NJ Laws Directions to Ken Vercammen and Associates Ken Vercammens Resume Ken Vercammen articles

Kenneth Vercammen & Associates
A Law Office with Experienced Attorneys for Your New Jersey Legal Needs

2053 Woodbridge Ave.
Edison NJ 08817

Personal Injury and Criminal
on Weekends 732-261-4005

Princeton Area
68 South Main St.
Cranbury, NJ 08512
By Appointment Only
Toll Free 800-655-2977

Driving under the influence not a violation of DWI law in NJ

Driving under the influence not a violation of DWI law in NJ. See State v. Machuzak, 227 N.J. Super. 279 (1988); State v. Johnson, 203 N.J. Super. 436 (1985)]

227 N.J. Super. 279 (1988)

546 A.2d 1099


Superior Court of New Jersey, Law Division Somerset County.

Decided April 18, 1988.


The defendant, Daniel Machuzak, was convicted in the Municipal Court, Montgomery Township, for driving while intoxicated in violation of N.J.S.A. 39:4-50. The statute under which defendant was convicted, N.J.S.A. 39:4-50, provides that a person who operates a motor vehicle while intoxicated shall be subject to penalty, including fines, community service, imprisonment and revocation of license. At the time of his arrest, defendant was operating a nonmotorized, pedal-type bicycle. Defendant appeals his conviction.

*281 A trial de novo was held on April 8, 1988. This Court reserved decision. Defendant does not deny his intoxication, rather the issue before this Court is whether the operator of a pedal bicycle falls within the purview of N.J.S.A. 39:4-50. For authority on this issue, the Court is faced with two conflicting Law Division cases which have not been resolved by any Appellate authority. Those cases are State v. Tehan, 190 N.J. Super. 348 (Law Div. 1982) and State v. Johnson, 203 N.J. Super. 436 (Law Div. 1985). Each of these decisions comes to a different conclusion.

Absent an appellate courts determination on point, a trial court is not bound to follow the holding of another trial court. Lackovic v. New England Paper Tube Co. 127 N.J. Super. 394 (App.Div. 1974). The State takes the position that State v. Tehan, supra, should be the controlling case for this Courts determination. In Tehan the trial court found that a person who operates a bicycle while intoxicated could be properly convicted under the motor vehicle drunk driving statute, N.J.S.A. 39:4-50, by virtue of the statute defining rights and duties of persons on bicycles. N.J.S.A. 39:4-14.1. The Tehan Court further held that although the penalty of license revocation was inapplicable since bicycling was not a licensed activity, other penalties such as fines, community service and incarceration, set out in the drunk driving statute, could be imposed.

The defendant, on the other hand, relies on State v. Johnson, supra. In that case the trial court refused to follow the Tehan decision, absent legislative authority. The Court in Johnson held that a defendant could not be convicted of operating a motor vehicle while under the influence of alcohol for operating a non-motorized pedal-type bicycle while intoxicated. In coming to this conclusion, the Court scrutinized the detailed and technical definitions applicable to vehicles of all classes and found it to be clearly apparent from the plain language of the statute that muscular powered bicycles were not to be included within the purview of N.J.S.A. 39:4-50. Id. at 439.

*282 The Court went on to note that it is not the role of the judiciary to extend the language of a statute beyond that which has been legislated. Id. at 441; State v. Leonardo, 109 N.J. Super. 442 (App.Div. 1970); Newark Firemens Mutual Benevolent Assoc. v. City of Newark, 90 N.J. 44 (1982). The Court concluded by stating that If it is the intention of the Legislature that a bicycle be included as a motor vehicle and its operator subject to penalties for driving while intoxicated, then it is also the responsibility of the Legislature to make that clear. Id. 109 N.J. Super. at 442.

This Court is mindful of the inherent dangers that are posed when a person operates a motor vehicle or a bicycle on a public roadway while intoxicated. However, this Court concurs with the decision in State v. Johnson, supra, in finding that there is no statutory authority to convict the defendant for violation of N.J.S.A. 39:4-50. That statute specifically and unambiguously applies to motorized vehicles only. This is evidenced by the definitions set forth under N.J.S.A. 39:1-1. For example, the term motor vehicle is defined as all vehicles propelled otherwise than by muscular power ... Likewise, the term vehicle is defined to mean 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 ... Other definitions which support this Courts conclusion that non-motorized bicycles were not intended by the Legislature to fall within the ambit of N.J.S.A. 39:4-50 include the term motorcycle defined to include motorcycles, motor bikes, bicycles with motors attached and all motor-operated vehicles of the bicycle or tricycle type ... and motorized bicycle defined as a pedal bicycle having a motor.

It is abundantly clear to this court that the pertinent definitions found within N.J.S.A. 39:1-1 and used in the drunken driving statute were not intended to apply to non-motorized pedal-type bicycles. This court has no statutory authority to give greater effect to a statute than that which its language *283 requires. Belfer v. Borrella, 9 N.J. Super. 287 (App.Div. 1950). Nor should a court extend a statute to include persons not intended. Belfer, supra at 293.

This Court further concurs with the decision in State v. Johnson, supra, in finding that the defendant cannot be convicted under the drunk driving statute by virtue of N.J.S.A. 39:4-14.1. The condemned act must be plainly and unmistakably within the statute and any doubt as to the meaning of the statute must be resolved in favor of the defendant. State v. Wean, 86 N.J. Super. 283 (App.Div. 1965). It is the Legislatures function, not the Courts, to expand the scope of the Statute beyond the plainly expressed legislative intent. The legislative intent is to be discerned from the language of the Statute and Courts cannot arbitrarily expand its scope beyond the plainly expressed legislative intent. State v. Wean, supra at 289, citing Dacunzo v. Edgye, 19 N.J. 443, 451 (1955).

Since it is the opinion of this court that N.J.S.A. 39:4-50 is inapplicable to bicyclists, defendants conviction must be reversed.

Cell Phone:
E-Mail Address

If You Do Not Include a Complete E-Mail Address, Network will not Forward Your Contact Form to the Law Office.

Details of the Case
By typing " agree" into the box you are confirming that you wish to send your information to the Law Office of Kenneth Vercammen

Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year

Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.

Kenneth Vercammens Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.

Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutors Association.

Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Dont give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.

When your job or drivers license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.

Our website www.KennethVercammen.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.

Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.

The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.

Ken Vercammen articles

Ken Vercammens Resume Directions to Ken Vercammen and Associates

Disclaimer This web site is purely a public resource of general New Jersey information (intended, but not promised or guaranteed to be correct, complete, or up-to-date). It is not intended be a source of legal advice, do not rely on information at this site or others in place of the advice of competent counsel. The Law Office of Kenneth Vercammen complies with the New Jersey Rules of Professional Conduct. This web site is not sponsored or associated with any particular linked entity unless specifically stated. The existence of any particular link is simply intended to imply potential interest to the reader, inclusion of a link should not be construed as an endorsement.

Copyright 2019. Kenneth Vercammen & Associates, P.C.