Florida Court Issues Major Ruling On What It Means To “Operate” Vessel

October 23, 2025 Don Pumphrey, Jr. Criminal Defense, Drunk Driving/DUI Social Share

A major new Florida court ruling clarifies that even someone who was not in actual physical control of a vessel can be charged with vessel-related crimes, such as BUI and reckless boating.

In Florida, vessel-related crimes are very serious. These range from careless or reckless operation of a vessel (generally considered misdemeanors), to BUI (boating under the influence). Depending on the facts of a case, someone may also be charged with a very serious felony, such as vessel homicide or BUI manslaughter.

For someone to be found guilty of any of these offenses, they must be found to have “operated” a vessel. The definition under Florida law of “operation of a vessel” is quite broad – significantly broader than the definition of “operation of a vehicle” (which requires a person to be in actual physical control at the time).

Per Fla. Stat. 327.02(34), someone may be considered to be “operating” a vessel if any of the following are true:

• The person is in charge of the vessel, or are responsible at the time for the operation of the vessel
• The person is in command of the vessel, or the master, captain, or person with ultimate authority over the vessel
• The person is in actual physical control of/steering the vessel (the definition used in DUI/vehicular homicide cases)
• The person has control or responsibility for navigation and safety while the vessel is underway 
• The person is controlling or steering a vessel while it is being towed by another vessel

Prior to the law being updated, Florida defined “operate” to mean that someone was “navigating or otherwise using a vessel.” However, this definition was ruled unconstitutionally vague, which resulted in the legislature significantly expanding it. State v. Corley, 558 So.2d 187 (Fla. 4th DCA 1990); State v. Kolacia, 558 So.2d 190 (Fla. 4th DCA 1990)

Nevertheless, in the vast majority of cases where someone is accused of a vessel-related crime (e.g. boating under the influence, DUI manslaughter, reckless or careless boating), the operator is the person who was steering the vessel at the time. Though the definition of “operation” is quite broad, it is very rare for someone who was not physically in control of the vessel to be charged.

However, an exception occurred in a recent case: State v. Burke. There, a Wakulla County (2nd Judicial Circuit of Florida) court heard a motion to dismiss from a defendant (Burke) – who was charged with boating under the influence (BUI) despite not steering the boat when it was stopped by law enforcement (FWC).

The State and Burke agreed that in April 2025, he was consuming alcohol aboard a vessel when it was caught speeding on the St. Marks River. An officer initiated a stop of the vessel, and found it was registered to Burke’s uncle.

The video from the officer’s body camera showed that Burke’s 14-year-old son was at the vessel’s helm when it was boarded by the officer, with the defendant (Burke) seated behind him. The officer observed that Burke’s son did not possess a valid boater safety identification card, but the child was not cited for operating the vessel without the proper paperwork.

When the officer began to speak with Burke, he noticed Burke was clearly under the influence of alcohol. Burke disclosed to the officer that he would “blow over the legal limit,” and said that he had “more than a couple beers.” Burke then admitted he was “under the influence.” 

Even though Burke was not actually behind the wheel of the vessel, the officer arrested Burke and charged him with one count of boating under the influence (BUI) with a person under 18 in the vessel (Fla. Stat. 327.35).

Burke filed a motion to dismiss the charges against him, arguing that the State had not shown sufficient evidence he was operating the vessel in violation of Florida law (as required by the BUI statute). The State responded by arguing:

• Burke stated he was in command of the vessel when asked by the officer, and;
• Burke showed the officer where the safety equipment was located on the vessel, thereby indicating he was responsible for the safety of those on board

The trial court ultimately denied Burke’s motion to dismiss the BUI charge, holding that he was operating a vessel under Florida law despite not being in actual physical control of it. The court discussed the five definitions of “operation” of a vessel in Fla. Stat. 327.02(34). Siding with the State and denying Burke’s motion, Wakulla County Judge Brian D. Miller held:

“The Court finds, based on viewing the evidence in the light most favorable to the State, that two (2) of the variations encompassed in the definition of ‘operate’ apply in this case. First, the Defendant affirmatively stated twice during his encounter with Ofc. Mallow that he was the captain of the vessel and in command of the vessel. Second, the Defendant’s actions in locating and describing items for vessel safety in response to Ofc. Mallow’s questions regarding those items indicated he was responsible for the safe operation of the vessel.”

Judge Miller also rejected Burke’s argument that his decision to allow his son to steer the vessel made him no longer liable for BUI. He wrote: 

“The Defendant argued that the legislature encourages designated operators of vessels and vehicles, and that an intoxicated person could be relieved of criminal liability if they allow a non-intoxicated person to be in actual physical control of the vessel, whether that person was authorized to operate the vessel or not.”

“However, the Court rejects this argument, as the fact that another person could have received a citation for operating a vessel without a valid boater safety identification card does not absolve the Defendant of his own criminal liability pursuant to the broad definition of “operate” in Fla. Stat. § 327.02(34).”

The court noted the novelty of its analysis (given the lack of case law on this issue) in a footnote to its order:

“There is a dearth of case law in Florida regarding the issue presented in this case. The Court examined how other states defined operation of a vessel in the context of boating under the influence and found that (1) Florida has the broadest definition of ‘operate,’ as most other states restrict operation to a person in actual physical control of a vessel, and (2) that even less case law regarding this issue exists in those states.”

Given Judge Miller’s order, it is clear that Florida law has a sweeping definition of “operation” in the context of BUI or other vessel-related charges. If someone captains or otherwise remains responsible for the safety of passengers aboard a vessel, they may still face criminal charges for BUI if they are under the influence – even if they’re not steering the boat.

Judge Miller’s ruling will also likely impact how courts view various other crimes, such as vessel homicide or reckless boating. If a fatal boating crash occurs, can a passenger now be convicted of vessel homicide even if they were not behind the wheel? The answer is – yes, as long as they are covered by one of Florida law’s five definitions of “vessel operator.”

In sum, State v. Burke (Wakulla, Aug. 22, 2025) marks a significant development in Florida law regarding how broadly courts define “operation of a vessel.” Unlike other states, Florida does not simply “copy” the language of the DUI statute. Depending on the facts of a case, someone (like Burke) may be charged with a boating crime even if they never touch the steering wheel.

It is critical to find experienced and trusted legal representation as soon as possible if someone is charged with vehicular homicide, DUI manslaughter, BUI manslaughter or vessel homicide. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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