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Man convicted of being drunk in charge of an e-bike – did the court get it wrong?

12 July 2011
by blondwig

Last week I came across a press report about Anthony Dancer, a man who has been convicted in Oldham of two offences committed with his e-bike while he was drunk.

The court found that Dancer had done the following:

  • On 11 February he was caught pushing his e-bike (which had the pedals removed) along a road while over the legal limit for blood alcohol
  • On 12 March he was caught riding his e-bike while over the limit.

The report says that he was prosecuted under the Licensing Act 1872. For the first offence he was apparently convicted of being drunk in charge of a carriage; for the second, drunk in charge of a bicycle.

It may be that the journalist who wrote the article didn’t get the law entirely right. Otherwise it seems that the court must have got it wrong.

The case is an interesting example of how, if you ride an e-bike in the same way you might ride a normal bike, you can end up with much worse penalties.  

Drink-riding – the basics

I’ve posted before about riding while drunk. As I said then, if you ride a normal bike, there are two offences you might commit: riding while unfit (if you were caught while actually on the bike) or being drunk in charge (an offence you can only commit if you were not riding at the time). (RTA s. 30; LA 1872 s. 12; RTOA s. 5)

As I said then, the rules on drinking and e-bikes are slightly different.

E-bikes (when they comply with the statutory rules) seem to be mechanically propelled vehicles under the Road Traffic Acts. So a drunken e-bike rider might commit the offence of driving a mechanically propelled vehicle while unfit to drive through drink or drugs.

Or, if you’re caught drunk with your e-bike but not actually riding it, you might commit the offence of being in charge of a mechanically propelled vehicle while unfit.  (RTA ss. 4(1), 4(2)).

What was Dancer actually doing wrong?

On 11 February, Dancer was caught pushing an e-bike, which had the pedals removed, along a road while he was drunk.

The court got the basics right. He couldn’t be convicted of an offence involving riding or driving, because he wasn’t actually riding the bike at the time. He could, on the other hand, be convicted of an offence of being in charge, because you don’t need to be riding to count as in charge of a cycle. (LA 1872 s. 12; DPP v Watkins [1989] QB 821, 831)

But the court convicted him of being drunk while in charge under the 1872 Act. It looks like that must be wrong.

This is because an e-bike must surely count as a mechanically propelled vehicle. It has a motor, so is mechanically propelled if you apply the normal meaning of the words. There’s also a specific provision saying that it isn’t to be treated as a motor vehicle. So the implication is that, were it not for that provision, an e-bike would be a motor vehicle. And a motor vehicle is clearly defined as one which is mechanically propelled – so, in other words, the legislation seems to be assuming that an e-bike is mechanically propelled. (RTA s. 185(1); 189(1)(c))

If this is right, and an e-bike is a mechanically propelled vehicle, then it seems that what Dancer was doing on 11 February was actually being in charge of a mechanically propelled vehicle while unfit. And if that’s the case, there’s a provision which says that the offence under the 1872 Act can’t apply. (RTA s.4(2); RTOA s. 5)

So there seems to be a good chance that his conviction for the 11 February offence, when he was caught pushing his e-bike, was wrong in law.

The article emphasises the fact that, when Dancer was found on 11 February pushing his e-bike, the pedals had been removed. Personally, I doubt that that would stop a bike from counting as a cycle in law. But the important question here is whether it means that Dancer’s e-bike, when it had the pedals removed, no longer counted as a mechanically propelled vehicle. I can’t see how taking the pedals off can mean that an e-bike is no longer mechanically propelled (of course it might be different if he’d taken the motor off).

In fact, having taken away the pedals might mean that his e-bike was actually turned into a motor vehicle. As I’ve said before, in order to count as a mechanically propelled vehicle (and not a motor vehicle), an e-bike has to comply with the statutory requirements for electrically assisted pedal cycles. One of those requirements is that the e-bike has to have pedals by means of which it is capable of being propelled. Without the pedals, there seems to be a strong argument that his e-bike was, legally, a motorbike. So he could plausibly have been charged with being in charge of a motor vehicle while over the limit. But, again, in that case the same provision says that the 1872 Act can’t apply (RTA s. 5(1)(b); 189(1)(c); EAPCR r. 4(b); RTOA s. 5)

As for the offence Dancer committed on 12 March, on that date he was caught riding his e-bike (presumably with the pedals back on) while drunk. So on this occasion, he could have been charged with riding while unfit (the offence for normal bikes), or the more serious offence for e-bikes of driving a mechanically propelled vehicle while unfit. (RTA s.4(1); s.30)

Again, in either case there is a provision which says that the 1872 Act can’t apply. So again, it looks like his conviction is wrong in law. (RTOA s. 5)

What does this mean for his sentence?

Actually the mistakes which the court seems to have made have probably worked out better for Dancer. The drunk in charge offence under the 1872 Act carries a maximum penalty of a £200 fine and (at the moment) one month in prison. Dancer was apparently fined the maximum £200 and ordered to pay £185 in costs, but he avoided prison. (LA 1872 s. 12)

Had he been convicted of the alcohol-related offences for e-bikes, the consequences could have been much worse.

Being in charge of a mechanically propelled vehicle while unfit (for which you don’t have to actually be riding) carries up to 3 months in prison, a fine of £2500, points on your driving licence and possible disqualification from driving. (RTOA s. 9; Sch 2)

Worse still, had Dancer been convicted of driving a mechanically propelled vehicle while unfit he could have faced a maximum of 6 months in prison and a £5000 fine, and disqualification from driving would have been obligatory. (RTOA s. 9; Sch 2)

Blood alcohol limits

One other interesting aspect of the report is that the police seem to have known how much alcohol was in Dancer’s breath. The press report says that on both 11 February and 12 March, he had more than 83 micrograms of alcohol in 100 millilitres of breath (more than twice the legal limit of 35 micrograms). (RTA s. 11(2))

As I’ve said before, the courts will normally judge whether you’re drunk or unfit to ride a bike based on the way you’re behaving. This is because, if you ride a normal bike, the police have no power to make you do a “breath test” or other “impairment tests”. They can ask, but you won’t commit an offence if you refuse.

Similarly if you ride an e-bike, the police can’t require you do tests on the spot (breath tests, impairment tests etc). But you can be made to do a breath test or provide a blood or urine sample at a police station or hospital – in which case failure to comply is an offence carrying a fine of up to £5000. (RTA ss. 7(1), 7(6); RTOA s.9, Sch 2)

So if the police tried to breathalyse Dancer at the side of the road, then he could lawfully have refused (at least when they found him with a properly kitted-out e-bike, with the pedals). But, because they found him with an e-bike, they could lawfully have required him to do a breath test or provide a sample if they took him to a police station (which they couldn’t do if he had been riding a normal bike). And if the e-bike actually counted as a motor vehicle at the time when they found him (because the pedals were off), then the police could lawfully have required him to take a breathalyser test at the side of the road (and it would have been an offence to refuse).  (RTA s. 6(1), (2), (6))

Whether or not the police have the power to require the sample, if you do provide a sample it seems that they can use the test results as evidence against you. This seems to have happened to Dancer. And if the question is whether you’re drunk or unfit, and you’ve provided a sample that shows you have an amount of alcohol in your system that is twice the legal limit for car drivers, then your prospects of convincing the court that you were fit to ride perhaps aren’t all that good.

——-

Photo by hey mr glen from here: http://www.flickr.com/photos/glenscott/1152144868/

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