Primer on Byfuglien & His Boating While Intoxicated Charges

On August 31, 2011, Winnipeg Jets defenceman/forward Dustin Ray Byfuglien was arrested on Lake Minnetonka in the state of Minneapolis on suspicion of boating while intoxicated (or a BWI).

If you heard he passed the breathalyser, you are right.

It broke today Byfuglien has been charged with BWI among other charges.

So why was he then arrested on suspicion of being intoxicated in the first place? Good question. Let’s take a look back.

What happened that night Byfuglien was arrested?

Minneapolis-based lawyer Mitch Robinson said Byfuglien’s boat was pulled over on the evening of August 31 by Hennepin County sheriffs because the craft’s navigational lights weren’t on. Byfuglien had 3 passengers on board. It was about 8:15 p.m. when the boat was stopped by police.

After a routine inspection of the vessel, police asked Byfuglien if he had been drinking, to which he responded he had had one drink.

Did Byfuglien take the breathalyser at this point?

Yes. Byfuglien was asked to submit to a breathalyser, to which he agreed. According to reports, he tested at 0.03% - well below the legal limit of 0.08%.

So he passed - shouldn’t that be the end of it then?

No. A person may still be arrested and charged with boating while impaired even if their blood alcohol concentration is less than .08% if they display signs or behavior consistent with impairment. If the officer has reasonable grounds to suspect that a person is impaired, that officer may lawfully request that the person submit to a blood or urine test.

So the officer needs to have probable cause to believe that the person is impaired beyond the legal limit.

As per the police report, here are some of the factors that may have constituted probable cause:

- he was unable to successfully perform field sobriety tests as requested 

- his pulse rate and blood pressure were high 

- his eyes were watery  

- he had a distinct brown stain on his tongue 

- he had trouble speaking, was unsteady on his feet and smelled of alcohol

Is it a crime to refuse a Urine Test?

Refusing to take a urine or blood test is a crime. If you want to read the actual law click here.

One important note - if you refuse to submit to a blood test, the officer must offer you a urine test before you can be charged with refusal. In other words, unless you refuse both a urine and a blood test, you’re not guilty of test refusal.

Is the crime of refusal serious?

Yes. In fact it’s more serious than actually submitting to the test and testing above the legal limit.

For a first time offender whose alcohol concentration is over the legal limit, the crime is characterized as a misdemeanour. Misdemeanors are crimes punishable by up to 90 days in jail and/or a fine of up to $1,000. The person would also lose motorboat operating privileges for 90 boating season days.

However, if you refuse a blood and urine test, then the misdemeanor is converted into a gross misdemeanor. That’s worse. Gross misdemeanors are crimes punishable by up to one year in jail and/or a fine of up to $3,000.

The Minnesota House of Representatives has a good table summary on the different types of criminal offences.

What’s the difference between a DUI and a BWI?

BWI laws differ from DUI laws in a number of ways. One of important distinction is that in the case of a DUI, an officer needs to have a reasonable suspicion to order to stop your vehicle while you’re driving. However, with a BWI, an officer may board a boat simply for safety or security reasons. If an officer notices the smell of alcohol, or sees evidence of alcohol consumption, he or she may investigate for BWI.

While we’re at it, what’s the difference between a DUI and DWI?

DUI stands for “driving under the influence”. DWI means “driving while intoxicated” (which is basically the same as BWI). These are two different ways to violate Minnesota's prohibition against impaired driving. A person is guilty of a DUI if his or her consumption of alcohol impaired his or her ability to operate a motor vehicle. A person is guilty of driving while intoxicated (DWI) if his or her alcohol concentration is measured at .08 or more, as disclosed by a breath, blood or urine test, within two hours of driving, operating, or physically controlling a motor vehicle.

Why is the urine test even used?

Many are asking why Byfuglien had to submit to a urine or blood test if he passed the breathalyser with flying colours.

Simply put, the argument is that while your average person’s blood alcohol steadily decreases over time, the same isn’t the case for alcohol in a person’s bladder. In fact, there is some evidence that urine alcohol, compared to blood alcohol, doesn’t decrease at all.

The Courts, though, are still looking at the legality of these tests in Minnesota.

Will Byfuglien be able to get back into Canada when travelling with the team?

Entry into Canada is solely determined by the Canada Border Services Agency. Their policy provides that a person may be denied entry into Canada if he or she is guilty of a criminal offence or has committed a crime.

The word “may” is key since it means that the Agency has the discretion to refuse a person entry. At this point, Byfuglien has been charged but not convicted. So in all likelihood, he will be permitted to re-enter Canada.

What if he is convicted – could Canada deny him entry?

Yes. Byfuglien would need to apply to the Canadian government for a temporary resident permit to enter the country. If granted, the order would expire after one year. He would need to keep re-applying each year for 5 years before he tries to get the permit permanent.

In order to get the permit, he would need to show that he is not a threat to re-offend and that he has a good reason to be in Canada. On the latter point, his job requires that he travel, so that economic reason should help a lot.

Overall, if convicted, thing could get a bit messy. For now, though, we shouldn’t expect that he won’t be able to lace 'em up in Canada.

He is scheduled to appear in a Minnesota Court October 21.