It was by chance that the case was assigned to David Clark, one of several attorneys on the court-appointed defense roster for indigent clients in the 86th District Court.
Clark has been around for years, he fights tenaciously for his clients, and he is confined to a wheelchair.
It happened that his newest client, William Shaw Lyon, also uses a wheelchair. Although Lyon can walk, he suffered a closed head injury and a foot injury and has trouble getting around.
At first, Clark said he thought Lyon’s charges stemmed from a run-of-the-mill drunk driving case. He thought Lyon was caught drunk on a moped. As he got involved, though, he discovered this was no ordinary case.
Lyon was charged with third-offense drunk driving for operating what is essentially a motorized wheelchair on Garfield Avenue on the evening of Sept. 8.
“I probably took it a little more personally than someone else would,” Clark said.
A DISPUTE AT SAVE-A-LOT
The case began after Lyon, 51, travelled on his power scooter chair, which goes around four or five miles per hour, from his mobile home in Traverse City to the Save-A- Lot store on Garfield.
Lyon can walk slowly with a cane.
He’s got a walker strapped to the back of his scooter to use when he reaches a destination. He went to the grocery store to get a sandwich.
Lyon doesn’t dispute that he was drunk that day.
After he reached Save-A-Lot, something happened and Lyon was asked to leave. He believes there is someone at Save-A-Lot who doesn’t like him and that person called the cops on him. Clark acknowledged in court that Lyon caused a disturbance at the store.
By the time Traverse City Police arrived, Lyon was already headed south on Garfield, on his way to get something to eat at Burger King.
NO PLACE FOR PEDESTRIANS
Lyon says if there was a sidewalk along that section of Garfield, in a suburban section of Traverse City west of the airport that is crowded with car dealerships and shopping plazas, he would have been on the sidewalk.
There was no way he believes he could have driven his scooter on the gravel shoulder, though there is a paved shoulder several feet wide along stretches of the road.
“There was a six-inch drop off at the side of the road,” Lyon said.
Lyon wore headphones and listened to rock music as he drove slowly down the road. He said he was enjoying himself on a beautiful Sunday evening. He had a 24-ounce can of Natty Daddy beer in his hand when a TC Police cruiser pulled up behind him, lights and sirens on, demanding that he pull over.
Briefly, it was a very, very low-speed chase.
Lyon at first didn’t notice the police car, and when he did, he pulled his scooter off the road.
The officers conducted sobriety tests.
They found the beer can. They found some marijuana. They arrested Lyon for being drunk and disorderly.
PEDESTRIAN OR MENACE?
The case should have been a disorderly conduct case, Clark said. He believes Lyon should have faced a misdemeanor drunk and disorderly charge and that would have been that.
Instead, prosecutors took a much more aggressive posture and charged Lyon with drunk driving. Because it would be his third conviction, the case was a felony and the maximum penalty if Lyon was convicted would be five years in prison.
Clark filed a motion to have the case dismissed, based on the theory that a motorized wheelchair is not a vehicle under Michigan law. Clark argued that Lyon was essentially a pedestrian.
The case was handled for the people by Christopher Tholen, an assistant prosecutor for Grand Traverse County, who argued that Lyon on his scooter that day was a menace.
The officers noted that Lyon was weaving in the middle of the right southbound lane, that traffic was backed up, and that other vehicles had to swerve to avoid a collision, he said. Tholen argued that Lyon could have caused a crash and deserved the more serious charge.
A MOBILITY SCOOTER, DEFINED
The motion to dismiss was held before Circuit Court Judge Philip Rodgers Jr. on Nov. 8.
The lawyers argued about what constitutes a vehicle under Michigan law.
Clark said the mobility scooter Lyon used is “an economical alternative to an expensive wheelchair.” They cost a few thousand dollars and Clark said an electric wheelchair like the one he uses can cost as much as $14,000.
“They’re intended to assist somebody in mobility,” Clark said. “Some people use them full-time. Some people don’t.”
Rodgers wondered if perhaps the mobility scooter should be considered a vehicle under certain circumstances.
He asked Clark, “Are you familiar with a device that can sometimes be a motor vehicle and sometimes not be a motor vehicle?” Clark responded: “Judge, I would assume a golf cart or a riding lawnmower or large riding lawnmower. Because, judge, a golf cart can hold more than one person. (A golf cart) is not intended to substitute for walking.”
THE PROSECUTION’S RESPONSE
In his response to Clark’s motion, Tholen countered that even if a mobility scooter can only reach “low speeds,” it’s still a vehicle under Michigan law.
He pointed to the manner in which Lyon was using it -- he wasn’t on a sidewalk, he was on a road. He took it to travel a long distance, at least over a mile from his home, and he endangered others while driving on one of the busiest roads in town.
The scooter was a vehicle because Lyon was using it to drive down Garfield Road, he said.
“Defense counsel claims that Defendant was using the device for walking,” Tholen wrote. “In one sense, every person who is driving a motor vehicle is using their motorized device as a ‘substitute’ for walking.”
‘UPHILL’ FOR PROSECUTORS
Rodgers, who said his own mother uses this kind of scooter to get around in places like a supermarket, told Tholen he had an “uphill” case to argue.
He said Tholen would have to explain how Lyon’s use of his mobility chair was any different from Clark’s use of his own.
“As you do that, explain to me, if he’s lawfully using his scooter downtown, in the same way that Mr. Clark would operate his wheelchair downtown, is he then improperly using the crosswalks? Because I didn’t think motor vehicles were allowed to cross pedestrian crosswalks or operate on the sidewalk. Which apparently one would think he and Mr. Clark ought to be able to do.”
Rodgers wondered if there was an epidemic of people on low-speed scooters threatening people’s safety.
He asked Tholen: “Did a legislature that was not moronic really intend to make three-wheel scooters into motor vehicles for purposes of the drunk driving law, because of the havoc they wreak, the -- the numbers of deaths and serious injuries resulted by them running into people on Garfield Street? Or Woodward Avenue?” Rodgers dismissed the case against Lyon, saying that prosecutors have other means to punish Lyon for riding a scooter drunk on the road.
PROSECUTORS MAY APPEAL
Prosecutor Robert Cooney said he respects Rodgers but he disagrees with his opinion.
He said he is considering an appeal in the case.
He said he didn’t want to discuss the case in detail because part of the case is still pending. Lyon still faces a misdemeanor marijuana charge.
“I understand that it can sound a little silly when you talk about a motor scooter going down the road, but there are reasons why we brought the charges in the first place,” Cooney said.
He said that since the hearing when Rodgers dismissed the felony case, his office has discovered a Wayne County case where a lawnmower was determined to be a vehicle for the purpose of the drunk driving law.
“We’re really just looking at the statute itself, and it really seems clear that the definition of a vehicle is anything that’s selfpropelled,” Cooney said.
What about an instance of someone riding a mobility scooter impaired on a sidewalk – could that amount to drunk driving?
“I suppose you could make an argument,” he said. “That’s certainly not an argument I’ve ever made and I can’t think of a case where someone argued that.”
‘COME ON MAN’
Clark said he understood that prosecutors might want to appeal because they want to get the Court of Appeals to clarify what is a motor vehicle and what isn’t. They are worried about situations that involve golf carts or lawn mowers, Clark said.
For Lyon, he is glad the case was dismissed, and he hopes it goes away.
He said it has already cost him a lot, in money and mental anguish, even though he hasn’t been convicted.
He said that he spent around four days in jail. His memory is bad from his closed head injury and he is not certain the exact number. While out on bond he had to pay to blow PBTs twice a day. It cost him $120 to get his scooter out of the impound.
“I think it’s bullshit,” Lyon said. “Come on man.”