VTL 1289 — Operating an Electric Scooter While Intoxicated

If you received this ticket, it is more than likely that an officer believed that you operated an electric scooter while intoxicated with either drugs or alcohol. Although this may come as a surprise to many, it is a violation of the law; common commuter-style electric scooters can get up to a surprisingly fast 40 mph, with some high-performance models reaching speeds of up to 60 mph. It is no wonder why it is dangerous and against the law to operate one of these while under the influence of alcohol or drugs.

Can You Get a DWI on an Electric Scooter in New York?

Yes. VTL § 1289 makes it a crime to operate an electric scooter while intoxicated or impaired in New York State. Operating while intoxicated at a blood alcohol content "BAC" of .08% or more is a misdemeanor on the first offense. A second offense within 10 years escalates the charge to a Class E felony. There is one critical limitation: per VTL 1289(9), the law can only be enforced in conjunction with a crash involving the e-scooter operator.

VTL 1289 Charges and Penalties — DWAI vs. DWI

• DWAI — Ability impaired by alcohol [1289(a)]: Traffic infraction on the first offense. Fine up to $300, up to 15 days in jail. Surcharge: $255 in city courts / $260 in town and village courts. A second within 5 years: fine up to $750, up to 30 days. A third within 10 years escalates to a misdemeanor: fine up to $1,000, up to 180 days.
• DWI per se (.08+ BAC) [1289(b)], Intoxicated [1289(c)], Impaired by drugs [1289(d)], Combined influence [1289(e)]: Misdemeanor on the first offense. Fine up to $500, up to 1 year in jail. Surcharge: $395 in city courts / $400 in town & village courts. A second offense within 10 years is a Class E felony: fine up to $1,000. A third within 10 years is also a Class E felony: fine up to $4,000.
• No unconditional discharge: Per VTL 1289(2), no judge may impose an unconditional discharge for the misdemeanor/felony offenses under 1289(b)–(e). A sentence must include a fine, jail, or both.

The Crash Requirement — What VTL 1289(9) Means

A critical provision of VTL 1289 is subdivision (9): no part of this section may be enforced unless in conjunction with a crash involving the e-scooter operator. A "crash" is defined as colliding with a vehicle, person, building, or other object. This means police cannot charge a rider under VTL 1289 simply by observing erratic riding or pulling them over at a roadside sobriety checkpoint — an actual collision must have occurred. This is a meaningful distinction from car DWI under VTL 1192, which has no crash requirement.

How Does VTL 1289 Differ from VTL 1192 (Standard DWI)?

• Vehicle type: VTL 1192 applies to motor vehicles; VTL 1289 applies specifically to electric scooters as defined under Article 34-D of the VTL.
• Crash requirement: VTL 1289 can only be enforced after a crash; VTL 1192 has no such limitation.
• License consequences: A VTL 1289 conviction does not trigger the same automatic license revocation procedures as VTL 1192. However, prior VTL 1192 convictions are considered during sentencing for repeat VTL 1289 offenses.
• Companion statute: VTL 1242-A is the nearly identical provision for electric bicycles.

VTL 1289 — Statute (Key Provisions)

1289(a): No person shall operate an electric scooter while the person's ability to operate such electric scooter is impaired by the consumption of alcohol. [Traffic infraction, 1st offense.]

1289(b): No person shall operate an electric scooter while such person has .08 of one per centum or more by weight of alcohol in the person's blood. [Misdemeanor, 1st offense.]

1289(c): No person shall operate an electric scooter while in an intoxicated condition. [Misdemeanor, 1st offense.]

1289(9): Notwithstanding any provision of this section, no part of this section may be enforced unless in conjunction with a crash involving an operator of an electric scooter.

Defending a VTL 1289 Charge

Defenses include challenging whether an actual "crash" occurred as defined by the statute; contesting the administration or result of the chemical test; arguing that the vehicle did not qualify as an "electric scooter" under the VTL; or demonstrating that prior convictions used to elevate the charge to a felony do not qualify under the sentencing escalation provisions. Because the misdemeanor and felony tiers carry mandatory jail exposure and criminal records, this charge requires experienced legal representation.

VTL 1289 misdemeanor and felony charges can result in jail and a permanent criminal record. Contact us immediately if you have been charged.

Benjamin Goldman Law Office

The Benjamin Goldman Law Office is a New York State traffic and criminal defense firm. We have fought over 100,000 tickets and charges across New York State. Electric scooter and e-bike DWI charges are a growing area of enforcement in New York City and across the state — and we are prepared and willing to defend them. Contact us at your convenience for a free consultation.

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