439 N.E.2d 920 | Ohio Ct. App. | 1981
On September 30, 1979, at about 3 o'clock in the morning, defendant-appellee, Ronald Shepard, then age 23, was riding his red Schwinn bicycle1 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.
"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.
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
"Case Dismissed."
R.C.
"As used in * * * [section
"(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 claims *106
trial court error in granting the pretrial motion to dismiss because the judge believed that R.C.
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.
The present definition of vehicle has had an analogue in Ohio statutory law for a long time. According to Jones v. Santel
(1955),
In Jones v. Santel, supra, at page 94, the Supreme Court recognized that a mounted bicyclist is the operator of a "vehicle," as that word was used in the General Code and is now used in the Revised Code. Jones actually included citations for both the General Code and the Revised Code, presumably because the opinion was authored less than two years after the Revised Code became effective.3
The prohibitions in R.C.
The trial court decided, inter alia, that the definition of bicycle in R.C.
The assignments of error before this court having been ruled upon as herein set forth, it is the order of this court that the judgment or final order herein appealed from be, and the same is reversed to the extent that this appeal excepts to that judgment.
Furthermore, we remand this cause *107
to the court below for further proceedings according to law for the disposition of the R.C.
Judgment reversed and cause remanded.
SHANNON, P.J., and DOAN, J., concur.