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State v. Gilfesis

March 4, 1977

STATE OF NEW JERSEY, PLAINTIFF,
v.
TONY GILFESIS, DEFENDANT



Talbott, J.c.c.

Talbott

[148 NJSuper Page 370] This is an appeal from a conviction in the Haddonfield Municipal Court. Defendant was found guilty of operating a motorized bicycle (a moped) while under the influence of alcohol, in violation of N.J.S.A. 39:4-50(a).

The court imposed the statutory penalty for the first offense. Defendant was also found guilty of violating a local ordinance. That conviction is not before this court. Defendant appeals only the conviction of driving while under the influence. The matter is before the court on a trial de novo on the record below. The court has disregarded certain items sent by the Clerk of the Haddonfield Municipal Court as they were not in evidence.

The facts as revealed by the testimony are as follows. Defendant was found by police sitting at the side of Hopkins Lane in Haddonfield, holding a can of beer. His motorized bicycle was parked next to him. According to police testimony, defendant tried numerous times to get up but kept falling down. He was told not to operate his moped. Eventually, defendant managed to get on his moped and he then proceeded to drive it toward the police officers who were standing approximately 75 feet away. Defendant appeared to have no control over the vehicle and was driving "from side to side all over the road." He had to be physically stopped by one of the police officers. Defendant was subsequently taken to the police station and charged with operating a motor vehicle while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50(a). He refused to take a breathalyzer test or do any balance test. However, based upon testimony that his speech was slurred, he could not stand without assistance, he hollered and was generally uncooperative, there was expert opinion rendered by the police officer that he was intoxicated. On cross-examination the police officer said that defendant had been stopped on numerous occasions when he was on his moped and drinking heavily.

In addition to the transcript of the proceedings below, the court has reviewed the municipal judge's opinion in which he concluded after careful analysis that N.J.S.A. 39:4-50 is applicable to the operator of a motorized bicycle through N.J.S.A. 39:4-14.1 and N.J.S.A. 39:4-14.3(c).

The question before this court is whether one who is under the influence of alcohol and driving a moped can be found guilty of violating N.J.S.A. 39:4-50. That specific statute must be construed.

N.J.S.A. 39:4-50 provides in pertinent part:

A person who operates a motor vehicle while under the influence of intoxicating liquor * * * shall be subject [to a fine, imprisonment, loss of license].

Is a motorized bicycle a motor vehicle within the meaning of this statute? Initially it must be noted that prior to 1975 a "motor vehicle" was defined as including "all vehicles propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks," and a "motorcycle" included "motorcycles, motor bikes, bicycle with motor attached and all motor operated vehicles of the bicycle or tricycle type, whether the motor power be a part thereof or attached thereto, and having a saddle or seat with driver sitting astride or upon it, or a platform on which the driver stands." N.J.S.A. 39:1-1.

In 1975 the Legislature amended the relevant passages of N.J.S.A. 39:1-1 to include a new class of vehicles, motorized bicycles as distinguished from motorcycles. A "motorized bicycle" was defined as "a pedal bicycle having a helper motor characterized in that the maximum piston displacement is less than 50 c.c. rated no more than 1.5 brake horsepower and capable of a maximum speed of no more than 25 miles per hour." At the same time a "motor vehicle" was redefined as including "all vehicles propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks and motorized bicycles." In addition, the 1975 amendment provided for a new section, N.J.S.A. 39:4-14.3, subsection (c) of which provides that "Regulations applicable to bicycles shall apply whenever a motorized bicycle is operated upon any public road or upon any path set aside for the exclusive use of motorized bicycles."

Because of the language in subsection (c), the municipal judge believed it necessary to analyze the general statute on bicycles. He noted that N.J.S.A. 39:4-14.1, entitled, "Rights ...


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