State commission probes law on bicycle DWIs

A state commission will consider whether New Jerseyans who ride bicycles, electric bikes or scooters, and similar vehicles while drunk should face criminal penalties.

The New Jersey Law Revision Commission on Thursday weighed a memorandum proposing an examination of the state’s driving while intoxicated statute to determine whether inebriated residents riding bicycles could be charged with a crime.

“I don’t know that the statute is that ambiguous, but it does seem to be the source of confusion, so I think bringing to the legislature’s attention the level of confusion — what has gone on in different trial courts and what might be going on in other states — is consistent with our role,” said Vito Gagliardi, the commission’s chair.

The Commission examines New Jersey statute and case law to spot conflicts or places where the law can be clarified or simplified, eventually issuing reports that can make recommendations for legislators to act upon or ignore.

Schrödinger’s DWI

New Jersey’s courts have some historical disagreement on that question. In 1982, a state appellate panel found Michael Tehan, whose driver’s license was suspended after a bicycle-borne DWI, could be found guilty and fined for his tipsy pedaling but reinstated his license, which an earlier court had suspended.

Because the state does not license bicyclists, revoking an inebriated bicyclist’s driver’s license wouldn’t deter a repeat offense, they ruled.

In a separate case three years later, an appellate panel disagreed, finding muscle-powered bicycles were not motor vehicles under the law and that the state’s DWI statute applied only to engine-powered vehicles.

But neither of those decisions was released as a published opinion, leaving the state without clear precedent on the issue.

“The consequence is that whether a person is deemed to be intoxicated while operating a motor vehicle depends on which decision the court elects to follow because the law is divided,” said Samuel Silver, the commission’s deputy director.

Technology creates confusion

The electrification of bikes, scooters, and similar vehicles — along with the rise other personal transporters like hoverboards and electric unicycles — complicates the matter further.

Police departments often are unsure whether such vehicles, which are motorized and can have a throttle, fall within New Jersey’s DWI statute.

“As law enforcement, these are getting more and more popular, especially in urban areas,” New Jersey State Police Sgt. 1st Class David Guinan told the commission. “On one hand, I commend people for jumping onto a scooter and not in a car to drive after they’ve been out for a night, but it still poses a danger to pedestrians crossing roadways.”

Some New Jerseyans have already been charged for operating electric scooters while inebriated. Officers in Hoboken arrested several people for drunkenly operating electric scooters after the city launched a rental program in 2019.

But electric scooters don’t require riders to provide their own propulsion, and that won’t always be the case.

“Just to muddy the waters a little more, some of these e-bicycles don’t move unless you’re pedaling them, so it actually merges both problems into one,” Guinan said. “Like I said, it’s a very gray area, and it’s advancing very quickly for law enforcement, so we are looking for answers.”

Someone riding a motorized bicycle or moped — which under legal definitions has a motor but requires pedaling — can be charged with a DWI, but under a separate law and not under the DWI statute itself.

The commission said it would analyze drunk driving various electrified personal transporters, in addition to bicycles.

“There may be some helpful historical references,” Gagliardi said. “Obviously, the moped. I don’t know that it goes so far back as the guy with the bowler hat and the giant-front-wheel bicycle.”