State v. Thomas W. Koeppen, 2014 WI App 94; case activity
A “motor bicycle” is a bicycle with a motor added, and can be either pedaled or self-propelled using the motor, § 340.01(30). Whether a person can be charged under the OWI/PAC statute based on his operation of a motor bicycle depends on whether a motor bicycle is a “motor vehicle” under § 340.01(35). The court of appeals concludes that a plain-language reading of the relevant statutes shows a motor bicycle is a motor vehicle, “at least when the motor bicycle being operated is self-propelled, rather than pedaled.” (¶1).
A “motor bicycle” is a “vehicle” within the meaning of § 340.01(74) (“Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, …”). (¶12). Whether a “vehicle” is a “motor vehicle” is answered by § 340.01(35), which defines “motor vehicle” as “a vehicle, … which is self-propelled, …” (¶13). Because a motor bicycle can be operated as a “self-propelled” vehicle and none of the exceptions provided in either definition apply to motor bicycles, a motor bicycle is a motor vehicle.
Koeppen argued this conclusion is foreclosed by § 346.02(4)(a). That statute provides that bicycle operators “are subject to all the duties which this chapter grants or applies to the operator of a vehicle, except those provisions which by their express terms apply only to motor vehicles ….” It also says that “provisions [of ch. 346] which apply to bicycles also apply to motor bicycles, …” The OWI/PAC statute, § 346.63(1), explicitly applies only to motor vehicles, not bicycles, since a bicycle is not a motor vehicle; because the OWI/PAC statute doesn’t apply to the operation of bicycles, Koeppen says, it likewise doesn’t apply to motor bicycles, since § 346.02(4)(a) says that provisions in ch. 346 that apply to bicycles also apply to motor bicycles. The court rejects this reasoning:
¶16 Koeppen’s first step states a correct proposition—a “bicycle” is not a “motor vehicle.” The problem with Koeppen’s argument lies in his second step.
¶17 Koeppen’s second step hinges on the erroneous proposition that the statutory phrase “provisions [in Wis. Stat. ch. 346] which apply to bicycles also apply to motor bicycles” means both of the following: (1) provisions in ch. 346 that apply to bicycles also apply to motor bicycles, and (2) provisions in ch. 346 that do not apply to bicycles also do not apply to motor bicycles. Of course the statutory phrase means the former because that is what it says. But the clause on which Koeppen relies does not say the latter. As the State succinctly states: “[N]othing in the statute provides that provisions that do not apply to bicycles also do not apply to motor bicycles.”
As noted above, there’s a caveat to the court’s holding: A motor bicycle is a motor vehicle, “at least when the motor bicycle being operated is self-propelled, rather than pedaled.” (¶1). Because motor vehicles are, by definition, “self-propelled,” the state argues that when a motor bicycle is entirely manually operated—that is, pedaled only—it is not a “motor vehicle” because it is not self-propelled, but when a motor bicycle is operated in a self-propelled manner, it is a “motor vehicle” for purposes of the traffic statutes. (¶32). The court takes no position on this interpretation, since Koeppen was alleged to have been riding a self-propelled motor bicycle. (¶¶32-34). But it does note the potential problems with this approach, both for motor bicycles (e.g., what if Koeppen was pedaling and using the motor? (¶33)) and mopeds (which have some “puzzling” features that make some of them more like motor bicycles (¶¶21-22 & n.6)), and says that “the validity of the State’s sometimes-is-and-sometimes-is-not theory is not readily apparent ….” (¶34).
