DWI Appeal - Minnesota Says No to Wheelchair DWI

Many thanks to Doug Hazelton for locating this gem. In State Of Minnesota v. Brown, --- N.W.2d ----, 2011 WL 2302319 (Minn.App.), a physically disabled individual operating a motorized wheelchair was convicted of his 3rd DWI. The case involved the following stipulated facts:

(1) Brown is physically disabled and uses a battery-operated three-wheel Legend Pride Mobility Scooter (scooter) as a means of mobility to “experience life and complete his day to day necessities”; (2) the scooter has a maximum speed of 5.75 miles per hour; (3) Brown drove his scooter on Grand Rapids city sidewalks to a car dealership; (4) the car dealership contacted the city police department regarding a possibly intoxicated individual in their automobile display lot; (5) the city police arrived and arrested Brown for DWI; (6) Brown consented to a breath test and tested .17 for alcohol concentration; (7) Brown has a 2001 DWI conviction; (8) a driver's license is not required to operate the scooter, vehicle insurance is not required for the scooter, and the scooter cannot be registered at the Department of Public Safety in order to obtain vehicle license plates; (9) Minn.Stat. § 169.212, subd. 2(c) (2008) provides that

[a]n electric personal assistive mobility device may be operated on a roadway only:

(1) while making a direct crossing of a roadway in a marked or unmarked crosswalk;

(2) where no sidewalk is available;

(3) where a sidewalk is so obstructed as to prevent safe use;

(4) when so directed by a traffic control device or by a peace officer; or

(5) temporarily in order to gain access to a motor vehicle[;]

and (10) Grand Rapids does not have an ordinance prohibiting a person from public intoxicated in public or an ordinance prohibiting a person from consuming an alcoholic beverage in public.

Minnesota law defines a “Vehicle”, in relevant part, as “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway.” However, Minnesota law also defines “motor vehicle,” in relevant part, as “every vehicle which is self-propelled,” excluding “an electric personal assistive mobility device.” Additionally, Minnesota law defines “pedestrian” as “any person afoot or in a wheelchair.” “Wheelchair” is defined as including “any manual or motorized wheelchair, scooter, tricycle, or similar device used by a disabled person as a substitute for walking.” In most states, one can be convicted of DUI?DWI on any vehicle, even if it is not a motor vehicle per se.

The appellate court found that a wheelchair used to assist a physically disabled person is simply a substitute device for walking, and as such did not constitute a vehicle, despite the definition to the contrary:
"It is plain that for purposes of traffic regulations contained in Chapter 169, Brown's scooter is a wheelchair and is not a motor vehicle, and Brown, who uses the scooter as a substitute for walking, is, while operating his scooter, a pedestrian. See Boschee v. Duevel, 530 N.W.2d 834, 839 (Minn.App.1995) ( “[T]he mere circumstance, that [a person] ... propels himself or herself along by means of a chair, or by some other mechanical device, does not clothe him or her, in a broad and general sense, with any other character than that of a pedestrian.”


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