On appeal from Municipal Court, Union, New Jersey.
Defendant was convicted in the municipal court of operating a motorcycle under the influence of alcohol, thus requiring a suspension of his driver's license for a period of one year and a fine of $500 plus costs. N.J.S.A. 39:4-50. The issue in the case, one of first impression in New Jersey, is whether defendant's conduct may constitute "operation", of the motor vehicle within the meaning of N.J.S.A. 39:4-50.
From the municipal court record this court finds that on August 17, 1979 defendant was under the influence of alcohol but desired nevertheless to ride his motorcycle from his girlfriend's home to his own. However, this girlfriend refused to give defendant the key to the motorcycle's ignition because of his condition. A police car had responded to the area as a result of an earlier altercation involving the couple, and the police had
defendant under nearly continuous observation as he left the girlfriend's house. When he left defendant walked his motorcycle along the side of the street until he turned the corner. The officers followed defendant around the corner and observed the defendant sitting on the seat and riding the motorcycle down a "very slight incline" for a short distance. It was this latter "operation" that formed the basis of the drunk driving. Since the motor would not operate without a key, the court finds that there is insufficient evidence to establish that the motorcycle engine was ever actually engaged, although an officer testified that he heard the motorcycle start.
This court is thus faced with two issues. First, whether coasting on a motorcycle with its engine off may be considered operation thereof within the meaning of the statute, and second, if so, whether under the facts of this case defendant's action as observed by the officers is of sufficient magnitude to justify a conviction.
There is no reported New Jersey authority concerning the coasting of a motor vehicle not under power as included or excluded in the definition of operation within N.J.S.A. 39:4-50. Out-of-state authority provide some cases on point involving automobiles, most holding that intentional movement of a motor vehicle without engine power is sufficient operation to fall within the statute. People v. Jordan , 75 Cal.App.3d Supp. 1, 142 Cal.Rptr. 401 (D.Ct.App.1977), is particularly relevant:
Respondent next contends that she was not subject to prosecution because she was simply pedaling the moped and there was no evidence that the engine was running prior to the accident. However, it has been consistently held that a person steering or controlling a vehicle may be prosecuted for drunk driving when the vehicle is in motion but the engine is off. [142 Cal.Rptr. at 406]
See, also, Harris v. State , 97 Ga.App. 495, 103 S.E. 2d 443 (App.Ct.1958), and Commonwealth v. Hogue , 1 Pa.D. & C. 2d 617 (Cty.Ct.1954). Cf. Commonwealth v. Clarke , 254 Mass. 566, 150 N.E. 829 (Sup.Jud.Ct.1926). Analogous cases have also been
found involving unpowered cars "driven" by an inebriated driver and being pushed or towed by other vehicles. See, e.g., Rogers v. State , 147 Tex.Cr. 602, 183 S.W. 2d 572 (Cr.App.Ct.1944), and State v. Tacey , 102 Vt. 439, 150 A. 68 (Sup.Ct.1930). Various cases dealing with the definition of driving or operation in drunk driving statutes are collected at Annotation, "What constitutes driving, being in control of, or operating a motor vehicle within statute making such act while intoxicated an offense," 47 A.L.R. 2d 570 (1956), and 61A C.J.S. Motor Vehicles § 628.
This court is of the opinion that the public is to be protected from the operation by an intoxicated driver of a motor vehicle, whether it is powered by its engine or gravity. It is the driver's judgment and dexterity that are impaired, and this ...