It is commonly known that driving under the influence of alcohol or drugs in California is illegal. However, not many people are aware that cycling or bicycling under the influence (CUI) is also against the law. California Vehicle Code section 21200.5 prohibits riding a bicycle while under the influence of alcohol, drugs, or both.1
The punishment for a CUI is a fine of not more than $250 and no jail time.2 Although the punishment for a CUI is less burdensome than California's DUI penalties, a CUI is still a misdemeanor and will show up as a conviction (giving you a criminal record).3 Furthermore, if you are under 21-years-old, a CUI conviction can result in a suspension of your driver's license.4
In order to help you better understand this offense, our California criminal defense attorneys will provide a comprehensive guide to Vehicle Code section 21200.5 "cycling under the influence" by addressing the following:
If after reading this article, you have additional questions, please contact us.
The current statute of cycling under the influence was added to the California Vehicle Code in 1985 and singles out the crime of cycling or bicycling while intoxicated.
Every year, several hundred cyclists are involved in crashes and are injured or killed.5 A significant percentage of the cyclists who die had a measurable blood alcohol level at the time of the accident.6 Therefore, many states outlaw cycling under the influence.
However, under the California Vehicle Code, a "bicycle" does not fall within the definition of a "vehicle" and is not subject to DUI laws.7 Furthermore, the potential damage of cycling under the influence is arguably much less than the damage a person driving a vehicle under the influence could inflict.
Imposing DUI penalties for someone caught cycling under the influence would be unduly harsh.8 Consequently, the California Legislature enacted Vehicle Code section 21200.5 to specifically outlaw and appropriately punish cycling under the influence.
In order to prove that you have committed this offense, the prosecution must prove three facts (known as "elements" of the crime) beyond a reasonable doubt:
- You were riding a bicycle;
- You were riding the bicycle upon a highway; and
- While you were riding the bicycle, he or she was under the influence of alcohol, drugs, or both.
Let's examine each of these elements in some further depth.
1) Riding a bicycle.
To prove a CUI case, the prosecution must show that the person was riding a bicycle. A bicycle is defined as a device that is "propelled exclusively by human power through a belt, chain, or gears, and having one or more wheels."9 In other words, a bicycle, for the purposes of a CUI, cannot be motorized.10
A motorized bicycle, or moped, on the other hand, is subject to the DUI laws relating to motor vehicles.11 However, a motorized scooter-distinguished from a motorized bicycle or moped-is subject to its own individualized "under the influence" law, California Vehicle Code section 21221.5.
2) Riding upon a highway.
A potential defense is to argue that the defendant was not on a highway when he was riding under the influence. However, this defense has limited application.
Under the California Vehicle Code, a "highway" is broadly defined as "a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel."12 Furthermore, persons riding bicycles on sidewalks are subject to the same California Vehicle Code requirements that apply to persons riding bicycles on the roadways.13 Thus, the defense that you were not riding on a "highway" is limited to situations where you are riding on private driveways and private roads.14
3) Under the influence of alcohol, drugs, or both.
Unlike a DUI, the CUI statute does not have a blood alcohol content level that presumes a person to be under the influence.15 However, since the cyclists have the same rights and responsibilities as drivers, including cycling under the influence, a cyclist should not bike with a BAC of 0.08 or higher.16
When a person is arrested for cycling under the influence, they may request a chemical test of their blood, breath, or urine to determine the amount of alcohol or drugs in their system at the time.17 Once the accused requests the test, the arresting office must conduct it.18
The punishment for a CUI is a fine of not more than $250 and no jail time.19 However, a conviction of this offense is classified as a misdemeanor and not merely an infraction.20
Furthermore, if you are under 21, but over 13, you face additional penalties. When you are under 21, but over 13 and are convicted of a CUI, the court may
- suspend your driving privileges for a year, or
- if you do not have a license yet, delay you from receiving one for a year.21
In addition to Vehicle Code section 21200.5, if you are arrested for cycling under the influence, you may also face additional charges.
If you are found to be so drunk you are a safety risk to yourself and others and/or you interfere with other people's right of movement, you may be charged with
Penal Code 647f "Drunk in Public".
Furthermore, a person riding a bicycle on a highway is subject to many regulations while cycling on the road. A violation of one of these regulations is usually why the police officers first stop you and eventually leads to the CUI.
For example, under California Vehicle Code § 21202, a cyclist must ride as close as practicable to the right-hand curb or edge of the roadway. A cyclist must also obey all traffic devices.22 A common reason why police officers stop cyclists is because they are cycling at night without the proper lights.23 In addition, all the rules of the road applicable to a driver of a vehicle are also applied to a cyclist, including
Vehicle Code section 20002 "Hit and Run", leaving the scene of an accident without first identifying yourself to the other parties.24
When you are stopped for a CUI, you could also face additional infractions for failing to properly equip your bicycle. A bicycle may not be operated unless it has properly working brakes, handlebars, and lights, and may not be used if the bicycle is too big or too small for the operator to safely stop and start.25 It is also unlawful to use a steady or flashing blue light, unless you are a peace officer.26
Fighting a CUI involves many of the same defenses raised in fighting DUI cases. Below are the most common defenses:
You were cycling erratically, but were not under the influence.
When a prosecutor brings a CUI case, one of the first things they'll try to prove is your cycling pattern. The prosecutor would have the CUI arresting officer testify that you were cycling similar to someone who was under the influence. This could involve a number of observations, including weaving in and out of traffic or falling off your bike.
An experienced CUI criminal defense attorney would rebut this testimony by asking the police officer how long he had observed you and whether there had been obstacles or debris to explain your weaving or falling. Although alcohol is involved in a number of cyclist fatalities, a majority of cyclist deaths and injuries do not involve any alcohol.27
Example: Brad was cycling through the streets of downtown Los Angeles after having a drink with a friend at happy hour. Brad enjoys cycling a lot and likes to practice skidding his rear wheel, which appears like he is swerving and sometimes results in him falling off his bicycle. A Los Angeles Police Department officer notices the swerving, pulls Brad over, and arrests him for a CUI.
Brad's Los Angeles CUI defense attorney would have the officer testify about the many things Brad was doing right, such as staying within the bicycle lane, cycling at normal speeds, following traffic devices, and stopping his bicycle without falling. Brad's CUI defense attorney would also have the officer admit that he had not observed Brad for an extensive period of time and that a person could swerve on their bicycle due to reasons that have nothing to do with drinking alcohol or taking drugs.
There are other innocent reasons for your physical appearance.
Your physical appearance is a large factor in a CUI investigation. The arresting officer will testify that you were "under the influence" because you had
- red-watery eyes,
- slurred speech,
- a flushed face,
- the strong odor of alcohol on your breath, and/or
- an "unsteady gait"
A knowledgeable and experience criminal defense attorney would challenge the officer's conclusion by addressing all of the innocent reasons why you had these physical appearances, including allergies, physical exertion from cycling, frustration for being stopped. Also, you may have had some alcohol, but not enough to put you under the influence.
Example: A Long Beach Police Officer testified that Meagan had red-watery eyes, a flushed face, and smelled of alcohol when she was pulled over at 10 p.m. on a Saturday night.
On cross-examination, Meagan's Long Beach CUI defense attorney would have the police officer admit he never questioned Meagan about her physical appearance. In fact, she was cycling as fast as she could to her home because her friend was waiting there (which explains her flushed face and read eyes), and had been drinking hours ago, but had switched to sodas (which explains the odor of alcohol on her breath, even though she was not still intoxicated).
Field Sobriety Tests (FSTs) Do Not Accurately Measure Impairment
Another component of a CUI case is the field sobriety tests the arresting officer uses while investigating whether you were cycling under the influence. The officer will testify that you "performed poorly" or failed to follow her instructions - leading to the conclusion that you were under the influence.
Your CUI defense lawyer will explain that many factors impact performance on the FSTs, including natural physical coordination, nerves, slope of the ground, and distractions. An experienced CUI defense attorney would also have the officer admit the many parts of the test you passed as compared to the parts you did poorly on.
Example: A San Francisco Police Officer testifies that Jason performed poorly on his FSTs.
On cross-examination, Jason's San Francisco CUI defense attorney draws out testimony that the officer had Jason perform the FSTs on the side of Mission Street where there was a lot of foot and car traffic, the ground was uneven, and Jason had disclosed his legs were tired because he had just biked a long distance.
The Police Officer Did Not Observe You for 15-Minutes Prior to Conducting a Breath Test
California Vehicle Code Section 21200.5 gives a person who is arrested for cycling under the influence the right to request a breath test to show he or she is not under the influence. When a request is made, the arresting officer must comply.
California DUI law requires a police officer to observe you for 15 minutes before he may administer a "breath test."28 During this time, the officer is supposed to ensure that you do not eat, drink, vomit, belch, burp, or smoke because any of these can cause a falsely high reading.29 When any of these events occur, alcohol moves from your stomach to your mouth, which skews the measurement of your blood alcohol content.
An experienced CUI defense lawyer knows that most officers conduct this observation period when they're distracted by filling out paperwork or when they are setting up the breath test machine. By eliciting this information, the defense attorney may negate any incriminating results.
Example: A Santa Ana Police Department officer testifies that he observed Sarah for 15 minutes and that nothing occurred during that time.
On cross-examination, Sarah's Santa Ana criminal defense attorney brings out the fact that during the 15-minute period, the officer was talking to a fellow officer. Sarah's lawyer had shown that during the observation period, the SAPD officer would not have been able to see if Sarah burped, belched, hiccupped, or slightly vomited, which could have triggered a falsely high BAC result.
The Arresting Officer Failed to Follow Title 17 Regulations When Conducting a Blood Test
Under California Vehicle Code Section 21200.5, a person arrested for cycling under the influence may also request a blood test to demonstrate that he was not under the influence. California's Code of Regulations Title 17 (title-17) governs how blood and breath tests are performed. Title 17 requires that when a blood test is conducted:
- an authorized technician performs the blood draw,
- the draw site is sterilized with a non-alcoholic-based cleaning agent,
- there is sufficient anti-coagulant or preservative in the blood vial,
- the anti-coagulant or preservative is not expired,
- the blood sample must be mixed with the anti-coagulant or preservative, and
- the blood sample must be properly stored.
When an officer fails to follow these procedures, the resulting BAC may be falsely high.
Example: A Pasadena blood test technician testifies that George's blood test showed his blood alcohol content was .12%.
However, on cross-examination, George's Pasadena CUI lawyer gets the technician to admit the vial did not have enough anticoagulants and preservatives. George's lawyer convinces the jury that because of the technician's error, the BAC .12% result is inaccurate.
The Arresting Officer Did Not Follow Proper Procedures
There are many procedural safeguards that an officer must follow in order to convict you of a CUI. For instance, before an officer may approach and stop you, he must have probable cause to initiate a traffic stop. The officer must also inform you of your Miranda rights before questioning you. And the officer must follow California's Title 17 regulations for all blood and breath tests.
A savvy CUI criminal defense attorney knows all of these procedures and will know how to exclude evidence or dismiss charges when the arresting officer fails to follow them. If the officer failed to have probable cause to stop you, the California CUI lawyer will conduct a suppression hearing, otherwise known as a Penal Code 1538.5 hearing."
Example: A police officer is out on patrol when he notices Joe who is cycling in the bike lane. The police officer conducts a traffic stop because he believes Joe looks mischievous and he wants to question him.
Joe's Riverside CUI attorney knows that the police officer did not have probable cause to stop Joe because Joe was following all of the rules of the road. Joe's attorney thus can convince a judge to exclude any incriminating evidence found as a result of the stop. Without the evidence, Joe's attorney convinces the Riverside D.A. to dismiss the charges.
Call us for help.
If you or loved one is charged with Vehicle Code 21200.5 VC cycling under the influence and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
You may also find helpful information in our related articles on Vehicle Code section 23152 "driving under the influence", California DUI Defenses , California DUI Blood Testing, and California DUI Breath Testing. And we invite you to watch our video on Vehicle Code 21200.5 - Cycling Under the Influence.
For information about the Nevada crime of cycling under the influence, read our article on the Nevada crime of cycling under the influence.
1 Cal. Veh. Code § 21200.5 ["Notwithstanding Section 21200, it is unlawful for any person 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. Any person arrested for a violation of this section may request to have a chemical test made of the person's blood, breath, or urine for the purpose of determining the alcoholic or drug content of that person's blood pursuant to Section 23612, and, if so requested, the arresting officer shall have the test performed. A conviction of a violation of this section shall be punished by a fine of not more than two hundred fifty dollars ($250). Violations of this section are subject to Section 13202.5."]
3 Cal. Veh. Code § 40000.13 ["Misdemeanors - A violation of any of the following provisions is a misdemeanor, and not an infraction: . . . (c) Section 21200.5, relating to riding a bicycle while under the influence of an alcoholic beverage or any drug."]
4 Cal. Veh. Code § 13202.5(a) ["For each conviction of a person for an offense specified in subdivision (d), committed while the person was under the age of 21 years, but 13 years of age or older, the court shall suspend the person's driving privilege for one year. If the person convicted does not yet have the privilege to drive, the court shall order the department to delay issuing the privilege to drive for one year subsequent to the time the person becomes legally eligible to drive."]
5 According to the National Highway Traffic Safety Administration, 630 cyclists were killed and 51,000 were injured in the United States in 2009. Ninety-nine of those cyclist fatalities occurred in California. "Traffic Safety Facts 2009 Data: Bicyclists and Other Cyclists" U.S. Department of Transportation, National Highway Traffic Safety Administration (2009).
6 Of those 630 fatalities, 28% of the cyclists killed had a BAC of .01 or higher and 24% had a BAC of .08 or higher. (Ibid.)
7 Although Vehicle Code Section 21200 states that a person riding a bicycle "has all the rights and is subject to all the provisions applicable to the driver of a vehicle . . . including . . . provisions concerning driving under the influence," California Vehicle Code section 231 defines a bicycle as a device that is propelled exclusively by human power and thus is excluded by Vehicle Code Section 23152.
8Clingenpeel v. Municipal Court (1980) 108 Cal.App.3d 394, 403 [declining to apply DUI penalties to the conviction of CUI because the punishment "would appear to be an overkill."])
9 Cal. Veh. Code § 231 ["Bicycle - A bicycle is a device upon which any person may ride, propelled exclusively by human power through a belt, chain, or gears, and having one or more wheels. Persons riding bicycles are subject to the provisions of this code specified in Sections 21200 and 21200.5."]
10 Cal. Veh. Code § 231 states, "A bicycle is . . . propelled exclusively by human power . . . ."
11See People v. Jordan, 75 Cal. App.3d Supp. 1 (1977) (holding that a moped is a motor vehicle and subject to drunk driving laws because it is equipped with a motor).
12 Cal. Veh. Code § 360.
13 76 Op.Atty.Gen. 214, 9-29-93.
14Compare Cal. Veh. Code § 360 and Cal. Veh. Code § 490 ["'Private road or driveway' is a way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner but not by other members of the public."]
15 Cal. Veh. Code § 23152(b) ["In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving."]
16 Cal. Veh. Code § 21200 (stating every person riding a bicycle upon the highway has all the rights and responsibilities as a driver of a vehicle, including the provisions of law dealing with driving under the influence of alcohol, drugs, or both); Cal. Veh. Code § 23152(b).
17 Vehicle Code § 21200.5.
19 Cal. Veh. Code §§ 21200.5, 40000.13.
20 Cal. Veh. Code § 40000.13.
21 Cal. Veh. Code § 21200.5 (stating that violations under this section are subject to Vehicle Code Section 13202.5, which lists potential additional punishments for minors driving under the influence); see also Cal. Veh. Code § 21200 ("A person riding a bicycle . . . upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle by this division, including . . . provisions concerning driving under the influence of alcoholic beverages or drugs . . . .").
22 Cal. Veh. Code § 21456.2 ["Bicycle operators; obeying provisions of this article; bicycle signals - (a) Unless otherwise directed by a bicycle signal as provided in Section 21456.3, an operator of a bicycle shall obey the provisions of this article applicable to the driver of a vehicle. (b) Whenever an official traffic control signal exhibiting different colored bicycle symbols is shown concurrently with official traffic control signals exhibiting different colored lights or arrows, an operator of a bicycle facing those traffic control signals shall obey the bicycle signals as provide in Section 21456."]
23 Cal. Veh. Code § 21201.
24 Cal. Veh. Code § 21200 ["Rights and duties of bicycle riders and pedicab operators . . . - (a) A person riding a bicycle or operating a pedicab upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle by this division, including, but not limited to, provisions concerning driving under the influence of alcoholic beverages or drugs . . . ."]
25 Cal. Veh. Code § 21201 ["Equipment requirements - (a) No person shall operate a bicycle on a roadway unless it is equipped with a brake which will enable the operator to make one braked wheel skid on dry, level, clean pavement. (b) No person shall operate on the highway a bicycle equipped with handlebars so raised that the operator must elevate his hands above the level of his shoulders in order to grasp the normal steering grip area. (c) No person shall operate upon a highway a bicycle that is of a size that prevents the operator from safely stopping the bicycle, supporting it in an upright position with at least one foot on the ground, and restarting it in a safe manner. (d) A bicycle operated during darkness upon a highway, a sidewalk where bicycle operation is not prohibited by the local jurisdiction, or a bikeway, as defined in Section 890.4 of the Streets and Highways Code, shall be equipped with all of the following: (1) A lamp emitting a white light that, while the bicycle is in motion, illuminates the highway, sidewalk, or bikeway in front of the bicyclist and is visible from a distance of 300 feet in front and from the sides of the bicycle. (2) A red reflector on the rear that shall be visible from a distance of 500 feet to the rear when directly in front of lawful upper beams of headlamps on a motor vehicle. (3) A white or yellow reflector on each pedal, shoe, or ankle visible from the front and rear of the bicycle from a distance of 200 feet. (4) A white or yellow reflector on each side forward of the center of the bicycle, and a white or red reflector on each side to the rear of the center of the bicycle, except that bicycles that are equipped with reflectorized tires on the front and the rear need not be equipped with these side reflectors. The reflectors and reflectorized tires shall be of a type meeting requirements established by the department. (e) A lamp or lamp combination, emitting a white light, attached to the operator and visible from a distance of 300 feet in front and from the sides of the bicycle, may be used in lieu of the lamp required by paragraph (1) of subdivision (d)."
26 Cal. Veh. Code § 21201.3 ["Peace officer; blue light (a) A bicycle or motorized bicycle used by a peace officer . . . , in the performance of the peace officer's duties, may display a steady or flashing blue warning light that is visible from the front, sides, or rear of the bicycle or motorized bicycle. (b) No person shall display a steady or flashing blue warning light on a bicycle or motorized bicycle except as authorized under subdivision (a)."]
27 "Traffic Safety Facts 2009 Data: Bicyclists and Other Cyclists" U.S. Department of Transportation, National Highway Traffic Safety Administration (2009).
28 Title 17 of the California Code of Regulations, section 1219.3 -- Breath Collection. ("The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.")