BUI — Bicycling Under the Influence

PLEASE 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.

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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

1. DUI law applies to cyclists.
2. DUI law (but not the penalties) applies to cyclists.
3. BUI is treated as a separate offense.
4. 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