When Archbold police stopped Mark Miller on his mobility scooter, Wednesday evening, June 25, the machine was incapable of traveling faster than 7 miles per hour.
That’s what Jan Stamm, the attorney representing Miller, said in a motion to dismiss the charge filed against Miller by police.
Stamm filed his motion with the Fulton County Western District Court last week.
Miller, who has a medical condition that prevents him from walking long distances, purchased an electric mobility scooter in the spring from Electric Wheels of Scottsdale, Ariz.
A brochure for the EWheels model EW36 scooter states it’s “The Fastest Scooter in The USA! Up to 18 MPH!”
Mark Hagans, Archbold village solicitor, said village of Archbold and state of Ohio law say motorized wheelchairs may not travel faster than 8 miles per hour.
Since the EW36 can exceed that figure, it is therefore not a motorized wheelchair, but instead, a “vehicle,” and as such, is not allowed on the sidewalk.
Also, since the vehicle does not have a title and cannot be registered, it cannot be used on the street.
Patricia Miller, Mark’s wife, said Stamm advised them to go ahead and use the scooter. That led to the June 25 citation.
When police stopped Miller, he was issued a citation for driving a vehicle on the sidewalk.
In his motion, Stamm ex- plained Miller’s EW36 has two speed controls.
A knob on the handlebars sets the maximum vehicle speed, to a low of 1 mph. A hand throttle controls the speed up to the maximum set by the knob.
A the time of the stop, the scooter’s maximum speed control knob was set at 7 mph, then covered in tape, or, as Stamm said, “securely taped” in place.
“This solution was a temporary solution while Mr. Miller awaited the arrival of an electronic device governing the maximum speed available to Mr. Miller at 8 mph,” Stamm said.
“Thus, at the time of the stop, the mobility scooter was incapable of traveling at a speed in excess of 8 mph.”
Stamm said the electronic governor has since been received and installed.
In the motion to dismiss, Stamm makes the argument even though Miller’s mobility scooter, as manufactured, can go faster than 8 mph, with the tape, and later the governor, in place, it now qualifies as a motorized wheelchair.
“The definition (of a motorized wheelchair) simply requires that the device be incapable of a speed in excess of 8 mph,” Stamm said in the motion to dismiss.
“The (state) statute (and Archbold’s identical ordinance) does not specify the means of rendering the disability device incapable of exceeding 8 mph.
“To the effect any ambiguity exists, O.R.C. (Ohio Revised Code) Section 2901.04 (A) specifies that section of the Revised Code, ‘defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.’
“Thus, if there is any ambiguity in the language (which the defendant does not concede), that ambiguity has to be resolved in favor of Mr. Miller.”
In other words, Stamm contends the court must give Miller the benefit of any doubt.
The motion to dismiss states when Miller was stopped by police, “there is no indication by anyone that the defendant was exceeding 8 mph at the time of the stop, and therefore, that there was any probable cause to stop the defendant, and certainly no reason to use two police officers and squad cars.
“On that basis alone, the complaint must be quashed,” Stamm said.
A hearing in Western District Court, before visiting judge Collin McQuade, is set for Friday, Aug. 15, at 10:45 am.
Andi Barness, marketing director for Electric Wheels, was unaware of the legal issue involving the EW36.
When asked if the EW36 is legal on sidewalks she said, “It’s a mobility scooter. It’s considered the same as an electric wheelchair.”
While it is intended as a mobility scooter, it’s designed not to look like one.
“It’s for people who don’t want to look old and crippled,” she said.
She said in the one year she has been with Electric Wheels, she had never heard of a problem with the legal status of the EW36.–David Pugh