By 2004 the City of Watertown was seeing more and more electric scooters: kick-style two-wheeled platforms, electric mopeds, motorized-bicycle-looking devices, some capable of 38 mph. Riders of all ages were using them on public and private property. Watertown's city attorney wanted to know whether these things could legally be driven on the public highways of South Dakota.

Plain-English summary

By 2004 the City of Watertown, South Dakota, had a recurring complaint. Electric-powered two-wheel scooters were everywhere, ridden by kids, teens, and adults, on streets, on sidewalks, and in parks. Some were of the platform variety (Razor-style, with a small board to stand on and a vertical T-bar handlebar). Others had seats and looked more like mopeds. Some looked like motorbikes. Advertised top speeds ranged from 8 mph to 38 mph. The City Attorney, Stanton Fox, wanted to know whether they were legal to drive on the public highways. He wrote AG Lawrence Long for a definitive opinion.

The 2004 answer was: in theory yes, in practice mostly no.

The opinion started with the South Dakota vehicle definitions in SDCL 32-14-1:
- A "vehicle" (subsection 37) is every device by which any person or property may be transported or drawn upon a public highway, except devices moved by human power or used exclusively on rails. An electric scooter is a vehicle.
- A "motor vehicle" (subsection 17) is every self-propelled vehicle. An electric scooter is self-propelled by its electric motor, so it is a motor vehicle.
- A "motorcycle" (subsection 16) is every motor vehicle designed to travel on not more than three wheels in contact with the ground, except tractors. A two-wheeled (or three-wheeled) electric scooter is a motorcycle under this definition.

The opinion then turned to the motorcycle-specific chapter, SDCL ch. 32-20. SDCL 32-20-1(3) defines "motorcycle" more elaborately: "includes motorcycles, motorbikes, mopeds, bicycles with motor attached, and all motor operated vehicles of the bicycle or tricycle type, whether the motive power be a part thereof or attached thereto, and having a saddle or seat with the driver sitting astride or upon it, or a platform on which the driver stands, but excluding a tractor." The "platform on which the driver stands" language captures the Razor-style platform scooters explicitly.

The opinion noted that 2003 House Bill 1110 would have removed the "platform" language. The bill failed. The platform-stand scooters thus remained within the SDCL 32-20-1(3) motorcycle definition.

The next sub-question was whether the scooter is a "moped" under SDCL 32-20-1(2), which is a subclassification of motorcycle. A moped is a motor-driven cycle with two or three wheels, whose power source has a drive system that functions directly or automatically only, with no clutching or shifting after engagement. Whether an electric scooter is a moped depends on whether its drive system requires clutching or shifting. For most electric scooters, this would not apply (electric motors typically have direct drive, no clutch), so most electric scooters would be mopeds.

Whether categorized as motorcycle or moped, the scooter has to comply with the full statutory safety package for the relevant category:

Motorcycles and mopeds (both):
- Brakes per SDCL 32-18-1; minimum motorcycle brake standards per SDCL 32-18-6
- Headlamp per SDCL 32-17-24 (motorcycles) or 32-17-24.1 (mopeds)
- Rear lamps per SDCL 32-17-8
- Brake lights per SDCL 32-17-8.1
- Horn per SDCL 32-15-10
- Mirror per SDCL 32-15-8
- Helmet for riders under 18 (no longer a moped exception per SDCL 32-20-4; AGO 79-21 overruled to the contrary)

Motorcycles (additional):
- Operation from a seat per SDCL 32-20-6.1, 32-20-6.2 (this rule made platform-stand scooters difficult to comply with)

The opinion's blunt observation: many retail electric scooters did not comply with these state safety requirements. Manufacturer literature typically warned that the scooter was not designed for use on public streets, roads, or highways and disclosed noncompliance with federal motor vehicle safety standards. The literature directed the purchaser to review local law before operating.

The federal layer added more constraints. 49 U.S.C. § 30102 defined motor vehicles for federal safety standards. 49 U.S.C. § 30111 directed the Secretary of Transportation to prescribe Federal Motor Vehicle Safety Standards (FMVSS). 49 U.S.C. § 30112 prohibited manufacturing for sale or importing any motor vehicle that did not comply with applicable FMVSS. 49 U.S.C. § 30115 required manufacturer/distributor certification of compliance. 49 C.F.R. § 567.4 required a compliance label affixed to each vehicle. The motorcycle-specific FMVSS included brake systems (49 C.F.R. § 571.122), controls and displays (§ 571.123), and helmets (§ 571.218). The opinion noted that most electric scooter manufacturers chose not to attempt federal compliance and instead disclosed noncompliance to the buyer.

Driver licensing was the next layer. SDCL 32-20-2 required that motorcycle operators have a driver's license with a motorcycle endorsement. Moped operators had to have a driver's license (no motorcycle endorsement required, but the basic license was still required). Operating without the appropriate license was a Class 2 misdemeanor. The opinion observed that many electric scooters were being operated by individuals too young to obtain any driver's license, which was a direct violation of state law.

Financial responsibility (SDCL 32-35-113) was another statutory layer applicable to moped operators.

Sidewalk operation. SDCL 32-26-21.1 and 32-26-21.2 generally prohibited motor vehicle operation on sidewalks. Riding an electric scooter on the sidewalk was thus also generally prohibited.

The practical bottom line in 2004: to legally drive an electric motor scooter on South Dakota public highways, the operator needed (1) the scooter to meet all SD safety requirements for its category (motorcycle or moped), (2) the scooter to meet applicable federal motor vehicle safety standards and have the FMVSS compliance label, (3) the operator to hold a SD driver's license (plus motorcycle endorsement if the scooter was classified as a motorcycle rather than a moped), and (4) the operator to satisfy financial responsibility requirements. Most retail electric scooters and many of their operators did not meet these requirements.

The opinion did not call for a categorical ban on electric scooters; it simply explained what was required to operate one lawfully on a public road. Law enforcement officers observing a scooter on a public highway should inspect for safety equipment and ask the operator for a driver's license.

The opinion overruled SD AGO 79-21 to the extent that earlier opinion was inconsistent with the 2004 framework, specifically on the now-eliminated moped exception to the under-18 helmet requirement.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Since 2004 the electric mobility landscape has changed substantially: low-speed electric vehicles, electric bicycles, and shared scooter programs have prompted statutory updates in many states. Anyone evaluating the legality of an electric scooter on SD public roads today should check the current statutory text of SDCL ch. 32-14, ch. 32-20, ch. 32-15, and ch. 32-17, plus any subsequent legislative additions for low-speed vehicles.

What the opinion meant at the time

For the Watertown Police Department and other South Dakota municipal departments responding to electric-scooter complaints in 2004, the opinion provided a clean enforcement framework. An officer who saw a scooter on a public highway could (1) classify the device under SDCL 32-20-1, (2) inspect for safety equipment compliance, (3) check the operator's driver's license and motorcycle endorsement status, and (4) cite violations under the applicable statute.

For Watertown City Attorney Stanton Fox and other municipal attorneys, the opinion provided a roadmap for advising local councils on whether and how to regulate electric scooters. The state framework already covered the public-highway question. Local ordinances might address sidewalk operation in more detail or restrict scooter use in specific zones, but the public-highway question was answered by state law.

For parents considering buying an electric scooter for a teen or child, the opinion was a strong caution. If the child was too young to hold a SD driver's license (under 14 for a learner's permit, generally), the child could not legally operate the scooter on a public highway under SDCL 32-20-2. The fact that the scooter was available at retail did not make it legal to operate.

For electric scooter retailers in South Dakota, the opinion confirmed the federal manufacturer warnings: most scooters were not designed for public-road operation and would not satisfy state safety requirements. Retailers continuing to sell to buyers who would operate on public roads were not directly liable under the statutes the AG analyzed, but the public-road operation by the end user was unlawful.

For SD DOT motor vehicle inspectors and the Driver's License Division, the opinion provided guidance for issuing or refusing motorcycle endorsements and for handling scooter-related licensing inquiries.

For personal injury attorneys representing crash victims involving electric scooters, the opinion clarified that an electric scooter operated unlawfully on a public road was operating in violation of multiple statutes. Insurance coverage and tort liability analysis would have to take into account the operator's noncompliance with licensing, safety equipment, and financial responsibility requirements.

For low-speed mobility advocates, the opinion was an opportunity to identify exactly where the statutory framework needed updating to accommodate emerging vehicle technology. The "motorcycle includes platform" language traced to a pre-electric-scooter era and predictably struggled to fit Razor-style devices and similar low-speed electric vehicles. The 2003 HB 1110 attempt to update the language had failed, but the opinion implicitly identified the legislative target.

Common questions

Q: Is an electric scooter a 'motor vehicle' under South Dakota law?
A: Yes. Per SDCL 32-14-1(17), every self-propelled vehicle is a motor vehicle. An electric scooter is self-propelled by an electric motor.

Q: Is it a 'motorcycle'?
A: Yes. Per SDCL 32-14-1(16) and SDCL 32-20-1(3), a motor vehicle designed to travel on not more than three wheels (and having a saddle, seat, or platform) is a motorcycle.

Q: Can a platform-style (kick-scooter-shaped) electric scooter qualify as a motorcycle?
A: Yes. SDCL 32-20-1(3) expressly includes vehicles "having a saddle or seat with the driver sitting astride or upon it, or a platform on which the driver stands." 2003 HB 1110 would have removed the platform language but failed.

Q: Is the scooter also a 'moped'?
A: Possibly. SDCL 32-20-1(2) defines moped as a motor-driven cycle with two or three wheels and a drive system that does not require clutching or shifting. Most electric scooters meet this definition because electric motors typically use direct drive.

Q: What safety equipment does the scooter need?
A: At minimum: brakes per SDCL 32-18-1 and -6; headlamp per SDCL 32-17-24 or -24.1; rear lamp per SDCL 32-17-8; brake light per SDCL 32-17-8.1; horn per SDCL 32-15-10; mirror per SDCL 32-15-8. Motorcycle classification adds the seat requirement per SDCL 32-20-6.1, -6.2.

Q: Does the operator need a driver's license?
A: Yes. Per SDCL 32-20-2, motorcycle operators must have a driver's license with a motorcycle endorsement; moped operators must have a basic driver's license.

Q: What about the under-18 helmet requirement?
A: Helmets are required for operators and riders under 18, with no moped exception (per SDCL 32-20-4, modified after AGO 79-21). The 2004 opinion explicitly overruled 79-21 to the extent that earlier opinion suggested a moped exception still existed.

Q: Can an electric scooter be operated on the sidewalk?
A: Generally no. SDCL 32-26-21.1 and 32-26-21.2 prohibit motor vehicle operation on sidewalks.

Q: What about federal motor vehicle safety standards?
A: Federal motor vehicle safety standards (49 C.F.R. parts 571 et seq.) apply to motorcycles. The manufacturer must certify compliance under 49 U.S.C. § 30115 and affix a label under 49 C.F.R. § 567.4. Most retail electric scooters do not have this certification and were not designed to meet FMVSS, so they cannot be legally operated as motor vehicles on public roads.

Q: What happens if a child under driving age operates a scooter on the road?
A: Class 2 misdemeanor for unlicensed operation under SDCL 32-20-2. The child is too young for a driver's license, so the operation is necessarily unlawful.

Background and statutory framework

South Dakota's vehicle code is built on layered definitions. The base level is SDCL 32-14-1, which defines vehicle, motor vehicle, and motorcycle. These definitions are referenced throughout the traffic regulation chapters (32-14 through 32-35).

The motorcycle category is the broadest. A motorcycle is any motor vehicle on not more than three wheels (excluding tractors). The category includes motorbikes, mopeds, motorized bicycles, and platform-stand scooters. The "platform" language in SDCL 32-20-1(3) is explicit and was retained against a 2003 legislative attempt to remove it.

The moped subclassification is narrower. A moped is a motor-driven cycle on two or three wheels, with a drive system that operates without clutching or shifting. The moped sub-category was originally created to accommodate gasoline mopeds with small displacement (50 cc max for combustion engines under SDCL 32-20-1(2)). Electric motors typically have direct drive with no clutching or shifting, so most electric scooters fit the moped definition.

The safety equipment requirements are split between motorcycle-general rules (which apply to mopeds too) and motorcycle-only rules. Motorcycle-general rules include brakes, headlamp, rear lamp, brake light, horn, mirror, and (for those under 18) helmet. Motorcycle-only rules include the seat requirement under SDCL 32-20-6.1, -6.2, which platform-stand scooters cannot satisfy.

The driver licensing requirements distinguish between motorcycles and mopeds. SDCL 32-20-2 requires a motorcycle endorsement for motorcycle operation but only a basic license for moped operation. This was significant for the 2004 analysis: a scooter classified as a moped (no clutching, no shifting) could be operated by a basic-license holder; a scooter classified as a motorcycle required the additional endorsement.

The financial responsibility framework (SDCL 32-35-113) is a separate layer requiring proof of financial responsibility for moped operators (and motorcycle operators under SDCL ch. 32-35 generally).

The federal layer (49 U.S.C. § 30101 et seq.) imposes FMVSS compliance on motor vehicles manufactured for sale in the United States. The motorcycle-specific FMVSS include brake systems, controls and displays, and helmets. A manufacturer that does not certify compliance and affix the required label under 49 C.F.R. § 567.4 cannot legally manufacture the vehicle for sale or import it for use on public roads. The opinion noted that most retail electric scooter manufacturers chose to disclose noncompliance to the buyer rather than meet FMVSS.

The opinion thus rested on the interaction of state classification (motorcycle and possibly moped), state safety equipment requirements (extensive), state driver-licensing requirements (always present), state financial responsibility (for mopeds at minimum), and federal motor vehicle safety standards (most electric scooters fail). The aggregated requirements meant that, while electric scooter operation on a public road was not categorically illegal, in practice most scooters on the market and most operators using them were violating one or more provisions.

The overruling of AGO 79-21 was a small but specific cleanup. The 1979 opinion had addressed a then-existing moped exception to the helmet rule. Subsequent statutory amendments had eliminated that exception. The 2004 opinion brought the AG's position current with the post-amendment statutory text.

Citations and references

Statutes:
- SDCL 32-14-1 (vehicle, motor vehicle, motorcycle definitions)
- SDCL ch. 32-14 through 32-35 (traffic regulation generally)
- SDCL 32-15-8 (mirror)
- SDCL 32-15-10 (horn)
- SDCL 32-17-8 (rear lamps)
- SDCL 32-17-8.1 (brake lights)
- SDCL 32-17-24 (motorcycle headlamps)
- SDCL 32-17-24.1 (moped headlamps)
- SDCL 32-18-1 (brake compliance)
- SDCL 32-18-6 (motorcycle brake minimums)
- SDCL 32-20-1(2), (3) (moped, motorcycle definitions)
- SDCL 32-20-2 (operator license requirements)
- SDCL 32-20-4 (helmet)
- SDCL 32-20-6.1, 6.2 (seat)
- SDCL 32-20-13 (ATV exception)
- SDCL 32-20-14 (motorcycle safety course)
- SDCL 32-26-21.1, 21.2 (sidewalk operation)
- SDCL 32-35-113 (financial responsibility)

Federal:
- 49 U.S.C. §§ 30102, 30111, 30112, 30115
- 49 C.F.R. §§ 567.4, 571.3, 571.122, 571.123, 571.218

2003 legislation:
- 2003 SD HB 1110 (failed)

Prior AG opinions:
- AGO 79-21 (overruled to the extent inconsistent with 2004 framework)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2004-04.pdf

Original opinion text

OFFICIAL OPINION NO. 04-04, Use of Electric Motor Scooters on Public Highways in South Dakota

September 21, 2004

Stanton W. Fox
Watertown City Attorney
P.O. Box 910
Watertown, SD 57201-0910

OFFICIAL OPINION NO. 04-04

Use of Electric Motor Scooters on Public Highways in South Dakota

Dear Mr. Fox:

You have requested an opinion of the Office of the Attorney General regarding the following facts:

FACTS:

Over the last several months, the City of Watertown has seen an influx of electric powered two-wheel scooters operated by people of all ages on public and private property. The scooters operating within Watertown are apparently capable of speeds ranging from eight to thirty-eight miles per hour according to advertisements which are included in the opinion request. The electric powered two-wheel scooters described in these advertisements include two-wheeled platforms with a steering device extending up from the platform. Some of these two-wheeled platform scooters also include a seat. Other scooters described in the advertisements include scooters that look like motorized bicycles, mopeds, or motorcycles.

In regard to these facts, you have asked the following question:

QUESTION:

Whether an electric motor scooter may be driven on the public highways of the State of South Dakota?

DISCUSSION:

A review of South Dakota's vehicle definitions is in order:

SDCL 32-14-1. Terms used in chapters 32-14 to 32-19, inclusive, 32-12 and 32-22 to 32-34, inclusive, mean:
. . . .
(16) "Motorcycle," every motor vehicle designed to travel on not more than three wheels in contact with the ground, except any such vehicle as may be included within the term "tractor" as herein defined;
(17) "Motor vehicle," every vehicle, as herein defined, which is self-propelled;
. . . .
(37) "Vehicle," every device in, upon, or by which any person or property is or may be transported or drawn upon a public highway, except devices moved by human power or used exclusively upon stationary rails or tracks; including bicycles and ridden animals.

For ease of discussion, I will refer to all the "electric powered two-wheeled scooters" included in the advertisements submitted as electric motor scooters. An electric motor scooter is a vehicle as defined in SDCL 32-14-1(37) because it is capable of transporting a person on the public highways. An electric motor scooter is also a motor vehicle as defined in SDCL 32-14-1(17) because it is a vehicle that is "self-propelled." An electric motor scooter is propelled by the electric motor powered by the battery pack on the vehicle, and is thus self-propelled.

All of the electric motor scooters in the advertisements have two wheels, one wheel in the front and one wheel in the back. Some of these scooters include seats, while others are operated while standing on a platform. I note that there are other scooters that may have three wheels. All electric motor scooters are motorcycles as defined in SDCL 32-14-1(16) because they are "motor vehicle[s] designed to travel on not more than three wheels in contact with the ground."

SDCL 32-14-1 provides the definitional framework for many of the traffic regulation laws in this state:

SDCL ch. 32-14 Traffic Regulation Generally
SDCL ch. 32-15 Vehicle and Accessory specifications
SDCL ch. 32-17 Vehicle Lights and Flares
SDCL ch. 32-18 Brakes and Brake Fluids
SDCL ch. 32-19 Wheels, Tires, and Special Vehicles
SDCL ch. 32-12 Driver Licenses and Permits
SDCL ch. 32-22 Weight, Size and Load Restrictions
SDCL ch. 32-23 Driving Under the Influence
SDCL ch. 32-24 Reckless and Unsafe Driving
SDCL ch. 32-25 Speed Regulation
SDCL ch. 32-26 Rules of the Road
SDCL ch. 32-27 Pedestrians' Rights and Duties
SDCL ch. 32-28 Traffic Control Devices
SDCL ch. 32-29 Required Stops
SDCL ch. 32-30 Stopping and Parking Restrictions
SDCL ch. 32-31 Emergency Vehicles
SDCL ch. 32-32 School Buses
SDCL ch. 32-33 Apprehension and Prosecution
SDCL ch. 32-24 Accidents and Accident Reports

It is significant that an electric motor scooter comes within the definitions of vehicle, motor vehicle, and motorcycle, in SDCL 32-14-1, because these terms are continually referred to in the above provisions.

Motorcycles are further regulated in SDCL ch. 32-20, which includes the following definitions:

SDCL 32-20-1. As used in this chapter, the following words shall mean:
. . . .
(2) "Moped" a motor driven cycle equipped with two or three wheels. If a combustion engine is used, the maximum piston or rotor displacement shall be fifty cubic centimeters regardless of the number of chambers in such power source. The power source shall be equipped with a power drive system that functions directly or automatically only, not requiring clutching or shifting by the operator after the drive system is engaged.
(3) "Motorcycle" includes motorcycles, motorbikes, mopeds, bicycles with motor attached, and all motor operated vehicles of the bicycle or tricycle type, whether the motive power be a part thereof or attached thereto, and having a saddle or seat with the driver sitting astride or upon it, or a platform on which the driver stands, but excluding a tractor.
. . . .
(Emphasis added).

The definition of motorcycle in SDCL 32-20-1(3) by its terms expressly includes all of the electric motor scooters described in the advertisements. They are all motor driven two-wheeled vehicles. The fact that some scooters are operated while standing rather than sitting is irrelevant under SDCL 32-20-1(3). This corresponds with the definition of motorcycle in SDCL 32-14-1(16). I note that 2003 House Bill 1110, which failed, would have removed the "platform" language in the motorcycle definition. Because the bill failed, two-wheeled platform scooters are still within the motorcycle definition.

The analysis is not concluded, however, because the next inquiry is whether an electric motor scooter comes within the moped subclassification of a motorcycle. Moped is defined in SDCL 32-20-1(2) as "a motor driven cycle equipped with two or three wheels." Since an electric motor scooter is powered by a motor and is usually equipped with two wheels, it fits within the first sentence of SDCL 32-20-1(2). Whether an electric motor scooter is a moped is controlled by the third sentence of SDCL 32-20-1(2), "[t]he power source shall be equipped with a power drive system that functions directly or automatically only, not requiring clutching or shifting by the operator after the drive system is engaged." An electric motor scooter may only be subclassified as a moped if there is no clutching and no shifting in the drive system. This is a factual determination dependent on whether clutching and shifting is possible.

Whether an electric motor scooter comes within the moped subclassification of a motorcycle or remains within the motorcycle class, the vehicle will have to comply with all appropriate safety regulations. From a brief review of the advertisements of several electric motor scooters, it appears that they may not comply with the appropriate safety regulations and thus cannot be operated on the public highways of this state.

For example, SDCL 32-20-6.1 and SDCL 32-20-6.2 require the operation of a motorcycle from a seat. SDCL 32-15-8 requires every motor vehicle to be equipped with a mirror. SDCL 32-15-10 requires every motor vehicle to be equipped with a horn. SDCL 32-17-24 requires motorcycles to be equipped with headlamps. SDCL 32-17-24.1 discusses headlamp requirements for mopeds. SDCL 32-17-8 provides the requirements for rear lamps on motor vehicles operated on the public highways of this state. SDCL 32-17-8.1 provides the requirements for brake lights. SDCL 32-18-1 requires every motor vehicle to be equipped with brakes in compliance with SDCL ch. 32-18. The minimum requirement for brakes for a motorcycle is found in SDCL 32-18-6. Mopeds must comply with all motorcycle safety requirements unless there is a specific statutory exception for mopeds.

These provisions provide safety requirements that motorcycles and mopeds must meet if they are to be operated on the public highways of this state. There are other safety requirements that I have not listed, such as eye protection requirements and helmet requirements. Again, from a review of the advertisements, it appears that many of the electric motor scooters that are being discussed may not meet these safety requirements. I further note that these exceptions have changed over the years. One example is the helmet requirements. There is no longer a moped exception to the helmet requirement for persons under 18 operating or riding motorcycles. See SDCL 32-20-4. As such, AGO No. 79-21, which is based upon now repealed provisions of law, is overruled to the extent it is inconsistent with current law.

A law enforcement officer observing an electric motor scooter being used on the public highways should determine whether the vehicle complies with all of the safety regulations found in the South Dakota Codified Laws. If a vehicle does not comply with the required safety requirements, the vehicle is not legal to be operated on the public highways of this state.

There are also federal requirements for motor vehicles:

49 U.S.C. § 30102. Definitions.
(a) General definitions. In this chapter
. . . .
(6) "motor vehicle" means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.
. . . .

49 U.S.C. § 30111. Standards.
(a) General requirements. The Secretary of Transportation shall prescribe motor vehicle safety standards. Each standard shall be practicable, meet the need for motor vehicle safety, and be stated in objective terms.
. . . .

49 U.S.C. § 30112. Prohibitions on manufacturing, selling, and importing noncomplying motor vehicles and equipment.
(a) General. Except as provided in this section, section 30113 and 30114 of this title, and subchapter III of this chapter, a person may not manufacture for sale, sell, order for sale, introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or motor vehicle equipment manufactured on or after the date an applicable motor vehicle safety standard prescribed under this chapter takes effect unless the vehicle or equipment complies with the standard and is covered by a certification issued under section 30115 of this title.
. . . .

49 U.S.C. § 30115. Certification of compliance.
(a) In general. A manufacturer or distributor of a motor vehicle or motor vehicle equipment shall certify to the distributor or dealer at delivery that the vehicle or equipment complies with applicable motor vehicle safety standards prescribed under this chapter.
. . . .

Thus, motor vehicles are required to comply with federal safety standards. The federal administrative rules drive this point home:

49 C.F.R. § 567.4. Requirements for manufactures of motor vehicles.
(a) Each manufacture of motor vehicles . . . shall affix to each vehicle a label, of the type and in the manner described below, containing the statements specified in paragraph (g) of this section.
. . . .
(e) The label for motorcycles shall be affixed to a permanent member of the vehicle as close as is practicable to the intersection of the steering post with the handle bars, in a location such that it is easily readable without moving any part of the vehicle except the steering system.
. . . .
(g) The label shall contain the following statements, in the English language, lettered in block capitals and numerals not less than three thirty-seconds of an inch high, in the order shown:
. . . .
(5) The statement: "This vehicle conforms to all applicable Federal motor vehicles safety standards in effect on the date of manufacture shown above." The expression "U.S." or U.S.A." may be inserted before the word "Federal."
. . . .

These provisions make it clear that a vehicle destined for use on the highways must comply with federal safety standards. See, e.g., 49 C.F.R. §§ 571.3 (definitions), 571.122 (motorcycle brake systems), 571.123 (motorcycle controls and displays), 571.218 (motorcycle helmets). The broad definition of motor vehicles encompasses motorcycles. Whether the electric motor scooters discussed here comply with federal safety laws is a factual determination. Anecdotal evidence indicates that many of these electric motor scooters would not meet the federal safety rules. These federal provisions provide another level of regulation that motor vehicles must meet.

Frankly, most electric motor scooter manufacturers do not attempt to meet the "federal highway safety standards" listed above. They choose instead to disclose this noncompliance in the owner's manual and associated literature provided to the owner at the time of purchase. The literature usually directs the purchaser to review local law before operating the scooter, and warns that the scooter was not designed for and should not be operated on public streets, roads, or highways.

The reference to local law is significant. For example, I note that individuals may be operating electric motor scooters on a sidewalk. This activity is also regulated and such activity is generally prohibited. See SDCL §§ 32-26-21.1 and 32-26-21.2.

The second part of the inquiry is what operator restrictions exist for electric motor scooters that are legal to be operated on public highways of this state. The answer to that question is found in SDCL 32-20-2:

No person may operate a motorcycle, except a moped as defined in § 32-20-1 or a licensed all-terrain vehicle as provided in § 32-20-13, on the public streets or highways without a motor vehicle driver's license or permit upon which a state testing officer has certified that such person is qualified to operate such motorcycle. However, the operator of a moped or licensed all-terrain vehicle shall have a valid motor vehicle operator's license or permit. The department may waive the testing requirements upon completion of a motorcycle safety course approved pursuant to § 32-20-14. A violation of this section is a Class 2 misdemeanor.

SDCL 32-20-2 states that if the vehicle is a motorcycle, the person operating the motorcycle on the public highways must have a driver's license with a motorcycle endorsement. Otherwise, the individual is committing a Class 2 misdemeanor. If the vehicle is a moped as defined by SDCL 32-20-1(2), the person operating the moped on the public highways must have a driver's license. No motorcycle endorsement, however, is necessary to operate a moped. Otherwise, the individual is committing a Class 2 misdemeanor. Further, the operator of an electric scooter must be in compliance with the state's financial responsibility provisions. See SDCL 32-35-113.

In summary, a motorcycle operator must have a driver's license with a motorcycle endorsement while a moped operator must have a driver's license. See AGO No. 79-21. The anecdotal evidence you provided regarding electric motor scooters indicates that these vehicles are being operated by individuals too young to obtain any type of driver's license. If operators do not have the proper licensure and are driving on public highways, they are violating state law.

To answer your question, all electric motor scooters of two or three wheels come within the definition of motorcycle under SDCL 32-20-1(3). Whether an electric motor scooter comes within the moped subclassification pursuant to SDCL 32-20-1(2) is a factual determination based upon an inspection of the vehicle and the application of SDCL 32-20-1(2). Regardless of whether an electric motor scooter is a motorcycle or within the moped subclassification, motorcycles and mopeds must comply with all of the appropriate safety requirements of the South Dakota Codified Laws. If law enforcement officers observe one of these vehicles operated on the public highways of this state, which includes city streets, they should inspect the vehicle to determine whether it complies with the appropriate safety requirements.

Finally, whether the vehicle is a motorcycle or subclassified as a moped, the operator of a motorcycle in South Dakota must have a driver's license with a motorcycle endorsement while the operator of a moped in South Dakota must have a driver's license or permit.

Respectfully submitted,

Lawrence E. Long
Attorney General

LEL/DDW/dh
cc Col. Dan Mosteller