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State v. Shepard3/4/1981
KEEFE, J.
On September 30, 1979, at about 3 o'clock in the morning, defendant-appellee, Ronald Shepard, then age 23, was riding his red Schwinn bicycle on Spring Grove Avenue, Cincinnati, Ohio, when he was stopped by Cincinnati police officers. The prosecution and defense stipulated that Shepard was arrested and charged with operating a bicycle while intoxicated in violation of R.C. 4511.19. This statute provides, in pertinent part, as follows:
"No person who is under the influence of alcohol or any drug of abuse, or the combined influence of alcohol and any drug of abuse, shall operate any vehicle, streetcar, or trackless trolley within this state."
Shepard, through counsel, filed a pretrial motion to dismiss the complaint because the operation of the bicycle on which he was riding is not within the scope of R.C. 4511.19. He also filed what was termed a "motion in limine," offered to preclude the state from introducing in evidence the results of the Breathalyzer test given to Shepard at the time of his arrest on September 30, 1979. (Parenthetically, we note that Shepard also filed a demand for trial by jury.)
The trial judge granted both motions and the state has appealed. Although the notice of appeal filed herein includes a challenge to the granting of the motion in limine, appellant has not pursued it in its assignments of error or brief. Thus the in limine ruling is not presently viable in this appeal. The relevant portion of the trial court's opinion reads as follows:
"Section 4511.19, ORC, entitled `Driving While Intoxicated,' being penal in nature, and Section 4511.01 defining vehicles subject to such penal action, must be construed strictly against the state and liberally in favor of the accused. It is the opinion of the Court that the transgression of the defendant is neither within the spirit or the letter of the law, and all doubt must be resolved in his favor. Having determined that a pedal power only bicycle is not a vehicle within the meaning of Section 4511.19, ORC, the motion to dismiss is well taken.
"Case Dismissed."
R.C. 4511.01 is a definitional statute which includes the following:
"As used in * * * [section 4511.19] of the Revised Code:
"(A) `Vehicle' means every device, including a motorized bicycle, in, upon, or by which any person or property may be transported or drawn upon a highway, except devices moved by power collected from overhead electric trolley wires, or used exclusively upon stationary rails or tracks, and except devices other than bicycles moved by human power.
"* * *
"(G) 'Bicycle' means every device, other than a tricycle designed solely for use as a play vehicle by a child, propelled solely by human power upon which any person may ride having either two tandem wheels, or one wheel in the front and two wheels in the rear, any of which is more than fourteen inches in diameter."
Our attention is invited to certain other sections of R.C. Chapter 4511, but those sections do not seem pertinent to the fairly circumscribed issue before us.
There are two assignments of error.
The first assignment of error claimstrial court error in granting the pretrial motion to dismiss because the judge believed that R.C. 4511.19 is inapplicable to persons operating bicycles while under the influence of alcohol.
We find this assignment to be a valid challenge and sustain it. First and foremost, there is no problem with the public interest in prohibiting persons from operating bicycles on the streets and highways while under the influence of alcohol. R.C. 4511.19,
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