In New Jersey, if you aren’t operating a motor vehicle, you aren’t driving drunk!
Hope springs eternal. And this hopeful thought probably crosses the mind around 2 a.m. when one needs to get home from the bar. Nevertheless, as this post will demonstrate it is not entirely accurate. Indeed, New Jersey’s drunk driving statute imposes penalties on a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the the person‘s blood.1
But what is the meaning and scope of motor vehicle? The New Jersey Motor Vehicle Code defines a motor vehicle to include all vehicles propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks and motorized bicycles.2
Additionally, the law defines vehicle as every device in, upon or by which a person or property is or may be transported upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks or motorized bicycles.3
Taken together, these exceedingly broad definitions include any vehicle that uses anything other than muscular power to propel itself. Some examples include, without limitation, automobiles, commuter vans, farm tractors, motorcycles, noncommercial trucks, road tractors, trackless trolleys, and trucks. And New Jersey courts have
cashed in interpreted the definition of motor vehicle accordingly.
Keep Calm and Scoot On
The New Jersey Driving Under the Influence statute specifically excludes motorized bicycles. But make no mistake about it. The moped lobby, if there is such a thing, did not convince New Jersey legislature to carve out an exception for scooter enthusiasts.
New Jersey law defines motorized bicycle as
a pedal bicycle having a helper motor characterized in that either the maximum piston displacement is less than 50 cc. or said motor is rated at no more than 1.5 brake horsepower or is powered by an electric drive motor and said bicycle is capable of a maximum speed of no more than 25 miles per hour on a flat surface.
Indeed, New Jersey law also makes it unlawful for any person to operate a motorized bicycle while under the influence of intoxicating liquor, or a narcotic, hallucinogenic or habit-producing drug. Furthermore, the penalties for operating a motorized bicycle are the same as operating a motor vehicle while under the influence.4
Other Modes of Transportation
The list of excluded vehicles is much shorter than the list of included vehicles. Following are a sample of excluded and included modes of transportation. Of course, the list of included vehicles is much larger than what appears here.
Excluded Modes of Transportation
The New Jersey Motor Vehicle Code defines a bicycle as a vehicle with two wheels propelled solely by human power and having pedals, handle bars and a saddle-like seat.5
Based on this definition, muscular power alone propels a bicycle. This necessarily excludes bicycles from the definition of motor vehicle and motorized bicycle. Nevertheless, case law is split on whether a bicyclist is within the DWI statute. Therefore, as with any gray area of law, if one is charged with DWI while riding a bicycle, hire an attorney.
The horse (Equus Caballus) is the New Jersey State Animal.6 The New Jersey Motor Vehicle Code defines a horse to include mules and all other domestic animals used as draught animals or beasts of burden. Interestingly, New Jersey prohibited drunken driving before the advent of the automobile. How can that be? As early as 1898 New Jersey prohibited the “driving of any horse, mule or other beast of burden while under the influence of intoxicating liquor.”7
Currently, however, New Jersey law provides, every person riding an animal or driving any animal-drawn vehicle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by chapter four of Title 39 of the Revised Statutes and all supplements thereto, except those provisions thereof which by their very nature can have no application.8
A horse falls within the definition of a vehicle. But the horse’s muscular power alone propels the horse. This necessarily excludes a horse from the definition of a motor vehicle. Therefore, riding a horse while intoxicated falls outside the New Jersey DWI statute, N.J.S.A. 39:4-50. The same ought to apply to cows, bulls, or any other animal a person may try to ride. So have fun at the Cow Town Rodeo, y’all!
Roller Skates and Skateboards
New Jersey law defines roller skates as a pair of devices worn on the feet with a set of wheels attached, regardless of the number or placement of those wheels, and used to glide or propel the user over the ground. 9
Similar to bicycles, muscular power propels roller skates. Thus, roller skates fall outside the definition of motor vehicle. Therefore, the drunk driving statute does not apply to roller skates.
New Jersey law defines motorized skateboard as a skateboard that is propelled otherwise than by muscular power. Though undefined by law, a non-motorized skateboard—or simply be a “skateboard” in earlier generations—is propelled by muscular power.
Similar to bicycles and roller skates, a skateboard falls outside the definition of motor vehicle. Therefore, skateboards (i.e. the non-motorized variety) fall outside the definition of motor vehicle. Therefore, the drunk driving statute does not apply to skateboards.
Included Modes of Transportation
New Jersey law defines snowmobile to include any motor vehicle, designed primarily to travel over ice or snow, of a type which uses sled type runners, skis, an endless belt tread, cleats, or any combination of these or other similar means of contact with the surface upon which it is operated, but does not include any farm tractor, highway or other construction equipment, or any military vehicle.10
The law defines a snowmobile as a motor vehicle. Consequently, a person who operates a snowmobile while under the influence of an intoxicating substance violates the drunk driving law. But this only applies to snowmobile operation on a public highway or on public land or waters.11 New Jersey’s DUI statute does not apply to snowmobile operation on private property.
All-terrain vehicles (ATVs)
New Jersey law defines all-terrain vehicle (ATV) as a motor vehicle, designed and manufactured for off-road use only, of a type possessing between three and six non-highway tires, but shall not include golf carts or an all-terrain vehicle operated by an employee or agent of the State, a county, a municipality, or a fire district, or a member of an emergency service organization or an emergency medical technician which is used while in the performance of the employee’s, agent’s, member’s or technician’s official duties.12
The law defines an ATV as a motor vehicle. Consequently, a person who operates an ATV while under the influence of an intoxicating substance violates the New Jersey DWI statute. But this only applies to ATV operation on a public highway or on public land or waters.13 New Jersey’s Driving While Intoxicated statute does not apply to the operation of an ATV on private property.
Motorized Scooters—Not Your Mama’s Moped
New Jersey law defines motorized scooter 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, motorized skateboards and other vehicles with motors not manufactured in compliance with Federal Motor Vehicle Safety Standards and which have no permanent Federal Safety Certification stickers affixed to the vehicle by the original manufacturer. This term shall not include: electric personal assistive mobility devices, motorized bicycles or low-speed vehicles; or motorized wheelchairs, mobility scooters or similar mobility assisting devices used by persons with physical disabilities, or persons whose ambulatory mobility has been impaired by age or illness
New Jersey law prohibits the operation of motorized scooters on public streets, highways, sidewalks, property, or lands.14 Nevertheless, the law permits the operation of motorized scooters on private property. But the operator must first obtain the consent of the property owner or tenant. Additionally, counties and individual municipalities may establish places and times for motor scooter operation.
Did the cops charge you with Driving While Intoxicated?
I’m not suggesting anyone drive drunk. But if you get caught, NJ DWI Attorney Michael A. Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide confidential consultations in all cases involving Driving While Intoxicated under N.J.S.A. 39:4-50.
1 N.J.S.A. 39:4-50.
2 N.J.S.A. 39:1-1.
4 N.J.S.A. 39:4-14.3g.
5 N.J.S.A. 39:4-10.1(a).
6 N.J.S.A. 52:9A-4.
7 State v. Conners, 125 N.J. Super. 500 (Law Div. 1973) (citing N.J.S.A. 2A:170-13, repealed in 1971).
8 N.J.S.A. 39:4-25.1
9 N.J.S.A. 39:4-10.5(a).
10 N.J.S.A. 39:3C-1(c).
11 N.J.S.A. 39:3C-30.
12 N.J.S.A. 39:3C-1(3).
13 N.J.S.A. 39:3C-30.
14 N.J.S.A. 39:4-14.12.