STATE OF NEW JERSEY v. GEORGE KAISER

 

NOT FOR PUBLICATION WITHOUT THE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. Rodr guez 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 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.

The opinion was also rendered orally that day.

(continued)

(continued)

3

A-2404-05T3

 

September 26, 2006