Regarding whether over-standard electric scooters constitute a motor vehicle in the crime of dangerous driving, the Supreme People’s Court has had a clear view since 2013, insisting on the concept that vehicles in the crime of drunk and dangerous driving to be judged by the standards in the sense of criminal law. In view of the different views on the problems in certain cases between the theoretical community and judicial practice, after the summarization of judgment documents, this paper put forward corresponding viewpoints from the perspective of defense for reference regarding the concept of over-standard electric scooters, the scope of over-standard electric scooters, and the identification of over-standard electric scooters.

The view of the Supreme People’s Court: Drunk driving over-standard electric scooters does not constitute a crime of dangerous driving.

In the Case of Lin’s dangerous driving (Case 894) in issue 5 of Criminal Trial Reference 2013, it was pointed out: (1) The crime of dangerous driving is an administrative crime, and the understanding of conceptual legal terms such as “motor vehicle” should be consistent with its corresponding administrative regulations, and the interpretation cannot be expanded at will; (2) There are many difficulties in the regulation and management of over-standard electric bicycles as motor vehicles: first, there is currently no realistic condition for defining over-standard electric bicycles as as motor vehicles; second, it is difficult to manage over-standard electric bicycles as motor vehicles, and driving over-standard electric bicycles motor lanes are risky; (3) The public generally believes that over-standard electric bicycles are not motor vehicles, and drivers of drunk driving or chasing racing often have relevant awareness of the illegality; (4) If drunk driving over-standard electric bicycles and other behaviors are criminalized and punished for dangerous driving, the impact is too large, without good social effect. [1]

However, ten years later, on December 8, 2023, the public WeChat account of the Judicial Cases Research Institute of the Supreme People’s Court once again published an article entitled “Does drunk driving over-standard electric bicycles constitute a crime of dangerous driving?” [2]. The argument is basically the same as before. This article has attracted the attention of many scholars, lawyers, etc. who reposted or cited the it, indicating that perhaps there is still lack of consistent understanding of this issue in the current judicial practice. When it comes to specific cases, there may be inappropriateness for the conviction of suspects and defendants.

I. The concept and scope of over-standard electric bicycles

Over-standard electric bicycles can also be called electric bicycles that exceed the national mandatory standards and specifications. Specifically, they mainly include the following categories: 1. Before the new national standard took effect, there were a large number of electric bicycles that failed to meet the standards set by the state. Due to historical reasons, this type of vehicle is still being used extensively in daily life. 2. In order to standardize the mandatory standards for electric bicycles, the Safety Technical Specifications for Electric Bicycles was officially implemented in 2019. Electric bicycles produced after this period are also electric bicycles if they fail to meet the technical specifications. 3. Where electric bicycles that originally meet the new national standard, if they are refitted or assembled privately and exceed the technical specifications of the new national standard, they shall be also deemed as over-standard electric bicycles, such as electric bicycles or other electric scooters that are overweight, overlong, overspeed, three-wheeled, or four-wheeled. Such vehicles are common in logistics, express delivery, takeaway and other industries. For those that meet the catalogue of the Ministry of Industry and Information Technology and have a factory certificate of conformity for electric motorcycles and electric mopeds, they need to hang a motor vehicle number plate before they can drive on the road, and they can be considered to be motor vehicles from the administrative point of view.

II. How to determine the nature of over-standard electric bicycles in criminal proceedings

Article 5 of the Opinions on Handling Criminal Cases of Drunk and Dangerous Driving issued by the Ministry of Public Security, the Supreme People’s Court, the Supreme People’s Procuratorate stipulates that “motor vehicles” shall be subject to relevant provisions of the Road Traffic Safety Law. Article 119 of the Road Traffic Safety Law stipulates: “Motor vehicles refer to wheeled vehicles that are driven or towed by power units on the road for personnel or for transporting goods or for special engineering operations; non-motor vehicles refer to vehicles that are driven by manpower or stored power on the road, as well as motorized wheelchairs for the disabled, electric bicycles and other means of transportation that are designed to meet relevant national standards in terms of the maximum speed, empty vehicle quality, and dimensions despite being driven by power units.” Therefore, the view of the Supreme People’s Court is that the understanding of non-motor vehicles should be consistent with its corresponding administrative regulations. In other words, for related vehicles that do not require a valid motor vehicle driver license or installation a motor vehicle number plate, they shall be deemed to be non-motor vehicles. In this paper, it is believed that the nature of over-standard electric bicycles can be determined in accordance with the following standards:

1. Electric bicycles produced before April 15, 2019 that do not comply with GB17761-2018 “Safety Technical Specifications for Electric Bicycles” are not motor vehicles.

2. Vehicles with electric bicycle certificates produced and sold after April 15, 2019 are non-motor vehicles.

3. Electric bicycles of the new national standard or over-standard electric bicycles that have been refitted, assembled, etc. are not motor vehicles even if their performance and parameters fail to meet the new national standard.

4. After the implementation of the new national standard, electric mopeds and electric motorcycles that are modified to meet the parameter standards of electric bicycles are essentially non-motor vehicles.

 5. Other electric three-wheeled and four-wheeled vehicles that do not meet the new national standard are not motor vehicles, provided they are not in the motor vehicle catalog of the Ministry of Industry and Information Technology and do not require the suspension of motor vehicle license plates.

III. Over-standard electric tricycles are not motor vehicles in the crime of drunk and dangerous driving

Case 1: Drunk driving of an electric tricycle does not constitute a crime of dangerous driving

(2019) Ji 0881 XC No. 71 criminal judgment: the defendant Zhang Moumou had a traffic accident while driving an electric tricycle drunkenly, but the electric tricycle was not a motor vehicle in the sense of criminal law. Therefore, Zhang Moumou’s behavior does not meet the constituent elements of the crime of dangerous driving, and his behavior does not constitute a crime of dangerous driving. [3]

Case 2: The first instance found that it constituted a crime of dangerous driving. However, the second instance found that it did not constitute a crime of dangerous driving, and the sentence was commuted to a crime of obstructing public affairs.

(2014) QXCZ No. 330 judgment: at 21:00 on September 25, 2013, after drinking alcohol, the defendant Xue drove an electric tricycle along the west Second Ring Road of Xuzhou from south to north until the uphill on the north side of Duan Zhuang Roundabout. There, the defendant encountered the mobile brigade of the Traffic Patrol Police Detachment of the Public Security Bureau. The defendant Xue failed to stop in order to evade the law enforcement inspection, and caused the fracture the left 6th and 7th ribs of the police officer Sun. The injury to the victim Sun’s left ribs was determined as a second-degree minor injury by the forensic doctor. The defendant Xue was controlled on the spot by other police officers on duty. After blood was drawn and sent for examination, and ethanol was detected in his blood, with a content of 175.4mg/100ml. In the first instance, the defendant Xue was sentenced to six months of criminal detention for dangerous driving and fined RMB 3,000. [4] After the judgment of the first instance, the defendant filed an appeal. (2015) XXZZ No. 00028 judgment: the RED Tianlong 60V brushless electric tricycle in the case had no human riding ability, with an overall weight of 725KG and a maximum speed of 35KM. The above parameters and indicators exceeded the standards of non-motorized electric scooters stipulated by national standards. However, at present, the relevant laws, administrative regulations and rules in China do not clearly stipulate that electric scooters exceeding the standard are motor vehicles. Therefore, the appellant Xue’s drunk driving of an electric tricycle did not meet the criminal composition of the crime of dangerous driving and should not be regarded as a crime of dangerous driving. The appellant, Xue, who was drunk and driving an electric tricycle that exceeded the standard, refused to cooperate with the traffic police in law enforcement and caused minor injuries to the traffic police by driving. His behavior constituted a crime of obstructing public affairs. [5]

IV. Disputes: If the nature of the vehicle being driven is unknown, can it be determined that the vehicle is a motor vehicle through technical appraisal, etc.?

 Viewpoint 1: If an over-standard electric bicycle is identified as meeting the technical standards of a motor vehicle, it shall be recognized as a motor vehicle. The specific reasons are as follows: 1. Whether it is a motor vehicle shall be judged according to the actual performance of the vehicle. 2.The perpetrator knows that it was not a non-motor vehicle and the public generally believed that the over-standard electric bicycle obviously had the characteristics of a motor vehicle. 3. The social harmfulness of drunk driving over-standard bicycles is significantly higher than that of non-motor vehicles.4. In traffic accident cases, technical appraisal can be used to distinguish between non-motor vehicles and motor vehicle, thereby determining the civil liabilities for compensation and corresponding administrative liabilities.

 For example, the Minutes of the Joint Meeting on Handling “Drunk Driving” Dangerous Driving Cases issued by the Intermediate People’s Court, the People’s Procuratorate and the Public Security Bureau of a city in Guangdong Province 2018 clearly stipulates that if an over-standard electric vehicle is identified as a motor vehicle, it can be used as the basis for finalizing the case. In the judicial practice of the region, the opinions of appraisal agencies are used to determine whether the over-standard electric bicycle is a motor vehicle.

Case 3: The court of Tianmen City, Hubei Province adopted the appraisal opinion and determined that it was a motor vehicle.

 (2021) E 9006 XC No. 458 judgment: the judicial appraisal opinion of Hubei Ping’an Road Traffic Accident Judicial Appraisal Institute determined that the main technical parameters of the ZUBOO two-wheeled electric vehicle driven by the defendant Xie were consistent with the technical conditions of the “(two-wheeled) mope” and fall under the category of motor vehicles. The court held that the defendant Xie constituted a crime of dangerous driving. [6]

Case 4: The court held that the appraisal opinion could prove that it was a motor vehicle.

 Jingmen City, Hubei Province. (2018) E 0802 XC No. 2 judgment: the Hubei Ping’an Road Traffic Accident Judicial Appraisal Institute confirmed that after the appraisal, the SEEYES two-wheeled moped driven by the defendant was a motor vehicle. The defendant Zhou violated road traffic safety regulations and drove a motor vehicle drunkenly on the road. His behavior constituted a crime of dangerous driving, and he was convicted of the crime charged by the public prosecution authority. [7]

 Viewpoint 2: The recognition of an over-standard electric bicycle as a motor vehicle through the appraisal does not comply with the judgment of the Supreme People’s Court.

Case 5: The vehicle was recognized as a motor vehicle due to insufficient evidence.

 Huanggang City, Hubei Province. (2019) E 1126 XC No. 244 judgment: The main focus of the dispute between the prosecution and defendant in this case was whether the vehicle driven by the defendant was a motor vehicle. The evidence submitted by the public prosecution authority cannot conclusively and fully confirm that the vehicle driven by the defendant was a motor vehicle. The defendant Zhan could not be found guilty, and the charges could not be established. [8] However, after the judgment of the first instance was made, the Court of Second instance changed the facts of the case by the Procuratorate’s counterclaim, adopted the counterclaim opinion, and commuted Zhan Moumou’s conviction for dangerous driving.

Case 6: The second instance believed that the vehicle appraisal opinion was unscientific and refused to accept it. Therefore, the appellant was innocent.

 The Intermediate People’s Court of Jingmen City, Hubei Province. (2018) E 08 XC No. 141 judgment:  the appraisal Opinion issued by the Hubei Ping’an Road Traffic Accident Judicial Appraisal Institute was not legal and scientific, and could not be used as the basis for finalizing the case. The original trial’s decision that the appellant Zhou was driving a motor vehicle drunk lacked clear fact and sufficient evidence. [9]

 In this article, it is believed that if the vehicle involved in the case was produced or purchased before the new national standard took effect in 2019, it should be recognized as a non-motor vehicle in strict accordance with the guiding opinions of the Supreme People’s Court. If the vehicle involved in the case was produced after the implementation of the new national standard, the vehicle’s factory certificate and other information should be verified to prove the nature of the vehicle. In the absence of relevant proof of the above-mentioned facts, the opinions of the appraisal agency could not be used to determine whether it was a motor vehicle.

IV. Is an electric three-wheeled motorcycle without electricity in the drunk driving a motor vehicle?

 At about 23:40 on June 30, 2017, Chen finished drinking and rode a dead electric three-wheeled motorcycle. Wang rode an electric two-wheeled motorcycle in the back, and used his right foot to pedal the electric three-wheeled motorcycle Chen was riding. When they drove from south to north to the north entrance of the Youth Auto Repair Factory on Taixie Road, Changping District, Shao Moumou drove a heavy semi-trailer tractor head-on. Due to the dazzling lights, the electric three-wheeled motorcycle driven by Chen turned to the left and hit the electric two-wheeled motorcycle driven by Wang. The accident caused injuries and died after a first aid. After identification, Chen’s blood alcohol content was 83.1 mg/100ml; the electric three-wheeled motorcycle driven by Chen was a motor vehicle, and the electric two-wheeled motorcycle driven by Wang was also a motor vehicle (judicial appraisal opinion issued by the Beijing China Railway Vehicle Judicial Appraisal Center); for the occurrence of the accident, Chen and Wang both bear the same liability, and Shao assumes secondary liability. On August 22, 2017, the Changping Branch of the Beijing Municipal Public Security Bureau transferred Chen to the People’s Procuratorate of Changping District, Beijing for review and prosecution on suspicion of dangerous driving. [10]

 Viewpoint 1: Electric three-wheeled motorcycles without electricity are not motor vehicles. A three-wheeled motorcycle without electricity does not have the substantive conditions of a power traction device, and it no longer meets the concept of a motor vehicle. Although there are others in the rear who use electric motorcycles to provide power, they do not meet the basic characteristics of motor vehicles.

 Viewpoint 2: Electric motorcycles without electricity are still motor vehicles. The definition of “driven or towed by a power unit” in the definition of a motor vehicle does not exclude situations where it can be driven or towed by other vehicles or devices. When driving on the road, towing and trailers should be regarded as motor vehicles as a whole.

In this paper, it is believed that the case should be clarified as follows:

First, an electric three-wheeled motorcycle without electricity can have the driving characteristics of a motor vehicle alone under special circumstances, such as due to inertia or downhill driving. It cannot of course be determined that it is not a motor vehicle because there is no electricity, and it should be judged comprehensively based on the state of the vehicle and the driver’s driving.

 Second, a three-wheeled motorcycle without electricity is a combination with two-wheeled electric motorcycles. This combination is fully in line with the conditions of motor vehicles with “power unit drive or traction”. However, as to whether both drivers can be recognized as driving a motor vehicle, it is also necessary to make a comprehensive judgment based on the specific circumstances. For example, if a three-wheeled motorcycle without electricity is driven by an electric bicycle as a traction or driving method, whether two or one of the drivers can be determined to be the driver of a motor vehicle? It is still necessary to make a comprehensive judgment based on the specific circumstances of the case, and it cannot be generalized.

VI. Defense suggestions on whether over-standard electric bicycles are motor vehicles in cases of drunk and dangerous driving crimes

 First, none of the existing laws and regulations stipulate that over-standard electric bicycles are of course motor vehicles. Therefore, it is impossible to expand the interpretation of motor vehicles, and the ruling point of view of the Supreme People’s Court’s Criminal Trial Division Guiding Case No. 894 should be adhered to.

 Second, the state has not regulated over-standard electric bicycles in accordance with motor vehicles. When the illegal refitting of electric bicycles causes the technical parameters to meet the standards of electric motorcycles and electric mopeds, the social functional needs of administrative management and the psychological expectations of the public should be fully considered, and they should not all be regarded as motor vehicles in dangerous driving crimes.

Third, after the implementation of the new national standard for electric bicycles, vehicles installed with electric bicycle license plates and the over-standard electric bicycle license plate during the transition period should not be recognized as motor vehicles, nor should vehicles whose technical parameters meet the requirements of motor vehicles be recognized as motor vehicles through appraisal.

Fourth, for those whose nature of vehicle can be confirmed but no motor vehicle license plate is installed after leaving the factory, the recognition of motor vehicles must be comprehensively based on the subjective and objective factors of the actor, such as the source of the vehicle, the driving period, the appearance characteristics of the vehicle, the degree of awareness of the actor, the driving route, the purpose of the actor, etc. If necessary, the general public’s understanding of the identification of the vehicle should be considered.

Fifth, for those who nature of vehicle cannot be verified after leaving the factory, on the principle of benefiting the defendant, it should not be determined to be a motor vehicle based on the appraisal opinions of the vehicle’s technical parameters, and it should be determined to be a non-motor vehicle in accordance with the guiding opinions of the Supreme People’s Court.

Notes:

[1] Guiding Cases of the Criminal Trial Division of the Supreme People’s Court: Criminal Trial Reference 2013, Issue 5· Total 94 Issues, Lin’s Dangerous Driving (Case 894)

[2] The public account of the Judicial Case Research Institute of the Supreme People’s Court, December 8, 2023, Does drunk driving over-standard electric bicycles constitute a crime of dangerous driving?

[3] (2019) J 0881 XC No. 71 Judgment

[4] (2014) QXCZ No. 330 Judgment

[5] (2015) XXZZ No. 00028 Judgment

[6] (2021) E 9006 XC No. 458 Judgment

[7] (2018) E 0802 XC No. 2 Judgment

[8] (2019) E 1126 XC No. 244 Judgment

[9] (2018) E 08 XC No. 141 Judgment

[10] Reference to Capital Procuratorial Cases, First Edition in January 2022, contribution: Shi Yan, Peopl’s Procuratorate, Changping District, Beijing. Case edited by: Wang Zhikun, Beijing Municipal People’s Procuratorate