October 17, 2012

Bicycling Under the Influence of Alcohol in California

Recently I advertised in Pacific Magazine that "no matter your form of transportation you are not above a DUI" with pictures of people in a car, on a boat and a young woman on a bicycle. People commented on my law office Facebook page that you can't get a DUI on a bicycle. The answer to that comment is yes and no, and I will explain why.

A very popular past time along the boardwalks of San Diego is riding a beach cruiser bicycle from bar to bar. From Pacific Beach to South Mission Beach, there are a number of bars either right along the beach (Lahaina) or just one block inland on Mission Boulevard (Guava Beach). Bicyclists can either end their trek at the Coaster (named for the wooden roller coaster just across the street), or ride further south to the Beachcomber in South Mission. However, it is illegal in California to be under the influence of alcohol and ride a bicycle.

California Vehicle Code Section 21200.5, "Riding Bicycle Under Influence of Alcohol or Drugs," states that, "it is unlawful for any person to ride a bicycle upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug." (VC 21200.5) However, there are distinct differences between this section and the traditional, California DUI statute. And note that the inclusion of "highway" does not limit enforcement- other statutes expand this definition to include all public roadways, offroad, and even private property.

Vehicle Code Section 23152
, the "traditional" DUI regulation statute, holds that the person must be operating a "vehicle" to violate this statute. Vehicle is defined by California Vehicle Code Statute 670, "Vehicle" as follows- "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."

A bicycle is therefore excluded from the traditional DUI statute. A bicycle is defined as, "a device upon which any person may ride, propelled exclusively by human power through a belt, chain, or gears, and having one or more wheels. Persons riding bicycles are subject to the provisions of this code specified in Sections 21200 and 21200.5." (VC 231). Notice that the key difference is how the two are powered- vehicles not by human power, and bicycles exclusively by human power. Fred Flintstone is safe for now.

Another key difference is how the two are regulated. VC 23152 is a misdemeanor, whereas VC 21200.5 is an infraction. And this is therefore the key to the discrepancy- if you refer to DUI in general terms meaning all under the influence laws (regardless of the vehicle or punishment), then VC 21200.5 is a DUI. However, if you are solely referring to DUI as driving under the influence of alcohol as defined by VC 23152(b)- with the same life-altering punishments and stigma, then no, it is not a DUI.

That narrow definition, however, leaves out boats (California Harbor and Navigation Code 655), airplanes (CFR Title 14, Sect. 91.17) or other modes of transportation. Since most San Diegans don't usually go bar hopping on airplanes, helicopters, or taking their private rail cars, bicycles and VC 21200.5 is more appropriate.

Please keep your questions and comments coming. There is nothing intuitive about DUI laws and enforcement. Further, alcohol itself is a curious drug that people surprisingly have little knowledge of compared to how prevalent it is. Do not hesitate to post a question or comment, or even request a free consultation.

Lastly, I came across this section- California Vehicle Code Section 415 (a), "Motor Vehicle:" (a) A "motor vehicle" is a vehicle that is self-propelled.
(b) "Motor vehicle" does not include a self-propelled wheelchair, motorized tricycle, or motorized quadricycle, if operated by a person who, by reason of physical disability, is otherwise unable to move about as a pedestrian."

So if someone needs a wheelchair, they are exempt from prosecution for a DUI. However, if someone has one too many peach schnapps at the retirement home and takes a motorized wheelchair for a whirl after bingo- they just may be violating the law.
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