Can you get a DUI on one of those electric scooter things?

Posted by on March 27, 2018 in #DUIdata | 0 comments

Can you get a DUI on one of those electric scooter things?

These little buddies have recently been all over downtown San Diego. Companies like Bird, LimeBike (and their scootered version Lime-S), along with Ofo, MoBike and others swept through San Diego delivering rental-and-drop bicycles and motorized scooters to all the good boys and girls.

So, if you’re enjoying some adult beverages…or some legal recreational herb…and decide to take a motor scooter for a spin…can you get a DUI?

First, let me say all this is only California law. States outside California may or may not be similar.

Second…let me say Holy Hell. Hold on, because the Vehicle Code is pretty hilarious on this stuff. Let me try to break this down. To quote one of my favorite shows, Scrubs, “Wolverines: let’s roll!”

Is it against the law to ride a motor scooter drunk?

The quick answer is yes. California Vehicle Code 21221.5 says so.

There is no legal limit for impaired scootering like how we have for driving regular cars (eg. 0.08 BAC for most people over 21 is a misdemeanor). But it’s unlawful to be “under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug” while e-scootering.

However, if you feel like you are in the Scooter-Right and not drunk, then you can request a chemical test to be administered to seek Scooter Justice (per CVC 21221.5). If you ask for a chemical test, then the Officer “shall” administer it to you. Otherwise, there is no requirement for the Officer to administer a chemical test against you for drunk e-scootering.

Ok, so we know it’s illegal. But is illegal as in “you get a ticket”…or is it illegal like “you’re getting arrested and charged with a misdemeanor.” California Vehicle Code 21221.5 says e-scootering drunk is just an infraction…but you KNOW the law is never that easy. So we scooter on deeper.

Could this ever become a misdemeanor..or higher?

Per California DUI laws (usually California Vehicle Code 23152 and other codes right around there), most times a regular DUI is when you drive a “vehicle” while either “under the influence” or with a BAC at or above a 0.08 (different laws apply if you’re under 21, on probation, driving commercially, etc.). You can also see our Jury Instructions (called CALCRIM) that are the definitions given to jurors in a DUI trial.

Now, I just tossed out some words that have very particular legal definitions…because you know how us Legal Minds love to try and define everything we can. But for purposes of this blog, I’m just going to focus on that magical word “vehicle.” So, is a motorized scooter a “vehicle”?

Let’s first define “vehicle.” Per California Vehicle Code 670, a vehicle is “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.” I added the italics because that’s what differentiates an e-scooter from a non-motor scooter, bicycle, or something without any type of motor or engine.

What’s interesting is this is a slightly different definition from how the California Vehicle Code defines a “motor vehicle” as “a vehicle that is self-propelled.” It’s in California Vehicle Code 415. Very, very similar.

The California Courts have taken to this issue of what is a vehicle, and way back in 1977, the Court decided that a moped…withOUT the motor running…so just pedal-powered…was a vehicle. Here’s the direct language from this case People v. Jordan: “if a vehicle, equipped with a motor, is being steered or controlled by an intoxicated person, and the vehicle is in motion, the driver is subject to prosecution even if the engine is not running at that time.”

One more point, California Vehicle Code 407.5 actually gives a definition to a “motorized scooter” as “any two-wheeled device that has handlebars, has a floorboard that is designed to be stood upon when riding, and is powered by an electric motor.” But this really doesn’t interfere with it possibly being deemed a “vehicle” per DUI laws.

Wait, what just happened:

To quote Oberon from Kevin Hearne’s Iron Druid series: “GREAT BIG BEARS!” So all I can do is leave you with this: the Vehicle Code has legislated that driving an e-scooter drunk is an infraction. But there’s a real possibility that it could turn into a misdemeanor from how the law is written.

Here’s one more punch in the Scooter-Face before I conclude this blog: the California Vehicle Code has done something similar with riding a bicycle while under the influence. Where it’s initially written as an infraction, but then later codified to raise bicycling under the influence a misdemeanor. I’ll blog about that silliness in a few.

At any rate, I’ll leave you with this info to chew on before San Diego opens the Padres season with Opening Day Thursday March 29 and you’re thinking about e-scooting after drinking 7% ABVs IPAs at Petco all game.

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    Eric Ganci

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