                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1585-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FRANCIS SCANLON,

     Defendant-Appellant.
_________________________

                    Submitted October 21, 2019 – Decided March 5, 2020

                    Before Judges Fasciale and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Somerset County, Municipal Appeal No.
                    19-4.

                    Robert E. Ramsey, attorney for appellant.

                    Michael H. Robertson, Somerset County Prosecutor,
                    attorney for respondent (Lauren E. Bland, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Francis Scanlon appeals his June 21, 2018 conviction for

driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), after a trial de novo in the

Law Division in which he appealed his municipal court conviction. On appeal,

defendant argues that he was not subject to prosecution under N.J.S.A. 39:4-

50(a) because the vehicle he was operating, a farm tractor, did not constitute a

motor vehicle as defined by N.J.S.A. 39:1-1. Having reviewed the record in

light of the arguments presented, we affirm.

                                        I.

      The trial of defendant's DWI and related motor vehicle offenses was

conducted before the Branchburg Municipal Court on May 11, 2018. Counsel

stipulated to the following facts. On August 19, 2017, defendant was operating

a John Deere 4440 tractor against traffic in the westerly direction along the

shoulder of eastbound Route 22 in Branchburg. The police stopped defendant,

and he consented to and was administered psycho-physical evaluations along

the highway. A sample of defendant's breath, procured by way of administration

of an Alcotest, "returned a result of [a] .32 blood alcohol content." The Alcotest

was administered in conformity with State v. Chun, 194 N.J. 54 (2008).

Defendant had left the Royal Bar parking lot and was heading home at the time

of his arrest. He admitted to drinking five or six beers and to operating the


                                                                          A-1585-18T1
                                        2
tractor while under the influence. The tractor was neither registered with the

Motor Vehicle Commission nor was it insured.

       Despite these concessions, defendant argued that he was not guilty of

violating N.J.S.A. 39:4-50(a) because a farm tractor is not a motor vehicle as

defined by N.J.S.A. 39:1-1. The municipal court judge rejected defendant's

legal argument and found him guilty of the charged violation of N.J.S.A. 39:4-

50(a).1 The judge sentenced defendant to a 10-year driver's license revocation,

a 1-year interlock, $1389 in fines, 48 hours at the Intoxicated Driver Resource

Center, and 180 days in the Somerset County jail.

       Defendant appealed his conviction to the Superior Court in Somerset

County. On November 1, 2018, Judge Peter J. Tober entered an order and

written opinion, rejecting, as had the municipal court judge, defendant's legal

argument. The judge determined that the legislative intent of our drunk driving

statutes is "to curb the tragedies associated with driving while under the

influence and the broad definition of a motor vehicle (which includes farm

tractors) justifies a conviction on the facts presented." Judge Tober reasoned

that defendant's farm tractor qualified as a motor vehicle under N.J.S.A. 39:1-1

because defendant "operat[ed] the . . . tractor with the primary intention of the


1
    The remaining summonses were dismissed.
                                                                         A-1585-18T1
                                       3
tractor transporting him from place to place." Accordingly, the judge denied

defendant's appeal and imposed the same sentence that the municipal court judge

ordered. Judge Tober stayed the portion of the sentence imposing the 180-day

jail term pending appeal.

      On appeal, defendant raises the following arguments:

            I.  THE DECISION OF THE LAW DIVISION
            RESTED ON THE AUTHORITY OF A CITED,
            UNPUBLISHED OPINION AND AS SUCH
            VIOLATED THE PROVISIONS OF RULE 1:36-3.

            II.   THE     FARM   TRACTOR DEFENDANT
            OPERATED ON A PUBLIC HIGHWAY ON
            AUGUST 19, 2017 IS NOT A MOTOR VEHICLE
            WITHIN THE MEANING OF N.J.S.A. 39:1-1 AND
            N.J.S.A. 39:4-50(a).

                                      II.

      Because the parties stipulated to all the facts, defendant's appeal rests

solely on a narrow legal issue: whether a farm tractor is considered a motor

vehicle for purposes of N.J.S.A. 39:4-50(a).

      On appeal, we "consider only the action of the Law Division and not that

of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div.

2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). We review a trial court's

legal determinations de novo. State v. Stas, 212 N.J. 37, 49 (2012) ("[N]o such

deference is owed to the Law Division or the municipal court with respect to

                                                                        A-1585-18T1
                                       4
legal determinations or conclusions reached on the basis of the facts."); see State

v. Handy, 206 N.J. 39, 45 (2011).

                                       III.

      N.J.S.A. 39:4-50(a) defines someone driving while intoxicated as "a

person who operates a motor vehicle while under the influence of intoxicating

liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor

vehicle with a blood alcohol concentration of 0.08% or more by weight of

alcohol in the defendant's blood[.]" We afford the terms of N.J.S.A. 39:4-50 a

broad reading in order to effectuate the legislative intent. State v. Tischio, 107

N.J. 504, 512 (1987). In that regard, we are "enjoined to give our drunk-driving

statutes the pragmatic and flexible interpretations necessary to effectuate the

Legislature's regulatory aims, while honoring the due process limitations

necessarily attendant upon the law's penal sanctions." Ibid. The legislative goal

in enacting N.J.S.A. 39:4-50(a) was "to curb the senseless havoc and destruction

caused by intoxicated drivers." State v. Marquez, 202 N.J. 485, 496 (2010)

(quoting Tischio, 107 N.J. at 512).

      N.J.S.A. 39:1-1 defines a motor vehicle to include "all vehicles propelled

otherwise than by muscular power, excepting such vehicles as run only upon

rails or tracks, low-speed electric bicycles, low-speed electric scooters, and


                                                                           A-1585-18T1
                                        5
motorized bicycles." Notably, a farm tractor does not fall within the enumerated

exceptions of the statutory definition of a motor vehicle. Additionally, a vehicle

is defined as "every device in, upon or by which a person or property is or may

be transported upon a highway, excepting devices moved by human power or

used exclusively upon stationary rails or tracks or low-speed electric bicycles,

low-speed electric scooters, or motorized bicycles." Ibid. Again, a farm tractor

is not excepted from the statutory definition of a vehicle. Indeed, in this case,

the farm tractor was not only capable of transporting defendant but was in fact

being used to transport him on the highway from the local bar to his home.

Finally, a farm tractor is more specifically defined as "every motor vehicle

designed and used primarily as a farm implement for drawing plows, mowing

machines, and other implements of husbandry." Ibid. By its terms, the statute

defines a farm tractor as a type of motor vehicle. For these reasons, we conclude,

as did Judge Tober, that a farm tractor is a motor vehicle as defined by N.J.S.A.

39:1-1.

      Like the courts below, we are unpersuaded by defendant's argument that

Ferrante Equipment Co. v. Foley Machinery Co., 49 N.J. 432 (1967), narrowed

the definition of a motor vehicle to shield inebriated farm tractor operators from

prosecution under N.J.S.A. 39:4-50(a). Ferrante involved an action by the seller


                                                                          A-1585-18T1
                                        6
of a bulldozer against a repairman, in which the seller sought to recover

possession of the bulldozer after the repairman asserted a lien for the cost of

repairs he had performed on the bulldozer. Id. at 434-35. The precise issue was

whether the seller's lien, which was perfected by virtue of its filing of a financing

statement, was superior to the repairman's lien. Id. at 435. The resolution of

that issue, in turn, depended on whether a bulldozer was a motor vehicle for

purposes of the Garage Keepers and Automobile Repairmen Act (the Act),

N.J.S.A 2A:44-20 to -31.2 Id. at 434.

      Noting that the Act contains no definition of a motor vehicle, the Ferrante

Court looked for guidance to N.J.S.A. 39:1-1. Id. at 438. The Court concluded

that the legislature intended the term "motor vehicle" to include "only those self-

propelled vehicles which are used on a highway primarily for purposes of

transporting persons and property from place to place, e.g., automobiles, trucks,

and buses." Ibid. The Court reasoned that "a bulldozer is used primarily for

excavation and building purposes and only incidentally to transport persons or

property from place to place." Ibid. The Court concluded that bulldozers "are



2
  Under the Act, a prior perfected security interest has priority over a statutory
garage keeper's lien for an amount due for storage, maintenance, keeping or
repairing a motor vehicle. N.J.S.A. 2A:44-21.


                                                                             A-1585-18T1
                                         7
not ordinarily designed and used for transportation of persons and property on

public streets," and the legislature did not intend to include such a vehicle under

the purview of the Act. Id. at 440.

      We reject defendant's invitation to extend the reasoning in Ferrante

beyond its narrow factual and legal context.         First, farm tractors, unlike

bulldozers, are specifically defined as a type of motor vehicle. N.J.S.A. 39:1-1.

More importantly, affording the terms of N.J.S.A. 39:4-50 a broad reading to

effectuate our Legislature's intent, as we must, see Tischio, 107 N.J. at 512, we

conclude it would directly contravene the legislative goal of curbing drunk

driving to allow the operation of a farm tractor on the highway while the operator

is under the influence. In that regard, we find that under a "pragmatic and

flexible interpretation[] necessary to effectuate the Legislature's regulatory

aims," ibid., whereas here, defendant utilized his farm tractor as a means of

transportation as he would any other motor vehicle, there is no question that he

is subject to prosecution under N.J.S.A. 39:4-50(a).

      Defendant's argument that the trial judge impermissibly relied upon an

unpublished opinion in rendering his decision lacks sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.


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