Judge orders jail time for 'pocket bike' DWI
Saturday, January 7, 2006
By EMAN VAROQUA STAFF WRITER
A Wayne man was sentenced Friday to jail time and hefty fines for taking a drunken spin on his nephew's "pocket bike" - a miniature motorcycle that sits less than a foot off the ground.
But George Kaiser's lawyer, Joseph Afflitto Jr., said he will file an appeal, arguing that the little bike "is nothing more than a toy" and should not be considered a motor vehicle.
State Superior Court Judge Ernest Caposela in Paterson agreed to postpone Kaiser's sentence of 180 days in jail until the outcome of the appeal, if Afflitto files papers with the state Appellate Division by Jan. 17.
But Caposela said he would not hold back the remainder of Kaiser's sentence: a 10-year loss of his driver's license and a $1,000 fine.
If an appeal is not filed, Kaiser will have to turn himself in. Kaiser, 42, has past convictions for driving under the influence, and Caposela determined that this incident should count as his third offense.
Pocket bikes are small motorcycles that buzz like chainsaws and can go up to 45 mph. Most models are under 2 feet high and typically sell for $200 to $500.
Kaiser had purchased the bike in 2004 for his 13-year-old nephew. The $150 gift is less than 3 feet long, and Kaiser asserted that it doesn't exceed 20 mph.
On Aug. 29, 2004, Kaiser and some friends were at a barbecue in Pompton Lakes. They were taking turns riding the pocket bike when one of his friends injured his collarbone.
Kaiser, a slight man under 5-foot-5, took off on the bike to pick up cigarettes for the injured friend, when a police officer pulled him over for drunken driving.
It turned out that the policeman had been responding to the call for help at the barbecue.
In his written opinion, Caposela pointed to cases from other states where drivers who drove golf carts drunk were subject to DWI penalties.
E-mail: varoqua@northjersey.com
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Tiny bike is king-size woe for man slapped with DUI
Thursday, December 8, 2005
By EMAN VAROQUA STAFF WRITER
George Kaiser took a quick trip to the corner store for cigarettes on his 13-year-old nephew's "pocket bike."
It seemed like a fun toy at the time. But now, because of that ride, Kaiser could lose his driver's license for up to a decade.
On Aug. 29, 2004, the 42-year-old Wayne resident was arrested for driving the miniature motorcycle while under the influence. It didn't matter that the bike was so small that his knees were nearly touching the ground as he rode it on a quiet Pompton Lakes street. Since then, his attorney, Joseph Afflitto Jr., has begged to differ, arguing in court that the pocket bike is a toy, not a motor vehicle, so how could Kaiser be charged with DUI?
On Wednesday, state Superior Court Judge Ernest Caposela in Paterson put an end to that line of reasoning for now, finding that a pocket bike is a motor vehicle and upholding a municipal judge's earlier finding. No law specifically dealt with the miniature motorcycles at the time, but state law about driving anything with a motor while under the influence was clear enough back then.
Kaiser had two DUI convictions in the 1980s, so the pocket bike incident could be considered his third offense. Third-time offenders face a loss of license for up to 10 years, an escalation from the two-year penalty given second-time offenders.
The little bike that buzzes like a chain saw can go up to 45 mph, and typically sells for $200 to $500. It looks like a shrunken motorcycle, and most models have seats less than 2 feet off the ground.
There was initial confusion surrounding the bikes' classification as motor vehicles when their sales first boomed in the summer of 2003. Officers began confiscating the bikes or writing tickets for failure to register. Most riders didn't wear helmets or have lights and mirrors, irking police. But because there was no specific law, some of the bikes were later given back and tickets dismissed.
In July 2005, a statewide law went into effect saying that pocket bikes can't be driven on the streets or sidewalks and can be used only in areas a municipality deems appropriate or on private property. The law also gives jurisdiction over pocket bikes to individual municipalities, including whether to charge drunken drivers or start townwide registration of pocket bikes, said David Weinstein, a Motor Vehicle Commission spokesman. But the MVC still doesn't require the "miniature motor vehicles" to be registered.
Afflitto said Wednesday the law isn't clear enough. He points to more specifically worded laws that were passed regarding mopeds (motorized pedal bicycles), ATVs and snowmobiles. Mopeds, for example, require licensing and registration.
"Those vehicles have their own statutes," Afflitto said. "These [pocket bikes] shouldn't be lumped into [a general motor vehicle] category."
He could appeal to the state Appellate Division.
Afflitto also said Wednesday that, given the spirit of the state's evolving drunken driving laws, the pocket-bike DUI should be considered Kaiser's second offense - not third - because of the many years elapsed since his past convictions. All sides are due back in court on Dec. 16 to argue Kaiser's sentencing.
Kaiser said after his court appearance Wednesday that he had purchased the burgundy bike for $150 as a gift for his nephew. The bike is less than 3 feet long, doesn't go faster than 20 mph and has a seat 10 inches off the ground.
On Aug. 29, 2004, Kaiser and some adult friends were at a barbecue in Pompton Lakes. They were taking turns riding the pocket bike, when one of his friends fell off and injured his collar bone.
"It was one of those situations where everyone was together and messing around and his buddy got hurt and [Kaiser] said, 'What can I do for you?'" Afflitto said. "His buddy said 'Yeah, get me cigarettes.'"
Kaiser, a slight man under 5-foot-5, took off on the bike in the street to pick up a pack of Marlboros.
The injured friend complained of chest pain and his pals dialed 911. (It turned out he had broken his collar bone.)
Kaiser was on his way back to the barbecue when he was pulled over by the Pompton Lakes officer responding to the barbecue call.
The officer said in his report that Kaiser was driving erratically and appeared intoxicated. The matter eventually landed in Pompton Lakes Municipal Court, where Afflitto first argued the bike was a toy that didn't require a license, registration, or insurance. But the judge there disagreed and Afflitto appealed to the state Superior Court.
Caposela said Wednesday that because the bikes can force car drivers into dangerous situations and hinder overall public safety, the bikes are motor vehicles and subject to drunken driving laws. He pointed to cases from other states where the pocket bikes were considered motor vehicles and cases where drivers who drove golf carts drunk were subject to DUI penalties.
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Fast facts
Pocket bikes cannot be driven legally on streets and sidewalks.
They are permitted only in |designated areas and on private property.
Children under age 12 are not allowed to operate them.
Violators face fines up to $500 and the loss of a driver's license for up to 90 days. Those too young to have a driver's license face a 90-day postponement when getting their driver's license.
Those, including minors, caught operating a boat or moped while intoxicated face the same DUI penalties as those operating a car.
For more information visit:
state.nj.us/mvc/
Source: N.J. Motor Vehicle Commission Web site
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