Picture by RALPH BARRERA / AMERICAN-STATESMAN
Can I get arrested for a DWI on one of those new motorized scooters that I have been seeing for pick up and rent all around Austin?
First, there is a big difference between being ARRESTED and being CONVICTED. Nearly all of our clients come to us because they have been arrested, but we work very hard to ensure relatively few are actually convicted (we get most of our cases DISMISSED). Another day we will explain in greater detail the proof required to be arrested (probable cause) versus the proof required to be convicted (beyond a reasonable doubt). This article today is all about those easy-to-access scooters, and if it’s a good idea to hop on one after a few drinks on 6th street.
Some things in law are cut and dried. For example, a person driving on the highway in a car who smells like alcohol is likely to be arrested for a DWI when pulled over. Someone cruising their speedboat on the lake after enjoying a few beers is likely to be arrested for a BWI (boating while intoxicated). A pilot who indulges in the minibar before take-off could be arrested for an FWI (flying while intoxicated). The Texas Penal Code clearly spells out that operation a CAR, AIRPLANE, or BOAT falls under the DWI statutes.
Airplane (Tex. Penal Code § 49.05)
The legislature even thought to include assembling or operating an amusement ride while intoxicated (OARWI) in the Penal Code (§ 49.065). But where is Scootering While Intoxicated? The short answer is that it’s not there. So, can someone be arrested for driving a scooter while intoxicated? To answer that question, we have to do some lawyer talk.
We must break down two elements of the traditional DWI charge: Motor Vehicle and Operation. Let’s begin by looking at the definition of a “motor vehicle”. (Fair warning…this can seem a little convoluted with definitions then exceptions, references to other statutes within definitions, and oftentimes we must define certain words within a definition. Who writes these laws? Oh, lawyers.)
Motor Vehicle – Of all places for lawyers and judges to look for a motor vehicle definition, would you guess that it starts in the FRAUD statutes of the Texas Penal Code? The Texas Penal Code (§ 32.34) describes a Motor Vehicle as a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks. This definition has been frequently referenced as the standard of Motor Vehicle in many past cases. So, would a motorized scooter fall under this definition? Device, check. Person can be transported, check. Not exclusively used on tracks, check. By most accounts, yes, it would a motor vehicle. But let’s take it one step farther by looking in Texas laws for specifics mention of motorized scooters. Sure enough, Motor-Assisted Scooters are listed under the Transportation Code – Title 7 – Subchapter E.
Let’s see how these new scooters match the Texas law definition of Motor-Assisted Scooter. The Transportation Code (§ 551.351) states that a Motorized-Assisted Scooter is a self-propelled device with: at least two wheels in contact with the ground during operation; a braking system capable of stopping the device under typical operating conditions; a gas or electric motor not exceeding 40 cubic centimeters; a deck designed to allow a person to stand or sit while operating the device; and the ability to be propelled by human power alone; and does not include a pocket bike or a minimotorbike. Isn’t this sounding like the ones you’ve seen around town?
The Transportation Code (§ 551.352) further explains that a motor-assisted scooter should be operated only on a street or highway where the speed limit is 35 miles per hour or less. The motor-assisted scooter may cross only at an intersection where the road or street has a posted speed limit of more than 35 miles per hour, but otherwise should be ridden in the bike lane or on the sidewalk along the higher speed limit roads. Except as otherwise provided by the section listed above, the provisions in the code applicable to a bicycle also apply to the operation of a Motor-Assisted Scooter.
Operation – Finally, we need to determine what the word Operation means, within the context of the DWI statute. If you thought we could look in the DWI statute for an indication of what it means to Operate a Motor Vehicle, you would be a logical thinker. But the Penal Code does not define “operation” in the statute. We must look to case law, which is law that is established by the outcome of previous cases. The Texas Court of Criminal Appeals defined the word Operation for us in the case, Denton v. State. (911 S.W.2d 388 (Tex. Crim. App. 1995)). In the Denton case, the court decided that a person operates a vehicle when the totality of the circumstances demonstrates that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use. That is very generic sounding. Unfortunately, this issue of operation based on this decision includes many, many types of activities. So much so that merely sitting behind the wheel of a running car has been considered operation. The take away here is that the law casts a very wide net.
Combining all of the legal jargon and definitions, we conclude that, yes, you could receive a DWI for driving a scooter if you are operating the scooter in a manner consistent with a car (driving it on the street, in a public place).
But as of yet, we could find no cases in which someone was charged with a DWI on a motorized scooter. There are many cases that are similar to this situation though. One case involves a person receiving a DWI while driving a golf cart: goo.gl/WtmVEq. We won’t even get into the past cases involving bicycling while intoxicated or the guy who as riding his horse while intoxicated (those turned out pretty good eventually).
With the proliferation of these scooters, it is a matter of time before the police run across someone they think is operation one while intoxicated. Be smart. Be informed. Be safe. And please don’t be the first reported arrest of a Scooting While Intoxicated. But if you are, hire a very good attorney to dive deep into the elements of your case, the definitions, and find a path to dismissal.
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