Two questions are often asked of me concerning whether someone can be convicted for a DWI when riding a bicycle or scooter while intoxicated. To be precise, the questions that I get are, “Can I get a DWI for being drunk on a bike?” or “What happens if I get stopped for being drunk on a scooter?” In New Jersey, the laws governing DWIs are applied differently to operating a motorized scooter while intoxicated and to riding a bicycle while intoxicated.

N.J.S.A. 39:4-50 (DWI law) specifies that it is illegal for a person to operate a “motor vehicle” while intoxicated. Under N.J.S.A. 39:1-1, a “motor vehicle” is defined as “all vehicles propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks and motorized bicycles.” The same statute defines “motorized scooters” as “a miniature motor vehicle and includes, but is not limited to, pocket bikes, super pocket bikes, scooters, mini-scooters, sport scooters, mini choppers, mini motorcycles, [and] motorized skateboard… This term shall not include: motorized bicycles.” A bicycle is defined under N.J.S.A. 39:4-10.1 as “a vehicle with two wheels propelled solely by human power and having pedals, handle bars and a saddle-like seat.”

As anyone can see, a bicycle is defined differently than a motorized scooter under New Jersey law. And a motorized scooter is defined differently than a motorized bicycle. Unlike a bicycle, a motorized scooter is not allowed on public streets, sidewalks or highways. N.J.S.A. 39:4-14.12. Therefore, it is illegal to operate a motorized scooter in almost any public area (unless authorized by municipal ordinance). However, N.J.S.A. 39:4-14.12 does not reference the use of the scooter while intoxicated or reference the DWI laws in relation to using a scooter.

N.J.S.A. 39:4-14.3g addresses the operation of a motorized bicycle while intoxicated and states that the intoxicated driver of a motorized bicycle shall be subject to the penalties under N.J.S.A. 39:4-50 (DWI law) that apply to drunk drivers of an automobile. Obviously, it is illegal to operate a motorized bike while drunk, but the illegality of drunk motorized scooter driving is not as obvious. Specifically, N.J.S.A. 39:1-1 states that the definition for a “motorized scooter” does not include “motorized bicycles.” And N.J.S.A. 39:4-14.3g mentions motorized bicycles, not motorized scooters. Additionally, the definition for a motor vehicle creates an exception for motorized bicycles and does not mention motorized scooters at all. Therefore, an argument can be made that there is no prohibition against operating a motorized scooter while intoxicated.

Nonetheless, the law division in Somerset County, NJ, decided a case in 1982 that addressed the possibility of intoxicated use of a bicycle as being considered a drunk driving offense. In State v. Tehan, 190 N.J. Super. 348 (Law Div. 1982), the court determined that the statute concerning the rights and duties of a bicyclist, under N.J.S.A. 39:4-14.1, requires a person riding a bicycle to obey all of the traffic laws in New Jersey, included the DWI laws. Using this line of reasoning, the court determined that an intoxicated bicycle operator could be found guilty of a DWI. Yet, since there was no licensing requirement for a bicycle, a bike rider found guilty of the DWI charge could not have a license of any kind forfeited.

Later cases concerning drunk bicycle operating contradicted the ruling in State v. Tehan. So, the reasoning in the Tehan case has lost much of its weight. Most legal practitioners agree that a person cannot be convicted under the DWI laws for this behavior, since a bike is clearly not a motor vehicle in any way, shape or form. Moreover, the law division in State v. Johnson, and State v. Machuzak ruled that N.J.S.A. 39:4-50 (DWI) does not apply to bicycles and a bike rider cannot be found guilty of drunk driving.

With regard to riding a motorized scooter while intoxicated, there appears to be no legal authority, aside from Tehan, that authorizes a person to be charged with DWI for operating a motorized scooter while intoxicated. However, that does not preclude a police officer from charging someone with the offense. If a person is charged with a DWI for being intoxicated while using a scooter, then a strong legal challenge should be made to fight the charge.

In New Jersey, it is an offense under the Commerce and Navigation statutes to operate a water vessel while intoxicated (BWI). N.J.S.A. 12:7-46 establishes the penalties if an operator is found guilty.

A person who violates this section shall be subject to the following:

(1) For a first offense:

(i) if the person’s blood alcohol concentration is 0.08% or higher but less than 0.10%, or the person operates a vessel while under the influence of intoxicating liquor, or the person permits another person who is under the influence of intoxicating liquor to operate a vessel owned by him or in his custody or control or permits another person with a blood alcohol concentration of 0.08% or higher but less than 0.10% to operate a vessel, to a fine of not less than $250 nor more than $400; and to the revocation of the privilege to operate a vessel on the waters of this State for a period of one year from the date of conviction and to the forfeiting of the privilege to operate a motor vehicle over the highways of this State for a period of three months;

 (ii) if the person’s blood alcohol concentration is 0.10% or higher, or the person operates a vessel while under the influence of a narcotic, hallucinogenic or habit-producing drug, or the person permits another person who is under the influence of a narcotic, hallucinogenic or habit-producing drug to operate a vessel owned by him or in his custody or control, or permits another person with a blood alcohol concentration of 0.10% or more to operate a vessel, to a fine of not less than $300 nor more than $500; and to the revocation of the privilege to operate a vessel on the waters of this State for a period of one year from the date of conviction and to the forfeiting of the privilege to operate a motor vehicle over the highways of this State for a period of not less than seven months nor more than one year.

 (2) For a second offense, to a fine of not less than $500 nor more than $1,000; to the performance of community service for a period of 30 days, in the form and on the terms as the court deems appropriate under the circumstances; and to imprisonment for a term of not less than 48 hours nor more than 90 days, which shall not be suspended or served on probation; and to the revocation of the privilege to operate a vessel on the waters of this State for a period of two years after the date of conviction and to the forfeiting of the privilege to operate a motor vehicle over the highways of this State for a period of two years.

 (3) For a third or subsequent offense, to a fine of $1,000; to imprisonment for a term of not less than 180 days, except that the court may lower this term for each day not exceeding 90 days during which the person performs community service, in the form and on the terms as the court deems appropriate under the circumstances; and to the revocation of the privilege to operate a vessel on the waters of this State for a period of 10 years from the date of conviction and to the forfeiting of the privilege to operate a motor vehicle over the highways of this State for a period of 10 years.

a. Upon conviction of a violation of this section, the court shall collect forthwith the New Jersey driver’s license or licenses of the person so convicted and forward such license or licenses to the Chief Administrator of the New Jersey Motor Vehicle Commission. In the event that a person convicted under this section is the holder of any out-of-State motor vehicle driver’s or vessel operator’s license, the court shall not collect the license but shall notify forthwith the Chief Administrator of the New Jersey Motor Vehicle Commission , who shall, in turn, notify appropriate officials in the licensing jurisdiction. The court shall, however, revoke the nonresident’s driving privilege to operate a motor vehicle and the nonresident’s privilege to operate a vessel in this State.

 b. A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section against a second or subsequent offender. If a second offense occurs more than 10 years after the first offense, the court shall treat a second conviction as a first offense for sentencing purposes and, if a third offense occurs more than 10 years after the second offense, the court shall treat a third conviction as a second offense for sentencing purposes.

Many questions exist concerning the prosecution of a boating while intoxicated charge. Aside from a breath test, how can a prosecutor prove guilt beyond a reasonable doubt?

Unlike a motor vehicle on the road, operators of water vessels are not expected to keep the vessel moving in a lane or even in a straight line. Often, operators navigate their boats with long arcing motion or zig-zags. Unless there is a near collision, the State would have difficulty showing that the typical vessel operating behavior is erratic and indicative of intoxication.

If a vessel is stopped by the police or some other law enforcement agency, such as the coast guard, then that stop has to be justified by reasonable suspicion that the operator has violated a commerce and navigation statute or is otherwise engaged in criminal activity. During the investigative stop, the law enforcement officer will most likely administer field sobriety tests while the operator is on the vessel. These tests could involve balance. But how can someone have a fair opportunity to perform balance tests on a vessel floating in the water? The short answer is that it is impossible.

Studies have been conducting concerning the effectiveness of field sobriety testing for suspected boating while intoxicated investigations. These studies involved the administration of the horizontal gaze nystagmus test (an eye test) and various seated tests. None of the tests administered involved balance. In fact, one of the studies mentioned that balance tests on a boat were not feasible.

I have encountered a number of BWI cases where the investigating officers laughably based their decisions on the performances of balance tests, such as the one-leg stand and walk-and-turn tests, while the operator was still on the water vessel. As one could imagine, those cases did not last too long and were eventually dismissed. So, if you are arrested for boating while intoxicated (BWI), remember that there are numerous defenses concerning these cases, which could call into question the legitimacy of the investigation and arrest.