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Legally Speaking – with Bob Mionske: The BUI blues

By Bob Mionske

Dear Bob,
In your recent article Whenis a bicycle more than a bicycle? you were writing with regardto California Law; is the law similar in Oregon? Mostly, I’m interestedin the distinction between infractions and misdemeanors. So, gettinga DUI on a bicycle doesn’t “equal” a DUI in a car as far as penalty goes(no points on the driving record)? Does this apply to all movingviolations, too? Where is the cut-off’?
OregonDear J.C.,
I’m glad you asked J.C., because it gives me a chance to take anotherlook at BUIs. I have covered thissubject before, but do not stay up on this cycling/drinking subjectmatter as closely as Big Jonny over at www.drunkcyclist.com(this is really not a link you want to open at work-editor).Now that summer is here, and those ice-cold beers are beckoning, it’s importantto know our rights and responsibilities under the law.BUI: Infraction or Misdemeanor?
Let’s start by looking at that DUI on a bicycle again. In Whenis a bicycle more than a bicycle? I said in passing “Even a DUI,which would be a misdemeanor if you’re driving a motor vehicle, is onlyan infraction on your bicycle.”Well, that used to be the law. In 1984, The California AttorneyGeneral issued an Opinion addressing Section 21200 of the California VehicleCode, which states that “every person riding a bicycle upon a highway hasall of the rights and is subject to all of the provisions applicable tothe driver of a vehicle.” In this opinion, the Attorney General advisedthat a conviction for DUI under this section is an infraction.However, in 1985, the California legislature added Section 21200.5 tothe Vehicle Code, which makes it

unlawful for any person to ride a bicycle upon a highwaywhile under the influence of an alcoholic beverage or any drug, or underthe combined influence of an alcoholic beverage and any drug.” In California,a “‘highway” is a way or place of whatever nature, publicly maintainedand open to the use of the public for purposes of vehicular travel.

And a conviction under Section 21200.5, California’s BUI (BicyclingUnder the Influence) statute, is NOT an infraction, it’s a misdemeanor,so heads up to all you California cyclists. Especially to D.D., who hassome beers riding on the outcome of the legality of riding in the lane.In Oregon, there is no similar statute corresponding to the Californiastatute prohibiting Bicycling Under the Influence. However, as in California,there is a Statute which provides that the vehicle laws apply to bicycles.Section 814.400 provides that

every person riding a bicycle upon a public way is subjectto the provisions applicable to and has the rights and duties as the driverof any other vehicle concerning operating on highways…

Under this section of the Vehicle Code, cyclists are subject to the provisionsof Section 813.010, Oregon’s DUI statute, and cyclists can and will beprosecuted for BUI in Oregon. And yes, in Oregon, a first conviction isa Class A Misdemeanor, and rises to a Class C Felony if there have beenthree convictions within the last ten years.Infractions and Misdemeanors and Felonies…
Now that we’ve cleared that up, let’s look at the different types ofoffenses.In Oregon, as in other states, the law distinguishes between differentcategories of offenses. Under Chapter 153 of the Oregon Revised Statutes,an offense may be either a violation or a crime. Offensesthat are classified as a violation are punishable only by a fine, or bya combination of a fine and additional punishment, but may “not includea term of imprisonment.” In other words, you can’t go to jail for committinga violation. Many traffic offenses are violations, because the maximumpunishment for the offense is a fine, rather than a term of imprisonment.In Oregon, violations are further classified as:Class A Violations (carrying a maximum of a $720 fine);Class B Violations (carrying a maximum of a $360 fine);Class C Violations (carrying a maximum of a $180 fine);Class D Violations (carrying a maximum of a $ 90 fine);Unclassified Violations, which are designated as Class B Violations;Specific Fine Violations, which are punishable by a specific fine.A crime, on the other hand, is an offense that is punishable by a combinationof fines and additional punishment, including a term of imprisonment. Thereare two categories of crime: misdemeanors, and felonies. A misdemeanoris a crime that is punishable by a term of imprisonment of one year orless. In Oregon, misdemeanors are further classified as:Class A Misdemeanors (carrying a maximum penalty of $6,250 and/or 1 year);Class B Misdemeanors (carrying a maximum penalty of $2,500 and/or 6 months);Class C Misdemeanors (carrying a maximum penalty of $1,250 and/or 30 days);Unclassified Misdemeanors (carrying a penalty specified by the relevant statute)In contrast, a felony is a crime that is punishable by a term of imprisonmentof one or more years. In Oregon, felonies are further classified as:Class A Felonies (carrying a maximum penalty of $375,000 and/or 20 years);Class B Felonies (carrying a maximum penalty of $250,000 and/or 10 years);Class C Felonies (carrying a maximum penalty of $125,000 and/or 5 years);Unclassified Felonies (carrying a penalty specified by the relevant statute)This scheme of classification is common across the United States, althoughthe classifications and penalties will vary from State to State. Sometimesthe terms will vary as well; for example, in Oregon, non-criminal trafficoffenses are called violations, while in California, they are called infractions.….and Points, Oh My!
In addition to the penalties for traffic offenses, states also countconvictions against your driving record. In California, convictions countas “points” against your driver’s license; in Oregon, the “Habitual Offender”Program keeps track of convictions. In both states, the goal is the same—torevoke the driving privileges of habitual offenders. Here’s how they work:In California, Section 12810 of the Vehicle Code identifies which violationswill result in “points” applied to your driving record. Under Section 12810.5,Any person whose driving record shows a violation point count of fouror more points in 12 months, six or more points in 24 months, or eightor more points in 36 months shall be prima facie presumed to be a negligentoperator of a motor vehicle.A prima facie presumption means that the Department of Motor Vehicleswill presume you are a negligent operator unless you present contrary evidence.If you are presumed to be a negligent operator, the Department of MotorVehicles will suspend or revoke your driving privilege.What’s interesting to note about this statute is that it appears thatviolations by cyclists do not count as points against your driving record.Most of the point allocations are not applicable to cyclists; even theone catch-all section which states that “any other traffic conviction involvingthe safe operation of a motor vehicle upon the highway shall be given avalue of one point” is only applicable to motor vehicles. In fact, theonly provisions which can conceivably be applied to cyclists would be pointallocations for reckless driving or for “any traffic accident in whichthe operator is deemed by the department to be responsible.” This is interesting,because if you recall, the officer in Whenis a bicycle more than a bicycle? who stopped D.D. for riding inthe left lane informed him that the “violation” would count against hisdriving record. The officer was not only wrong about riding in trafficlanes, he was also wrong about applying a conviction against the cyclist’sdriving record.In Oregon, the “Habitual Offender” Program, established under Section809.600 of the Oregon Vehicle Code, operates in much the same way. Underthis program, a person’s driving privileges will be revoked if that personhas been convicted of 3 or more of the serious listed offenses within afive-year period, or 20 or more of other listed offenses within a five-yearperiod. Many of the listed offenses are applicable to cyclists, so youwill want to be careful about not receiving too many citations. One particularlyrelevant violation would be a conviction of BUI. This would count as oneof the serious listed offenses, so in Oregon, three convictions of BUIwithin a five-year period will result in a revocation of your driving privileges,in addition to the penalties imposed for BUI.A Cautionary Tale
Recently, D., a cyclist in Davis, California—designated as the nation’sfirst Platinum-LevelBicycling Friendly Community] by the League of American Bicyclists—hadan interesting experience with California’s BUI law. One night after work,D. rode his bike to a bar, where he had a beer with some friends, beforeriding home. About an hour after arriving at his home, D. decided to goout for some food. On the way back home, he attempted to ride from thestreet onto the sidewalk, but in the dark, missed the driveway and hitthe curb; he had no serious injuries, other than a case of road rash, butthere was blood at the scene of his crash, and although he didn’t knowit, his cell phone had fallen and been left behind.D. continued on his way home. Several hours after arriving home, andseveral beers later, there was a knock at his door; the police had arrivedto return his cell phone. Smelling alcohol on his breath, and noticinga beer bottle on the table, and his road rash, the police asked if he wouldsubmit to a breathalyzer test. D. agreed to take the test, which registereda blood alcohol level of .15, nearly twice California’s limit of .08. Afteradministering the test, and returning his cell phone, the police left.Two weeks later, D. received a letter from the D.A. notifying him thathe was being prosecuted for violating Section 21200.5 of the CaliforniaVehicle Code, California’s BUI statute.Now, this story has a happy ending for D.—he hired an attorney and pled“not guilty,” and the prosecuting attorney decided to drop the charges.However, it presents an interesting example of how serious BUI cases maybe taken, and thus, serves as a cautionary tale for other cyclists. It also presents some interesting contrasts between BUIs and DUIs in California.Let’s take a closer look at what happened.In California, if you’re operating a motor vehicle, you are deemed tohave given your consent to a blood alcohol test if you are stopped forsuspicion of DUI. If your blood alcohol level is .08 or higher within 3hours of driving, there is a “rebuttable presumption” that your blood alcohollevel was .08 or higher at the time you were driving. A “rebuttable presumption”means that the courts will presume your blood alcohol level was over thelimit unless you introduce contrary evidence.In D.s case (forget for the moment that he was operating a bicycle,rather than a motor vehicle), he had a blood alcohol level of .15 within3 hours of operating his bicycle. The contrary evidence he would have neededto introduce at trial would be that he had several beers after arrivinghome, but before the test was administered. And that was really the problemwith the prosecution’s case all along—although D.s blood alcohol levelwas over the limit, there was no way to establish that it was over thelimit while he was riding. Because of the time gap, during which D. wasnot under police control, it was impossible to prove that D. had becomeintoxicated before riding his bicycle, instead of after arriving home,as he claimed. The D.A. had an extremely weak case to begin with, and onceit was obvious that D. was contesting the charges, the charges were dropped.It’s also interesting to note the similarities and differences betweenDUIs and BUIs in this case. As we saw above, under California’s DUI statutethere’s a rebuttable presumption that you are over the limit if your bloodalcohol level is .08 or higher within 3 hours of operating a motor vehicle.However, there is no such presumption in the BUI statute, which means thatif you were cited under this statute, the D.A. would have to prove thatyou were actually over the limit at the time you were operating your bicycle. This was a second fatal problem with the D.A.s prosecution of D.If you are stopped for suspicion of DUI, you are deemed to have consentedto a blood alcohol test. In contrast, there is no such consent if you arestopped for BUI. The statute does allow the cyclist to request a bloodalcohol test, but the cyclist is not required to submit to a test.Finally, if you are convicted of DUI, you will receive two points againstyour driving record, while you will not receive points for a BUI conviction.The bottom line in this cautionary tale is to be aware of your rightsand responsibilities, be especially careful about providing any evidenceto the police, even if you think you’re innocent, and if you are citedfor a BUI, you should consult with an attorney. A conviction under thisstatute is a misdemeanor, and although the fine is a relatively low $250,you will have a criminal record, and if you’re under the age of 21, a convictionwill also affect your driving privileges.BUI is not illegal in every state, and where it is illegal, it is treateddifferently by each state, but it can have very serious implications, soevery cyclist should be aware of the BUI laws in their state, and rideaccordingly.Good luck,
(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)

Now read the fine print:

Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the “Legally speaking”column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.