DUI Laws - Vermont Says Boom-Lift is a Vehicle Under Drunk-Driving Laws

In State of Vermont v. Smith, --- A.3d ----, 2011 WL 3198820 (Vt.), 2011 VT 83, the trial court dismissed the charges of DUI and driving while suspended based upon the fact that a boom-lift is not a "motor vehicle". A boom lift is a machine with four wheels and a gas or oil fueled motor. The operator stands in the bucket at the end of the lift arm to engage the motor to travel to the precise position required for work. The maximum speed of movement of the boom lift is approximately five miles per hour. Once the machine is in the correct location, the lift arm operates by battery or hydraulic power. While in the bucket, the operator maneuvers the arm and the machine base using levers, joysticks, toggle switches, and buttons. A boom lift contains several safety measures including one that automatically stops it when a foot pedal is released and another that locks the machine in place when it is imbalanced. The State appealed.

On appeal, the Supreme Court of Vermont found that a boom-lift is in fact a "motor vehicle" based upon the definition of the same under Vermont law. “Motor vehicle” is defined as “all vehicles propelled or drawn by power other than muscular power, except farm tractors, vehicles running only upon stationary rails or tracks, motorized highway building equipment, road making appliances, snowmobiles, or tracked vehicles or electric personal assistive mobility devices.”

Applying a doctrine commonly referred to as "expressio unius est exclusio alterius", the court found that the boom-lift was not excluded from the definition:

"If the Legislature had intended that exceptions comparable to those explicitly mentioned be recognized, it could have drafted the language to make the list of exceptions nonexclusive. Without such an authorization, we have held that “where express exceptions are made, the legal presumption is that the Legislature did not intend to save other cases from the operation of the statute.... [A]n exception in a statute amounts to an affirmation of the application of its provision to all other cases not excepted, and excludes all other exceptions.”

Concluding, the court stated:

"While defendant correctly states that statutes must be construed to avoid irrational results and effect legislative intent, these concerns are not implicated in this case. Nor do we have to analyze the statutory language in comparison with every kind of motorized equipment in order to resolve this case. Key features of a boom lift's design are its ability to transport itself and its operator to the proper location at the building site where the lift arm is needed, and its operation from the bucket. Without this transportation function, the lift would be extremely difficult to use because it could not be easily moved to different places at a work site. That the machine travels at a relatively slow speed and is generally driven only relatively short distances is immaterial. Just as the broken-down car in Tacey was assessed based upon its design rather than its temporary condition, so should the boom lift be assessed by its capability to be used for motorized transport rather than the frequency of such use in comparison to the lift function."

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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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