A boater seems impaired. Shows signs of it to law enforcement. But it isn’t alcohol. Officers are limited in what they can do about it.
The U.S. Coast Guard lake enforcement unit that patrols Lake Wylie has a new tool this summer to combat what officers say is a nationwide rise in drug use while boating. A tool that could end a boater’s day on the water in minutes, or even make a case for criminal charges.
Or, many hope, serve as a reminder for boaters to stay clean and sober on the water before an incident gets that far.
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“Letting people know that you do have the capability can probably deter people,” said Lynn Smith, chairwoman of the Lake Wylie Marine Commission.
David Herndon and Craig Miller are two of four Coast Guard officers assigned to Lake Wylie. Their unit is one of seven in a nationwide pilot program using a Draeger DrugTest 5000 to collect and process saliva samples from boat operators suspected of being impaired. The unit still tests for blood alcohol levels similar to a breathalyzer, but also for prescription and illicit drugs. Officers can detect amphetamines, meth, cocaine, opiates and more in real time.
“This is not a safe activity to undertake,” Herndon said of boating while impaired.
Miller recalls an incident last summer when he stopped a boater who showed a variety of impairment signs. Yet a breathalyzer showed nothing.
“We didn’t have any tangible evidence,” Miller said.
Officers who suspect someone is on drugs could take that person off the water and have local law enforcement take him or her in for testing, which could take weeks or longer to get results. The Draeger is a different story.
“This right here, within two minutes you can get the results,” Miller said.
The Coast Guard is the lead federal agency for maritime law enforcement on boating under the influence cases. A 2014 survey among drivers, both on the road and waterways, found 20 percent tested positive for at least one drug. An estimated 10.1 million people drove under the influence of illicit drugs from 2006 to 2009, per the survey.
Since 2002, more than 4,800 commercial boaters have been charged with drugged driving and more than 1,100 tested positive for drugs after the Coast Guard or an employer mandated testing.
Recreational boating is a concern, too. Especially as the weather warms.
“May to September are the five highest calendar months for boating accidents and fatalities,” Herndon said.
Increased legalization of marijuana for recreational or medicinal use in other states is leading to a “prevalence of positive tests,” he said, while prescription drug abuse continues to reach higher levels. The same issues officers would see on roads, lake enforcement sees on the water.
The Coast Guard has a zero tolerance policy for impaired boat operator, even if the drug impairing a boater is prescribed.
“If it’s prescribed, it says ‘do not operate heavy equipment,’” Miller said. “Well, a boat is heavy equipment.”
Criminal defense attorney Robert Reeves, who has three offices, including locations in Fort Mill, Rock Hill and Charlotte, takes a more tempered stance on the new equipment. His firm handles driving and boating under the influence cases, including on Lake Wylie.
“It probably won’t change the game at all,” Reeves said. “It's not illegal to have alcohol in your system when you’re driving or even drugs. You just can't drive under the influence or boat under the influence.”
Reeves said most boating incidents on Lake Wylie involve people showing off or not knowing how to operate a boat. Boating under the influence cases, he said, are rare. He advises passengers on boats not to consent to testing and said results on drivers, no matter how fancy the machine, are “rebuttable.”
“Police believe in them, and I respect that, but I don't,” Reeves said of on-site testing machines, as opposed to sending off samples to labs. “And that's not just because I'm a defense attorney. It’s just because it's a best guess. Right out of the box, these things are a best guess."
As with highways, the .08 blood alcohol level is a national standard for impairment. In South Carolina, a .05 reading or lower means a driver isn’t under the influence. Something in between can be prosecuted if the driver is found “materially and appreciably impaired.”
Most often, issues on the water, Reeves said, result in a fine and a dramatic insurance rate increase. They don’t relate to points on or a suspension of a driver’s license, as issues on the road can.
"Then it (would) become a much bigger thing," Reeves said.
Reeves said having drugs in one’s system doesn’t, in itself, create cause to arrest someone. Marijuana and other drugs can stay in the system awhile. Again, he said, the issue is whether the driver is impaired at that moment. With so many prescription drugs out there, it can be a challenge.
"We're the most heavily medicated country in the world, just with prescription drugs," Reeves said.
Last year, the Coast Guard unit spent 362 hours on Lake Wylie, boarding 628 vessels and writing 159 warnings or violations. Officers brought 51 boats off the water for the day. They had a dozen boating under the influence cases.
All while running a relatively light schedule on the water. York, Mecklenburg and Gaston counties all have dedicated lake enforcement units patrolling Lake Wylie, as do the South Carolina Department of Natural Resources and North Carolina Wildlife Resources Commission. The Coast Guard unit splits time between Wylie and other lakes.
The Coast Guard has five weekends planned for Wylie this year, one each month from May to September. Dates are strategic. They’ll be out Memorial Day weekend. They’ll be out four days starting the weekend heading into July 4, which comes on a Tuesday. They’ll be back out for Labor Day weekend.
While officers haven’t made a public information push on the new equipment, they aren’t hiding it, either. They would rather boaters know what can happen on the water and avoid impaired boating.
“We want people to be safe,” Miller said.