In our last post, we discussed North Carolina’s DWI statute, N.C.G.S. 20-138.1, and began breaking down a few of its key terms, particularly what it means to “drive.” This week, we take an in-depth look at the word “vehicle,” to try and determine whether a person can be charged with DWI for having a few too many and hopping on one of the million electric scooters you find scattered downtown.

As usual, let’s begin by reviewing the relevant law, N.C.G.S. 20-138.1:

“A person commits the offense of Impaired Driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this state….”

Because DWI cases in North Carolina have been so heavily litigated, virtually every word of this statute has been ruled on and defined by North Carolina Appellate Courts. The word “Vehicle” is no exception.

WHAT CONSTITUTES A “VEHICLE” FOR AN IMPAIRED DRIVING CHARGE

The term “vehicle” is defined at N.C.G.S. 20-4.01(49) as:

“Vehicle. – 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. This term shall not include a device which is designed for and intended to be used as a means of transportation for a person with a mobility impairment, or who uses the device for mobility enhancement, is suitable for use both inside and outside a building, including on sidewalks, and is limited by design to 15 miles per hour when the device is being operated by a person with a mobility impairment, or who uses the device for mobility enhancement. This term shall not include an electric personal assistive mobility device as defined in subdivision (7b) of this section. Unless the context requires otherwise, and except as provided under G.S. 20-109.2, 47-20.6, or 47-20.7, a manufactured home shall be deemed a vehicle. “

The North Carolina Court of Appeals, as well as the North Carolina Supreme Court have had to work through this complex, confusing statute over time as technology has advanced, leading to some interesting legal holdings:

  • Lewis v. Watson, 229 N.C. 20 (1948), held that a handcart, “moved solely by human power,” did not constitute a vehicle.
  • State v. Green, 251 N.C. 141 (1959), held that a farm tractor was sufficient to support a DWI conviction.
  • State v. Dellinger, 73 N.C. App. 685 (1985), held that a horse was sufficient to support a DWI conviction. After this case, the General Assembly amended the statute to specifically exclude horses from the definition of “vehicle.”
  • State v. Crow, 175 N.C. App. 119 (2005), held that a stand-up scooter with an electric motor (described as “a skateboard with handlebars on the front”) was sufficient to support a DWI conviction.

STATE v. CROW

Crow, the most recent decision, is also the most interesting. In May, 2003, Officer Shane Bryan was traveling south in a marked patrol car on Ocracoke Island when he observed defendant and another person run a stop sign on their stand-up scooters. Both scooters were powered by electric motors, and described as basically skateboards with handlebars. Each scooter had two wheels, approximately six to eight inches in diameter, and arranged in tandem much like the wheels of a bicycle. Officer Bryan approximated their speed at 10 miles per hour.

After running the stop sign, defendant and the other person were observed weaving erratically within their lane of traffic. Officer Bryan followed them for about a block and half, then used his patrol car’s public address system to order the two to pull over. The other person immediately complied, but defendant ignored the order and kept riding. Officer Bryan, after pursuing defendant another six blocks, followed defendant into a parking lot where he stopped his scooter.

Upon speaking with defendant, Officer Bryan noticed a strong odor of alcohol, in addition to glassy, bloodshot eyes, slurred speech, and being unsteady on his feet. Officer Bryan asked defendant to submit to Standardized Field Sobriety Tests (SFST’s), to which defendant refused. Officer Bryan called for backup, and the two officers took defendant into custody.

After refusing to submit to an alcosensor test (also called a “portable breath test” or “PBT”), defendant was taken to jail where he agreed to submit to an Intoxilyzer 5000 test, which reported a BAC of .13. Defendant was charged with Driving While Impaired, found guilty by a jury, and sentenced to 12 months of supervised probation, including 14 days jail time, plus costs.

WAS CROW’S “SKATEBOARD WITH HANDLES” A VEHICLE?

On appeal, defendant’s primary contention was that the trial court erred by not dismissing his case based on insufficient evidence of a violation of N.C.G.S. 20-138.1. Defendant claimed that because the motorized scooter he was riding could not be considered a “vehicle” within the meaning of the statute, the trial court should have dismissed his case.

The Court began by looking at the plain words of the statute: if the language of a statute is clear, then the Court must implement the statute according to the plain meaning of the terms. Correll v. Division of Social Services, 332 N.C. 141 (1992).

The Court found that the scooter was not a horse, bicycle, or lawnmower (devices specifically excluded by statute at that time), and that the scooter therefore met the definition of “a device in, upon, or by which any person or property is or may be transported or drawn upon a highway,” under N.C.G.S 20-4.01(49). Further, the scooter was not “designed for and intended to be used as a means of transportation for a person with a mobility impairment, or who uses the device for mobility enhancement.” Defendant appeared to be a healthy 25-year-old having too much fun on summer break.

On appeal, defendant asked that the Court construe the term “mobility enhancement” broadly; judges declined based on the terms proximity to “mobility impairment,” and because defendant was using the scooter strictly for recreational purposes. And, although N.C.G.S. 20-4.01(49) specifically excludes “electric personal assistive mobility devices” from the definition of “vehicle,” his scooter did not meet the technical requirements to be classified as such.

WHAT IS AN ELECTRIC PERSONAL ASSISTIVE MOBILITY DEVICE?

Short answer: a Segway.

Longer answer: an “electric personal assistive mobility device” is “[a] self-balancing non-tandem two-wheeled device, designed to transport one person, with a propulsion system that limits the maximum speed of the device to 15 miles per hour or less.” N.C.G.S. 20-4.01(7b). In the case before them, defendant’s scooter was not self-balancing, and his wheels were in tandem; his appeal thus failed, and his conviction affirmed.

SO, CAN YOU CATCH A DWI ON A MOTORIZED SCOOTER?

Short answer: I’m not absolutely certain, but I wouldn’t risk it…

Long answer: I began by doing a bit of legal magic. Remember that long paragraph you skipped over at the top of this post defining the word “vehicle?” I translated it from legalese to English (which took me a lot longer than you may think), and here is how it broke down:

A vehicle is defined as:

Every device by which any person or property may be transported, except:

A. devices moved by human power, and

B. devices used exclusively upon fixed rails or tracks.

Bicycles and electric assisted bicycles are vehicles; their riders subject to the same laws as vehicle drivers.

The term “vehicle” excludes:

A. a device which is designed for, and

B. intended to be used as a means of transportation;

i. for a person with a mobility impairment, or

ii. for a person who uses the device for mobility enhancement, and

C. the device is suitable for use both inside and outside a building,

D. the device is suitable for use on sidewalks, and

E. the device is limited by design to 15 miles per hour.

Electric Personal Assistive Mobility Devices are not vehicles and must be:

  1. Self-balancing;
  2. Non-tandem;
  3. Two-wheeled device;
  4. Designed to transport one person; and
  5. With a propulsion system that limits its max speed to 15 mph.

ANSWER THE QUESTION, LAWYER! CAN YOU CATCH A DWI ON A MOTORIZED SCOOTER?

In my professional legal opinion, and choosing to err on the side of caution, I believe that driving impaired on a motorized scooter could support a DWI charge. First, motorized scooters are not EPAM devices because they are tandem and not self-balancing. Second, the statute specifically says that electric assisted bicycles are vehicles – I think that’s exactly what a motorized scooter is. The statute, even after translating it to English, is ambiguous concerning “mobility enhancement.”

So, in North Carolina, if you’re absolutely hammered, try and find a Segway instead of an electric scooter; it might just save you a DWI charge!

In our next post, we will finish breaking down the North Carolina Impaired Driving statute, and wrap-up defining the last of its key terms.

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