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N.J.S.A. 39:4-50. A conditional plea was entered in the Pompton Lakes Municipal Court, and other charges were
dismissed. Defendant argues that "the operator of a device designated as a 'pocket bike' is not subject to the
penalties set forth in chapter 4 of title 39 . . .                                                                    ." "> Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2404-05T32404-05T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GEORGE KAISER,
Defendant-Appellant.
Submitted September 13, 2006 - Decided September 26, 2006
Before Judges Stern, A.A. RodrÃguez and Baxter.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County,
Docket No. 4571.
Afflitto, Raimondi & Afflitto, attorneys for
appellant (Joseph T. Afflitto, Jr., on the brief).
James F. Avigliano, Passaic County Prosecutor,
attorney for respondent (Steven Brizek, Senior
Assistant Prosecutor, of counsel and on the brief)
PER CURIAM
Defendant, George Kaiser, appeals from his conviction on trial de novo of driving while intoxicated (DWI), claiming
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a2404-05.opn.html
that the "pocket bike" he was operating on a public roadway was not a "motor vehicle" for purposes of prosecution
under N.J.S.A. 39:4-50. A conditional plea was entered in the Pompton Lakes Municipal Court, and other charges
were dismissed. Defendant argues that "the operator of a device designated as a 'pocket bike' is not subject to the
penalties set forth in chapter 4 of title 39 . . .                                                                       ."
Defendant acknowledged two breathalyzer readings of .14 percent at the time of the offense on August 24, 2004.
The stipulations in municipal court included that the pocket bike had no Vehicle Identification Number, "cannot be
registered" with the Motor Vehicle Commission and could not be insured.
N.J.S.A. 39:4-50 prohibits the operation of "a motor vehicle while under the influence . . .                             ." N.J.S.A. 39:1-1 provides
that a "'motor vehicle' includes all vehicles propelled otherwise than by muscular power, excepting such vehicles as
run only upon rails or tracks and motorized bicycles." It was undisputed that a "pocket bike" is not muscular
powered, nor propelled by use of pedals, and there was no suggestion that it runs on rails or tracks. Because it does
not have pedals, it is not a "motorized bicycle." N.J.S.A. 39:1-1. Accordingly, the "pocket bike" constituted a "motor
vehicle" at the time of the offense.
We recognize that, following the offense involved in this case, the Legislature enacted a regulatory scheme
for "motorized scooters," including "pocket bikes," independent of and separate from "motor vehicles." N.J.S.A. 39:1-
1. However, we find no legislative intent to provide retroactive relief to drunk drivers convicted under prior law, as
the Legislature has done in other instances in which it has liberalized the impact of an offense. See, e.g., N.J.S.A.
2C:1-1d, 2C:35-23. While we do not now determine if an operator of a "motorized scooter," including a "pocket
bike," can be convicted of violating N.J.S.A. 39:4-50 under the amended statute, we note that the Senate Statement
to S. 1510, which became L. 2005, c. 159 states, in part, that the new law "permits law enforcement officers to
charge motorized scooter and motorized skate board operators with applicable motor vehicle violations and
offenses, such as drunk driving."
There is no challenge to the sentence imposed.
The judgment is affirmed substantially for the reasons expressed by Judge Ernest M. Caposela in his written opinion
of December 7, 2005, as supplemented on the motion for reconsideration on January 6, 2006 and as supplemented
herein
Affirmed.
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a2404-05.opn.html
The opinion was also rendered orally that day.
(continued)
(continued)
3
A-2404-05T3
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September 26, 2006
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