Electric Scooter DWI: Can it Happen?

So, downtown Raleigh being a hot spot for alcohol consumption, and now being flooded with electric scooters, the reality is, people will be utilizing these machines while impaired.  This begs the questions; Can I be charged and convicted of Driving While Impaired for riding one of these scooters impaired?  What’s to follow is my legal analysis of the laws as they are written now, and in no way guarantees a particular outcome (that’s lawyer-speak for; ‘Officers and Judges have discretion they may use to charge/convict you, even if I don’t think they should).

 

So, let’s start with the basics.  Driving While Impaired in North Carolina requires the State to prove three things: 1. That you were driving a vehicle, 2. That the driving was on a street, highway or ‘public vehicular area’ (more on that in a minute) and 3. That you either had a blood/breath alcohol concentration of .08 or above or that you were ‘Appreciable Impaired’ (see my other blogs on Appreciable Impairment). So, for today’s discussion, we will talk a little bit about ‘Public Vehicular Area’ and a lot about ‘Driving.’

 

Public Vehicular Area is defined under N.C.G.S. 20-4.01(32) as “(a)ny area within the State of North Carolina that meets one or more of the following requirements:

  1. The area is used by the public for vehicular traffic at any time, including by way of illustration and not limitation any drive, driveway, road, roadway, street, alley, or parking lot upon the grounds and premises of any of the following:”

The statute goes on to qualify basically any and all areas, either private or State/Federal owned, opened to public vehicular traffic.  Now, a whole other blog can address the various arguments around ‘P.V.A.’s’ but mainly, I wanted to point out that, under the statute, it may appear that sidewalks are not included, but there is Caselaw out there that said P.V.A.’s can include sidewalks.  So, for those of you thinking you are safe to drive an electric scooter impaired so long as you remain on a sidewalk, I don’t think that is your best defense.

 

I actually believe, as the current statutes are written, an electric scooter would not qualify as a ‘vehicle’ under the law, and therefore you would not run afoul of the law by operating one of these electric scooters while impaired, whether on a sidewalk or road; let me explain.  Under N.C.G.S. 20-4.01(49), a ‘vehicle’ is defined as “ Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon fixed rails or tracks; provided, that for the purposes of this Chapter bicycles and electric assisted bicycles shall be deemed vehicles and every rider of a bicycle or an electric assisted bicycle upon a highway shall be subject to the provisions of this Chapter applicable to the driver of a vehicle except those which by their nature can have no application.”  Now, that is a very convoluted way of basically saying ‘any vehicle that moves a person on a road, except trains, unless human powered, except bikes and electric bikes do count as a vehicle.’  Given the definition, and the inclusion of ‘electric bikes’ one may assume that electric scooters would qualify as a vehicle.  However, N.C.G.S. 20-4.01(49) goes on to provide an exception for devices being used for “mobility enhancement.”  It is this exception that, I would argue, electric scooters falls under.  These devices are defined as ones that are “…suitable for use both inside and outside a building, including on sidewalks, and is limited by design to 15 miles per hour.” According to the website for Byrd, the electric scooters we have in Raleigh currently, they are limited to speeds of 15 miles per hour.  Since the scooters have zero emissions, an argument could be made that they could be used inside a building, especially large warehouses (I think Google Campus and other large I.T. facilities use electric mobility devices to move about). Another reason I believe the electric scooters do not fall under the definition of a ‘vehicle’ is that the ‘vehicle’ definition goes on to say that it does not include ‘electric personal assistive mobility devices’ which are defined under N.C.G.S. 20-4.01(7b) as “A self-balancing nontandem two-wheeled device, designed to transport one person, with a propulsion system that limits that maximum speed of the device to 15 miles per hour or less.”  This definition seems to me to be describing Segways (and probably accidentally incorporating ‘Hoverboards’ as well).  So, aside from the self-balancing part of that definition, the description for these devices would encompass the electric scooters.  So, if we were to try and interpret what the General Assembly intended when carving out exceptions for ‘vehicles’ it would be a well-reasoned position to argue, if the Legislator intended to exempt Segways due to their use both inside and outside, and speed restrictions, then electric scooters would also be exempt.

 

So, that is how I see this playing out.  I honestly believe in the near future, we will see either a change in the law to include or exempt the electric scooters or someone is going to be charged with a DWI on one and the courts will have to rule on whether they qualify or not. But, just remember, just because I don’t think they would qualify as a ‘vehicle’ under the law as it is written, doesn’t mean you can’t be charged and or convicted; such is the reality of criminal defense.

 

 

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