Tel - 414.207.4426
Tel - 608.320.6710
Bicyclists often inquire whether a Wisconsin bicyclist could be cited for biking under the influence. Police can cite people for whatever they feel is appropriate. However, if there is no legal basis for the charge, then the prosecutor should dismiss the charge after review. Here is a brief analysis of a hypothetical Wisconsin BUI charge: Is There a Violation of Wisconsin Law? Wisconsin Statute §346.63 holds in relevant part: No person may drive or operate a motor vehicle while under the influence or with a prohibited alcohol concentration. To convict a person of this offense, prosecutors generally must prove: 1. That a person operated a motor vehicle in an unsafe manner as a result of alcohol or unlawful controlled substance use, or 2. That a person had a .08 or higher BAC at the time of operation. Does a Bicycle Fall Within The OWI Statue? “Motor vehicle” is defined in §340.01 (35) as a vehicle which is self-propelled, except a vehicle operated exclusively on a rail. “Self Propelled” is not defined in the Wisconsin Statutes. "Bicycle" is defined as “Every vehicle propelled by the feet acting upon pedals and having wheels any 2 of which are not less than 14 inches in diameter.” “Vehicle” is defined in §939.22(44) as “Any self-propelled device for moving persons or property or pulling implements from one place to another, whether such device is operated on land, rails, water, or in the air. Although not defined in the statutes, the plain meaning of self-propelled is a vehicle that can move by itself-without human power. For example, a car left in drive, or a lawnmower in gear. Moreover, since §346.63 states, “motor vehicle,” under the plain meaning of the statute, a bicycle does not fall within because a bicycle does not have a motor. A “motor bicycle,” defined in §340.01 (30) as a bike to which a power unit has been added or a bike operated by an electric motor, may be a different story.
When a law is unclear, besides looking at the plain meaning of a word or phrase, a court will look to legislative intent. When they enacted the law, did the legislature intend to include bicycles? Since the lawmakers used the word “motor vehicle” it does not appear the legislature intended to include bikes. Unless lawmakers change the law to include bicycles, courts would likely follow the plain meaning of the statute which requires operation of a “motor vehicle.”
What About Refusing to Take a Test? A Wisconsin driver consents to a blood, breath, or urine test by driving a motor vehicle on a highway. See §343.305 (2). Since the implied consent statute refers to motor vehicles, it is unlikely that a bicyclist stopped for suspected BUI would have to consent to a blood or breath test (unless some other law applied). Therefore, if a bicyclist refused to provide a sample of his or her blood, breath, or urine, a court could find that the refusal was reasonable, or that the refusal statute does not even apply.
What If a Bicyclist Injures Someone While Under the Influence of Alcohol or Drugs? Unlike the above statutes which specifically refer to “motor vehicles”, the Wisconsin injury by intoxicated use of a vehicle law does not only refer to motor vehicles. §940.25 prohibits great bodily harm to another human by operation of a “vehicle.” If a Wisconsin bicyclist caused great bodily harm to another person while operating a bike intoxicated, he or she could face a potentially valid class F felony charge subject to a maximum 12.5 years prison and $25,000 fine. Note that “vehicle” is defined as self propelled, which may not apply to bicycles, however, since this statute includes vehicle and not “motor vehicle” the chance of being charged is much more likely than it is for a basic OWI. Furthermore, §346.02 (4) (a) holds that bicyclists are subject to the rules of the road, except provisions which by their express terms apply only to motor vehicles. In sum, this attorney is unaware of any Wisconsin cases involving OWI for operating a bicycle. While the Wisconsin OWI law appears directed at motor vehicles, all bicyclists should always ride in a safe and courteous manner regardless of any law. Note that this article is a summary of a hypothetical charge and as stated above, police are free to cite people for whatever they feel is appropriate at the time of arrest.
Motor bicycles fall under different rules. See State v. Koeppen 2014 WI App 94 (Ct Appeals 2014). A man was charged with 5th or 6th offense OWI for operating a motor bicycle. The arresting officer testified the bicycle operator's "feet were dangling off the sides of his bike and not on the pedals," and while on "flat" ground he was accelerating and maneuvering the bike without pedaling. The Circuit Court dismissed the case but the Wisconsin Court of Appeals reversed and held that becuase a motor bicycle is a motor vehicle within the meaning of Wis. Stat. 346.63 and 340.01 at least when being operated as self propelled rather than pedaled, a charge of OWI is proper under these circumstances.