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.