Moped Operators can be charged with Operating Under the Influence but not Operating after Suspension

• Steven Topazio wrote this January 16, 2020 at 11:20 pm

Whether a motorized two-wheeled vehicle qualifies as a motorized bicycle generally depends on the size of its engine, the nature of its transmission, and the maximum speed the vehicle is capable of achieving. G. L. c. 90, § 1 (definition of a motorized bicycle). A “pedal bicycle which has a helper motor” automatically qualifies as a motorized bicycle. G. L. c. 90, § 1.

According to stature, ”Motorized bicycle”, is a pedal bicycle which has a helper motor, or a non-pedal bicycle which has a motor, with a cylinder capacity not exceeding 50 cubic centimeters, an automatic transmission, and which is capable of a maximum speed of no more than thirty miles per hour.

In Massachusetts, it is settled law that an operator of a motorized bicycle or moped can be prosecuted for operating under the influence of liquor, in violation of Massachusetts General Laws Chapter 90, section 24 (1) (a), if these elements can be established.  This interpretation is supported by the case of Commonwealth v. Griswold, 17 Mass. App. Ct. 461 (1984), despite the fact that the OUI statute only applies to “motor vehicles,” and even though the statute states that “motor vehicles” shall not include motorized bicycles.   

The same rationale, however, does not apply if you are operating a motorized bicycle while your license is suspended. You cannot, therefore, violate G. L. c. 90, § 23, (operating after suspension statute) even though that statute expressly applies only to motor vehicles.  Commonwealth v. Lopez, 91 Mass. App. Ct. 485, (2017).

Although § 23 does not by its terms apply to motorized bicycles, it must be read in conjunction with G. L. c. 90, § 1B, the statute governing “[t]he operation of ‘motorized bicycles’ on the public ways in the Commonwealth.”  That “statute establishes minimum age and licensing standards to ensure that operators ‘are familiar with rules of the road and the safe operation of the vehicle.'”  It also prohibits the operation of a motorized bicycle “on any way by any person not possessing a valid driver’s license or learner’s permit.” G. L. c. 90, § 1B.

The court in Lopez stated that operating a motorized bicycle with a suspended license would constitute an express violation of § 1B (as the operation of such a vehicle “by any person not possessing a valid driver’s license or learner’s permit”). The court stated that the Legislature’s decision to expressly criminalize such conduct in § 1B, and to establish specific, low-level penalties for that conduct, further suggests that the Legislature did not intend indirectly to make it an additional crime under § 23.