The Explainer: BUI can be a BFD

Dear Explainer,
I don’t even want to tell this story, but it brings up a question I need to have answered. I woke up yesterday with a completely trashed front wheel on my bike, a hangover I will never forget and a citation for a Driving(!!!!!) under the influence.

I admit that I was out the night before and I know I had too much to drink. I remember hitting a pothole going down a hill on my way home and the cops stopping to “help” me.

What I didn’t know was that I could get a DUI ticket for riding my bike. I have never even had a ticket in my life and I thought I was being responsible by not driving. How does this affect my driving record? How does this affect my insurance?

Should I just pay the thing or fight it? How should I fight it if I do?

I am as embarrassed as you can imagine, so I will just sign my name as,
– Suddenly Sober

Dear Suddenly,
I tried to email you back after I received your question, not to offer you specific legal advice (which I do not do in this column), but to find out more information.

There are a lot of things missing from your story; chief among the questions in my mind is which state you live in.

Most traffic laws in American towns and cities are based, at least in part, on something known as the Uniform Vehicle Code. The Code is prepared by a private, non-government organization, the National Committee on Uniform Traffic Laws and Ordinances, to promote the establishment of a set of consistent rules and practices that should allow to you to feel relatively familiar with the roads and rules no matter where you drive in this country. Traffic laws and traffic signs tend to be consistent across the U.S., whether you’re driving in San Francisco, Cleveland or even out here on the high prairie roads of Laramie, Wyoming.

There are, however, variations and you may have guessed by now that one of the inconsistencies is how the law treats – please forgive my use of the term – drunks on bikes.

Now if you haven’t already bought one, go out and grab a copy of “Bicycling and the Law,” by my friend, Bob Mionske. I am assuming that you don’t already have one, “Suddenly,” because Bob actually tackles the question of Bicycling Under the Influence very nicely.

To start, the question of where this violation occurred is key. In Mionske’s own state of Oregon, the law is quite bicycle-friendly, embracing the statement that cyclists all across the world love to hear: “Every person riding a bicycle upon a public way shall have all of the rights and all of the duties applicable to the driver of any other vehicle.”

How cool is that? Bicycles have rights and they’re the very same rights as anyone driving a car. I’m sure you also saw that killer caveat, namely “all of the duties.” And that, for Drunk Cyclists (with apologies to my friend, Jon) all over Oregon, is the key phrase.

Back in 1986, the Oregon Court of Appeals considered the case of a fella named Morris Woodruff. Woodruff was cruising along U.S. Highway 97 in Oregon when he was stopped by police and ordered to take a breathalyzer test. He was arrested for Driving Under the Influence. At trial Woodruff’s attorneys filed a motion to dismiss the charge on the grounds that the state’s DUI law doesn’t apply to bicycles. The trial court judge agreed and dismissed the case.

Prosecutors appealed and the Court found that the little phrase “all of the duties” did in fact mean that cyclists were subject to the provisions of the law.

The case also produced an interesting distinction, though. Oregon, like most states, has an “implied consent” rule, which roughly means that if you have applied for and received a driver’s license, you’ve already granted your consent to be tested for alcohol and other substances if an officer has reason to believe you are intoxicated.

Well, back at the trial court level, Woodruff’s attorneys had also filed a motion to suppress the results of the breathalyzer, arguing that since riding a bike didn’t require a motor vehicle license, the implied consent rule didn’t apply to cyclists. The Appeals Court actually bought that argument and agreed that the breathalyzer results couldn’t be presented in evidence against Mr. Woodruff.

I’m not sure of the final outcome of his case, but I have to suspect that if the breathalyzer results were tossed, then prosecutors would have had a tough time making their case against Woodruff. But the important element of that ruling, at least as it applies in Oregon, is that bicyclists are bound by the same rights and responsibilities as motorists. Hey, the whole “equal rights” thing is what many of us have been asking for, so why bitch when we get saddled with the same duties?

Anyway, that’s Oregon for ya, but other states approach the problem of the Velocimpeded in a variety of ways. Mionske offers up some fine examples of that by mentioning the approaches of several states. Take California for example, where the traffic code has a separate offense for bicycling under the influence. For adults, that could result in a fine. For under-age drinking cyclists, that could result in a one-year suspension of a driver’s license or a one-year delay in its issuance in the event the offender is not yet licensed. California, too, does not apply the implied consent rule to cyclists, so if asked just decline the opportunity.

In Utah, the state applies the same DUI laws to cyclists, but adds that such two-wheeled offenders are not subject to the same penalties as those operating a motor vehicle while impaired.

In other states, riding under the influence is not even a specific violation of the law, although you could still be subjected to arrest and prosecution under the provisions of a broader “drunk and disorderly” law. Cops are particularly prone to cite you for a D-and-D if they feel you pose a risk to your own safety or, worse, to the public at large.

So, for you, “Suddenly,” since you were actually cited for a DUI, I would probably suggest you contact an attorney and see what it is you’re facing. At bare minimum, look at the ticket and see if it cites the exact statute or ordinance you’re accused of violating. Then Google it. You may be able to find the specific violation and penalties. That should make your decision as to whether or not to contact an attorney easier.

If it turns out that you’re in one of those states that doesn’t treat a BUI in the same way as a DUI, you may be better off paying your fine and chalking up the whole thing to experience.

If you’re in a state in which the rule is applied in the same way no matter what kind of vehicle you’re operating – or in a state where the question still hasn’t been settled – then talk to a lawyer. It may be worth a fight.

Now, I have refrained from lecturing you about the stupidity of doing what you did. To do so would be a touch hypocritical on my part, if I consider that embarrassing incident 33 years ago when I destroyed my bike, broke my wrist and nose by … oh, never mind, it’s a long and stupid story.

Anyway, I hope you learned a lesson from the experience. I sure did when I made the same stupid mistake.

Hypocrisy or none, I do need to point out that alcohol consistently plays a role in between 25 and 33 percent of all cycling fatalities. It’s something worth keeping in mind.

The bottom line, though, is that no matter what your state’s approach to the question, operating any vehicle – including a bicycle – enhances risks both to you and to the public at large. People die from crashing bikes and people die from getting hit by people on bikes.

Please, whatever you do, be careful out there.
– Charles

P.S. – The Explainer is taking a break again, because his alter-ego, Live Update Guy, will be back doing Live Updates from each and every stage of the 2012 Vuelta a España. The Vuelta begins next Saturday with a team time trial in Pamplona and ends on Sunday, September 9, in Madrid. It should be a good three weeks. The Explainer will be back with another column on the first Saturday after the Vuelta, September 15.

The Explainer is a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.

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9 comments

  1. Les Borean

    “alcohol consistently plays a role in between 25 and 33 percent of all cycling fatalities”

    Okay, but almost all of those are a case of a motor vehicle driver outing a cyclist, right? I don’t suppose there a lot of cyclists killed resulting from RUI.

  2. John in Miami

    To mention an important CP rule: The Open Container rule. It’s encouraged to stop off at the liquor store on the way home from work for a nice bottle of wine. Put it in your bag, ride back home and enjoy at dinner with your significant other. Don’t open it and think it’s your glass enclosed water bottle.


    1. Author
      Charles Pelkey

      John,
      My habit of doing that is also how I found my cancer last year. That bag was full of heavy law books and when I added the wine and slid the bag back, the strap caught on what turned out to be a 2cm Grade 3 tumor. Yup. Books, bikes and booze saved my life.

      Bobby,
      Thank you for that article. What a strange story, eh?

  3. Bobby

    Hi Charles-

    Thought you might be interested in reading about this BUI case out of Pittsburgh (I learned about it via Urban Velo).

    http://www.pghcitypaper.com/pittsburgh/crossing-a-thin-blue-line-cyclist-at-heart-of-unusual-pittsburgh-police-dispute/Content?oid=1387391

    Basically, an officer on the scene decided the drunk cyclist suffered enough with his injuries and since there wasn’t any damage but to himself he chose not to cite him for BUI.

    However, one of his colleagues who later arrived on the scene chose to cite the drunk cyclist and some time later both officers testified against each other in court.

  4. Jeremy

    My fiancee, who happens to be a district attorney, says that she has little difficulty making a solid case against drunk cyclists, regardless of whether a breathalizer exam is conducted on the scene. Weaving on the bike, the smell of alcohol, and the “follow the light” (HGN) test are more than enough to convict. This is especially true when the jury is composed mostly of non-cycling motorists.

  5. Aaron

    Hi,
    I have a hard time coming down on drunk cycling based on my time in emergency medicine and the antecdotal realization of how many drunk drivers are out on the road, way in a way above that ever discovered. Overall, if those drunk drivers converted to drunk cyclists, the roads would likely be far safer– not that I want to advocate abandoning good judgement in the first place!

    While cyclists may have all the duties of motorists, the CA DUI code (CA VC 23152-23229.1) does in fact explicitly state the operation of a “vehicle” or “motor vehicle” and is silent on human powered bicycles. The CA VC defines “vehicle”:

    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.

    Maybe I’m missing something from the penal code, and I’m no lawyer in first place, but I would make a stink about this contradiction if I found myself in the situation.

    If my memory is correct, the current penalties are motivated by instances where drunk drivers take out truly innocent bystanders and are the result of lobbying from organizations like MADD in the 80s and 90s. Killing yourself pedaling home is not the same as wiping out the daycare schoolbus. (But, hey, I’m even less of a Judge than a lawyer.)

    Aaron in Berkeley

  6. Pingback: The Explainer: Warmest thanks, deepest sympathies and some follow-up : Red Kite Prayer

  7. Tennessee Cycling Attorney

    For Tennessee cyclists, per TCA 55-8-172, cyclists are subject to all the duties imposed on motorist – including DUI provisions set forth in Chapter 10 of Title 55. However, per TCA 55-10-401, a DUI applies to “automobiles or motor driven vehicles”. There is a definition for “vehicle”, “motor vehicle”, but not motor driven vehicle”. See TCA 55-10-405. But, a “motor vehicle” is one that is self-propelled. While there is no definition for “self-propelled”, a bicycle is “every device propelled by human power”. See TCA 55-8-101. Since a bicycle does not propel itself, it will likely not be considered “self-propelled”. It is human-propelled. My research found no appeals of cases of a cyclist convicted a DUI.

    Long story short – unless you have a motor on your bicycle, you will probably not be guilty of a DUI while riding your bicycle in Tennessee.

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