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Bicycle vs. Scooter DWI

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.

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