Legally Speaking - with Bob Mionske: The BUI blues
In your recent article When is a bicycle more than a bicycle? you were writing with regard to California Law; is the law similar in Oregon? Mostly, I'm interested in the distinction between infractions and misdemeanors. So, getting a 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 moving violations, too? Where is the cut-off'?
Thanks,
J.C.
Oregon
Dear J.C.,
I'm glad you asked J.C., because it gives me a chance to take another look at BUIs. I have covered this subject before, but do not stay up on this cycling/drinking subject matter 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 important to 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 When is 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 only an infraction on your bicycle."
Well, that used to be the law. In 1984, The California Attorney General issued an Opinion addressing Section 21200 of the California Vehicle Code, which states that "every person riding a bicycle upon a highway has all of the rights and is subject to all of the provisions applicable to the driver of a vehicle." In this opinion, the Attorney General advised that a conviction for DUI under this section is an infraction.
However, in 1985, the California legislature added Section 21200.5 to the Vehicle Code, which 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." In California, a "'highway" is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel.
And a conviction under Section 21200.5, California's BUI (Bicycling Under the Influence) statute, is NOT an infraction, it's a misdemeanor, so heads up to all you California cyclists. Especially to D.D., who has some beers riding on the outcome of the legality of riding in the lane.
In Oregon, there is no similar statute corresponding to the California statute 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 subject to the provisions applicable to and has the rights and duties as the driver of any other vehicle concerning operating on highways...Under this section of the Vehicle Code, cyclists are subject to the provisions of Section 813.010, Oregon's DUI statute, and cyclists can and will be prosecuted for BUI in Oregon. And yes, in Oregon, a first conviction is a Class A Misdemeanor, and rises to a Class C Felony if there have been three 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 of offenses. In Oregon, as in other states, the law distinguishes between different categories of offenses. Under Chapter 153 of the Oregon Revised Statutes, an offense may be either a violation or a crime. Offenses that are classified as a violation are punishable only by a fine, or by a combination of a fine and additional punishment, but may "not include a term of imprisonment." In other words, you can't go to jail for committing a violation. Many traffic offenses are violations, because the maximum punishment 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 combination of fines and additional punishment, including a term of imprisonment. There are two categories of crime: misdemeanors, and felonies. A misdemeanor is a crime that is punishable by a term of imprisonment of one year or less. 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 imprisonment of 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, although the classifications and penalties will vary from State to State. Sometimes the terms will vary as well; for example, in Oregon, non-criminal traffic offenses are called violations, while in California, they are called infractions.
....and Points, Oh My!
In addition to the penalties for traffic offenses, states also count convictions against your driving record. In California, convictions count as "points" against your driver's license; in Oregon, the "Habitual Offender" Program keeps track of convictions. In both states, the goal is the same-to revoke the driving privileges of habitual offenders. Here's how they work:
In California, Section 12810 of the Vehicle Code identifies which violations will result in "points" applied to your driving record. Under Section 12810.5,
Any person whose driving record shows a violation point count of four or more points in 12 months, six or more points in 24 months, or eight or more points in 36 months shall be prima facie presumed to be a negligent operator of a motor vehicle.
A prima facie presumption means that the Department of Motor Vehicles will presume you are a negligent operator unless you present contrary evidence. If you are presumed to be a negligent operator, the Department of Motor Vehicles will suspend or revoke your driving privilege.
What's interesting to note about this statute is that it appears that violations by cyclists do not count as points against your driving record. Most of the point allocations are not applicable to cyclists; even the one catch-all section which states that "any other traffic conviction involving the safe operation of a motor vehicle upon the highway shall be given a value of one point" is only applicable to motor vehicles. In fact, the only provisions which can conceivably be applied to cyclists would be point allocations for reckless driving or for "any traffic accident in which the operator is deemed by the department to be responsible." This is interesting, because if you recall, the officer in When is a bicycle more than a bicycle? who stopped D.D. for riding in the left lane informed him that the "violation" would count against his driving record. The officer was not only wrong about riding in traffic lanes, he was also wrong about applying a conviction against the cyclist's driving record.
In Oregon, the "Habitual Offender" Program, established under Section 809.600 of the Oregon Vehicle Code, operates in much the same way. Under this program, a person's driving privileges will be revoked if that person has been convicted of 3 or more of the serious listed offenses within a five-year period, or 20 or more of other listed offenses within a five-year period. Many of the listed offenses are applicable to cyclists, so you will want to be careful about not receiving too many citations. One particularly relevant violation would be a conviction of BUI. This would count as one of the serious listed offenses, so in Oregon, three convictions of BUI within 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's first Platinum-Level Bicycling Friendly Community] by the League of American Bicyclists-had an 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, before riding home. About an hour after arriving at his home, D. decided to go out for some food. On the way back home, he attempted to ride from the street onto the sidewalk, but in the dark, missed the driveway and hit the curb; he had no serious injuries, other than a case of road rash, but there was blood at the scene of his crash, and although he didn't know it, his cell phone had fallen and been left behind.
D. continued on his way home. Several hours after arriving home, and several beers later, there was a knock at his door; the police had arrived to return his cell phone. Smelling alcohol on his breath, and noticing a beer bottle on the table, and his road rash, the police asked if he would submit to a breathalyzer test. D. agreed to take the test, which registered a blood alcohol level of .15, nearly twice California's limit of .08. After administering the test, and returning his cell phone, the police left. Two weeks later, D. received a letter from the D.A. notifying him that he was being prosecuted for violating Section 21200.5 of the California Vehicle 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 may be 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 to have given your consent to a blood alcohol test if you are stopped for suspicion of DUI. If your blood alcohol level is .08 or higher within 3 hours of driving, there is a "rebuttable presumption" that your blood alcohol level 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 the limit 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 within 3 hours of operating his bicycle. The contrary evidence he would have needed to introduce at trial would be that he had several beers after arriving home, but before the test was administered. And that was really the problem with the prosecution's case all along-although D.s blood alcohol level was over the limit, there was no way to establish that it was over the limit while he was riding. Because of the time gap, during which D. was not under police control, it was impossible to prove that D. had become intoxicated before riding his bicycle, instead of after arriving home, as he claimed. The D.A. had an extremely weak case to begin with, and once it was obvious that D. was contesting the charges, the charges were dropped.
It's also interesting to note the similarities and differences between DUIs and BUIs in this case. As we saw above, under California's DUI statute there's a rebuttable presumption that you are over the limit if your blood alcohol 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 that if you were cited under this statute, the D.A. would have to prove that you 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 consented to a blood alcohol test. In contrast, there is no such consent if you are stopped for BUI. The statute does allow the cyclist to request a blood alcohol test, but the cyclist is not required to submit to a test.
Finally, if you are convicted of DUI, you will receive two points against your 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 rights and responsibilities, be especially careful about providing any evidence to the police, even if you think you're innocent, and if you are cited for a BUI, you should consult with an attorney. A conviction under this statute 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 conviction will also affect your driving privileges.
BUI is not illegal in every state, and where it is illegal, it is treated differently by each state, but it can have very serious implications, so every cyclist should be aware of the BUI laws in their state, and ride accordingly.
Good luck,
Bob
(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 represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road 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.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.
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