[152 NJSuper Page 533] This case raises the question whether a person who operates a motorized bicycle (moped) while under the influence of intoxicating liquor may be found guilty of violating the Drunken Driver Statute, N.J.S.A. 39:4-50, which provides penalties for a person "who operates
a motor vehicle while under the influence of intoxicating liquor". There is no controlling appellate court authority. In a reported opinion the Camden County Court has concluded that an intoxicated moped driver is not guilty of violating the statute. State v. Gilfesis , 148 N.J. Super. 369 (Cty. Ct. 1977). In the present case I conclude that an intoxicated moped driver is guilty of violating the statute.
This is an appeal from a judgment of conviction in the Municipal Court of the Township of Jefferson. It is a trial de novo on the record below. This opinion supplements the oral opinion which I gave at the hearing of this case, and it must be made part of the record on any appeal to the Appellate Division. See R. 2:5-1(b).
The evidence establishes beyond a reasonable doubt that defendant did, as charged, operate a moped on September 10, 1976, on a public roadway, while under the influence of intoxicating liquor. On that occasion defendant was involved in a near-miss accident with an automobile, fell off his moped and injured himself.
The language of the Drunken Driver Statute, N.J.S.A. 39:4-50, applies to a person "who operates a motor vehicle while under the influence of intoxicating liquor". (Emphasis supplied.) Prior to 1975 the general definitional section of Title 39 defined "motor vehicle" to include "all vehicles propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks." N.J.S.A. 39:1-1. The same section defined "vehicle" to include "every device in, upon or by which a person or property may be transported upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks." It is clear that under pre-1975 definitions a moped would be classified as a motor vehicle.
In 1975 the Legislature adopted an act which had originated as Assembly Bill No. 1071. L. 1975, c. 250. This act added to N.J.S.A. 39:1-1 a provision defining a "motorized bicycle" as "a pedal bicycle having a helper motor
characterized in that the maximum piston displacement is less than 50 cc. rated no more than 1.5 brake horsepower and capable of a maximum speed of no more than 25 miles per hour." The act also changed the motor vehicle definition of N.J.S.A. 39:1-1 so that it now included "all vehicles propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks and motorized bicycles." A parallel change was made in the definition of "vehicle". Thus, in terms of definition, the 1975 act removed mopeds from the class of motor vehicles. Since N.J.S.A. 39:4-50, speaks in terms of a person who operates a "motor vehicle," it would seem that, in terms of a literal reading of definitional provisions, the Drunken Driver Statute does not apply to the driver of a moped.
That, however, is not the end of the matter, because there are statutory provisions other than definitional ones which must be considered. In addition to changing definitional terms, L. 1975, c. 250 also provided as follows:
a. Motorized bicycles shall not be used upon interstate and primary highways or upon the railroad or right-of-way of an operating railroad within the State of New Jersey.
b. Motorized bicycles shall not be operated by a person under 15 years of age.
c. 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 ...