Drunken Pushing: It seems like you don’t have to actually be driving to get a DUI

The first half of Andrew Hack’s story sounds like a public-service announcement. The second half is more like a riddle.

After riding his 2004 Harley to the Lucky Shot bar in Excelsior Springs in May 2006, the Independence man had a few drinks. When he figured his blood-alcohol content was creeping into the illegal zone, he called a friend to pick him up.

Now, the brainteaser. Hack didn’t mount his Harley. He didn’t drive home. But by the end of the night, the motorcyclist was arrested on charges of driving under the influence. So how did Hack end up in handcuffs?

That night in May, Hack and his buddy Robert Bailey were posting fliers for an upcoming benefit ride for Hack’s daughter’s cheerleading squad. Bailey had been a bouncer at the Lucky Shot, so they decided to stop in to throw back a few. A little before 7 p.m., Hack realized his two drinks — rum and Cokes — could make his driving dicey.

When it comes to drunken driving (or riding), Hack says, he has never taken chances. He was a cement-truck driver at the time, making good money, and his livelihood depended on him keeping his commercial driver’s license. So instead of risking the roads while buzzed, Hack and Bailey went outside to move their hogs around back, where a friend would later pick them up in a trailer.

But someone had tampered with their bikes while the two men were inside, Hack says. When he turned the ignition, his motorcycle went full throttle, dragging him alongside as it lurched forward across the parking lot. He and the bike crashed into a fence at an adjacent nursery. The owner, Bill Hoppe, came outside to check on the commotion. Seeing the damage to his fence, Hoppe told Hack the repairs would run him $4. Hack gave him $5. Sporting a few scratches but thinking the incident was nothing more than a mishap, Hack went back inside the bar and ordered another drink.

Click on the photo for artist Mitch Clem’s version of this story.  

No more than 20 minutes later, officers from the Excelsior Springs Police Department showed up. The cops were inspecting the motorcycles when Hack came out of the bar; police allege that Hack was slurring his speech and having difficulty maintaining his balance. They put Hack in the back of the patrol car while they talked to the nursery owner and others at the bar about how the fence had been broken and Hack’s clothes had been torn. At 7:15 that evening, Hack was taken back to the police station, where his blood-alcohol content tested 0.16 percent — double the 0.08 threshold for drunken driving.

So despite trying to do the responsible thing by making space for other patrons at the front of the bar while waiting for a sober set of wheels, he lost his driver’s license. He lost his $56,000-a-year job, too.

Lucky for him, though, a Clay County Circuit Court Judge agreed that the drunken driving charge was bogus. Last summer, Judge Donald Norris reinstated Hack’s license because he didn’t think pushing a motorcycle was the same as operating a vehicle.

The state of Missouri didn’t like Norris’ ruling. The Department of Revenue, which issues driver’s licenses, appealed the case to the Missouri Court of Appeals. (A spokesman for the department declined to comment about the case.)

The robes in the higher court sided with the DOR late last month, issuing this ruling. “[Hack] was pushing the motorcycle and the motor was engaged to assist him in pushing it,” Chief Judge Thomas H. Newton wrote in the ruling for the three-member panel in July. “Thus, he was operating the motorcycle.”

Hack’s lawyer, Jon Krebbs, wasn’t entirely surprised by the ruling; the appeals court hardly ever sides with the defendant when it comes to drunken-driving charges. But it does raise an interesting, if somewhat sarcastic, question. Now that cars have keyless entry devices that can start the engine, Krebbs asks, would it be drunken driving to click the remote after a few too many brewskies?

All Hack knows is that the resulting court charges and legal fees have cost him more than $3,000. Plus, the two jobs he’s looking at right now both require a commercial driver’s license, which he won’t have for much longer.

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