Have to love New Hampshire

[Whitebeard]

Wednesday, August 25, 2004
Lawmaker: No crime in biking drunk
By Jason B. Grosky
Staff Writer

Intoxicated people should get commended, not arrested, for climbing onto a bicycle rather than driving a car, says a state senator who wants to legalize drunken bicycling.

"It's better (to drive a bicycle drunk) than get home behind the wheel," said Sen. Frank V. Sapareto, R-Derry. "They're going to get home one way or the other and I'd rather they do it in a way that's not going to kill people. If it's on a bicycle or a skateboard, fine, so long as the person's not in a vehicle."

Sapareto said he will file a bill that would prohibit police from filing charges against people riding bikes while under the influence of alcohol or drugs. The move comes a week after Derry police charged a bicyclist with operating a vehicle under the influence of alcohol. Londonderry police charged a bicyclist with drunken driving last summer.

New Hampshire law currently states "every person propelling a vehicle by human power or riding a bicycle shall have all of the rights and be subject to all of the duties applicable to the driver of any other vehicle under the rules of the road."

As the laws stand, police could attempt to use the motor vehicle DWI laws to arrest intoxicated wheelchair riders, skateboarders or roller skaters, Sapareto said. The minimum penalty for a first-time drunken driving conviction is a 90-day loss of license and $350 fine.

Londonderry Capt. William R. Hart, a lawyer and police prosecutor for 20 years, said he believes the law is clear as currently constructed with bicycles and mopeds falling under the motor vehicle rules. Hart said there are arguable points such as the word "drive," defined by statute as operating or being in "actual physical control of a motor vehicle" or an off-highway recreational vehicle.

"The other issue here is whether or not arresting, charging, prosecuting and convicting somebody for driving while intoxicated on a bicycle is good public policy," he said. "That's for the legislature to decide and perhaps that's the place that this issue should be argued."

Short of a legislative law change, the state Supreme Court will ultimately decide a case challenging whether drunken driving rules for motor vehicles apply to bicycles, said lawyer Richard F. Monteith Jr. He represented the Londonderry man charged with drunken biking last summer.

State law is "pretty clear" that a person must be driving a motor vehicle to be charged with drunken driving, but prosecutors are "overreaching" by applying that law to bicycles, he said.

"The law has to be made more clear so people know how to conduct their lives," Monteith said. "Nobody would think that riding a bicycle while intoxicated is the right thing to do. But my concern is trying to have that (offense) carry the same penalties as operating a motor vehicle (while drunk) carries."

The legislature should do nothing to soften rules for drunken drivers -- whether the person is on four wheels or two, said Lydia M. Valliere, president of the state's Mothers Against Drunk Driving chapter.

"So if you're too drunk to drive a car it's OK for you to get on a mountain bike?" she said. "Now you're putting the driving public at risk. You shouldn't even be walking on the street, let alone riding, if you're impaired."

Rockingham County Attorney James R. Reams said intoxicated bicyclists should be subjected to drunken driving charges. He called Sapareto's position "wrong and simplistic."

Drunken bicyclists "are endangering the public, almost as much as being in a car," Reams said. "A bicyclist could run out in front of a car and even though the bicyclist will likely get more seriously hurt, they are endangering the people in the car."

State Sen. Charles E. Morse, R-Salem, said drunken bikers should be ticketed but not subjected to criminal charges.

"The last thing we want to do is encourage someone (who is intoxicated) to drive a car," he said. As for drunken people driving bicycles, Morse said, "There has to be some penalty, some way to discourage the action."

In Massachusetts, a drunken person could pedal through the streets of downtown Andover without fear of being arrested for operating under the influence.

"A motor vehicle is required in order to have an OUI conviction," said William J. Melkonian, an assistant district attorney in Essex County. "A bicycle is not a motor vehicle."

In the Londonderry case, Monteith argued that the state's drunken driving law applies to motor and off-road vehicles but not bicycles. The state disagreed, citing the Legislature's definition of a vehicle, which is "every mechanical device in, upon or by which any person is transported."

Monteith's client -- Timothy Bradley, 44, of Londonderry, pleaded guilty to a lesser charge of reckless conduct. In exchange, Londonderry police dropped the driving while intoxicated charge they filed against him. Bradley regularly biked because his license had been suspended due to a drunken driving conviction in Massachusetts. Another drunken driving conviction could have landed him a year in jail.

Derry police last week charged Edward Hayes, 42, of 1 Summit Ave., with operating under the influence after he was allegedly swerving while riding his bike in the area of Crystal Avenue and East Broadway. He is scheduled for arraignment Sept. 7 in Derry District Court.

Sapareto said he will attempt to legalize drunken bicycling when bills are filed in October and November. He introduced a similar bill last year, but it died this year in the House. Sapareto originally sought no punishment for drunken bicyclists, but the bill adopted by the Senate called for a $350 fine for violators.

The bill failed because legislators were afraid of being labeled as soft on drunken driving, said Sapareto, who also represents Windham and Hampstead.

"There is no documented cases of a drunken bicyclist killing someone else," he said. "The only victim of a person drunk on a bicycle is the bicycle rider."