Ala. Pattern Jury Instr. (Criminal) 32-5A-191_3(A)BUI(BAC0.08ORGREATER)

BUI

(BAC 0.08% or Greater)

The defendant is charged with boating while under the influence.

A person commits the crime of boating while under the influence if he/she

operates or is in actual physical control of a vessel, or manipulates any water skis,

aquaplane, or any other marine transportation device on the waters of this state

while there is 0.08 % or more by weight of alcohol in his/her blood.

To convict, the State must prove beyond a reasonable doubt each of the

following elements:

(1) The defendant was operating or was in actual physical control of a

vessel or was manipulating water skis, an aquaplane, or any other

marine transportation device on the waters of this state; (AND)

(2) The defendant did so while there was 0.08 % or more by weight of

alcohol in the defendant’s blood.

Operate is to navigate or otherwise use a vessel. [33-5-3(5)]

Actual physical control is the exclusive physical power, and present ability,

to operate, move, park, or direct whatever use or non-use is to be made of the

motor vehicle at the moment. Actual physical control is determined by a totalityof-

the-circumstances test. [See Use Note]

Vessel is every description of watercraft, other than a seaplane, capable

of being used as a means of transportation on the water, but such term shall not

include vessels 12 feet in length or less when used solely on farm ponds of less

than 50 acres in size. [32-5A-191.3(j) and 33-5-3(10)]

[Read as appropriate]: Length means measured from end to end over the

deck from the bow to the transom, excluding sheer bowsprits, swim platforms, or

engine brackets extending from the hull. [33-5-3(4)]

Waters of this state are any waters within the territorial limits of this state

and the marginal sea adjacent to this state and the high seas when navigated as a

part of a journey or ride to and from the shore of this state. The term does not

include any private pond which is not used for boat rentals or the charging of fees

for fishing therein.[32-5A-191.3(j) and 33-5-3(11)]

[Read as appropriate]: The State need not prove that the Defendant’s ability to

drive was impaired. [Ex parte State in re Curren v. State, 620 So.2d 739, 742 (Ala. S.

Ct. 1993)]

[Read as appropriate]: The fact that a person charged with violating this law is

or has been legally entitled to use alcohol shall not constitute a defense against a charge

of violating this law. [32-5A-191.3(c)]

If you find that the State has proved beyond a reasonable doubt each of the

elements of the offense of boating while under the influence, then you shall find the

Defendant guilty of boating while under the influence.

If you find that the State has failed to prove beyond a reasonable doubt any one

or more of the elements of the offense of boating while under the influence, then you

cannot find the defendant guilty of boating while under the influence.