As summer approaches the boating season in New York begins. Across all lakes, rivers, and coastlines in New York thousands of people enjoy the water by operating boats. While the citizens of New York prepare for boating season, so does law enforcement. A common misconception is that you cannot be charged with a crime for operating a boat while intoxicated by alcohol or impaired by drugs. You cannot be charged with DWI while in a boat, but you can be charged with BWI (Boating While Intoxicated) under New York’s Navigation Law. Just like the DWI laws under Vehicle and Traffic Law Section 1192, New York’s Navigation Law Section 49-a categorizes the different types of BWI. Driving a boat while intoxicated or impaired by drugs as a first offense is a misdemeanor that can be punished by up to a year in jail, and with significant fines. Individual’s charged with BWI after having previously been convicted of BWI within the preceding 10 years, face a felony, which carries significant time in state prison, and large fines.

However, as DWI comes from a different body of law (the Vehicle and Traffic Law) than BWI (which comes from the Navigation Law), an individual’s prior DWI convictions had no bearing on how what sentence was imposed on them for a BWI conviction. This meant that a judge could not take into account prior DWI convictions when sentencing an individual for a BWI offense. This all changed on June 2, 2016 when the New York Legislature amended the Navigation Law by enacting what has been referred to as “Tiffany Heitkamp’s Law”.

Tiffany Heitkamp’s Law

Tiffany Heitkamp was 20 years old when she was killed in a tragic boat accident in 2006.[1] The boat Tiffany was a passenger in crashed onto Alger Island on Fourth Lake near Old Forge, in the Adirondacks.[2] The driver of that boat was found to have been intoxicated while operating the vessel. The driver of the boat also had a history of prior DWI offenses. Under the status of the law at the time the driver’s prior DWI offenses could not be used to enhance the BWI charge to a felony. Despite the fact that the driver ultimately pled guilty to 2nd degree manslaughter, the public felt as though he should have been charged with felony BWI due to his history of DWI.

Prior to the enactment of Tiffany Heitkamp’s Law, when a judge was imposing a sentence on an individual convicted of their first BWI, the judge had the discretion to either impose a jail term up to one year, a fine, or both jail and a fine. The sentencing judge was not however allowed to take into consideration an individual’s prior history of DWI offenses under the vehicle and traffic law. This meant that a prior DWI could not be used against you when being sentenced for a BWI. That is no longer the case.

As a result of Tiffany Heitkamp’s Law, a judge, when sentencing an individual for a conviction of BWI under New York’s Navigation Law Section 49-a, can consider as an aggravating factor, any prior DWI conviction under the Vehicle and Traffic Law that occurred within the preceding 10 years.[3] The new law has been criticized by Tiffany Heitkamp’s mother who stated, regarding the law “Well it’s very watered down. It doesn’t meet my expectations”.[4] The criticism revolves around the fact that the original version of the bill sought to allow a first time BWI offense to be charged as a felony, if the individual being charged had a DWI conviction from within 10 years. Ultimately the Legislature thought a provision of that nature would be inappropriate, and designed the law to allow judges to use prior DWI’s in a BWI case as aggravating sentencing factors, but not allowing prior DWI convictions to elevate the BWI charge to a felony.


Practically speaking, what will happen as a result of Tiffany Heitkamp’s Law is that those individuals who are found guilty of BWI, and have a prior DWI within 10 years, will be more likely to be sentenced to jail time. This follows New York State’s increasing trend of incarcerating those convicted of DWI and related offenses. It goes without saying that Tiffany Heitkamp’s death was tragic, however imposing short to medium term jail sentences will not stop DWI and BWI’s from occurring. New York’s ever increasing campaign to jail those convicted of lower level misdemeanors only seeks to cost tax payers more money, and does nothing to solve the root of the problem, which is substance abuse, dependency, and addiction. Those who are dependent and addicted to substances like alcohol often re-offend, whether they are placed in jail or not. Thus, simply placing these individuals in jail does nothing to treat the cause of their re-offending. Mandating intense substance abuse treatment is sometimes imposed at the discretion of a judge in lieu of a jail sentence. Sentences of that type seek to cure the ultimate cause of DWI and BWI related offenses. Should you be on the water this summer, be safe, be responsible, and should you have a prior DWI on your record, be wary of the harsher penalties a BWI means for you.

The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for Nave DWI Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.

[2] Id.
[3]New York State Assembly