause for BUI through other evidence—the defendant's erratic vessel operation, slurred speech, odor of alcohol, and admission to drinking four beers—without relying on the water-based tests. State v. Deters, 128 Ohio App.3d 329 (1998).
The standard enforcement protocol that has emerged from Ohio case law involves a two-stage approach. Officers typically conduct a limited preliminary screening while still on the water—most commonly the HGN test, which does not require stable footing—and then bring the suspect to shore for the balance of the psychomotor testing, including walk-and-turn and one-leg-stand tests. In State v. Gentry, 61 Ohio Misc.2d 31 (1990), officers administered the eye gaze nystagmus test on the Ohio River, then transported the defendant to the Cincinnati riverfront where psychomotor tests were conducted on a concrete shoreline, followed by a formal arrest and breath test. The court upheld this procedure.
The physiological phenomenon of prolonged exposure to sun, wind, heat, noise, and the motion of the water causes fatigue and affects equilibrium in ways that can impair performance on physical sobriety tests even in sober individuals. This is a recognized challenge in BUI prosecutions because it provides a potentially valid defense to physical performance tests, though it does not affect chemical test results. Ohio's requirement that NHTSA standards apply only where "not clearly inapplicable" to watercraft operation reflects the legislature's recognition of this environmental reality OH ST § 1547.11.
Ohio courts have also applied the substantial compliance standard from OVI field sobriety law to BUI prosecutions. As established in State v. Schmitt, 101 Ohio St.3d 79 (2004), results of field sobriety tests not administered in accordance with standardized testing procedures are properly excluded, though a law enforcement officer may always testify regarding personal observations during the tests as lay opinion evidence. State v. Schmitt, 101 Ohio St.3d 79 (2004).
Marijuana on a Boat: Ohio Law and the Boating Environment
Ohio's per se marijuana limits under the BUI statute are identical to those under the OVI statute. Under O.R.C. § 1547.11(A), a vessel operator is prohibited from operating if the person has a concentration of marijuana (active THC) of at least 10 nanograms per milliliter of urine or 2 nanograms per milliliter of whole blood, blood serum, or plasma OH ST § 1547.11. For marijuana metabolite, Ohio establishes a two-tier system: (1) if the person is also under the influence of alcohol or drugs, a concentration of 15 nanograms of marijuana metabolite per milliliter of urine or 5 nanograms per milliliter of blood constitutes a violation; or (2) even without additional impairment, a concentration of 35 nanograms of marijuana metabolite per milliliter of urine or 50 nanograms per milliliter of blood constitutes a per se violation OH ST § 1547.11. Ohio's OVI statute contains the same numerical thresholds, making the marijuana standards parallel across both statutes OH ST § 4511.19.
Unlike alcohol, the BUI and OVI statutes do not establish an enhanced penalty tier for higher THC concentrations. There is no marijuana equivalent to the 0.17% BAC aggravated tier that triggers longer mandatory jail terms under OVI OH ST § 4511.19 OH ST § 1547.99.
A boater who uses marijuana before or during a trip on Lake Erie or any Ohio waterway faces the same per se exposure on the water as on land under Ohio law. However, the boating environment can make marijuana's effects more pronounced. Scientific literature and enforcement experience indicate that the combination of sun exposure, heat, water glare, wind, dehydration, boat motion, and vibration exacerbates impairment from any intoxicant, including marijuana. This means that a person who might not appear meaningfully impaired by a given THC level while stationary on land may be functionally more impaired while operating a vessel. A person impaired by marijuana but not meeting the per se threshold may still be prosecuted under the general "under the influence" prong of O.R.C. § 1547.11(A)(1) if observable impairment is apparent OH ST § 1547.11.
The prescription drug exception available under O.R.C. § 1547.11(H) does not apply to marijuana, as there is no valid prescription pathway for marijuana in the federal controlled substances framework. Ohio's legalization of recreational marijuana in November 2023 changed what an individual may lawfully possess and consume on land, but it did not change the BUI statute's per se thresholds or the federal illegality of marijuana, discussed below OH ST § 1547.11.
Federal Law Implications for Boaters on Lake Erie
Lake Erie presents a unique jurisdictional landscape for BUI enforcement because it is a navigable water of the United States subject to concurrent state and federal jurisdiction.
Federal Maritime Jurisdiction. Lake Erie and the Great Lakes are considered navigable waters of the United States and fall within the admiralty and maritime jurisdiction of the federal courts Hoopengarner v. U.S., 270 F.2d 465 (1959). The U.S. Supreme Court has held that a collision between two recreational vessels on navigable waters properly invokes admiralty jurisdiction in federal court, reflecting "the need for uniform rules governing navigation" Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982). Boaters on Lake Erie are therefore subject to both Ohio law and applicable federal maritime law.
Federal BUI Standard and 46 U.S.C. § 2302. The federal BUI statute, 46 U.S.C. § 2302, establishes penalties for operating a vessel under the influence of alcohol or a dangerous drug in violation of federal standards 46 USCA § 2302. A person found to be operating under the influence is liable to the federal government for a civil penalty of up to $5,000 or, alternatively, commits a Class A misdemeanor subject to criminal prosecution 46 USCA § 2302. Separately, under 46 U.S.C. § 2302(b)(2), a person operating a vessel in a grossly negligent manner that results in serious bodily injury commits a Class E felony, regardless of whether the operator is under the influence 46 USCA § 2302. The vessel itself may be held liable in rem for any penalty imposed, unless the vessel is owned by a State or political subdivision, operated principally for governmental purposes, and clearly identified as a governmental vessel 46 USCA § 2302.
33 C.F.R. Part 95—Federal BUI Regulations. The U.S. Coast Guard implements 46 U.S.C. § 2302 through 33 C.F.R. Part 95, which establishes the standards for determining when a vessel operator is under the influence. For recreational vessels—which describes most private boaters on Lake Erie—the federal standard is 0.08% BAC 33 CFR § 95.020. For commercial vessels and non-recreational vessels, the federal standard is the stricter 0.04% BAC 33 CFR § 95.020. In both cases, an operator may be found under the influence based on observable behavior regardless of measured BAC, if "the effect of the intoxicant(s) consumed by the individual on the person's manner, disposition, speech, muscular movement, general appearance or behavior is apparent by observation" 33 CFR § 95.020.
Ohio Standards Apply Within Ohio Waters of Lake Erie. Under 33 C.F.R. § 95.025, if a state statute establishes a BAC level for operating a recreational vessel under the influence, that state standard applies within the state's geographical boundaries instead of the federal recreational vessel standard 33 CFR § 95.025. Ohio's per se BAC of 0.08% under O.R.C. § 1547.11 therefore applies to recreational boating within the Ohio portion of Lake Erie, consistent with the federal framework. The Ohio portion of Lake Erie extends to the international boundary line with Canada. County sheriffs of Ashtabula, Cuyahoga, Erie, Lake, Lorain, Lucas, and Ottawa counties are authorized to enforce Ohio law across the entire Ohio section of Lake Erie out to the international boundary (except where another county's boundary or the Ohio-Michigan boundary intervenes). The sheriff of Sandusky County is authorized to enforce Ohio law on Lake Erie waters only as far as the boundary lines between Sandusky County and Ottawa and Erie counties.
No Federal Preemption of State BUI Enforcement. Federal law explicitly preserves state authority in this area. The purpose section of 33 C.F.R. Part 95 states that the federal regulations "do not pre-empt enforcement by a State of its applicable laws and regulations concerning operating a recreational vessel while under the influence of alcohol or a dangerous drug" 33 CFR § 95.001. This means that ODNR watercraft officers, county sheriffs, and local law enforcement agencies may continue to enforce Ohio's BUI statute on Lake Erie concurrently with federal enforcement.
Concurrent Federal and State Jurisdiction—Double Exposure. The non-preemption framework means that a boater arrested for BUI on Lake Erie may face prosecution in both Ohio state court and in federal court. The U.S. Court of Appeals for the Sixth Circuit has confirmed that the Great Lakes are within the maritime and territorial jurisdiction of the United States, and state court jurisdiction over offenses committed on Lake Erie does not preclude concurrent federal jurisdiction Hoopengarner v. U.S., 270 F.2d 465 (1959). The U.S. Coast Guard can, and does, board recreational vessels on Lake Erie for safety inspections, and if it discovers evidence of intoxication, it may initiate federal proceedings separately from any state prosecution.
Commercial Vessel Operators—Stricter Standard and Mariner License Consequences. For boaters who hold a U.S. Coast Guard Merchant Mariner Credential (MMC) and operate commercial vessels on Lake Erie, the federal standard is 0.04% BAC—half the recreational threshold 33 CFR § 95.020. A commercial vessel operator who is found to be operating under the influence may face suspension or revocation of their MMC in addition to any criminal or civil penalties, operating a vessel under the influence is treated with particular severity by the Coast Guard for licensed mariners, with revocation of the MMC possible even for a first offense involving serious safety risks.
Marijuana on Lake Erie—Federal Controlled Substance Issue. The most significant difference between marijuana use on land versus on a boat on Lake Erie involves federal law. Ohio legalized recreational marijuana use under state law effective November 2023, which means that possessing and consuming marijuana in Ohio is no longer a state criminal offense for adults. However, marijuana remains a Schedule I controlled substance under the federal Controlled Substances Act, 21 U.S.C. § 812. Because Lake Erie is a navigable water of the United States subject to federal jurisdiction, a boater who uses or possesses marijuana on a vessel may be subject to federal drug possession charges, which would not apply to the same conduct on dry land within Ohio. Federal law enforcement, including the U.S. Coast Guard, applies federal narcotics law on navigable waters. A Coast Guard boarding on Lake Erie could result in federal marijuana possession charges even if state law permits the substance. This dual-sovereignty dynamic is a key distinction between marijuana use on a boat on Lake Erie versus marijuana use on land in Ohio.
Related Issues
- Whether a BUI arrest, if it ultimately results in a conviction, can be used to enhance future OVI charges when the offender later drives a motor vehicle under the influence, and the reverse—whether prior OVI convictions count as "equivalent offenses" to elevate BUI penalties
- The legality of warrantless boarding by Ohio watercraft officers for routine safety inspections under O.R.C. § 1547.521 and its Fourth Amendment implications for BUI evidence gathered during such inspections
- Admissibility of breath test results in BUI cases where the defendant was transported from the water to shore before testing, including chain of custody and protocol compliance under Ohio Department of Health regulations
- Potential tort liability and civil damages for personal watercraft collisions on Ohio waters where alcohol or drug impairment of an operator is alleged under O.R.C. § 1547.11 and O.R.C. § 1547.34
Commentary on This Question
Ohio law treats boating under the influence (BUI) similarly to operating a motor vehicle under the influence, with provisions requiring operators or those in physical control of vessels to submit to chemical testing upon arrest based on reasonable grounds. This implied consent applies to chemical tests for alcohol and drugs, with tests including breath, blood, urine, or oral fluid, and refusal can lead to penalties analogous to DUI consequences. Distinctions exist in evidentiary rules and implied consent application, as boating offenses may not incorporate the same implied consent laws governing motor vehicles, meaning voluntary consent is required for chemical testing in certain jurisdictions. Field sobriety tests (FSTs) on water involve analogous observations: officers consider vessel operation, signs like difficulty maneuvering, odor of alcohol, bloodshot eyes, slurred speech, and admission of drinking before administering FSTs and proceeding to arrest. The legal threshold for suspicion and probable cause is similarly articulated for both watercraft and land vehicles, but statutes and case law highlight nuances in consent to testing and investigatory scope during boating stops versus traffic stops on highways.
Marijuana impairment presents evidentiary challenges due to detection windows and lack of definitive correlating impairment thresholds. Standard FSTs show limited sensitivity to cannabis impairment; however, certain tests such as ‘walk-and-turn’ and ‘one-leg stand’ reveal performance deficits in cannabis-positive individuals. Research indicates marijuana may cause slower reaction times without the aggression typical of alcohol intoxication, complicating assessments. Toxicology experts consider a combination of behavioral observation, test performance, THC presence, and admissions to determine impairment, recognizing tolerances and residual THC effects. Federal implications include the Assimilative Crimes Act, applying state DUI laws to federal waters and affirming that intoxicated operation of motor vehicles or vessels violates federal DUI regulations. Bankruptcy case law confirms that operational intoxication under federal statutes includes vessels, with legal intoxication defined by applicable state law, including Ohio, for nondischargeability purposes.
If you or a loved one has been cited for Boating Under the Influence, please feel free to call Attoreny Adam VanHo. VanHo has been raised on the shores of Lake Erie and is an experienced motor and sail boater. He regularly represents individuals all across Ohio with legal needs, including offenses that occur on Ohio's waterways.