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BUI — Bicycling Under the Influence
Posted on October 29th, 2007 13 commentsPLEASE HELP ME UNDERSTAND — email me or leave a comment as to your interest in the subject… I am not a lawyer, I am not soliciting business, just wondering why all the interest in this subject???
It goes without saying that mixing bicycling and drinking is extremely dangerous — there I said it after all — but what about the law? Bicyclists in Arizona are subject to DUI law,(but see Alternative theories, below…) the only wrinkles are that “implied consent” does not apply to bicyclists, and bicyclist’s licenses are not subject to administrative suspension (suspension before being convicted). A bicyclist convicted of DUI is subject to all the same penalties; mandatory jail time, must install ignition interlocks on all his motor vehicles, large fines, license suspension. –
§28-812: Bicyclists are “…subject to all of the duties applicable to the driver of a vehicle”
§28-1381 DUI: a person must not “drive… a vehicle” under the influence, so includes bicyclists.
§28-1385 : Administrative (before conviction) license suspension: violation must have been committed in a motor vehicle. So, this can not result in a bicyclist’s motor vehicle license being suspended. There are still long post conviction suspensions, however.
§28-1321 Implied consent: “A person who operates a motor vehicle in this state gives consent”, so does not apply to bicyclists.
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Alternative Theories
1) Since bicycles are, by definition, not vehicles (ARS §28-101.56), DUI won’t apply because it only makes driving a vehicle while drunk illegal. This is fundamentally a rejection of the statutory construction argument as outlined above. Arizona’s applicability statute (reproduced fully, below) specifically includes Chapter 4 ( which is titled “Driving under the influence” and deals only with DUI) in bicyclist’s duties.
or,
2) By its nature, DUI doesn’t apply to bicyclists — the escape hatch in §28-812. Both PA and OR, like AZ, has this escape hatch, but it doesn’t seem to prevent vehicle DUI charges from being upheld there.
I find both these arguments unpersuasive. In the absence of Arizona case law (which is apparently the situation) I consider either of these theories a “long shot” — that is to say a dismissal in city or justice court is certainly a possibility; or a conviction is likely to withstand review. The applicability statute, here in its entirety:
§28-812. Applicability of traffic laws to bicycle riders
A person riding a bicycle on a roadway or on a shoulder adjoining a roadway is granted all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this chapter and chapters 4 and 5 of this title, except special rules in this article and except provisions of this chapter and chapters 4 and 5 of this title that by their nature can have no application.
And I would point out that Chapter 4of Title 28 is entitled “Driving Under the Influence”, thus I conclude that there is clear legislative intent that Arizona’s bicyclists be bound by DUI laws.
Roundup of Other State’s ‘BUI’ Situation
Illinios
Illinois case: People v. Schaefer , 274 Ill. App. 3d 450, 654 N.E.2d 267, 1995 Ill. App. LEXIS 623, 210 Ill. Dec. 968 (Ill. App. Ct. 2d Dist. 1995).
The Illinois case is likely to be considered a smoking gun among drunk-cycling-is-not-illegal-in-Arizona proponents because the relevant laws between AZ and IL are virtually identical with one exception. AZ has the specific reference to “Chapter 4″ (DUI) in AZ’s applicability statute. IL simply makes “The Code” applicable to cyclists.
In short, the IL case found that there was ambiguity when construing the combination of the bicycling applicability and DUI statutes. Therefore because of due process considerations, the ambiguity must be construed narrowly and in favor of the defendant. “We determine that the language of the relevant statutes is not sufficiently definite to give the person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. In other words,
there is no clear and express legislative intent to apply [the DUI statute] to bicyclists.”In his May 15, 2003 column Mionske addressed the “are bicyclists subject to DUI?” by comparing Florida and Illinois laws and case law. Here is the Illinois Vehicle Code: 625 ILCS 5.
Pennsylvania
In PA (bikelaw summary), there is case law concerning bicycles and DUI, and the definition of vehicle. See Commonwealth v. Brown, 423 Pa. Super. 264, 620 A.2d 1213 (1993). The situation in PA is that statutorily bicycles aren’t mentioned in the definition of a vehicle: “[e]very device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks”. This case held that bicycles are vehicles, and thus the defendant could be charged with DUI. Bicyclists in PA have the usual “rights and duties” as vehicle drivers, as well as the “except… by their nature can have no application” escape-clause in their applicability statute a la ARS 28-812.
Also with relevance to PA there is an article: PENNSYLVANIA’S “NEW IMPROVED” IMPLIED CONSENT LAW–NOT JUST FOR DUI OFFENDERS ANYMORE (77 PA Bar Assn. Quarterly 121) that discusses DUI law changes that removed the word “motor” from PA’s implied consent law thus exposing a panopoly of road users to implied consent: “…it is conceivable that a person who operates a skateboard or non-motorized scooter on a highway while in an impaired or intoxicated condition could fall within the meaning of ‘vehicle’.”
Oregon
In his book Bicycling and the Law, Bob Mionske has a fairly lengthy topic on BUI, but his book has to cover the entire US(!). He writes:
There are four basic approaches to BUI
- DUI law applies to cyclists.
- DUI law (but not the penalties) applies to cyclists.
- BUI is treated as a separate offense.
- DUI law does not apply to cyclists.
In elaborating on 1) , he uses Oregon (bikelaw summary) as an example. Mionske writes “…cyclists are subject to the provisions of Oregon’s DUI statue, and cyclists can and will be prosecuted for DUI in Oregon”.
In Oregon bicyclists have the rights and duties of a driver of any other vehicle, similar to ARS 28-812. Oregon, like Arizona, does have the “except…by their very nature can have no application” escape-clause in their applicability statute. However unlike Arizona, in Oregon bikes are explicitly considered vehicles: “A bicycle is a vehicle for purposes of the vehicle code”.
Random net searches, Kansas, others? cases?
An April 2003 blog entry from mobikefed.org led me to this Kansas Supreme Court case… The case is more on the point of whether or not a city can have a DUI law. In the case a cyclist was charged under a City of Wichita ordinance. His conviction was affirmed. What would have been more interesting would be exactly why the state’s DUI law doesn’t apply to cyclists — this wasn’t discussed at all, it was taken as a foregone conclusion by both sides in the case.Here is a recent (Oct 6, 2007) article from the “Legal lad”. He refers, nonspecifically, to a whole bunch of states where there is case law. I need to find his reference to Hawaii.
Hawaii: Their dui statute is pretty standard, applies to operating a vehicle §291-3.1 , like Arizona. Vehicle definition is virtually same as in AZ, that is it excludes human powered device (§286-2). So if there is case law out of Hawaii it may be persuasive in Arizona.
New Hampshire: March(?) 2007. New Hampshire Bicyclist’s DWI Case Ends in Agreement. “At issue in (Timothy) Bradley’s case were a pair of apparently conflicting statutes in the state’s motor vehicle code one saying the ‘rules of the road’ that apply to motor vehicles also apply to bicycles, another defining the word ‘drive’ as operating a motor vehicle. Legal experts have said the case is a perfect example of what state Supreme Court justices are paid to sort out. At the same time, a local legislator, angered over the arrest, has already proposed a bill that would specifically remove bicycles from the state’s DWI laws”.
South Dakota took the unusual step recently (July of this year, or was it 2006) in HB1190 to rewrite the definition of vehicle to exclude bicycles and horses. According to this article, this will have the effect of exempting bicyclists (and equestrians, presumably) from DUI. [but what is SD's bike applicability statue say?]
California case: Clingenpeel v. Antelope108 Cal. App. 3d 394. Affirmed that DUI did not apply to bicyclists. Review by supreme court was denied. Subsequently, in 1982, the applicablity statue was amended to specifically proscribe BUI.
NJ case: DUI specifically applies to motor vehicles. So the superior court threw out the cyclist’s conviction in State v. Johnson203 N.J. Super. 436. Curiously, another county’s Superior Court previously (State v. Tehan) held that cyclists were somehow motor vehicles and subject to NJ’s DUI law.
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Courts have (consistently?) held that the term “motor vehicle” as opposed to just “vehicle” when used in statutes is intentional. The term “motor vehicle” explicitly excludes bicyclists, or conversely the term “vehicle” applies to both motorized and non-motorized vehicles. E.g.from a Pennsylvania commonwealth court case which upheld the revocation of a drunk cyclist’s license: “The fact that the definition of ‘operating privilege’ uses the term ‘vehicle’ rather than ‘motor vehicle,’ clearly denotes that these terms are not limited to matters involving motor vehicles but all vehicles.”
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DUI Attorneys from Attorneys.com
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Letter to the State Press Editor, (submitted via web 10/30/2007)
There is a persistent urban legend that bicyclists cannot be charged with DUI. A recent State Press Oct. 10, 2007 editorial, News flash: Alcohol and driving still don’t mix carries on the legend:
…there is no DUI law in Tempe for non-motorized vehicles. This means that biking, skateboarding and even rollerblading while drunk are all ways to avoid the needle and the jail time that now comes with driving drunk.
The reference to Tempe city law is a red herring. I don’t know about skateboarding or rollerblading, but Arizona state law makes bicycling on the road while under the influence equally illegal as driving a motor vehicle under the influence. This is because under Arizona law, cyclists have all the “duties applicable to the driver of a vehicle” (ARS §28-812).
Ed Beighe
azbikelaw.org
13 responses to “BUI — Bicycling Under the Influence”
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Note statement in Arizona Driver License Manual: “Do not bicycle under the influence of drugs or alcohol — it is illegal” (http://www.azdot.gov/mvd/documents/CustomerServiceGuide_99-0117.pdf, p. 46).
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My son, 23, was just stopped on his bicycle in Portland, Oregon. His license suspended, has to go to court and may lose that license. I am in disbelieve that this can actually happen. A bike is not DRIVING, you are riding. It is not a motor vehicle, do not need a license, so how can you lose it. What next, skateboards, roller skates, maybe walking too fast. Ridiculous.
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Dave Boston June 17th, 2009 at 13:55
This has always been unclear to me and has seemingly been intentionally kept that way by interpreters of the law. People are not licensed to use the roadway; they are licensed to operate a motor vehicle. What kind of charges would be made if the above-mentioned son actually did not have a driver’s license? I’ve heard of DUI being made to those sitting in a parked car, motor off and keys out. A city or county prosecutor stated at a meeting recently that there is no BUI in Tucson….taking the meaning to be that they would not prosecute it.
azbikelaw adds: Interesting you mention the sitting in a parked car thing — there is a very recent AZ Supreme Court ruling that supposedly clarifies the whole “being in actual physical control” phrase which has been causing confusion (this is as far as i can see, unrelated to bicycles).
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Dmitry June 22nd, 2009 at 09:24
I spoke with the Tucson prosecutor’s office about this issue last week after I got tired of pseudo lawyers telling me crazy stories about how you can get a DUI in Tucson while on a bike. According to the prosecutor, ‘Dale’…
They have never charged anyone in Tucson with DUI that was on an bicycle. They also said that your driver’s license is a license to operate motorized vehicles and has nothing to do with operating a bike. So while yes you have to obey street laws, the penalty is a ticket and not points added to your drivers license.
Call the prosecutor and get the facts for yourself from the people that know! Just cause ya’ll heard it on that there Internet don’t mean it’s true
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azbikelaw June 22nd, 2009 at 11:26
Hi Dmitry — Thanks for the legwork. First off; you make a good point about “pseudo lawyers”, and I don’t know if it is a jab at me or not but let me say you are absolutely correct, and that I am not a lawyer and standard disclaimers apply to everything I say.
The problem is nothing is ever as clear as you suggest. Take what would seem to be an easy one, the license points issue, you say:
“They also said that your driver’s license is a license to operate motorized vehicles and has nothing to do with operating a bike… the penalty is a ticket and not points added to your drivers license”
Hmmm. well, this is in direct contradiction to what an MVD spokesperson said ON THE RECORD. See here. And MVD is the organization that keeps track of all points in Arizona. It may well be true that the city court in Tucson doesn’t transmit bicyclist’s points data to MVD, but that’s not really saying the same thing, is it?
The problem is that each court and jurisdiction has enormous leeway… getting a straight answer out of any one of them is difficult, magnify this by 100 or so for the State of Arizona (cities, towns, counties; who all have independent law enforcement). So I am told first hand (by the Court) that Scottsdale will ticket & convict for “BUI”, and Tempe (like what you found in the city of Tucson) will not. It’s more a matter of policy.
So, I ride (not drunk, thankyou very much!) regularly in the Cities of Phoenix, Tempe, Chandler, and the County of Maricopa; less regularly in Scottsdale, Gilbert.Another example: I can’t get a straight answer out of the city of Tempe on how they handle motorized bicycles — two city officials say two different things.
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Dmitry June 22nd, 2009 at 12:25
nope, not a jab at you. was more thinking of the people that have chimed in on a list that I posted the idea of a bike pub crawl on.
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What if you are BUI on the sidewalk, and your city does not outlaw this – can you not get around the law? You’re not “on a roadway or on a shoulder adjoining a roadway”.
Or – if you city does outlaw biking on the sidewalk, wouldn’t it be much better to be cited for this than a DUI?
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greetings. I was arrested in Key West FL for BUI, boating under the influence, while riding my bike on a city street. later changed to DUI. am going to trial soon. FL has 2 totally different definitions for a vehicle, one which explicitly excludes a bicycle. but ponder this. suppose a person was TOTALLY WASTED and knowing this, decides to walk the bike home on sidewalks. at some point the wastee has to cross a road, and does so still pushing the bike. at that point he/she is in actual physical control of a vehicle on a road and may be charged w/ DUI. how stupid would that be?
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azbikelaw November 28th, 2009 at 11:19
pertaining to CA, from the “honk” column of the OC Register…
…When a bicyclist is cited for an infraction, the offense can end up on a driver’s license, said Jan Mendoza, a DMV spokeswoman.
“However, these citations are typically removed after it’s determined the infraction did not involve a motor vehicle,” she said. “No points are assigned for these violations. …
“If a person is cited for bicycling DUI, the arrest or citation goes on a person’s driving record for three years but it is placed there without any sanctions or points against the person’s driver’s license.”
Now, David, if the cited bicyclist didn’t have a driver’s license, like you talked about, an “X number” would be created; the record would be retained. The information would flow onto any new driver’s license.
By the way …
Tully Lehman – a spokesman for the Insurance Information Network of California said that your auto rates might go up with a drunk-while-bicycling citation.
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When looking at the full text of the applicable statute you put in, It occured to me that if you ride on the sidewalk you are not using either the roadway or the associated shoulder and therefore motor vehicle laws do not apply
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TabbyB April 10th, 2011 at 18:56
Florida gets around this sticky wicket by defining a bicycle as a vehicle and the operator of a bicycle as a driver. Here in Florida bicycle drivers have all the rights to the road as the operators of other vehicles. The Florida Bicycle Association is very active in advocating for bicycle safety and rights with the state legislature and Florida Department Of Transportation (FDOT). Defining a bicycle as a vehicle and the operator as a driver solves many legal issues. http://www.floridabicycle.org/rules/bikelaw.html
If Arizona would follow suite, it would remove this legal difficulty.
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TabbyB April 10th, 2011 at 19:18
One more thing. Approximately 99% of Floridians ride bicycles. It’s one of my main modes of transportation. Also I noticed that Arizona’s Driver’s Manual does not discuss a motor vehicle operators responsibility in regards to a bicycle. The 2011 Florida Driver Handbook states:
“5.17 – Bicyclists
In Florida, the bicycle is legally defined as a vehicle. Bicyclists using a public roadway are considered operators of motor vehicles and are responsible for observing traffic laws. Bicyclists may generally operate legally on sidewalks (except by local ordinance). They may operate in either direction, though riding against the flow of traffic on the adjacent roadway places them where motorists are not expecting traffic. Generally, sidewalk bicycling is not recommended, due to the usual increase in conflicts with bicycles and motor vehicles at driveways and intersections.5.17.1 – Bike Lanes at Intersections
Slow down, look for and yield to any bicyclists in the bike lane. Signal your turn prior to crossing through the bike lane at the dashed striping. Yield to any bicyclist. Complete the turn from the designated right turn lane. If there is no right turn lane, after first checking to make sure that no bicyclists are present, you may merge into the bike lane at approaches to the intersection or driveway.5.17.2 – Sharing the Road with a Bicycle
• Allow a minimum of three feet of clearance when passing a cyclist and reduce your speed. On a two lane road, time your pass to not be next to the bicyclist at the same time as oncoming traffic is at the same location.
• At night, avoid using high beam headlights when a cyclist is approaching. The cyclist could be temporarily blinded.
• Do not follow a cyclist closely. If you are too close and the cyclist must slow suddenly in an emergency, you could run them over. Bicyclists are entitled to move away from the right side of a lane when that lane is too narrow to safely share with a motor vehicle. Most travel lanes in Florida range from 10’ to 12’ wide and guidance indicates that a 14’ lane is a width that allows safe sharing with most
motor vehicles. Wet roads impair a bicyclist’s ability to brake and maneuver. Potholes or railroad tracks often require bicyclists to change positions within their lane. When railroad tracks are skewed, the bicyclist must change directions in order to cross over the tracks at a ninety- degree angle or risk a fall.”As I mentioned Arizona’s manual is silent in this area.
Tabby — thanks for you comment. I do like what you have in the FL manual, it is direct and strong. But i must contradict you, the Arizona Manual is not entirely silent, e.g.
Section 4: Sharing the Road with Other Vehicles Sharing the Road with a Bike
Bicyclists must obey the same traffic laws as drivers of vehicles, and they have the
right-of-way under the same conditions as motorists… -
I was glad to see this website and it provides very good information.
Personally, I would like to see Bicycling While Impaired legalized.
Additionally, my opinion is that driving Low-Speed Electric Vehicles while impaired would be a great transportation alternative for an impaired individual, if made legal.
The focus on traffic safety has primarily been targetted at operating while impaired (drunk driving). That only accounts for 1/3rd of traffic fatalities. How about the other 2/3rds of the traffic fatalities?
Seems to me that the size of the vehicles, and the speed at which we drive them, are the real threats to traffic safety.
Thus, Low-Speed Electric Vehicles are a great alternative. They increase all traffic safety, provide a legal transporation alternative for an impaired invididual, reduce dependence on oil, and provides a jumpstart for a new market.
Separately, based on my research:
1) Bicycling While Impaired is subject to the same penalties as Driving While Impaired.
2) A Motorized Bicycle may still be classified as a Bicycle providing it is not gas-powered, does not exceed 25 mph, and is pedal-assisted.
Thank you,
Chad
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Michael Sanders April 3rd, 2008 at 11:28