Last week the Bayside City Council began lobbying the City of Melbourne to introduce bicycle licences and registrations. Fed up with pesky law-breaking cyclists on Beach Rd, the Bayside City Council thought this to be the best way to make cyclists accountable. Thankfully, the council’s suggestion has not been taken seriously by most transport bodies, including the RACV, and the idea has not gained much traction.
Rather than point out the obvious objections to the council’s knee-jerk reaction, I thought I would take this chance to address a related issue that has plagued the conscience of students and hipsters alike. Is it illegal to cycle whilst intoxicated?
As budding lawyers it will come as no surprise that the answer to the question is neither ‘yes’ nor ‘no’, but rather, ‘possibly’ and ‘maybe not’. Section 49 of the Road Safety Act 1986 (Vic) makes it an offence to operate a ‘motor vehicle’ whilst intoxicated. Obviously a bicycle does not fit within this term and s49 has no role to play for intoxicated cyclists.
However, there is a provision in the Summary Offences Act 1966 (Vic) which may weigh in on the debate. Section 16 (b) makes it an offence to be drunk in a public place whilst in charge of “a carriage or a horse or cattle or a steam engine”. ‘Carriage’ is an undefined term and may well include bicycle. In fact, the ‘Victorian Inquiry into Public Drunkenness’ (2000) claimed authoritatively that ‘carriage’ does include bicycle, however no authority was cited for that proposition. At the moment, this section seems to be the most likely avenue for prosecuting intoxicated cyclists, but as yet, no such prosecution has been attempted.
Regulating and prosecuting such offences is a different story. Since s16 (b) is a criminal offence, with a potential penalty of 2 months in prison, the standard of proof is ‘beyond reasonable doubt’ as opposed to the civil standard ‘on the balance of probabilities’. Proving that someone is intoxicated beyond reasonable doubt it no small feat, and it is an issue that the legislature has directly addressed in the case of motor vehicles. Along with making it an offence to drive a motor vehicle intoxicated, s49 Road Safety Act (Vic) makes it an offence to refuse to undergo a breath test. The penalty for refusal is the same as for being caught driving under the influence of a drug, or being caught for a 3rd time over the BAC limit, so there is never an incentive to refuse a breath test. For motor vehicles, the proof hurdle is entirely neutralised by this section.
Once again however, a person is only prohibited from refusing a breath test if they were in charge of a motor vehicle at that time, making it inapplicable to cyclists. There is no equivalent section applicable to s16 (b) Summary Offences Act 1966 (Vic), meaning that if you are ever asked to submit to a breath test whilst riding a horse, or cow, or steam engine, or carriage, you are not breaking the law by refusing to do so.
Given that state prosecutors are required to consider the probability of successful conviction before proceeding with cases, the likelihood that s16 (b) would ever be used to prosecute cyclists is minimal. Even less when we consider that prosecutors are also required to consider the public interest, which includes the ‘obscurity or obsolescence’ of any law. One day the Bayside City Council may succeed in its push for bicycle registrations, but until then, cyclists will comfortably evade the wheels of justice.