Wichita may legalize BUI – biking under the influence

Thirteen years after fighting it all the way to the Supreme Court, Wichita may soon consider repealing a city ordinance that bans bicycling under the influence.

And a member of the city’s bike board said he plans to resign in protest if it happens.

Drunken biking isn’t illegal under state law, but it is under city ordinance.

Now, city staff is working on a proposal to match the city code to the state statute, which would make drunken biking legal in the city limits.

The issue was brought to the fore at a recent meeting of the Wichita Bicycle and Pedestrian Advisory Board.

“State law says you can (ride a bike while drunk) and city ordinance says you can’t,” said board member George Theoharis. “If you’re going to change one or the other, which one should you change?”

Theoharis said he has contacted two legislators and a Legislature candidate to try to get the state law changed.

If the city changes its ordinance to match the existing state law, Theoharis said at the meeting, he will resign from the board because bike safety is at the core of its mission.

While not as dire a threat as driving a car while drunk, a drunken bike rider could hit a pedestrian, knock over another rider, or ride out into traffic and cause a car wreck when drivers swerve to miss him, Theoharis said.

“I will. I’ll quit this board because I’m passionate about this,” he said.

City Attorney Jennifer Magana said city staff is considering offering a recommendation to the Wichita City Council on amending the local DUI ordinance to match the state’s definition of a “vehicle,” which doesn’t include bicycles.

Under state law, “devices moved by human power” are not defined as vehicles, so drunken bike riding isn’t illegal.

The city code includes bikes in the definition of vehicles, and operating one under the influence carries the same penalties as drunken driving in an automobile – a mandatory two days in jail or 100 hours of community service and a fine of $750 to $1,000 on first offense.

Magana said the proposed change was originally scheduled to come before the council in February but was deferred.

She said the date to bring it back hasn’t been set yet.

Park incident

Theoharis said his passion for the issue stems from an incident about a month ago when he and his girlfriend were nearly toppled by a drunken biker on a path in Linwood Park.

Collision avoided, the man continued down the path but soon crashed into a post.

They stayed nearby and called 911 for the injured man. When a police officer arrived, he gave the inebriated biker and his heavily damaged bike a ride home.

“My girlfriend and I were almost injured and nothing happened to this guy, except he got hurt,” Theoharis said. “I asked the officer and he said, ‘I couldn’t (cite the drunken man) because I didn’t see the guy riding the bike.’ ”

Theoharis said he didn’t necessarily buy that explanation, because the man was obviously drunk and it was obvious he’d been in a bike wreck.

On Wednesday, Theoharis said he might reconsider resigning if city officials can show him they’re required to match the state law, or convince him they have some alternative way to deal with the problem of drunken biking.

Wichita v. Hackett

But the law does allow the city to go its own way on the issue.

That was settled in a 2003 Supreme Court case, Wichita v. Hackett.

In that case, Robert L. Hackett was convicted of driving under the influence after falling off his bike at Maple and Tracy streets.

He failed three field sobriety tests, and a jailhouse Breathalyzer read his blood alcohol level at .204, about 2½ times the limit for drunken driving, the court record said.

Hackett appealed the conviction.

In an opinion written by Justice Lawton Nuss, the Supreme Court ruled that state laws “do not ‘expressly authorize’ the operation of bicycles by those under the influence of alcohol. They merely fail to proscribe it.

“Consequently, no conflict exists between city ordinances and state statutes. The city ordinance is valid.”

Magana said there have been no changes to state statute that would alter the case law, so Wichita’s ordinance remains in force.

This story was originally published June 16, 2016 at 8:08 AM with the headline "Wichita may legalize BUI – biking under the influence."