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Ask a Lawyer: Can I get a DUI on a bike?

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By Pierce Kelley

H.W. of Cedar Key writes: “Last month, you told me that I have to share the road with bicyclists and pass them just like they were driving a car. If that’s true, why can’t somebody riding a bicycle while drunk be arrested for drunk driving?”

Dear H. W.: 

You ask another interesting question, and the answer is:  A BICYCLIST CAN BE ARRESTED FOR DRUNK DRIVING. I must confess that prior to receiving your inquiry, I did not think that was the case, but upon doing some legal research, I came across the case of State of Florida versus Howard, which came out of the Third District Court of Appeal, and it specifically holds that Florida’s Driving Under the Influence (DUI) statute, which is FS 316.193, does apply to bicyclists. The citation for that case is 510 So. 2d 612 (Fla. 3rd DCA, 1987).

The Court’s reasoning is sound. FS 316.193 reads as follows:

A person is guilty of the offense of driving under the influence and subject to punishment as provided in subsection (2) if such person is driving or in actual physical control of a vehicle within this state…”

Prior to 1983, there was a specific exclusion for bicycles and that exclusion was removed by the legislature that year, so there is really no doubt about it. A bicyclist can be arrested for DUI. I thought the statute applied only to motor vehicles and I was mistaken. It applies to all vehicles. 

A vehicle is defined in Florida Statute 316.003(76) as follows:

“Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.” 

So, H.W., you must  treat a bicyclist just as you would any other vehicle. By the same token, bicyclists, since they operate vehicles, must obey the traffic laws, too, including stop signs, red lights and the rest.

Another interesting question, though you didn’t ask it, involves the use of a sidewalk. Can a bicycle ride on a sidewalk intended for pedestrians? Is a bicycle required to ride on a sidewalk?  The answer to the first question is maybe, and the answer to the second question is no.

Florida Statute 316.2065 (10) provides as follows:

“A person propelling a vehicle by human power upon and along a sidewalk, or across a roadway upon and along a crosswalk, has all the rights and duties applicable to a pedestrian under the same circumstances.”

However, many municipalities, including Orlando, have enacted ordinances which forbid bicyclists to ride on sidewalks. Cedar Key has no such ordinance. So a bicyclist in Cedar Key can ride on a sidewalk if he or she wants to do so, or not.

One final point on bicycles, if a driver makes a menacing move towards a bicyclist, like coming too close to the rider, or purposefully running the rider off the road, the cyclist can report it to the police. If the police officer believes there is sufficient evidence of felonious “intent” an arrest can be made. However, under normal circumstances, an officer cannot arrest an individual for a misdemeanor not committed within his presence.

Just because the officer cannot arrest when you make a formal complaint, that does not mean a charge cannot be filed, it just means the officer cannot make an arrest unless he deems it to be a felony. If, after investigation, the officer believes that there is sufficient proof that a traffic violation has occurred, the officer may issue a citation and require the offender to appear in court to answer charges. The State Attorney’s office, which prosecutes all crimes in whatever county in Florida in which you live, may also be willing to file charges, or not, depending upon the factual circumstance.

Please keep in mind, H.W., that if a car hits a bicycle, the rider could die. We don’t want that. Share the road. I thank you for your question. And the message here is this, it doesn’t matter if you’re driving a car, riding a bicycle, or operating a golf cart, if you are under the influence of alcohol, or drugs, to the extent that your normal faculties are impaired, you can be arrested, so don’t do it, especially during this holiday season when many people will go to parties where alcohol is served. Be careful out there, and “Happy Holidays” to all.

Any readers with specific legal questions for this “Ask a Lawyer” column are invited to submit those questions to the Editor of this newspaper who will pass it along to the attorney. If you need assistance with a mortgage foreclosure matter, a landlord-tenant matter, a consumer matter such as an unfair and deceptive collection practice, garnishment of wages, or other such thing and you cannot afford an attorney, call the Legal Services office closest to you, which provides free legal assistance to qualified individuals, or call the Florida Bar Referral service at 1-800-342-8011. I wish you good luck in obtaining access to our legal system no matter what your income and asset level might be. 

The foregoing was written by attorney Pierce Kelley, who is a member of the Florida Bar Association. The contents reflect his personal opinions and beliefs.