DON’T SCOOT AND DRUNK | Robert J Callahan | Chicago, IL Criminal Defense Lawyer

Chicago is now part of the electric scooter nationwide revolution. Sadly, Only two weeks into the city’s new electric scooter pilot program, Chicago marked it’s first electric scooter related murder. On June 26, 2019, a 17 year old got shot and killed in Humboldt Park while riding on an electric scooter.

It’s always a few bad apples that ruin a good time. Hopefully, this type of scooter related violence won’t spoil everyone’s fun with these things because….have you tried one yet? People either love them or hate them, safety concerns abound, but one thing is for sure: they’re a blast. You zip along with the breeze on your back, going almost anywhere on the westside of Chicago. Try one out for yourself. Just be careful if you’re thinking about taking that scooter to the bar. You might still want to op for the Uber instead of scooting and drinking your way home. Sure the multiple electric scooter companies like Lime, Bolt, Bird, Jump and others tell you not to scoot while intoxicated, sounds like good practical advice. But what does the law say about it?

With the dawn of electric scooter here in Chicago, there’s one question you need to know before scooting out on the town:

CAN YOU GET A DUI ON AN ELECTRIC SCOOTER?

The crime of DUI or Aggravated DUI requires that you are driving or in actual physical control of a motorized vehicle while impaired by alcohol or drugs. In order to determine if electric scooters fail within the scope of the DUI or Aggravated DUI statute, the definition of vehicle needs to be broken down.

Illinois defines a “vehicle” as “(e)very device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title under Section 3-101(d) of this Code, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act.”

For DUIs and Aggravated DUIs, more than just a vehicle is necessary. The crime requires a motor vehicle. Illinois law defines a “motor vehicle” as: “(e)very vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, except for vehicles moved solely by human power, motorized wheelchairs, low-speed electric bicycles, and low-speed gas bicycles. For this Act, motor vehicles are divided into two divisions:

First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons.

Second Division: Those motor vehicles which are designed for carrying more than 10 persons, those motor vehicles designed or used for living quarters, those motor vehicles which are designed for pulling or carrying freight, cargo or implements of husbandry, and those motor vehicles of the First Division remodelled for use and used as motor vehicles of the Second Division.”

Do you see the term/word electric scooter or electric powered vehicle in that definition? Nope. Still, electric scooters may seem to fall within the first division of “motor vehicle” given they are “self propelled” and only carry one person, which is less than the 10 people limit in the first division. It’s not included in the definition, but it’s not excluded either.

The closest Illinois has recently come to addressing a situation similar to a DUI on a scooter was the case of People v. Plank. Plank dealt with a guy who got a DUI on a motorized bicycle going 26 mph. He challenged his conviction for DUI on the basis that the definition of a “low speed gas bicycle” was unconstitutionally vague. The law defines a “low speed gas bicycle” as “2 or 3-wheeled device with fully operable pedals and a gasoline motor of less than one horsepower, whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 miles per hour.” The Court didn’t buy it, finding that a motorized bicycle going 26 mph qualifies as a motor vehicle for the purposes of DUI or Aggravated DUI.

The definition of a “low speed gas bicycle” doesn’t even come close to describing how an electric scooter operates. Plank will likely not have much of an influence on the law on electric scooters. Electric scooters aren’t powered by gas and go less than 20 mph no matter how much you weigh. Still, it could give an indication that the courts in Illinois are willing to affirm DUIs in the nonconventional automobile situation.

The definition of “motor vehicle” excludes a type of self propelling device similar to an electric scooter. A low-speed electric bicycle. This type of electric motor is defined in Illinois law as: (a) bicycle equipped with fully operable pedals and an electric motor of less than 750 watts that meets the requirements of one of the following classes: (a) "Class 1 low-speed electric bicycle" means a low-speed electric bicycle equipped with a motor that provides assistance only when the rider is pedaling and that ceases to provide assistance when the bicycle reaches a speed of 20 miles per hour. (b) "Class 2 low-speed electric bicycle" means a low-speed electric bicycle equipped with a motor that may be used exclusively to propel the bicycle and that is not capable of providing assistance when the bicycle reaches a speed of 20 miles per hour. (c) "Class 3 low-speed electric bicycle" means a low-speed electric bicycle equipped with a motor that provides assistance only when the rider is pedaling and that ceases to provide assistance when the bicycle reaches a speed of 28 miles per hour. A "low-speed electric bicycle" is not a moped or a motor driven cycle.

Electric scooters are generally lightweight (as light as 22 pounds) platforms with a battery-operated motor of 100 to 750 watts.

A motor of less than 750 watts. Scooters range from 100 to 750 watts. Electric scooters only go up to 15 mph, not the 20 or 28 mph metric for low speed bicycles.The similarities could be an indication illinois would consider electric scooters in a similar light as low speed electric bicycles. They don’t reach the 20+mph speeds of mopeds or low speed gas bicycles.

What if you’re drinking and driving something that’s not a car, but not quite an electric scooter? Can you get a DUI or Aggravated DUI

- Bicycle: NO DUI

Horse: NO DUI

Kayak: NO DUI

- Electric Wheelchair: NO DUI

Low Speed Electric bicycle: DUI

- Motorized lawn mower:
  - Pushing: No
  - Seated: DUI
- Tractor: DUI

Boat: DUI

Snowmobile: DUI

Four-Wheeler: DUI

Golf cart: DUI

Moped: DUI

Segway: maybe DUI, but no precedent

THE VERDICT

Based on the current Illinois statutory definitions, NO. But the jury is still out. It’s not clear yet in Illinois whether you can get convicted of a DUI or Aggravated DUI on an electric scooter. That doesn’t mean you can’t get arrested for it. The Courts will be addressing this issue at some point in the near future if electric scooters catch on. Illinois could follow other above mentioned states in specifically defining electric scooters as a motor vehicle. In L.A., DUIs on scooters are 100% legal and happening. Wisconsin, Minnesota, Oregon, and other states have definitions of electric scooters in their law. They have a law defining electric scooters and their application to DUIs. Illinois doesn’t yet. They might soon….or they might not.

The Illinois House of Representatives recently proposed new legislation that will regulate electric scooters. House Bill 1590, proposed by Representative Marcus C. Evans, Jr, wants to amend the Illinois Vehicle Code to include a definition of a “low-speed electronic scooter.”

This new Illinois law will define “low-speed electronic scooter” as:

A device weighing less than 100 pounds, with 2 or 3 wheels, handlebars, and a floorboard that can be stood upon while riding;
that is solely powered by an electric motor and human power; and
whose maximum speed, with or without human propulsion on a paved level surface, is no more than 20 miles per hour.
“Low-speed electric scooter” does not include a moped, motor-driven cycle, motor vehicle, or vehicle.

This law aims to require operators to be at least 16 years old, have a valid driver’s license, instruction permit, or State ID card. It would mandate all electric scooters have brakes, lights, and reflectors, as well as a ban on putting sirens on them (interesting idea…..). It would also specify exactly where one can legally ride their electric scooter. But perhaps the most interesting aspect of the proposed law is the provision granting riders of electric scooters “all of the rights and shall be subject to all of the duties applicable to an operator of a bicycle.” When you combine this with the fact that you can’t get a DUI on a regular old bicycle, it doesn’t seem this proposed law would make DUI and Aggravated DUIs laws applicable to electric scooters.

Regardless, drinking and scooting is NOT a good idea. Don’t do it. Even if you can’t get charged with DUI on a scooter, if you’re acting like a drunk fool on a scooter, there are plenty of other offenses the police can pick to charge you with. Not to mention, forget about whatever legal consequences you might have, you don’t want to die as some idiot who hit a car while he was drunk scooting. If you’re hammered on a scooter the police are probably going to arrest you for DUI. Whether or not it sticks will have to be seen. DUI convictions on electric scooters have happened in other cities across the country.

Whatever type of DUI or Aggravated DUI arrest is out there, we know about it. If you were arrested for DUI or Aggravated DUI, you need an experienced criminal defense attorney. Call Robert Callahan & Associates for a free initial consultation on your DUI or Aggravated DUI criminal case. You’ve got questions, we’ve got answers. We’re here to help. Call us at 312 322 9000.