Hi,

I was wondering if anyone has had any experience with officers arresting cyclists for DWI. I have been asked to look into whether a bicycle is a "motor vehicle" under the statute. This sounds like a ridiculous question, but when you look at the definition of "motor vehicle" that applies, PC 32.34(a), it does not seem to require any kind of motor. It says a motor vehicle is a "a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks."

This definition is almost identical to the definition of "vehicle" used in the Evading Statute which does include bicycles. (Trans. Code Sec. 541.201(23).

I was unable to find any case law on DWI and bicycles. I was hoping to find something better than a general argument about legislative intent to take to the boss. Does anyone have any experience with this or suggestions for resources?

Even if it did, would you want to try that case?

The penal code definition of motor vehicle in section 32.34 is for the purpose of that particular crime, not DWI cases. Riding a bicycle while drunk should be public intoxication, not DWI.

I would rather not charge intox. bicyclists as DWI in the first place, but apparently there are officers arresting for it. The office has just asked me to find out whether the charge is legal under the statute.

And under PC Sec. 49.01(3), motor vehicle is defined as having the meaning assigned by 32.34(a), so that's where I got that.

It looks like that’s been the law since at least 1994 when 49.01(3) became effective. See generally Carter v. State, No. 05-02-00504-CR, 2003 WL 1544216 (Tex.App.-Dallas March 26, 2003)(not published)(rejecting argument that DWI didn't apply because a bulldozer wasn't a "motor vehicle" under the Transportation Code: 32.34 says it is a motor vehicle).
Weird that its never come up. You’d have to survive arguments that the statute couldn’t mean an absurd result. Some states allow bicycle DWIs. Everton v. District of Columbia, 993 A.2d 595 (D.C. 2010); State v. Prater, 2008 WL 607461 (Ohio App. March 03, 2008).

It is strange that it has never come up. Maybe no one wants to be stuck arguing with a straight face that a bicycle is a motor vehicle!

Thank you for the case cites. I was about to start looking at the law in other states to find out how they define "vehicle."

Could you argue that a person is "transported or drawn", as set out in the definition, by a self-propelled vehicle and not by a human propelled bicycle, thereby removing bicycle from the scope of the definition?

I have enough trouble keeping my balance in a high wind with garment bag, brief case and spritz bottle of ammonia for the stray hounds...add intoxicating chemicals to that and I would no longer be ON the bike!!!

Lisa L. Peterson
Nolan County Attorney

Ken,

I was thinking the same thing about the "transported or drawn" requirement. I found a case discussing what a motor vehicle is in the context of a civil case on motor vehicle insurance. Apparently in Trans. Code. 601 they define motor vehicle as a "self propelled vehicle." Maybe one could make the argument a vehicle in which a "person is transported or drawn" is a "self propelled vehicle." That could then be contrasted with the Trans. Code definition of bicycle in 541.201(2) as "a device that a person may ride and that is propelled by human power.."?

This Washington state case is illuminating: City of Montesano v. Wells 902 P.2d. 1266 (1995). The court reviewed some similar statutory language.

Straight face issue aside, Transp. Code Ch. 551 (Operation of Bicycles, Mopeds and Play Vehicles) clearly distinguishes bicycles from motor vehicles. See especially:
551.103 (a)(4)(B)
551.104 (b)(2)(A)(ii)
551.105 (a)

I don't see the relevance of the Transportation Code. The Penal Code definition of "motor vehicle," TEX. PENAL CODE sec. 32.34(a)(2), is very broad. and should be controlling. Moosani v. State, 914 S.W.2d 569, 573 (Tex. Crim. App. 1995) ("Because the Penal Code provides no definition for traveling, we may consult other sources and determine whether there is some commonly understood definition.")
As for the natural implication that "motor vehicle" includes a motor, I recently had a case where the definition of "hoax bomb" was construed to be broad enough to reach real bombs. Ahmad v. State, 295 S.W.3d 731, 746 (Tex.App. -- Fort Worth 2009, pet. ref'd).
The Washington case involves: (1) more complexity (i.e., the lesser offense of being in control excluded bikes ); and (2) a standard of statutory construction that appears less deferential than a Texas court should use. 902 P.2d at 1267 & 1268 ("we construe statutes in the manner that best advances the perceived legislative purpose." "[S]pirit and intent prevail over the literal letter of the law.") .

Strictly speaking, the Transp. Code definition does not apply. I pointed it out because it would be strange, though not impossible, for the legislature to use the same term (motor vehicle) in the same context (regulation of movement of vehicles) and intend for it to mean two very different things.

I like Ken's argument, except that I find myself focusing on the phrase "may be transported or drawn". I would argue that the phrase carries the implied exclusion of devices "by which a person transports himself".
If I travel on a bicycle, on a skateboard, or in roller skates, I am transporting myself. The car, the bulldozer or the go-cart is a device by which I may be transported(with the aid of a motor).
Dog carts and pedal taxis remain problematic, though.

I don't understand why you're all making your heads hurt like this and reading statutes and case law. If there's no motor, it's not a motor vehicle. The end.

Aren't there real DWI's in Austin to focus on?

Jane's analysis is perhaps the most cogent legal analysis I've seen all year.

Jane Starnes: Legal Genius. Coming this Fall in streaming video on Hulu.

Just to stir the pot, what would you say about bicycles with the motorized boost (for going uphill, e.g.)? Does it then become a motor vehicle?

Since we're having fun...

Could tubers in New Braunfels be prosecuted for boating while intoxicated since, arguably, intertube-type "watercraft" can be propelled by people power and not just the current?

I'm with Jane: No motor, no DWI. (But I realize the legislature's use of "motor-propelled" vehicle in Tex. Penal Code 31.07 suggests the Leg. knows how to specifically require a propelling motor for "vehicles" when such a requirement is wanted -- thus someone might be able to make a straight-faced argument that DWI on a bike is permissible.)