Cannabis And Boating
Impairment is impairment no matter the substance. But with marijuana, there is even more at stake — regardless of legality in your state.
Photo: Getty Images/Jirkaejc
For many years, BoatUS has warned against the dangers of boating while under the influence of alcohol, which, according to the U.S. Coast Guard’s 2017 Recreational Boating Statistics Report, continues to be the leading known contributing factor in fatal boating accidents. Now that the recreational use of marijuana is legal in nine states (including all of the West Coast of the U.S.), it’s time to take a look at how cannabis can affect boaters — and their wallets.
As of June 30, 2021, 18 states plus Washington, D.C., have fully legalized recreational marijuana use, and 19 additional states permit the medical use of cannabis. Other states and localities have decriminalized cannabis possession (people who possess small amounts of the drug don’t face criminal prosecution, but only civil penalties similar to a traffic fine). These laws are changing quickly, so check with your state to make sure you know the legal status of cannabis possession and use. The fact is that, in some places, cannabis is becoming as mainstream as say, wine. But there are important distinctions.
Water, Water Everywhere
Even if cannabis is legal in your state, the federal government still considers it a Schedule I drug, which the feds say has the potential for abuse and has no accepted medical use. This is very important, because on any water (or land) under federal jurisdiction, it’s illegal to possess cannabis even though a state may have legalized it.
And waters under federal jurisdiction are enormous. Consider that the entire coastline of the U.S. is under federal jurisdiction. That means that on coastal waters of California, Oregon, and Washington — states that have legalized cannabis — it is a federal crime to possess it. The U.S. Coast Guard says that “all waters including, but not limited to, the navigable waters of the United States” are under their authority. It’s the “but not limited to” part that could be trouble for some boaters because, while it includes some bodies of water that seem obvious, such as the Great Lakes, Mississippi River, and Chesapeake Bay, it’s also pretty much any waters that the federal government deems navigable, such as freshwater lakes, including Lake Tahoe, Salt Lake, Lake Champlain, and Lake of the Ozarks.
If you’re subject to federal boating laws that require such things as life jackets, navigation lights, and sound signals, it’s a good bet you’re in federal jurisdiction waters. This jurisdiction issue also sets up some potentially uncomfortable situations. If you sailed your boat from say, Portland, Maine, to the nearby islands in Maine, or from Seattle to a Washington state island in Puget Sound, you’d be breaking federal law if you were in possession of cannabis. If you’re not sure if the waters you boat in are under federal jurisdiction, contact the nearest Coast Guard office and ask.
Keep in mind that the Coast Guard doesn’t need to have a warrant or even reasonable suspicion to board your boat. If they do, and you’re in possession of marijuana (or any other illegal drug) or are under the influence of cannabis (or alcohol or any other intoxicant), you may be arrested. If you happen to have a U.S. Coast Guard license, it will likely be suspended for at least a year.
Price To Pay
Now that you know about the issues of possessing cannabis, how about its effects while you’re under way? According to the National Institute on Drug Abuse, marijuana significantly impairs judgment, motor coordination, and reaction time, and studies have found a direct relationship between blood THC (tetrahydrocannabinol, the chemical compound in cannabis responsible for the “high”) concentration and impaired driving ability.
In all states, boating under the influence (BUI) laws are the same whether it’s alcohol, cannabis, or any other intoxicant. Just as with a BUI conviction for alcohol, you will likely face heavy fines, possible jail time, and you could lose your driver’s license. Many states now consider BUI convictions the same as driving under the influence (DUI), which means if you have one DUI and are arrested for a BUI, it’s a second offense and the consequences can be much worse. If you happen to be on waters with federal jurisdiction and are arrested for cannabis possession, you could be sentenced to up to a year in jail for any amount. Second offenses have mandatory jail time.
Our advice for cannabis users is the same for those who imbibe in alcohol: Wait until you’re back before you celebrate the day. And if there’s any chance you’ll be in federal jurisdiction waters, make sure you and your guests have a zero-tolerance policy for cannabis onboard.
Rules of the Road: CBD no excuse for mariners who fail THC test
In early February, the U.S. Coast Guard issued a Marine Safety Advisory regarding the use of hemp plant products. The advisory was issued to ensure that mariners, employers and associated organizations were aware of certain product ingredients. A number of items marketed as hemp or cannabidiol (CBD) may contain enough tetrahydrocannabinol (THC) to cause a positive drug test.
In accordance with 46 CFR 16.201(c), an individual who fails a chemical test for dangerous drugs must be removed from duties directly affecting the safe operation of the vessel. The person is also subject to suspension and revocation proceedings against his or her credential under 46 CFR part 5.
Use of hemp or CBD products is not accepted as an affirmative defense (acceptable excuse) against a THC-positive drug test result. For these reasons, mariners desiring to avoid a positive THC drug test result should exercise extreme caution when considering the use of any hemp or CBD product. Such use could result in immediate removal from safety sensitive duties aboard a vessel and potential loss of their merchant mariner credential.
This USCG-issued warning applies to hemp and CBD products in any form, including those that are taken by mouth and those that are applied to the skin. THC is the primary psychoactive component of the cannabis sativa plant. Hemp and marijuana are different strains of the cannabis sativa plant. However, both contain varying concentrations of THC and CBD.
THC is considered a dangerous drug because it produces an intoxicating effect on the user and poses safety risks to vessel operations. The USCG prohibits the use of THC by mariners because of its known debilitating effect. Any holder of a USCG-issued credential is subject to drug tests that screen for the use of THC.
Recent changes to federal and state laws have resulted in a surge in the availability of over-the-counter hemp products and CBD products throughout the United States. Hemp products and CBD products are marketed to the general public in several forms, such as food and medicinal products, dietary supplements, oils, cosmetics and hair products. In some cases, product manufacturers market these products as low in THC, or THC-free.
Mariners should be aware that over-the-counter hemp products and CBD products have not been approved as medications by the U.S. Food and Drug Administration and are not regulated by the FDA. Therefore, users lack federal assurances of their ingredients, THC-content, quality, effectiveness or safe use. As a result, mariners using these products put themselves at risk of having a THC-positive drug test result. It is noted that once THC is in a person’s system, it may remain detectable in urine samples for weeks and hair samples for months after its use is discontinued.
Official policy by the USCG prohibits any mariner or other safety-sensitive operator working aboard a vessel that is subject to federal drug testing regulations to use THC. Claimed use of hemp products or CBD products is not an acceptable defense for a THC-positive drug test result. This also includes any use prescribed by a medical doctor.
This Marine Safety Advisory is complementary to a previous policy issued by the U.S. Department of Transportation regarding the use of marijuana. Despite growing state legalization and a cultural shift toward greater acceptance of marijuana use, the USCG and the DOT chemical testing continues to identify marijuana as a drug listed on the Schedule I of the Controlled Substances Act.
Whether the crew member is a green deckhand indulging in recreational use of marijuana in a location where it is legal at the state level or a captain aboard an oceangoing vessel that used legally obtained CBD ointment to treat bodily aches and pains, the resulting positive drug test will lead to the same cascade of negative consequences that can be difficult to overcome.
Unless and until the drug testing system changes, the best decision a mariner can make is to avoid using marijuana or any products derived from marijuana that may contain THC, such as CBD oil. The threat to a potential accident and risk of career disaster are both too great to take the chance.
Navigating the High Seas: Fishing and the Changing Landscape of Marijuana Laws
B etween fish whistles, square groupers, and the inherent “leisure” aspect of fishing, it’s no secret that booze and other recreational substances have long since been around the sportfishing scene. I’m not condoning or promoting, it’s just a fact. If you can show me a sportfishing captain/mate who hasn’t seen some absurd behavior, I’ll buy you dinner for a month. Although booze has been legal since 1933, it’s only in the past few years that the political climate regarding marijuana legalization has begun to drastically change.
Medical marijuana was legalized in a few states as far back as the late 1990’s, but it wasn’t until 2012 that recreational marijuana became legal in Colorado. Since then ten states have legalized recreation marijuana, and of those ten states, seven border the ocean or a navigable body of water (Alaska, Oregon, Nevada, California, Maine, Rhode Island, and Michigan).
What does this mean? It means that many folks where marijuana is “legal” are avid boaters/fishermen and hold USCG merchant marine credentials. As a result, many may not understand the ramifications of marijuana’s use on themselves, their license(s), and vessel operation in navigable waters.
Protests calling for changes in marijuana law have become increasingly popular in many places. These
sentiments, however, are not likely to hold much sway over law offi cers that may inspect your boat and
Legality of Marijuana
First off, I think it goes without saying, DO NOT USE ANY IMPAIRING SUBSTANCE while operating a vessel (or vehicle). It doesn’t matter if it’s a 9’ tender or a cruise ship – DON’T do it! Not only do you jeopardize your passengers and crew, but also the vessel, your license, your employment, and possibly your freedom. Where marijuana use is state legal, it’s STATE legal. Meaning if you finish up washing the boat in California and fire up a joint, you are not breaking any California laws. Again, don’t operate a vehicle while stoned, but you aren’t breaking any state laws onshore.
The problem is that marijuana is still illegal on the federal level. At the risk of preaching to the choir, the United States Coast Guard is a federal agency that enforces both federal and state laws on the water. It’s important to note that federal law supersedes states law. So, what does that mean?
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The answer from the Coast Guard is clear in that marijuana possession and use remains a violation of federal law. If the Coast Guard encounters marijuana in the course of their operations, they will enforce those laws. Federal law states that marijuana is illegal in any quantities and there is no federal exemption for medical marijuana. In short, don’t keep any weed on your vessel, even if you are operating in a state where it’s legal. Once you board your boat you become subject to federal jurisdiction, and even a “small” federal misdemeanor is a much bigger deal that it’s state counterpart.
The “Weed is legal for Willie Nelson” defense only works if you are… Willie Nelson (bottom left).
Unlike on land where law enforcement needs reasonable suspicions to stop or pull someone over (such as expired registration or busted taillight), the Coast Guard has much broader police power. The Coast Guard routinely board vessels to enforce boating safety laws and does not require a warrant to conduct search, seizures, arrests over any United States waterway or high seas.
This encompassing ability to basically search anyone and anything on the water is clearly stated in the law – 14 United States Code Åò 89: The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction….For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States… and search the vessel and use all necessary force to compel compliance.
When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested…
It really can’t be any clearer – if you’re going to use marijuana, keep your weed onshore. Additionally, these nuances need to be clearly communicated to your passengers, guests, owner, mate(s), etc. Although you may have a clear understanding of the interplay between state and federal law, you can almost guarantee your party does not! Nothing would ruin a good day of fishing day quicker than an arrest!
This graphic provides a breakdown of state marijuana law by state, as of October 2018. Even in states
where recreational or medical marijuana use is legal, it remains illegal at the federal level.
Weed and the Professional Mariner
Of course, a captain’s license doesn’t automatically make you a captain any more than a driver’s license automatically makes you a racecar driver. Th ere is no substitute for time and experience on the water. Th e requisite sea time is difficult to accrue, even for the most basic OUPV (“6 pack”) license. Renewals are another headache, as there is always some new hoop to jump through. All that being said, you do not want to put yourself in a position to jeopardize your license.
Anyone holding a Coast Guard license, even if not “using” your license, can suffer repercussions if convicted for a marijuana offense. That means that if you are just hanging out at the sandbar on your skiff and the Coast Guard performs a “safety stop” and finds marijuana, you are in trouble. What they find while enforcing those safety stops can be prosecuted.
Another way to be “busted” is to fail a random drug test or be involved in a maritime accident/incident. If you are just running charters, even part time, you need be enrolled in a drug testing consortium which allows you to be compliant with Coast Guard regulations.
One of the tools used by the Coast Guard to ensure maritime safety is periodic drug testing of certain maritime employees, including anyone with a Coast Guard license or credential. The drug testing program is based on the Department of Transportation criteria which classifies dangerous drugs as: marijuana, cocaine, opiates, PCP, amphetamines, ecstasy, MDA, and MDEA.
If you fail a drug test, by whatever means (random, accident, conviction) your license is in jeopardy. You will, essentially, become a defendant in a United States Coast Guard Suspension and Revocation Hearing (S&R) and the Coast Guard may seek to revoke your credentials. Unless there are extenuating circumstances which create triable issues in a S&R hearing, your license will most likely be suspended for a year pending drug assessments and other substance abuse programs. Once completed your license will likely be reinstated as if you never lost it. If you are ever in this position, I would highly recommend talking with an attorney.
In conclusion, if use or possess marijuana and actively use you USCG license, you are playing Russian roulette with your ability to earn a paycheck on the water. CBD Products Another recent development is the use of Cannabidiol (CBD) oil to treat various ailments. I’m not going to go into the merits of whether CBD oil works as advertised, but for the sake of this article let’s suppose it does.
CBD products are often touted as a natural pain reliever which aid chronic physical pain as well as PTSD and anxiety. It almost seems tailor made to a full-time captain or mate! Furthermore, for the most part CBD products are completely legal and non-impairing. Although legal, the important question is if someone uses these products, even for a legitimate and lawful purpose, what effect can this play on your license and employment?
CBD oil is extracted from hemp and generally does not contain the mind-altering THC present in marijuana. I use the word “generally” because this is not always the case. The CBD market is a very gray area and there is not much regulated oversite from the production side. Although a product may tout itself as THC-free, that may not truly be the case. Case in point, here is an excerpt from US Drug Test Centers:
“Most hemp oil or CBD products are usually sold with much lower levels of THC (compared to marijuana), so most CDB consumers won’t have trouble passing a drug test.” I don’t know about you, but I wouldn’t want to chance my employment and/or license to “most.” I recently represented an injured worker (non-marijuana user) in a worker’s compensation claim. After his legitimate on-thejob injury, he began taking CBD oil for his pain.
Shortly thereafter the worker’s comp insurance carrier made him take a drug test (per the policy) …my client thought nothing of it – after all he wasn’t smoking marijuana or getting the munchies from the CBD oil. He took the test and registered positive for marijuana.
As a result, he lost his worker’s comp benefits and his job. In short, although legal, if you are in a profession subject to random drug testing, be extremely careful (or abstain) in your use of CDB products. The legality of CDB possession on the federal level is similarly vague. In the 2018 Farm Bill, hemp and hemp-derived products were officially removed from the purview of the Controlled Substances Act, such that they are no longer subject to Schedule I status.
This means that so long as CBD is extracted from hemp and completely pure (without any THC – something the DEA doubts is possible) and grown by licensed farmers in accordance with state and federal regulations, it is legal as a hemp product. Although the chances of prosecution for possession of CBD products may be small (catching the wrong Coast Guard inspector on the wrong day, for instance…), it would be best, like any state legal marijuana, to leave the CBD products onshore.
“Yes, this is an article about weed and blue marlin. And yes, this is a picture of weed and blue marlin… but… really. ”
The evolving legal and political landscape of marijuana is a fascinating scene to watch unfold. But as a professional mariner, until it’s legalized on the federal level, it can have severe repercussions to your livelihood. As it currently sits there are two main takeaways: First, never operate a vessel/vehicle while under the influence of any impairing substance! Second, consider the drug testing protocols and their potential effect on your captain’s license when choosing pain relief or medicinal options, as well as what you bring offshore aboard the boat.