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Legally Speaking with Bob Mionske: The BUI blues – Redux

By Bob Mionske

Dear readers;
Last column, in “TheBUI Blues”, we had a letter from J.C. in Oregon, who asked about the difference in penalties between a DUI and a BUI. This column, we have more letters from readers about DUIs. It’s gotta be the hot days and cold beers and stiff penalties.Don’t Fence Me In
First, R.S. wrote from South Dakota to say

Whew! After reading the latest information regarding those poor souls who live in CA and OR, I’m glad our State legislators (South Dakota) have the common sense to realize that BUI is only a threat to the rider, and not to society at large, and is not an crime, misdemeanor, or offense at all. Same goes for horses. So there you have it. In South Dakota you can get as snockered as you want, ride your bike or horse home from the bar, and the only issue is you might have a hangover the next day. Glad to be living in an area where Common Sense still prevails!

Whoa there cowboy! You might want to read this before you go get yourself snockered. You raise an interesting issue, and it gives us the opportunity to take another look at the variety of BUI laws out there. As we saw in The BUI Blues, BUI is not illegal in every state, and where it is illegal, it is treated differently by each state. For example, as we saw, in California the Vehicle Code has a specific section making BUI illegal, while in Oregon, BUI is prosecuted under the DUI statute. And in Washington, BUI is not an offense at all, with the exception that under Section 46.61.790 of the Vehicle Code, a law enforcement officer may impound your bicycle if you appear to be operating your bicycle “under the influence of alcohol or any drug.”

Then there’s South Dakota. In February of 2006, the Supreme Court of South Dakota issued an opinion in South Dakota v. Bordeaux, a case involving an inebriated cyclist. As the Court tells it,

On the afternoon of October 4, 2004, a pedestrian on his way to a friend’s home in Sioux Falls observed a bicyclist repeatedly falling off the bicycle he was attempting to ride on a city street. Suspecting that the bicyclist might be intoxicated and concerned for his safety, the pedestrian used a cell phone to contact law enforcement and report the matter. A law enforcement officer was dispatched to the location given by the pedestrian. On his arrival, the officer also observed the bicyclist falling with his bicycle. Based upon the odor of intoxicants, Bordeaux’s admissions that he had been drinking and other indications of intoxication, the officer reached the conclusion that Bordeaux might be under the influence of an alcoholic beverage. The officer administered a series of field sobriety tests and, based upon his observations and the results of the tests, placed Bordeaux under arrest for DUI.

At the county jail, a blood/alcohol test revealed a blood alcohol level of .225, nearly three times South Dakota’s .08 limit. After being convicted of DUI at a jury trial, Bordeaux received a sentence of 180 days in County Jail, with 150 days suspended on various terms and conditions. Bordeaux appealed to the South Dakota Supreme Court on the grounds that the legislature didn’t intend to include bicycles within the DUI law. However, the Court upheld his conviction, based upon language in the statute that applies the statute to persons who are driving or “in actual physical control of any vehicle.”

Interestingly, while Bordeaux’s case was before the Court, over at the State Capitol the South Dakota Legislature was considering a bill that would make DUI inapplicable to bicycles by removing bicycles (and horses!) from the Vehicle Code’s definition of vehicle. As State Representative Tom Hennies, who introduced the bill, explained,

We have had people that were prosecuted for fourth-time DUI on a bicycle—you can go to state penitentiary for five years on a fourth-time DUI. We’ve got to have better sense than that.

But there was one little problem with the bill. If you think about it, removing bicycles from the definition of vehicles does a lot more than decriminalize BUI. Unlike most states, South Dakota doesn’t have the ubiquitous “all of the rights and all of the responsibilities” provision for bicycles in its Vehicle Code. Nevertheless, removing bicycles from the definition of “vehicle” would have removed the legal protections for bicycles that vehicles enjoy under the Vehicle Code, and would potentially have cast a pall upon the right of bicycles to the road.

South Dakota cyclists mobilized, and on the same day the State Supreme Court delivered its opinion in South Dakota v. Bordeaux, the Judiciary Committee of the State Senate amended the bill by leaving bicycles in the definition of vehicle, and changing the title of the bill from “An Act to specifically exclude ridden animals and bicycles from the definition of vehicles” to “An Act to specifically exclude ridden animals and bicycles from violations of the BUI statutes.” Eight days later, on February 9, the amended bill was passed, and was signed into law by the Governor on February 15.

Now what has changed in South Dakota is that you can no longer be prosecuted under the DUI statute for riding your bicycle while intoxicated, and there is no separate BUI statute under which you can be prosecuted. After all, the Legislature has determined that it prefers people to ride their bicycles and horses home after they’ve had one too many, rather than have them drive home. Nevertheless, that doesn’t mean you can’t be prosecuted in South Dakota for riding while intoxicated. Remember that South Dakota cyclist who was so drunk he kept falling off his bicycle? As State legislators noted when discussing the bill, you can still be prosecuted for Disorderly Conduct, which is a Class 2 misdemeanor, punishable by “thirty days imprisonment in a county jail or five hundred dollars fine, or both.” So while BUI won’t be treated as a DUI in South Dakota, there are still potential consequences, and you should ride accordingly.

Influenced Pedaling
Next, P.S. wrote to say

A great column, as always. But your citation from the CVC raises a question: unlawful for any person to ride a bicycle upon a highway while under the influence of an alcoholic beverage or any drug So on the face of it, riding after taking two Advil is unlawful. The laws clearly define what “under the influence” means for alcohol. However, I’m not sure that there is a similar definition for drugs. The statute also makes no distinction between legal over-the-counter drugs, legal prescription drugs, and illegal drugs. There have been at least two cases in California where people were arrested for DUI after drinking Kava tea. In one case the person was acquitted, in the other the judge ruled that the state laws against DUI did not apply to tea. However, under the above section of the Vehicle Code, it would seem that such behavior – driving after consuming enough of a drug to impair your ability to drive safely – would be illegal on a bicycle. Wouldn’t it be ironic (and silly) to have that be illegal on a bicycle, but legal in an automobile?

Thanks for your letter, P.S., you raise some interesting questions. Let’s take another look at BUI in California to see what “under the influence of any drug” means. Although DUI and BUI are treated as different offenses in California, California’s BUI and DUI statutes are almost identical in terms of what’s prohibited: California’s BUI statute makes it “unlawful for any person to ride a bicycle 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,” while California’s DUI statute makes it “unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle…”

However, while the two statutes are almost identical, they are not exactly identical; the BUI statute only applies to persons who ride bicycles upon a “highway,” which is a place that is “publicly maintained and open to the public for purposes of vehicular travel.” In contrast, the DUI statute applies to drivers of vehicles regardless of whether the vehicle is being driven upon a highway. Other than that difference, however, the two statutes are virtually identical, so now let’s see if taking two Advil could run you afoul of the BUI statute, but not the DUI statute.

As we saw above, both statutes make it unlawful for any person to operate a vehicle “under the influence” of an alcoholic beverage or “any drug,” or under the combined influence of an alcoholic beverage and any drug. First, let’s consider what the statute means by drug. Under Section 312 of the California Vehicle Code,

the term “drug” means any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent or cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.

So what about those two Advil? Do those meet the definition of a drug under the DUI and BUI statutes? Possibly, although in most circumstances, not likely. If you read the label on that Advil bottle, the manufacturer warns you that Advil may cause severe allergic reaction including hives, asthma, facial swelling, and shock. If you experience a severe allergic reaction to Advil, it’s possible that Advil would be considered a drug under the law, and it would then be unlawful for you to ride a bicycle or drive a car while under its influence. However, if you do not experience symptoms that would impair your nervous system, brain, or muscles, then those two Advil would not be considered a drug under the DUI and BUI statutes, and you could legally operate your vehicle—bicycle or automobile—without running afoul of the law.

As you pointed out, P.S., the definition of “drug” within the DUI/BUI statutes is broad, and a number of substances, including insulin and kava, have been found to be a “drug” within the meaning of the law. The key to determining the legality of riding after taking a substance is a two-step test, however. First, the substance must meet the Statute’s definition of “drug,” which, as we have seen, is a substance

“which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent or cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.”

That’s the first step of the test—to determine if the substance you have taken is a drug. Second, you are only in violation of the statute if you are “under the influence” of the “drug.” For the California courts, “under the influence” means that the drug

“has so affected the nervous system, brain, or muscles as to impair, to an appreciable degree, the person’s ability to drive a vehicle in the manner that an ordinarily prudent or cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.”

That’s the second step of the test—to determine if you’re under the influence of the drug. If you’ve taken a substance which could affect the nervous system, brain, or muscles as to impair your ability to operate a vehicle, and if the substance has affected your nervous system, brain, or muscles as to impair your ability to operate a vehicle, you’re in violation of the statute—DUI if you’re driving a car, BUI if you’re riding a bike. As you can see, it’s illegal in California, regardless of your vehicle of choice.

Inadmissible or Rehabilitated?
And finally, M.S. wrote from Alaska to say

I have heard that while DUI/BUI is a misdemeanor in the US it is a felony in Canada and someone convicted of DUI/BUI in the US could be treated as a felon at Canadian Customs and denied entry into Canada. Is this true? I don’t like the taste of alcohol, so DUI/BUI is not an issue for me. But a friend recently goofed and was convicted of DUI and wants to go on a bike trip into Canada. Might she have a problem at the border?

The good news, M.S., is that your friend will only have a problem at the border if she tries to enter Canada. Well, maybe that’s not the good news she was hoping for. OK then, the really good news is that she can apply to enter Canada in a few years, after she’s been “rehabilitated.” Let’s see how this works, because you raised a very interesting point.

As you pointed out, there is no BUI statute in Alaska, and DUI applies solely to “motor vehicles,” which effectively excludes bicycles. However, as we’ve seen, in some states, DUI applies to cyclists as well as motorists, and in some states, BUI is a separate offense. So what happens if you want to take a little Canadian bicycling vacation, but you’ve been convicted of BUI or DUI in the United States?Under Canadian law, you will be deemed “criminally inadmissible” by Citizenship and Immigration Canada, and you will not be permitted to enter the country. Canada determines criminal inadmissibility by comparing the elements of Canadian law with those of the foreign jurisdiction. In the case of your friend, who was convicted of DUI under Alaska law, the elements of DUI in Alaska are virtually identical with the elements of DUI in Canada, which guarantees that Canada will consider her criminally inadmissible. That’s the bad news. The good news is she will be permitted to enter Canada after she has been “rehabilitated.” Rehabilitation means that “you lead a stable life and that you are unlikely to be involved in any further criminal activity.” In order to be considered rehabilitated, you must apply for rehabilitation at a visa office outside Canada. You will usually need to supply proof that five years or more have elapsed since the end of your sentence, and that further criminal activity is unlikely. An application for rehabilitation can take a year or more to process, so you will want to apply well in advance of your trip. You should also be prepared to pay a hefty fee with your application; all fees are at least $200 Canadian, while other, more serious crimes require a $1000 Canadian fee. You would need to consult with Citizenship and Immigration Canada to determine the fee required. For those cyclists who would like to visit Canada but have a conviction in their past, you can learn more about the process at Citizenship and Immigration Canada’s FAQ Page.
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.