California Cycling / Biking Under the Influence Laws – Vehicle Code 21200.5 VC
Most Californians are aware of the seriousness of drunk driving and the consequences that can result from a driving under the influence (DUI) conviction. Responsible drinkers will have a designated driver or call a cab to get home instead of driving. Some may think using other means of transportation, like riding a bike, would also be an acceptable and responsible alternative to driving. However, biking under the influence of alcohol and/or drugs is illegal in the state of California.
Each year, more than 100 people are killed and hundreds of thousands more are injured in bicycle collisions in California. In some cases, cyclists were found to have significant blood alcohol content (BAC) levels. Though a biking under the influence conviction does not result in penalties as serious as a DUI charge, a conviction can result in fines and a criminal conviction on your record. If you or a loved one is facing a charge of biking under the influence, we urge you to retain one of our experienced Wallin & Klarich attorneys to fight for you.
What is Biking Under the Influence? – California Vehicle Code 21200.5 VC
Under California Vehicle Code Section 21200.5, it is illegal 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.” 1
California’s biking under the influence laws have been in effect since 1985. However, under California’s Vehicle Code, a bicycle is not considered a motor vehicle and is therefore not prosecuted under California’s DUI laws.
What Does the Prosecution Have to Prove for a Biking Under the Influence Conviction?
For the prosecution to prove beyond a reasonable doubt that you were biking under the influence, the prosecution must prove all of the following:
1. You were riding a bicycle.
The first element to prove for a biking under the influence conviction is that you were riding a bicycle. A bicycle is defined as a transportation device propelled by chains and gears, and not with a motor. Motorized bikes and mopeds are defined as motor vehicles and are prosecuted under California’s DUI laws. Motorized scooters are prosecuted under its own law under California Vehicle Code 21221.5 VC.
2. You were riding a bicycle upon a highway.
The second element that must be proven for a biking under the influence conviction is that you were riding a bicycle upon a highway. A highway is any publicly maintained space that is used for travel by vehicles. You can also be charged for biking under the influence if you were riding your bicycle on a sidewalk in addition to highways or roadways while intoxicated.
3. While you were riding a bicycle, you were under the influence of alcohol, drugs or both.
Unlike California’s DUI laws, Vehicle Code Section 21200.5 does not have a specific blood alcohol content (BAC) level that would result in an arrest for biking under the influence.2 However, it is recommended that cyclists do not ride their bicycles with a BAC level higher than 0.08%.
When a person is stopped for suspicion of biking under the influence, he/she may request a blood, breath or urine test to determine his/her BAC level to prove that he/she was not biking under the influence. A police officer is required to comply with the request.
What is the Punishment for a Biking Under the Influence Conviction?
Biking under the influence is a misdemeanor that can result in a fine of up to $250. A conviction will not result in jail time. Contrary to popular belief, biking under the influence is not an infraction and a misdemeanor conviction will appear on your criminal record. A criminal record can have a negative impact on your personal life and employment prospects. Therefore, it is important to have an experienced attorney fighting for you.
If you are under the legal drinking age of 21 (but older than 13 years of age), you may face the penalties above as well as the suspension of your driving privileges for one year. If you have yet to obtain a driver’s license, you face a one-year delay in being eligible to obtain a license.
Charges in Addition to Biking Under the Influence
Depending on the circumstances of your arrest for biking under the influence, the police may add additional charges.
Failure to Properly Equip Your Bicycle Infraction
The most common reason why police stop cyclists is because the cyclists are riding their bicycles at night without proper lights. Under California law, cyclists must properly equip their bicycles with working lights, brakes and handlebars. They must also be able to safely pedal and stop their bicycles.
Failure to properly equip a bicycle or riding a bicycle that is so big or so small that the cyclist cannot safely maneuver the bicycle can result in infractions that carry fines of hundreds of dollars. Using a steady or flashing blue light on a bicycle is not allowed unless you are a peace officer. You may also be cited for traffic violations like failure to stop at a stop sign or riding a bicycle with earphones on.
Public Intoxication – California Penal Code Section 647(f)
If you are found to be so intoxicated that you are a safety risk to yourself and others or you interfere with other people’s right to move freely, you may find yourself charged with public intoxication.
Under California Penal Code Section 647(f), it is unlawful for a person to be under the influence of any intoxicating liquor, drug, controlled substance or toluene in a public place if he/she is unable to exercise care for his/her own safety or the safety of others, or when a person under the influence interferes with, obstructs or prevents the free use of any street, sidewalk, or other public way. 3
Though commonly referred to as being “drunk in public,” a person can also be arrested for public intoxication if he/she is found to be under the influence of a controlled substance like cocaine or prescription medication like Vicodin.
Under California Penal Code Section 647(f), public intoxication is a misdemeanor punishable by up to six months in county jail and a $1,000 fine. 4 If you are convicted of this offense three times within one year, you face a minimum of three months in county jail, probation, fines, alcohol education programs and community service.
If you are under 21 years of age, you also face the suspension of your driver’s license for one year under California Penal Code Section 13202.5. 5 If you have yet to obtain a driver’s license, you face a one-year suspension delaying your eligibility to obtain a license.
What are the Defenses to a Biking Under the Influence Charge?
An experienced attorney can review your case and argue a viable defense on your behalf. Defenses to a biking under the influence charge include, but are not limited to, the following:
1. You were not under the influence.
Under California Vehicle Code 21202 VC, a cyclist must ride as close as practicably possible to the right-hand curb or edge of a roadway and obey all traffic laws. 6 A police officer may have observed you weaving in and out of lanes or falling off your bike. However, that does not mean you were under the influence of alcohol or drugs.
A police officer should observe a bicyclist for an extensive period of time before making a stop or arrest for biking under the influence. Simply observing a sudden fall in a matter of seconds should not be enough for a police officer to make an arrest.
2. You were arrested for biking under the influence because of your physical appearance, not for the way you were cycling.
Rather than observing the way you were cycling for an extensive period of time, the arresting officer may have arrested you because of the way you looked. You may have had watery or red eyes, a red or flushed face, slurred speech, bad posture or the smell of alcohol on your breath. This may have given the officer probable cause to make an arrest.
However, there are many reasons other than being under the influence of alcohol or drugs for exhibiting these symptoms. You may have been tired from cycling for an extended period of time, have had allergic symptoms flare up due to being outdoors in the wind or you became upset or frustrated for being stopped. You may have consumed alcohol at some point before getting on your bicycle, but not enough to put you under the influence.
3. Field Sobriety Tests are subjective and can be inaccurate.
If you were stopped for biking under the influence, you may have consented to a field sobriety test because you felt that you were not under the influence of alcohol. However, it is up to the discretion of the police officer to decide if you pass or fail a field sobriety test. You may think you passed the test, but the officer may testify in court that you performed poorly or did not properly follow instructions.
An experienced attorney can also review the site where the field sobriety test was conducted. Depending on the date and time of the test, there could have been distracting foot and vehicle traffic. The concrete where the test was conducted may have been uneven or your legs may have been sore because you had just biked a long distance. These circumstances could have put you at an unfair disadvantage.
4. The arresting officer did not observe you for a significant period of time before conducting a breath test.
Under California Vehicle Code 21200.5 VC, a person who is arrested for biking under the influence has the right to request a breath test to show that he/she is not under the influence. 7
During the 15-minute waiting period, a police officer is supposed to observe you to make sure that you do not eat, drink vomit, burp or smoke. Any of these actions can move alcohol from your stomach to your mouth, which can cause a falsely high reading. If the officer did not wait for 15 minutes or did not properly observe you before the test, the officer may have caused a false blood alcohol content reading. A skilled Wallin & Klarich attorney can review the circumstances of your stop to make sure the arresting officer followed proper procedure.
Call Wallin & Klarich Today
If you or a loved one is facing a charge of biking under the influence, it is critical that you speak to an experienced criminal defense attorney as soon as possible. At Wallin & Klarich, our attorneys have over 30 years of experience in defending persons charged for biking under the influence. Our attorneys will fight to get you the best possible outcome in your case.
With office locations in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich Southern California criminal defense attorney near you no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.
Image obtained from: http://en.wikipedia.org/wiki/Bicycle#mediaviewer/File:Jersey_Town_Criterium_2011_81.jpg