Boating Criminal Offenses
“Boat DWI / DUI” is known as a BUI / BWI: Operating Boat While Intoxicated
Virginia law section 29.1-738 punishes operating a boat while intoxicated with a BAC level of .08 or above, or under the influence of drugs. This is a Class 1 Misdemeanor criminal offense punishable by up to 1 year in jail, a $2500.00 fine, alcohol classes, and loss of operating license.
Operating Boat in Reckless Manner
Virginia law section 29.1-738 on recklessly operating a boat or other watercraft is similar to our reckless driving law. This is a Class 1 Misdemeanor criminal offense punishing boating operation in such a way as to disregard the life, limb, or property of any person. Penalties include up to 1 year of incarceration, up to a $2500.00 fine, and loss of operator’s license.
Fairfax County Police Marine Patrol Unit
The Marine Patrol Unit patrols the waterways of Fairfax county and possesses water-related skills and equipment that are used on behalf of the boating community. The unit is the only full-time local law enforcement marine patrol in northern Virginia’s waters and operates year-round. The Marine Patrol Unit enforces all state and local laws and ordinances on the waters within Fairfax County but also works collaboratively with all area jurisdictions to promote boating and water safety.
The FCPD Marine Patrol Unit’s primary patrol areas include the Occoquan, Belmont Bay, Pohick Bay, Little Hunting Creek, Dogue Creek and Belle Haven. They also patrol Lake Braddock and Lake Barcroft.
Criminal charges are prosecuted in the Fairfax County General District Court and Circuit Court.
Virginia Law on Boating: Criminal Offenses
§ 29.1-738. Operating boat or manipulating water skis, etc., in reckless manner or while intoxicated, etc.
A. No person shall operate any motorboat or vessel, or manipulate any skis, surfboard, or similar device, or engage in any spearfishing while skin diving or scuba diving in a reckless manner so as to endanger the life, limb, or property of any person.
B. No person shall operate any watercraft, as defined in § 29.1-733.2, or motorboat which is underway (i) while such person has a blood alcohol concentration at or greater than the blood alcohol concentration at which it is unlawful to drive or operate a motor vehicle as provided in § 18.2-266 as indicated by a chemical test administered in accordance with § 29.1-738.2, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to operate the watercraft or motorboat safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to operate the watercraft or motorboat safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood.
C. For purposes of this article, the word “operate” includes being in actual physical control of a watercraft or motorboat and “underway” means that a vessel is not at anchor, or made fast to the shore, or aground.
Any person who violates any provision of this section is guilty of a Class 1 misdemeanor.
§ 29.1-738.02. Persons under age twenty-one operating watercraft after illegally consuming alcohol; penalty.
A. It shall be unlawful for any person under the age of twenty-one to operate any watercraft or motorboat upon the waters of the Commonwealth after consuming alcohol. Any such person with a blood alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per 210 liters of breath but less than 0.08 by weight by volume or less than 0.08 grams per 210 liters of breath as indicated by a chemical test administered as provided in Article 2 (§ 18.2-266 et seq.) of Chapter 7 of Title 18.2 shall be in violation of this section.
B. A violation of this section shall be punishable by denial by the court of such person’s privilege to operate a watercraft or motorboat for a period of six months from the date of conviction and by a fine of not more than $500. Any person convicted of a violation of this section shall be eligible to attend an Alcohol Safety Action Program under the provisions of § 29.1-738.5.
§ 29.1-738.03. Reckless operation of a personal watercraft.
A person shall be guilty of reckless operation of a motorboat or vessel who operates any personal watercraft recklessly or at a speed or in such a manner so as to endanger the life, limb or property of any person, which shall include, but not be limited to:
1. Weaving through vessels which are underway, stopped, moored or at anchor while exceeding a reasonable speed under the circumstances and traffic conditions existing at the time;
2. Following another vessel or person on water skis or other similar device, crossing the path of another vessel, or jumping the wake of another vessel more closely than is reasonable and prudent, having due regard to the speed of both vessels and the traffic on and the condition of the waters at the time;
3. Crossing between the towing vessel and a person on water skis or other device; or
4. Steering toward an object or person and turning sharply in close proximity to such object or person in order to spray or attempt to spray the object or person with the wash or jet spray of the personal watercraft.
A person who violates this section shall be guilty of a Class 1 misdemeanor, and for a second or subsequent offense, the court shall order the person not to operate a personal watercraft which is underway upon the waters of the Commonwealth for a period of twelve months.
§ 29.1-738.2. Consent to blood or breath test.
A. Any person who operates a watercraft or motorboat which is underway upon waters of the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if such person is arrested for operating a watercraft or motorboat which is underway in violation of subsection B of § 29.1-738, § 29.1-738.02, or of a similar ordinance of any county, city or town, within three hours of the alleged offense. Any person so arrested for a violation of clause (i) or (ii), or both, of subsection B of § 29.1-738, § 29.1-738.02, or of a similar ordinance, shall submit to a breath test. If the breath test is not available, or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If such equipment automatically produces a written printout of the breath test result, this written printout, or a copy thereof, shall be given to the accused in each case.
B. Any person, after having been arrested for a violation of clause (iii), (iv), or (v) of subsection B of § 29.1-738, § 29.1-738.02, or of a similar ordinance, may be required to submit to a blood test to determine the drug or both drug and alcohol content of his blood. When a person, after having been arrested for a violation of clause (i) or (ii), or both, of subsection B of § 29.1-738, submits to a breath test, in accordance with subsection A of this section, or refuses to take or is incapable of taking such a breath test, he may be required to submit to tests to determine the drug or both drug and alcohol content of his blood if the law-enforcement officer has reasonable cause to believe the person was operating a watercraft or motorboat under the influence of any drug or combination of drugs, or the combined influence of alcohol and drugs.
C. If a person, after being arrested for a violation of subsection B of § 29.1-738, § 29.1-738.02, or of a similar ordinance of any county, city or town and after having been advised by the arresting officer that a person who operates a watercraft or motorboat which is underway upon the waters of the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have a sample of his blood and breath taken for a chemical test to determine the alcohol or drug content of his blood, and that the unreasonable refusal to do so constitutes grounds for a court to order him not to operate a watercraft or motorboat which is underway upon the waters of the Commonwealth, then refuses to permit the taking of a sample of his blood or breath or both blood and breath samples for such tests, the arresting officer shall take the person arrested before a committing magistrate. If the person is unable to be taken before a magistrate because the person is taken to a medical facility for treatment or evaluation of his medical condition, the arresting officer at a medical facility, in the presence of a witness other than a law-enforcement officer, shall again advise the person, at the medical facility, of the law requiring blood or breath samples to be taken and the penalty for refusal. If he again so refuses after having been further advised by such magistrate or by the arresting officer at a medical facility of the law requiring a blood or breath sample to be taken and the penalty for refusal, and so declares again his refusal in writing upon a form provided by the Supreme Court of Virginia, or refuses or fails to so declare in writing and such fact is certified as prescribed in § 18.2-268.3, then no blood or breath sample shall be taken even though he may thereafter request same.
D. When any person is arrested for operating a watercraft or motorboat which is underway in violation of subsection B of § 29.1-738 or § 29.1-738.02, the procedures and requirements of §§ 18.2-268.1 through 18.2-268.11 shall apply, mutatis mutandis, to this section.
E. If the court or jury finds the defendant guilty of unreasonably refusing to permit a blood or breath sample to be taken, the court shall order such person not to operate a watercraft or motorboat which is underway for a period of 12 months for a first offense and for 24 months for a second or subsequent offense of refusal within five years of the first or other such refusal. However, if the defendant pleads guilty to a violation of subsection B of § 29.1-738, the court may dismiss the refusal warrant.
§ 29.1-738.3. Presumptions from alcohol or drug content.
In any prosecution for operating a watercraft or motorboat which is underway in violation of clause (ii), (iii) or (iv) of subsection B of § 29.1-738, or of a similar ordinance of any county, city or town, the amount of alcohol or drugs in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of a sample of the accused’s blood or breath to determine the alcohol or drug content of his blood in accordance with the provisions of § 29.1-738.2 shall give rise to the rebuttable presumptions of subdivisions (1) through (4) of subsection A of § 18.2-269.
§ 29.1-738.4. Additional penalty for reckless or intoxicated operation of a watercraft or motorboat.
In addition to any other penalties authorized by law, upon conviction of any person for violation of any provision of § 29.1-738, the court shall order such person not to operate a watercraft or motorboat which is underway upon the waters of the Commonwealth for a period of twelve months from the date of a first conviction or for a period of three years from the date of a second or subsequent conviction within ten years of a first conviction. The period specified in any such order prohibiting operation of a watercraft or motorboat which is underway imposed pursuant to this section shall run consecutively with any such order imposed for refusal to permit a blood or breath sample to be taken.
A first offense of violating this section shall constitute a Class 2 misdemeanor. A second or subsequent offense shall constitute a Class 1 misdemeanor. In addition, the court shall suspend the person’s privilege to operate a motorboat or watercraft for the same period for which it had been suspended or revoked when such person violated this section.
The period specified in any such order prohibiting operation of a watercraft or motorboat which is underway imposed pursuant to this section may be suspended by the court only as authorized in § 29.1-738.5.
§ 29.1-738.01. Operating boat in an improper manner; penalty.
Notwithstanding the provisions of § 29.1-738, upon the trial of any person charged with reckless boating where the degree of culpability is slight, the court in its discretion may find the accused not guilty of reckless boating but guilty of improper boating. Improper boating shall be punishable as a Class 3 misdemeanor.
§ 29.1-739.1. Disregarding signal by law-enforcement officer to stop; attempts to elude; penalty.
A. Any person who, having received a visible or audible signal of a flashing light or siren from any conservation police officer or other law-enforcement officer to bring his motorboat or other vessel, or seaplane to a stop, fails to do so promptly shall be guilty of a Class 3 misdemeanor.
B. Any person who, having received a visible or audible signal of a flashing light or siren from any conservation police officer or other law-enforcement officer to bring his motorboat or other vessel, or seaplane to a stop, (i) operates or navigates such motorboat or other vessel, or seaplane in willful or wanton disregard of such signal so as to endanger the life of the law-enforcement officer or other persons or to interfere with the operation of a law-enforcement vessel, or (ii) increases his speed and attempts to escape or elude a law-enforcement officer shall be guilty of a Class 1 misdemeanor.
§ 29.1-739.2. Conservation police officers to patrol lakes.
The Department shall have an enhanced enforcement effort that is commensurate with the level of boating activity from Memorial Day through Labor Day in the waters of those Virginia lakes that (i) are of a size comparable to or greater than Smith Mountain Lake and (ii) have a comparable number of reported boating accidents during the last five years as Smith Mountain Lake.
§ 29.1-740. Duty to stop and render assistance; penalties for violations.
It shall be the duty of every operator of a vessel involved in a collision to stop and render assistance as required by § 29.1-739. If any person knowingly fails to comply with the provisions of § 29.1-739 when the collision, accident or other casualty results in serious bodily injury to, or the death of, any person, he shall be guilty of a Class 6 felony. If any person knowingly fails to comply with the provisions of § 29.1-739, when the collision, accident or other casualty results only in damage to property, he shall be guilty of a Class 1 misdemeanor. However, if the vessel struck is unattended and the damage is less than fifty dollars, such person shall be punished only by a fine not exceeding fifty dollars.
§ 29.1-744.3. Slacken speed and control wakes near structures.
It shall be unlawful to operate any motorboat, except personal watercraft, at a speed greater than the slowest possible speed required to maintain steerage and headway when within 50 feet or less of docks, piers, boathouses, boat ramps, or a person in the water, unless such person in the water (i) is being towed by the motorboat or (ii) is accompanying the motorboat, provided that such motorboat is propelled by an inboard motor.
§ 29.1-749. Owner of personal watercraft permitting violation; penalty.
A. It shall be unlawful for the owner of or any person having control of a personal watercraft to authorize or knowingly permit a person under the age of sixteen to operate the personal watercraft, unless the person fourteen or fifteen years of age has successfully completed a boating safety education course as required under subdivision A 1 of § 29.1-748.
B. A violation of any provision of this section shall constitute a Class 4 misdemeanor.
§ 18.2-36.2. Involuntary manslaughter; operating a watercraft while under the influence; penalties.
A. Any person who, as a result of operating a watercraft or motorboat in violation of clause (ii), (iii), or (iv) of subsection B of § 29.1-738 or a similar local ordinance, unintentionally causes the death of another person, is guilty of involuntary manslaughter.
B. If, in addition, the conduct of the defendant was so gross, wanton, and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter, a felony punishable by a term of imprisonment of not less than one nor more than 20 years, one year of which shall be a mandatory minimum term of imprisonment.
C. The provisions of this section shall not preclude prosecution under any other homicide statute. The court shall order any person convicted under this section not to operate a watercraft or motorboat that is underway upon the waters of the Commonwealth. After five years have passed from the date of the conviction, the convicted person may petition the court that entered the conviction for the right to operate a watercraft or motorboat upon the waters of the Commonwealth. Upon consideration of such petition, the court may restore the right to operate a watercraft or motorboat subject to such terms and conditions as the court deems appropriate, including the successful completion of a water safety alcohol rehabilitation program described in § 29.1-738.5.
§ 18.2-147. Entering or setting in motion, vehicle, aircraft, boat, locomotive or rolling stock of railroad; exceptions.
Bills amending this Section
Any person who shall, without the consent of the owner or person in charge of a vehicle, aircraft, boat, vessel, locomotive or other rolling stock of a railroad, climb into or upon such vehicle, aircraft, boat, vessel, locomotive or other rolling stock of a railroad, with intent to commit any crime, malicious mischief, or injury thereto, or who, while a vehicle, aircraft, boat, vessel, locomotive or other rolling stock of a railroad is at rest and unattended, shall attempt to manipulate any of the levers and starting crank or other device, brakes or mechanism thereof or to set into motion such vehicle, aircraft, boat, vessel, locomotive or other rolling stock of a railroad, with the intent to commit any crime, malicious mischief, or injury thereto, shall be guilty of a Class 1 misdemeanor, except that the foregoing provision shall not apply when any such act is done in an emergency or in furtherance of public safety or by or under the direction of an officer in the regulation of traffic or performance of any other official duty.
§ 18.2-146. Breaking, injuring, defacing, destroying or preventing the operation of vehicle, aircraft or boat.
Any person who shall individually or in association with one or more others willfully break, injure, tamper with or remove any part or parts of any vehicle, aircraft, boat or vessel for the purpose of injuring, defacing or destroying said vehicle, aircraft, boat or vessel, or temporarily or permanently preventing its useful operation, or for any purpose against the will or without the consent of the owner of such vehicle, aircraft, boat or vessel, or who shall in any other manner willfully or maliciously interfere with or prevent the running or operation of such vehicle, aircraft, boat or vessel, shall be guilty of a Class 1 misdemeanor.
§ 18.2-102. Unauthorized use of animal, aircraft, vehicle or boat; consent; accessories or accomplices.
Bills amending this Section
Any person who shall take, drive or use any animal, aircraft, vehicle, boat or vessel, not his own, without the consent of the owner thereof and in the absence of the owner, and with intent temporarily to deprive the owner thereof of his possession thereof, without intent to steal the same, shall be guilty of a Class 6 felony; provided, however, that if the value of such animal, aircraft, vehicle, boat or vessel shall be less than $200, such person shall be guilty of a Class 1 misdemeanor. The consent of the owner of an animal, aircraft, vehicle, boat or vessel to its taking, driving or using shall not in any case be presumed or implied because of such owner’s consent on a previous occasion to the taking, driving or using of such animal, aircraft, vehicle, boat or vessel by the same or a different person. Any person who assists in, or is a party or accessory to, or an accomplice in, any such unauthorized taking, driving or using shall be subject to the same punishment as if he were the principal offender.
§ 18.2-206. Procuring an animal, aircraft, vehicle or boat with intent to defraud.
If any person procure any such animal, aircraft, vehicle, boat or vessel mentioned in § 18.2-149 by fraud or by misrepresenting himself as some other person or with the intent to cheat or defraud such other person, he shall be guilty of a Class 1 misdemeanor. The failure to pay the rental for or damage to such animal, aircraft, vehicle, boat or vessel, or absconding without paying such rental or damage, shall be prima facie evidence of the intent to defraud at the time of renting or leasing such animal, aircraft, vehicle, boat or vessel.
§ 18.2-117. Failure of bailee to return animal, aircraft, vehicle or boat.
If any person comes into the possession as bailee of any animal, aircraft, vehicle, boat or vessel, and fail to return the same to the bailor, in accordance with the bailment agreement, he shall be deemed guilty of larceny thereof and receive the same punishment, according to the value of the thing stolen, prescribed for the punishment of the larceny of goods and chattels. The failure to return to the bailor such animal, aircraft, vehicle, boat or vessel, within five days from the time the bailee has agreed in writing to return the same shall be prima facie evidence of larceny by such bailee of such animal, aircraft, vehicle, boat or vessel.
§ 18.2-109. Receipt or transfer of possession of stolen vehicle, aircraft or boat.
Any person who, with intent to procure or pass title to a vehicle, aircraft, boat or vessel, which he knows or has reason to believe has been stolen, shall receive or transfer possession of the same from one to another or who shall with like intent have in his possession any vehicle, aircraft, boat or vessel which he knows or has reason to believe has been stolen, and who is not an officer of the law engaged at the time in the performance of his duty as an officer, shall be guilty of a Class 6 felony.
§ 18.2-149. Injury to hired animal, aircraft, vehicle or boat.
If any person after having rented or leased from any other person an animal, aircraft, vehicle, boat or vessel shall willfully injure or damage the same, by hard or reckless driving or using, or by using the same in violation of any statute of this Commonwealth, or allow or permit any other person so to do, or hire the same to any other person without the consent of the bailor, such person shall be guilty of a Class 3 misdemeanor.
§ 18.2-150. Willfully destroying vessel, etc.
If any person willfully scuttle, cast away or otherwise dispose of, or in any manner destroy, except as otherwise provided, a ship, vessel or other watercraft, with intent to injure or defraud any owner thereof or of any property on board the same, or any insurer of such ship, vessel or other watercraft, or any part thereof, or of any such property on board the same, if the same be of the value of $200, he shall be guilty of a Class 4 felony, but if it be of less value than $200, he shall be guilty of a Class 1 misdemeanor.
§ 18.2-154. Shooting at or throwing missiles, etc., at train, car, vessel, etc.; penalty.
Any person who maliciously shoots at, or maliciously throws any missile at or against, any train or cars on any railroad or other transportation company or any vessel or other watercraft, or any motor vehicle or other vehicles when occupied by one or more persons, whereby the life of any person on such train, car, vessel, or other watercraft, or in such motor vehicle or other vehicle, may be put in peril, is guilty of a Class 4 felony. In the event of the death of any such person, resulting from such malicious shooting or throwing, the person so offending is guilty of murder in the second degree. However, if the homicide is willful, deliberate, and premeditated, he is guilty of murder in the first degree.
If any such act is committed unlawfully, but not maliciously, the person so offending is guilty of a Class 6 felony and, in the event of the death of any such person, resulting from such unlawful act, the person so offending is guilty of involuntary manslaughter.
If any person commits a violation of this section by maliciously or unlawfully shooting, with a firearm, at a conspicuously marked law-enforcement, fire, or emergency medical services vehicle, the sentence imposed shall include a mandatory minimum term of imprisonment of one year to be served consecutively with any other sentence.
Virginia Boating Law as Applied in Court
Thomas J. CAMP v. COMMONWEALTH of Virginia.
Thomas J. Camp (appellant) appeals from his bench trial conviction by the Circuit Court of Virginia Beach (trial court) for violation of Code § 29.1-738(A). That code section provides:
§ 29.1-738. Operating boat or manipulating water skis, etc., in reckless manner or while intoxicated, etc.—A. No person shall operate any motorboat or vessel, or manipulate any skis, surfboard, or similar device, or engage in any spearfishing while skin diving or scuba diving in a reckless manner so as to endanger the life, limb, or property of any person.
436*436 Among other alleged errors, appellant asserts that the trial court erroneously declined to strike the Commonwealth’s evidence. Because we agree that the evidence is insufficient to prove beyond a reasonable doubt that appellant was guilty of a criminal offense, we reverse the conviction and dismiss appellant from further prosecution. In view of our decision, we need not address the other issues raised by this appeal.
On appeal, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). However, while we view the evidence in that light, the burden remains on the Commonwealth to produce evidence consistent with guilt of a crime and inconsistent with innocence. See Cameron v. Commonwealth, 211 Va. 108, 175 S.E.2d 275 (1970).
The record discloses that on July 30, 1989, a bright, clear, calm Sunday, Dr. Richard J. Seeley, his wife and Mr. and Mrs. Joe Foulkes were returning ashore from a Chesapeake Bay cruise on Dr. Seeley’s boat. As they approached the channel leading under the Lesner Bridge, Dr. Seeley sighted a Grady-White boat operated by appellant between three and four hundred yards to his right. Dr. Seeley did not see the Grady-White again until after the boats collided; however, as he neared the bridge, Dr. Seeley observed two powerboats coming toward him at a high rate of speed. Seconds later, Dr. Seeley heard Mrs. Foulkes say: “What is he going to do? What is he doing? Is he going to hit us?” At that moment, Dr. Seeley felt the stern of his boat go down and he was pushed to the left. He subsequently heard someone on the Grady-White say that it had collided with his boat.[1]
Mr. Foulkes testified that he also had seen the Grady-White off to the right and had no reason to believe there was any danger of a collision between the two boats. He did not see the Grady-White again until after the collision. He said that things happened “very rapidly” and that they could not see what the Grady-White was doing, only that suddenly there was a “crunch.” He also heard a voice from the Grady-White say that it had collided with the Seeley boat.
Mrs. Foulkes testified that when she first saw the Grady-White it was a good distance to her right “going awfully fast,” but that it seemed far enough away “that there wasn’t apparently any kind of a problem.” When she next saw the Grady-White, it was “in back of us,” approximately twenty-five feet away. She was unable to estimate the Grady-White’s speed at that time but indicated that it struck the Seeley boat at an angle. Mrs. Foulkes did not say that she saw the powerboats or the wake caused by their speed. Her testimony does not contradict Dr. Seeley’s statement that he heard her exclamations seconds after he sighted the approaching powerboats.
Virginia Beach marine patrol police officer Larry Willis testified that he interviewed appellant at the dock shortly after “this boating accident.” Willis gave this account of his interview with appellant, which occurred at the dock immediately following the accident.
I asked Mr. Camp what had happened. He stated that they had been out fishing; that they had left Little Creek and were on their way back to Lynnhaven Inlet, coming up through the small boat channel which runs parallel to the beach.
As they approached the Lynnhaven Inlet marker channel, he stated to me that he observed Mr. Seeley’s boat in the channel. He proceeded to pull into the channel area behind Dr. Seeley, pulled up behind Dr. Seeley’s vessel and proceeded to pass on the port side.
He stated that he observed two fast powerboats coming out of the channel. As he proceeded to pull out, he determined that there was not enough room between his boat, Dr. Seeley’s boat, and the vessels that were coming out to pass safely. He pulled back in behind Dr. 437*437 Seeley. He stated that the boat wakes from the two boats coming out washed up off his boat across the stern of Dr. Seeley’s boat. And he then passed on the starboard side, the right side, of Dr. Seeley’s boat and attempted to back down to full power, but the momentum of the vessel was too great.
Willis identified a picture, Commonwealth’s Exhibit # 4, showing the right-hand stern section of the Seeley boat. He noted the picture depicted damage to the seat cushion and railing caused by the collision. He saw no damage to the Grady-White. Willis further stated that he personally knew appellant had a good reputation as a boat operator and that there were no posted speed limits in the area but there were several “no wake” signs. Willis did not assert that appellant was speeding or had himself caused an excessive wake. Approximately two weeks later, Willis issued a summons against appellant.
The Commonwealth called Coast Guard Master Chief Petty Officer Stone who related undisputed rules of the road. He stated that in this case he did not know how far the Grady-White was behind the Seeley boat and could not say whether a safe situation existed at the time of the accident. He said that the rules do not specify either speed or distance, but only that you should not put yourself in harm’s way. According to the rules stated by Stone, when the operators of the Grady-White and Seeley boat first viewed each other, the Grady-White was the “privileged vessel.”
Seeking trial court approval to permit the introduction into evidence of a video tape interview of appellant made several days after the event by a news reporter, the Commonwealth represented to the trial court that it would show appellant stated “[h]e was in a hurry to clean fish, getting back.” Over the objection of appellant, the trial court admitted the tape. The tape fails to support the Commonwealth’s representation that appellant declared he was “in a hurry.” It merely factually states what appellant and his fellow passengers were doing:
We had a long day on the water and we wanted to get back in there and get the boat cleaned up and get the fished [sic] cleaned and get on our merry way. When I looked past him, I seen the other boat coming, and I slowed down and his wake pushed me into the other boat.
Thereafter, the Commonwealth rested and appellant moved to strike the Commonwealth’s evidence and dismiss the charge.
After the trial court overruled appellant’s motion to strike, consistent with his video tape interview and statement made to Willis, appellant explained that the cause of the accident was the wake created by the excessive speed of the powerboats, estimated to be as much as forty miles per hour in a no wake zone.
Appellant’s witnesses confirmed the speed of the powerboats and wake resulting therefrom. They also confirmed Willis’ statement that there was no visible damage to the Grady-White and that no impact of the collision was felt by any of them.
Paul Brown, the owner of the Grady-White, also confirmed that when the operators first sighted each other the Grady-White was the privileged vessel, yet appellant slowed to permit the Seeley boat to pass in front of him. He further specifically stated that the powerboats’ wake had “blown” the Grady-White to the right, across the stern of the Seeley boat.
There is little disagreement among the witnesses who were present at the scene which gave rise to the charge that appellant recklessly operated the Grady-White. There is evidence that the bow of the Grady-White came over the stern of the Seeley boat. There is no evidence of the Grady-White’s speed immediately before that incident. Appellant stated that he had cut his engines and attempted to reverse them. The lack of precise explanation is understandable as everyone agreed the entire accident happened suddenly, without expectation. The only evidence of how far the Grady-White protruded onto the Seeley boat is the Commonwealth’s Exhibit # 4, which disclosed damage to the back of a seat located at the aft of that boat. There 438*438 is no showing that damage protruded into the interior side of that seat.
There is evidence that Mrs. Seeley “flipped over as she was going over the side backwards.” A reasonable hypothesis is that her fall may have been caused by the large wake created by the excessive speed and turn of the powerboats. Either of two possibilities shown by the Commonwealth’s evidence may have caused Mrs. Seeley to fall from her boat. One would be the impact of the collision, the other the wake alone. If the latter were the cause, Mrs. Seeley would have fallen even if the Grady-White had not been present. If the former were the cause, it is reasonable to infer the Grady-White was driven into the Seeley boat by the wake created by the powerboats. In either case, a reasonable hypothesis of innocence is shown by the Commonwealth’s evidence.
Where, as here, the Commonwealth’s evidence established that the wake created by the powerboats is just as likely to have been the cause of the impact as was the operation of the Grady-White, the Commonwealth has failed to produce evidence consistent with guilt of the crime charged and inconsistent with innocence.
It is well settled in Virginia that to justify conviction of a crime, it is not sufficient to create a suspicion or probability of guilt, but the evidence must establish the guilt of an accused beyond a reasonable doubt. It must exclude every reasonable hypothesis except that of guilt. The guilt of a party is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence.
Cameron, 211 Va. at 110-11, 175 S.E.2d at 276 (citations omitted). We find that the Commonwealth has not met its burden to prove beyond a reasonable doubt that appellant violated the provisions of Code § 29.1-738(A).
Accordingly, for the reasons stated, the judgment of the trial court is reversed and appellant is dismissed from further prosecution on this charge.
Reversed and dismissed.
