Intoxication

Why is E-scooter Rider Intoxication an appropriate focus area?

Riders operating e-scooters under the influence has contributed to e-scooter injuries. The JAMA Network academic study on E-scooter injuries found that 4.8% of patients seen with E-scooter related injuries had either a Blood Alcohol Content (hereafter “BAC”) greater than 0.05% or were perceived to be intoxicated by a physician.[1] Additionally, when asked to share statistics on E-scooter related injuries, the University of San Diego Medical Center reported 42 riders admitted with severe injuries from E-scooter accidents.[2] Of those, 48% of E-scooter riders were measured to have a BAC higher than the legal limit for intoxication and 52% tested positive for illegal drugs.[3]

Possible Approaches for Governments

To effectively decrease E-scooter riders riding while intoxicated, governments should think carefully about how E-scooters are legally defined and legal definitions in applicable Driving Under the Influence (hereafter “DUI”) laws. Analysis of the differing approaches taken in California and Wisconsin are provided below as examples of the importance of legal definitions in governments being able to address E-scooter rider intoxication as a safety concern. Governments should also be familiar with E-scooter companies’ approaches to this safety concern.

E-SCOOTER COMPANIES’ APPROACHES

Currently, E-scooter companies prohibit riders from riding while impaired via their User Agreements[4]. Using Bird and Lime as examples, Bird riders must not ride, and Lime riders agree not to ride “while under the influence of any alcohol, drugs, medication, or other substance that may impair” the rider’s ability to ride safely.[5] Both companies then reserve the right to terminate a rider’s right to use its services at any time, for any reason, including riding while impaired.[6] The best way that a government can work E-scooter companies to address E-scooter rider intoxication is to hold the companies accountable to exercise the right to terminate rider access if an E-scooter rider is found riding while intoxicated. This could be done via a mandated requirement for companies to exercise this right in a permit necessary to lawfully operate in the government’s locale. While technology such as ignition interlocks[7] has been used on cars to deter DUIs, it is highly unlikely an E-scooter company would agree to install similar technology on their E-scooters. Just installing technology like an ignition interlock would be a costly undertaking for an E-scooter company and, given the shareable nature of E-scooters, is likely infeasible due to the potential to deter riders and spread germs from strangers having to blow into the same ignition interlock to access an E-scooter.

CALIFORNIA ANALYSIS

How E-scooters Are Defined at The State Level

To define E-scooters in California, state officials chose to use existing legislation for motorized scooters. According to California’s Vehicle Code (hereafter “CVC”), a “motorized scooter” is “any two-wheeled device that has handlebars, has a floorboard that is designed to be stood upon when riding, and is powered by an electric motor.”[8] CVC 407.5 then clarifies that “a motorcycle, as defined in Section 400, a motor-driven cycle, as defined in Section 405, or a motorized bicycle or moped, as defined in Section 406, is not a motorized scooter.”[9] Based on this definition, which became operative back in 2008[10], E-scooters are classified as motorized scooters in California. CVC 21221.5 provides laws for the operation of motorized scooters and, therefore, E-scooters.[11] Under CVC 21221.5, “it is unlawful for any person to operate a motorized scooter 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.”[12] If a rider is found in violation of CVC 21221.5, he/she “shall be punished by a fine of not more than $250.”[13] One advantage of choosing to classify E-scooters under the existing definition of motorized scooters is that California did not burden its legislature to come up with a new definition specific to E-scooters. Another advantage of this choice is having DUI case law for motorized scooters available, which would not be possible by starting with a new definition specific to E-scooters.

How State Definitions Have Been Interpreted

In September 2018, Los Angeles City Attorney Mike Feuer completed the first successful prosecution of someone in California for operating a motorized scooter under the influence when the Nicholas Kauffroath pleaded no contest to one count of violation of CVC 21221.5 and one count of hit-and-run.[14] Although Kauffroath was found to have a BAC of .279,[15] CVC 21221.5 itself does not outline a per se BAC to be charged with operating a motorized scooter while intoxicated.[16]

Nolo.com, a website which provides information about DUI laws by state, has interpreted CVC 21221.5’s lack of an explicit per se BAC to mean that for a charged violation of the statute, “BAC can be a consideration but not necessarily determinative of whether the scooter operator has violated the law.”[17] CVC 21221.5 states that any person arrested for a suspected violation may request to have a BAC test performed, and, if so requested, the arresting officer shall have the test performed.[18]  Nolo.com has interpreted this to mean that a person arrested for a suspected violation of CVC 21221.5 is not subject to California’s implied consent law[19], which requires motorists who are stopped for suspicion of driving under the influence to take a BAC test.[20] If this is true, governments could have issues prosecuting for violations of CVC 21221.5. If arresting police officers do not have the ability to compel a BAC test, they must rely on subjective observations of impairment such as slurred speech, bloodshot eyes or a field sobriety test.[21] Developed in the 1970s, the Standardized Field Sobriety Tests (hereafter “SFSTs”) are battery of three tests administered by police officers throughout the country, have been scientifically validated, and are admissible as evidence in court in most states.[22] According to researchers, officers trained to conduct SFSTs correctly identify alcohol-impaired drivers over 90% of the time.[23] Still, factors such as age, injury, or disease could cause a person to be unable to successfully complete one or more of the SFSTs, which could lead to an improper charge for riding an E-scooter while intoxicated.[24] Additionally, SFSTs have some limitations under California law. In California, SFSTs are only relevant to testing for alcohol, not drug DUI cases, and drivers are not required to perform field sobriety tests; they can say no.[25] Nolo.com concludes its analysis of California’s DUI laws for E-scooter riders by concluding that an E-scooter could face a traditional DUI charge in California in addition to charges for a violation of CVC 21221.5.[26] This seems to be the consensus agreement based on interpretation of legal definitions and existing case law.

(ImageCreator, http://www.thebluediamondgallery.com/typewriter/d/dui.html)

Like CVC 21221.5, part (a) of the CVC’s DUI law is subjective, providing that “it is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.”[27] Part (b) of the CVC’s DUI law is an objective per se rule that it is unlawful for a person who has .08% BAC or more to drive a “vehicle.”[28] In the CVC, a “vehicle” is defined as “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.”[29] Based on this definition, an E-scooter would seem to be defined as “vehicle” in California.[30] Therefore, a Californian E-scooter rider can likely be charged under the state’s traditional DUI statute. Although the CVC uses the term “vehicle” when referring to BAC in its DUI law, it uses the term “motor vehicle” in its implied consent law.[31] The CVC defines “motor vehicle” slightly different than vehicle[32], but an E-scooter is still very likely to fit the definition of a “motor vehicle” as well. In California, “any vehicle is a motor vehicle if it is capable of moving from place to place under its own power.”[33] Although unreported, recent case law provides further support that an E-scooter would be deemed legally defined as a “motor vehicle.” In People v. Lewis, the defendant argued for the trial court to set aside a charge of shooting at an occupied motor vehicle on the grounds that there was insufficient evidence to establish that the scooter he alleged fired at was motorized and that, in any event, a motorized scooter is not a motor vehicle.[34] The defendant argued that the scooter was “not a scooter with a seat,” but was “a skateboard with a motor on it.”[35] The trial court determined that the scooter at issue in the case qualified as a motor vehicle and described it as “clearly what would otherwise be a child’s scooter that you would put one foot on and push with the other foot, except it has a motor on the back.”[36] The Court of Appeal for the Third District of California reasoned that the defendant’s argument appeared to have been an attempt to distinguish the scooter at issue in the case from the definition of “motorized scooter” in CVC 407.5.[37] The court then stated that whether the vehicle qualified as a “motorized scooter” within the meaning of CVC 407.5 is not dispositive of whether it qualified as a “motor vehicle” for purposes of the crime of shooting an occupied motor vehicle.[38] The description of the scooter in Lewis seems to fit the typical E-scooter, meaning that E-scooters would be legally defined as motor vehicles. If that is true, then Californian E-scooter riders are subject to the state’s implied consent law, even if not explicitly the case in CVC 21221.5.[39]

Wisconsin Analysis

How E-scooters Are Defined at The State Level

In Wisconsin, E-scooters are currently undefined as vehicles by state law.[40] The Wisconsin Department of Transportation (hereafter “Wisconsin DOT”) has determined that E-scooters do not meet federal safety equipment standards for motor vehicles and are not designed for operation on the roadways.[41] Therefore, the Wisconsin DOT website states that it treats E-scooters like lawn tractors, all-terrain vehicles, go-carts, mini-bikes and other off-road motor vehicles that are not allowed on public roads.[42] Wisconsin’s DUI statute prohibits a person from driving or operating a “motor vehicle’ while under the influence.[43] At this point, it is unclear whether E-scooters would be considered motor vehicles under Wisconsin’s DUI statute.

How State Definitions Have Been Interpreted

In June 2018, in response to Bird’s launch in Milwaukee, Wisconsin, the city of Milwaukee filed suit seeking an injunction ordering Bird to remove its scooters.[44] The City alleged that Bird deposited its E-scooters on public streets and sidewalks without notice or adherence to the law and with disregard as to whether such operation was legal.[45] Wendy Mantell, deputy counsel at Bird, said that the company disagrees with the city on the lawfulness of E-scooters.[46] According to Mantell:

“Wisconsin statutes have not defined electric scooters as a class of vehicle, and state law has not regulated their use. It is clear that our scooters are designed for on-street use, just like bicycles and other mobility devices that are exempted from federal motor vehicle standards, they should be regulated accordingly.”[47]

A few weeks after the lawsuit was filed, Bird volunteered to remove its E-scooters from the streets of Milwaukee and Milwaukee officials agreed to cooperate on a framework for allowing the operation of dockless E-scooters in the city.[48] “We are committed to working with Bird to develop a program that meets regulatory requirements as well as the needs of people living and working in Milwaukee,” said Milwaukee Mayor Tom Barrett in a news release.[49]

(ImageCreator, http://www.thebluediamondgallery.com/typewriter/c/circumstantial-evidence.html)

Even once Wisconsin determines how E-scooters are legally defined under state law, existing DUI case law suggests that issues of proof could result in litigation. The Court of Appeals of Wisconsin has recognized the use of circumstantial evidence to prove “operation” of a motor vehicle in a DUI case.[50] In State v. Mertes, the defendant was found behind the wheel of a vehicle parked at a gas pump with the keys in the ignition in the auxiliary position; he stated that he had been parked there for approximately ten minutes, and there was a lack of any evidence to suggest that the passenger of the vehicle had operated the vehicle..[51] Using this circumstantial evidence as support, the State characterized its theory of the case as “the entirely reasonable inference that Mertes had operated the car before the police ever arrived on scene by driving it into the gas station.”[52] The Court of Appeals of Wisconsin upheld a jury finding that the defendant operated a motor vehicle with a detectable amount of restricted substances because the circumstantial evidence offered by the State was sufficient to convict.[53] Comparatively, in Village of Cross Plains v. Haanstad, the Supreme Court of Wisconsin held that there was no circumstantial evidence that the defendant “recently” operated the vehicle.[54] In Haanstad, the defendant was found in the driver’s seat of a parked vehicle but uncontested evidence showed that she was not the person who left the engine running and she never used the controls necessary to put the vehicle in motion.[55]

Since Bird is working with the City of Milwaukee to bring their E-scooters back to the locale, the language of Bird’s privacy policy will be used as an example of the potentially wide-ranging effects of Wisconsin’s permitted use of circumstantial evidence to prove the operation of a vehicle in furtherance of a DUI conviction being applied to an E-scooter rider. Bird’s privacy policy notifies riders that the company automatically collects “precise GPS location information regarding the location of the Vehicles you use, the routes taken by these Vehicles, the rental status of these Vehicles. . . and status, date, time and length of use.”[56] Bird also notifies riders that the company may “use or disclose information if required to do so by law or in the good-faith belief that such action is necessary to (a) conform to applicable law or comply with legal process.”[57] Bird’s Privacy Policy notifies E-scooter riders that they are collecting rider information that could be used as circumstantial evidence to show that the legal “operation” of a vehicle has occurred and that Bird can disclose that information. Governments often require E-scooter companies operating in their locale to engage in data sharing by providing information on E-scooter rides.[58] Whether or not Wisconsin could require E-scooter companies to provide individual rider trip information as circumstantial evidence to support a DUI prosecution brings up serious questions about data privacy[59], but Bird’s Privacy Policy would allow it.

CONCLUSION

Analyzing the law in California and Wisconsin shows the importance of governments thinking carefully about how E-scooters are legally defined and legal definitions in applicable DUI laws. Without careful planning, locales will struggle to address the safety concern of E-scooter rider intoxication.

[1] See Trivedi TK, Liu C, Antonio ALM, et al., supra note 1.

[2] See Micah Toll, Electric scooter injuries pile up, half coming from drunk or high riders, Electrek (Mar. 8, 2019, 11:37am EST), https://electrek.co/2019/03/08/electric-scooter-injuries-pile-up-half-coming-from-drunk-or-high-riders/.

[3] See Id.

[4] See, e.g., Bird User Agreement; Lime User Agreement.

[5] See Id.

[6] See Id.

[7] See What is an Ignition Interlock, LifeSafer, https://www.lifesafer.com/devices/what-is-an-interlock/ (last visited April 16, 2019). (“[A]n ignition interlock measures the alcohol in a person’s system. If that amount exceeds a pre-programmed level, then the interlock temporarily locks the vehicle’s ignition.”)

[8] See Cal. Vehicle Code 407.5.

[9] See Id.

[10] See Id.

[11] See Cal. Vehicle Code 21221.5.

[12] See Id.

[13] See Id.

[14] See Steve Kiggins, ‘Safer’ sidewalks: Los Angeles secures first motorized scooter DUI conviction, USA Today (last updated Sept. 28, 2018, 10:18am EST), https://www.usatoday.com/story/news/2018/09/27/los-angeles-secures-first-motorized-scooter-dui-conviction/1450040002/.

[15] See Id.

[16] See Cal. Vehicle Code 21221.5; Chris Barta, Are bicycle- and scooter-share riders within the reach of California’s DUI laws?, DrivingLaws by NOLO, https://dui.drivinglaws.org/resources/scootering-bicycling-and-electric-biking-while-under-the-influence-in-california.html (last visited April 16, 2019).

[17] See Chris Barta, Are bicycle- and scooter-share riders within the reach of California’s DUI laws?, DrivingLaws by NOLO, https://dui.drivinglaws.org/resources/scootering-bicycling-and-electric-biking-while-under-the-influence-in-california.html (last visited April 16, 2019).

[18] See Cal. Vehicle Code 21221.5.

[19] See Barta, supra note 153.

[20] See Cal.Vehicle Code 23612.

[21] See Barta, supra note 153.

[22] See Standardized Field Sobriety Test, AAA DUI Justice Link, https://duijusticelink.aaa.com/issues/detection/standard-field-sobriety-test-sfst-and-admissibility/ (last visited April 16, 2019).

[23] See Id.

[24] See Id.

[25] See Standardized Field Sobriety Tests (SFSTS) For California DUIs, Gorelick Law Offices, https://www.gorelick-law.com/standardized-field-sobriety-tests-sfsts-for-california-duis (last visited April 16, 2019).

[26] See Barta, supra note 153.

[27] See Cal. Vehicle Code 23152 at (a).

[28]See Cal. Vehicle Code 23152 at (b).

[29] See Cal. Vehicle Code 670.

[30] See Can you get a DUI on one of those electric scooter things?, Ganci, Esq., (March 27, 2018), https://ganciesq.com/2018/03/27/can-you-get-a-dui-on-one-of-those-electric-scooter-things/.

[31] See Cal.Vehicle Code 23612.

[32] See Cal. Vehicle Code 415 (“A ‘motor vehicle’ is a vehicle that is self-propelled.”)

[33] People v. Jordan, 142 Cal.Rptr. 401 (Cal. App. Dep’t Super. Ct. 1977).

[34] People v. Lewis, 2008 WL 4216099 (Cal. Ct. App. 2008).

[35] See Id.

[36] See Id.

[37] See Id. at FN 4.

[38] See Id.

[39] See Cal.Vehicle Code 23612.

[40] See Molly Dill, Here’s why the legality of Bird scooters is up for debate, BizTimes (July 9, 2018, 1:58PM), https://www.biztimes.com/2018/ideas/government-politics/heres-why-the-legality-of-bird-scooters-is-up-for-debate/; Wis. Stat. Sec. 340 (showing no definition for e-scooter).

[41] See Scooter/Moped, State of Wisconsin Department of Transportation, https://wisconsindot.gov/Pages/dmv/motorcycles/mc-safety/mopeds.aspx (last visited April 16, 2019).

[42] See Id.

[43] See Wis. Stat. §346.63.

[44] See Molly Dill, City of Milwaukee suing Bird, BizTimes (July 6, 2018, 5:48PM), https://www.biztimes.com/2018/ideas/government-politics/city-of-milwaukee-suing-bird/.

[45] See Id.

[46] See Id.

[47] See Id.

[48] See Nick Williams, Bird agrees to remove e-scooters from Milwaukee streets, litigation continues, Milwaukee Business Journal (Aug. 6, 2018, 1:32pm EST), https://www.bizjournals.com/milwaukee/news/2018/08/06/bird-agrees-to-remove-escooters-from-milwaukee.html.

[49] See Id.

[50] See Milwaukee County v. Proegler, 291 N.W.2d 608 (Ct.App.1980).

[51] See State v. Mertes, 762 N.W.2d 813 (Wis. 2008).

[52] See Id.

[53] See Id.

[54] See Village of Cross Plains v. Haanstad, 709 N.W.2d 447 (Wis. 2006).

[55] See Id.

[56] See Bird Privacy Policy.

[57] See Id.

[58] See Chris Henry, Data Sharing, in University of South Carolina School of Law, Dockless Mobility: A Look into the Regulation of E-scooters, https://docklessmobility.org/operations/data-sharing/ (last updated 2019).

[59] See Kevin Rubio, Data Privacy, in University of South Carolina School of Law, Dockless Mobility: A Look into the Regulation of E-scooters, https://docklessmobility.org/operations/data-privacy/ (last updated 2019).