WSOC-TV reports that a drunken bicyclist was arrested at a Taco Bell drive-through in Florida after employees would not serve him. The bicyclist placed his order at the drive-through window just after 3 a.m. as the restaurant was closing. When the employees would not serve him, the bicyclist refused to leave the window, so the employees called the police. The police found the bicyclist sitting on his bicycle at the drive-through speaker and asked him to leave. The police then noticed a Swiss army knife on the bicyclist’s belt and tried to grab it, which caused the bicyclist to grab the police officer’s wrist. The officer then wrestled the bicyclist to the ground and subsequently charged him with resisting arrest with violence.
The idea of a drunken bicyclist going through a Taco Bell drive-through might be amusing, but it also causes us to consider whether that bicyclist could have been arrested for DWI had this occurred in North Carolina.
The North Carolina DWI statute is found in G.S. 20-138.1, which states in part that
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:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or
(3) With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.
A “vehicle” is defined in G.S. 20-4.01(49) as
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 shall be deemed vehicles and every rider of a 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 G.S. 20-4.01(7a).
Therefore, a person can violate the impaired driving statute by riding a bicycle while impaired on “any highway, any street, or any public vehicular area.”
The bicyclist in Florida was not on a highway or street, so the question then turns to whether he was in a public vehicular area. A “public vehicular area” is defined in G.S. 20-4.01(32) as
Any area within the State of North Carolina that meets one or more of the following requirements:
a. The area is used by the public for vehicular traffic at any time, including by way of illustration and not limitation any drive, driveway, road, roadway, street, alley, or parking lot upon the grounds and premises of any of the following:
1. Any public or private hospital, college, university, school, orphanage, church, or any of the institutions, parks or other facilities maintained and supported by the State of North Carolina or any of its subdivisions.
2. Any service station, drive-in theater, supermarket, store, restaurant, or office building, or any other business, residential, or municipal establishment providing parking space whether the business or establishment is open or closed.
3. Any property owned by the United States and subject to the jurisdiction of the State of North Carolina. (The inclusion of property owned by the United States in this definition shall not limit assimilation of North Carolina law when applicable under the provisions of Title 18, United States Code, section 13).
b. The area is a beach area used by the public for vehicular traffic.
c. The area is a road used by vehicular traffic within or leading to a gated or non-gated subdivision or community, whether or not the subdivision or community roads have been offered for dedication to the public.
d. The area is a portion of private property used by vehicular traffic and designated by the private property owner as a public vehicular area in accordance with G.S. 20-219.4.
The parking lot of a Taco Bell would fall under G.S. 20-4.01(32)(a)(2) as a “parking lot upon the ground and premises of” a “restaurant… providing parking space whether the business or establishment is open or closed.”
So a person riding a bicycle in the parking lot of a Taco Bell while impaired would violate the impaired driving statute. However, when the police arrived at the Taco Bell, the bicyclist was sitting on his bicycle. Does this constitute “driving” a bicycle?
“Driver” is defined in G.S. 20-4.01(7) as “The operator of a vehicle, as defined in subdivision (25). The terms "driver" and "operator" and their cognates are synonymous.” “Operator” is then defined as “A person in actual physical control of a vehicle which is in motion or which has the engine running. The terms "operator" and "driver" and their cognates are synonymous.”
A bicycle does not have an engine which can be running, so for a person to “drive” a bicycle he must be “in actual physical control” of the bicycle and the bicycle must be “in motion.” If the bicyclist was merely sitting on his bicycle in the parking lot, he would not be driving the bicycle because it would not be in motion.
If you have been charged with impaired driving, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.