By Michael Lowrey
December 29, 2005

RALEIGH — What’s a vehicle? That issue was at the heart of a case from Hyde County, involving a man who contended he shouldn’t have been convicted of drunken driving while he was operating a small electric-powered scooter. In a ruling Dec. 20, the N.C. Court of Appeals rejected his argument, finding that though Segways and lawnmowers were exempt from the state DWI law, it did apply to the scooters.

On May 24, 2003, Officer Shane Bryan of the Hyde County Sheriff Department saw two men on electric-powered scooters going about 10 mph run a stop sign and weaving erratically. Bryan stopped the men. Kevin Michael Crow was charged with driving while impaired; his blood alcohol content was measured at 0.13 percent, well over the 0.08 threshold.

At trial, Crow argued that North Carolina’s laws against driving while impaired did not apply to small electric-powered scooters. A jury did not agree; Crow appealed the conviction.

At issue before the N.C. Court of Appeals was the specific meaning of the driving-while-impaired statute. It covers, “Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway” and specifically excludes horses, bicycles, lawnmowers, and “devices moved by human power.” The law also allows two other exclusions:

“This term shall not include a device which is designed for and intended to be used as a means of transportation for a person with a mobility impairment, or who uses the device for mobility enhancement, is suitable for use both inside and outside a building, including on sidewalks, and is limited by design to 15 miles per hour when the device is being operated by a person with a mobility impairment, or who uses the device for mobility enhancement.”

The law excludes “electric personal assistive mobility devices,” which are defined as“[a] self-balancing nontandem two-wheeled device, designed to transport one person, with a propulsion system that limits the maximum speed of the device to 15 miles per hour or less.” The law specifically notes that the Segway Human Transporter is an example of an electric personal assistive mobility device.

The Court of Appeals found that small electric-powered scooters did not fit into any of these exceptions. Though electrically powered and capable of only low speeds, they are not self-balancing and have their wheels in tandem. Nor is a scooter a means of transportation for someone with a mobility impairment; the court noted that Crow was 25 years old, healthy, and using the scooter for recreational purposes.

The court also refused to define the term “mobility enhancement” to cover all small, lightweight, low-speed devices such as scooters.

“Although we are wary of requiring the legislature to be overly specific in drafting exceptions to the statute… we believe the decision as to whether to exclude scooters is best left in the hands of the General Assembly,” Chief Judge John C. Martin wrote for the court.

“… The legislature has made an effort over time to define a small number of very specific exceptions. Rather than provide a general exception for all small, lightweight, and low-speed devices, the legislature has specifically excepted, in relevant part, bicycles, electric personal assistive mobility devices, and devices used by individuals with a mobility impairment or for mobility enhancement. Following the principle of expressio unius est exclusio alterius (“to express or include one thing implies the exclusion of the other,”), the absence of a motorized scooter from the list of exceptions is indicative of the General Assembly’s intent to include such devices in the statutory definition of a vehicle. Here, in a situation in which the legislature has allowed a limited number of very specific exceptions to a statute, it would be inappropriate for this Court to create another. The legislature may choose to make an exception for electric scooters such as the one in this case. Until that time, we apply the statutory scheme as it has been enacted.”
The case is State v. Crow, (05-253).
http://www.aoc.state.nc.us/www/public/coa/opinions/2005/050253-1.htm

Michael Lowrey is associate editor of Carolina Journal.