Escooter Strafrecht Göttingen Mügge, Dr. Pitschel & Partner

Be careful when using e-scooters – don’t drink and drive

The use of e-scooters is particularly popular among young people. Especially after a night of partying, it can be tempting to spontaneously use one of these scooters to shorten the journey home.

However, if you have consumed alcohol on the evening in question, we strongly advise against such a night ride:

This is because a drink-drive on an e-scooter can result in a fine or prison sentence and the withdrawal of your driving licence.

There are many reasons in favour of equating e-scooters with bicycles or at least classifying them as a means of transport similar to a bicycle. For example, the maximum speed of 20 km/h means that an e-scooter is not as dangerous as a motor vehicle, an e-scooter is often ridden on a cycle path and not in moving traffic and no driving licence is required to use it.

However, in its legal assessment, the higher courts generally make no distinction between travelling with an e-scooter and travelling with a motor vehicle.

Accordingly, e-scooters are equated with motor vehicles – with far-reaching consequences – due to their electrically powered motor:

On the one hand, according to Section 316 (1, 2) of the German Criminal Code (StGB), anyone who intentionally or negligently drives a vehicle in traffic although they are unable to drive the vehicle safely due to the consumption of alcoholic beverages or other intoxicating substances is punished with a fine or imprisonment of up to one year.

When driving a car, absolute unfitness to drive is irrefutably assumed from a blood alcohol concentration of 1.1 per mille.

If an e-scooter is driven while under the influence of alcohol, the driver must be prepared for the initiation of preliminary proceedings and, in most cases, a criminal conviction if the alcohol concentration of 1.1 per mille or more in his blood, which is specified for motor vehicles, is detected.

But that’s not all. Anyone who is convicted of driving an e-scooter while drunk must also expect to have their driving licence confiscated and their driving licence revoked.

This measure results from the provision of Section 69 (1) sentence 1 StGB, which states: “If someone is convicted of an unlawful act committed while driving a motor vehicle or in connection with driving a motor vehicle or in breach of the duties of a motor vehicle driver […], the court shall revoke their driving licence if the offence shows that they are unfit to drive a motor vehicle.”

According to § 69 Para. 2 No. 2 StGB, the offender is generally considered unfit to drive a motor vehicle if he has been convicted of drunk driving in accordance with § 316 Para. 1, 2 StGB.

By using the wording “as a rule”, the law, in deviation from Section 69 (1) sentence 1 StGB, theoretically provides for the possibility of refraining from revoking the driving licence in the case of a drink-driving offence pursuant to Section 316 (1), (2) StGB if special circumstances exist.

In this respect, the expressed presumption can be rebutted. This presupposes that there are positive indications that an exceptional case exists and that the offence is exceptional in terms of the unsuitability to drive a motor vehicle. An exception due to circumstances inherent in the offence requires that it clearly stands out from the average case in terms of weight, occasion, motivation or other circumstances.

Such a special circumstance could be seen in the fact that the accused was not travelling in a car but on an e-scooter during the drink-drive.

After all, it could be assumed that someone who drives an e-scooter while drunk is not nearly as dangerous for other road users as a drunk car driver.

However, the Frankfurt Higher Regional Court takes a different view.

In June 2023, the competent judges ruled that driving licences should also be revoked for drunk driving with e-scooters (OLG Frankfurt am Main, judgement of 08.05.2023, Ref. 1 Ss 276/22) and thus equates e-scooters with motor vehicles.

If pedestrians or cyclists were to fall as a result of a collision with an e-scooter, this could lead to serious or fatal injuries. In addition, alcohol-related driving errors could lead to more motorised road users being forced to make dangerous evasive manoeuvres.

Whether collisions with e-scooters actually lead to more or more serious accidents than in connection with bicycles was not addressed by the court.

In addition, it should not go unnoticed that driving errors by an intoxicated cyclist can also provoke evasive manoeuvres by other drivers.

The blanket withdrawal of the driving licence – without assessing the circumstances of the individual case – therefore appears at least questionable against the background of such considerations.

The Regional Court of Dortmund is of the opinion that e-scooters are more comparable to bicycles than cars in terms of their danger and weight.

And the Osnabrück Regional Court also expressly refrained from confiscating the driving licence in the case of a drunk e-scooter driver in August 2023.

So there is certainly disagreement within the courts about the treatment of drunk driving with e-scooters.

It is probably only a matter of time before the Federal Court of Justice has to deal with this issue.

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