Aug. 17, 2022 – Electronic bikes and scooters are more popular than ever. Though foolish and risky both to the driver and the public, riding an electric bike or scooter on a public road while under the influence does not​ appear to violate Wisconsin OWI laws.

This article defines the key statutory terms “motor vehicle” and “vehicle,” and then analyzes the applicable laws for electric bicycles and electric scooters, both of which changed in 2019. Both types of electric vehicles, which pop up in downtown areas in the warmer months, are not “motor vehicles” for OWI purposes. Other rules of the road apply, just not OWI laws.

Definitions: OWI, Motor Vehicle, and Vehicle

As the Wisconsin Court of Appeals recently held, “[i]t is illegal in Wisconsin for a person to drive or operate a ‘motor vehicle’ on a public roadway while he or she is intoxicated or has a prohibited alcohol concentration.”¹

Wis. Stat. section 346.63(1) uses the term “motor vehicle,” which means any vehicle “which is self-propelled, except a vehicle operated exclusively on a rail.”²

A vehicle is then “broadly defined to include ‘every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except railroad trains.”³ Thus, standard OWI laws cover all motor (that is, self-propelled) vehicles, unless there are express statutory exceptions.

Wis. Stat. section 340.01(35) and (74) detail several express exceptions, which are almost identical. Section 340.01(35) (defining “motor vehicles”) states, “A snowmobile, an all-terrain vehicle, a utility terrain vehicle, an electric scooter, and an electric personal assistive mobility device shall be considered motor vehicles only for purposes made specifically applicable by statute. ‘Motor vehicle’ does not include an electric bicycle.”

Likewise, section 340.01(74) (defining “vehicles”) states, “A snowmobile, an all-terrain vehicle, a personal delivery device, an electric scooter, and an electric personal assistive mobility device shall not be considered a vehicle except for purposes made specifically applicable by statute.” The legislature has specifically created vehicle-specific, and more lenient, OWI laws for snowmobiles and ATV/UTVs.⁴ But there are no equivalent vehicle-specific OWI laws for electric bicycles or electric scooters.

Accordingly, Shoeder held that a gas-powered lawn mower driven on public roads was a “motor vehicle” and as such subject to standard OWI laws, rejecting the claim that the mower was instead an ATV, subject to lesser penalties.⁵

The type of self-propulsion did not seem to matter (gas-powered or electric); rather, to be a motor vehicle, the vehicle has to be self-propelled and not a specifically statutorily exempted vehicle, like electric bicycles and electric scooters.

Electric Bicycles

2019 Wisconsin Act 34 (effective Nov. 22, 2019; hereinafter Act 34) created regulations for electric bicycles. Act 34 defined “electric bicycles” and divided them into three classes.⁶ The Act amended section 340.01(30) to read: “‘Motor bicycle’ does not include an electric bicycle.” The Act further included the express exception cited above, one of only two textual differences between section 340.01(35) and (74): “‘Motor vehicle’ does not include an electric bicycle.”⁷

Per section 346.806(1), “An electric bicycle shall be considered a vehicle to the same extent as a bicycle.” Just as regular pedaled bicycles are not motor vehicles and do not have bike-specific OWI laws (like snowmobiles and ATVs/UTVs), so too electric bicycles are not motor vehicles nor motor bicycles, and they do not have electric bike-specific OWI laws.

In contrast, in a case that predates Act 34 by five years, standard OWI laws applied to a motor bicycle driven on public roads.⁸ The vehicle that the defendant used to drive away from law enforcement without pedaling was a “vehicle” under section 340.01(74) and also a “motor vehicle” under section 340.01(35), and no statutory exception applied.

The court did not specify whether the motor bicycle had a gas-powered combustion engine versus an electric motor; what mattered is that it was self-propelled and thus a motor vehicle. But Act 34 later amended the definition for “motor bicycles” to expressly not include electric bicycles, so Koeppen does not control electric bicycles.⁹

Electric bicycles are not motor bicycles nor motor vehicles, so the standard OWI laws do not apply. Nor are their specific OWI laws just for electric bicycles.

Electric Scooters

Like electric bicycles, electric scooters are also statutorily exempted from standard OWI laws. 2019 Wisconsin Act 11 (effective July 10, 2019; hereinafter Act 11) created regulations for electric scooters, including the statutory definition for “electric scooter.”¹⁰

Act 11 applied many other traffic regulations to electric scooters (e.g., reckless driving and hit-and-run laws), but as with ATVs/ UTVs, notably absent from this list is any reference to OWI laws (sections 346.63(1)-(2m) (offenses) and 346.65(2)(am)-(5) (penalties).¹¹ If the Wisconsin Legislature had wanted to include OWIs for electric scooters, then it could have done so.

Under the canon of statutory construction expressio unius est exclusio alterius (“to express or include one thing implies the exclusion of the other,”¹² OWI laws do not apply to electric scooters.¹³

Only one Wisconsin appellate case mentions electric scooters, and not only is it unpublished (citable as persuasive only), the case does not even involve traffic laws.¹⁴

A nationwide survey has revealed only two substantive cases mentioning electric scooters and drunk driving. One case (from Michigan) and the other (from North Carolina) are distinguishable.

In Michigan, a slow-moving, four-wheeled electric scooter (top speed of only four miles an hour), driving on the paved portion of the “curb lane” along a road and weaving into the traffic lane causing a backup, was a motor vehicle for OWI purposes.¹⁵

Likewise, a “stand-up” electric scooter was not an exempted vehicle for OWI purposes under North Carolina law.¹⁶

Conclusion

Standard OWI laws apply to some types of self-propelled vehicles, like motor bicycles and riding lawn mowers, but electric bicycles or electric scooters appear exempt.

Other rules of the road apply, so those who drive these popular and more eco-friendly vehicles should still drive carefully.

Endnotes

¹ Wis. Stat. § 346.63(1)(a), (1)(b); see also Wis. Stat. §§ 340.01(22); 346.01(1m); 346.02(1) (addressing the scope of Wis. Stat. ch. 346). State v. Shoeder, 2019 WI App 60, ¶ 8, 389 Wis. 2d 244, 249, 936 N.W.2d 172, 175.

² Wis. Stat. § 340.01(35). Shoeder, 2019 WI App 60, ¶ 10, 389 Wis. 2d 244.​​

³ Sec. 340.01(74); see alsoState v. Smits, 2001 WI App 45, ¶12, 241 Wis. 2d 374, 626 N.W.2d 42 (“An analysis of the statutes reveals that motor vehicle is a more restrictive term than vehicle.”).”

⁴ Wis. Stat. §§ 350.101 (Intoxicated snowmobiling) and 350.11(3)(a) (Penalties); Wis. Stat. § 23.33(4c) (Intoxicated operation of an all-terrain vehicle or utility terrain vehicle) and (13)(b) (Penalties).

⁵ The mower, driven on the blacktop shoulder of a city street, had “a two-cylinder gasoline-powered engine with a hydrostatic transmission.” Id. at ¶ 11.

⁶ Wis. Stat. § 340.01(15ph): An electric bicycle is “a bicycle that is equipped with fully operative pedals for propulsion by human power and an electric motor of 750 watts or less and that meets the requirements of any of the following classifications”

A Class 1 electric bicycle is equipped with a motor that provides assistance only when the rider is pedaling and that ceases to provide assistance when the bicycle reaches the speed of 20 miles per hour.

A Class 2 electric bicycle may be powered solely by the motor and is not capable of providing assistance when the bicycle reaches the speed of 20 miles per hour.

A Class 3 electric bicycle is equipped with a motor that provides assistance only when the rider is pedaling and that ceases to provide assistance when the bicycle reaches the speed of 28 miles per hour.

The Bird Bike (both A and V-frame varieties) has a 500-watt motor (under 750 watts) and a top speed of 20 mph with speed assist, so it should qualify as a Class 1 electric bicycle. See specifications online.

⁷ The other exception is that Wis. Stat. § 340.01(74) (defining “vehicles”) also includes “a personal delivery device,” which is defined in Wis. Stat. § 340.01(43fg) (these devices are robots that can deliver items like groceries). See Maddie Koss, “New Wisconsin law allows delivery robots on sidewalks,” Milwaukee Journal Sentinel, June 22, 2017.

⁸State v. Koeppen, 2014 WI App 94, 356 Wis. 2d 812, 854 N.W.2d 849.

⁹ Wis. Stat. § 340.01(30): “ ‘Motor bicycle’ means a bicycle to which a power unit that is not an integral part of the vehicle has been added to permit the vehicle to travel at a speed of not more than 30 miles per hour with a 150-pound rider on a dry, level, hard surface with no wind and having a seat for the operator. ‘Motor bicycle’ does not include an electric bicycle.”

¹⁰ Wis. Stat. § 340.01(15ps) “ ‘Electric scooter’ means a device weighing less than 100 pounds that has handlebars and an electric motor, is powered solely by the electric motor and human power, and has a maximum speed of not more than 20 miles per hour on a paved level surface when powered solely by the electric motor. ‘Electric scooter’ does not include an electric personal assistive mobility device, motorcycle, motor bicycle, electric bicycle, or moped.”

For example, the Bird scooter is 22 kg (48.5 lbs) and has a top speed of 15 mph, so it should qualify.

¹¹ Wis. Stat. § 346.02(12): “An electric scooter and an electric personal assistive mobility device shall be considered a vehicle for purposes of ss. 346.04 to 346.10, 346.12, 346.13, 346.15, 346.16, 346.18, 346.19, 346.20, 346.215(3), 346.23 to 346.28, 346.31 to 346.35, 346.37 to 346.40, 346.44, 346.46, 346.47, 346.48, 346.50 to 346.55, 346.57, 346.59, 346.62, 346.65(5m), 346.67 to 346.70, 346.78, 346.80, 346.87, 346.88, 346.90, 346.91, and 346.94(4), (5), (9), and (10), except those provisions which by their express terms apply only to motor vehicles or which by their very nature would have no application to electric scooters or electric personal assistive mobility devices.”

¹² Black’s Law Dictionary (11th ed. 2019).

¹³ Though the statute is clear on its face, so there is no need to rely on legislative history/intent, it is worth noting that there is no mention of OWI in any of the legislative drafting materials.

¹⁴In re Guardianship of Stanley W.F., No. 2009AP985-FT, unpublished slip opinion (Wis. Ct. App. Sept. 9, 2009).

¹⁵People v. Lyon, 310 Mich. App. 515, 872 N.W.2d 245 (2015), citing People v. Rogers, 438 Mich. 602, 475 N.W.2d 717 (1991) (driving a snowmobile on the shoulder of a highway while intoxicated was an OWI, not the lesser offense of operation of a snowmobile while intoxicated).

¹⁶State v. Crow, 175 N.C. App. 119, 121, 623 S.E.2d 68, 69 (2005), writ denied, review denied, appeal dismissed, 360 N.C. 485, 632 S.E.2d 495 (2006). The North Carolina state legislature later amended the applicable statute, cutting out the exceptions for bicycles and lawn mowers (only horses remain exempt). Motor Vehicle Driver Protection Act of 2006, 2006 North Carolina Laws S.L. 2006-253 (H.B. 1048).