New Jersey’s DWI Statute Allows Prosecutors to Charge Passengers with DWI for “Permitting” Intoxicated Person to Drive

David Wright [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia CommonsNew Jersey law deals very seriously with the traffic offense of driving while intoxicated (DWI). An arrest for DWI can result in a license suspension, if the State can prove the offense in court beyond a reasonable doubt. However, a person does not even need to be driving a vehicle, nor do they need to be intoxicated, to be charged with DWI under New Jersey law. The traffic offense of DWI also includes permitting another person to operate a vehicle while under the influence of drugs or alcohol. The New Jersey Supreme Court has considered cases involving this part of the statute several times and has consistently held that it is a key component of the state’s objective of preventing and punishing drunk driving.

Under New Jersey law, the offense of DWI is defined primarily as “operat[ing] a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or…with a blood alcohol concentration of 0.08% or more.” The statute also includes “permit[ting] another person [who meets the above definition] to operate a motor vehicle.” The New Jersey Supreme Court discussed this part of the statute in State v. Hessen in 1996, noting that “a person who allows an intoxicated person to drive” is “as blameworthy as the drunk driver.” State v. Kashi held that the “permitting” portion of the statute is not a separate offense from DWI, but rather an “alternative evidential method” of proving the offense of DWI.

Civil liability for damages caused by a drunk driver are fairly well-known, such as if a social host or bar serves alcohol to a visibly intoxicated person. The New Jersey Supreme Court affirmed this view in the 1984 case Kelly v. Gwinnell. Imposing quasi-criminal liability, however, requires a higher standard of proof than in a civil case. The statute does not make it clear what constitutes “permitting” an intoxicated person to operate a vehicle. In theory, anyone who comes into contact with an intoxicated person could inquire as to whether they intend to drive, but it would be unwieldy and unreasonably to impose quasi-criminal liability on all of those people. Several New Jersey courts have addressed the elements that a prosecutor must prove beyond a reasonable doubt.

The question of what exactly constitutes “permitting” an intoxicated person to drive has been discussed in several reported decisions of the New Jersey Superior Court, Law Division, including State v. Wetmore (1972), State v. Michalek (1985), and State v. Rastogi (2008). The state Supreme Court ruling in State v. Stas in 2012 appears to have adopted a three-part test defined by the Superior Court, Appellate Division in 1988’s State v. Skillman. The case held that prosecutors must prove, beyond a reasonable doubt, that the defendant (1) knew or should have known that the driver was intoxicated, (2) had actual custody or control of the vehicle, and (3) allowed the driver to operate the vehicle.

A DWI arrest in New Jersey can seriously affect your life, even if you are never charged with or convicted of an offense. If you have been arrested or charged with DWI, a knowledgeable and experienced DWI attorney can help you understand your rights and plan the best possible defense. We have dedicated 100% of our law practice at Levow & Associates to representing the rights of DWI defendants. To schedule a free and confidential consultation to discuss your case, please contact us online or at (877) 593-1717.

More Blog Posts:

New Jersey Statute on Breath Testing for DWI Requires Unconditional “Yes” to Avoid Refusal Charge, Court Holds, New Jersey DWI Attorney Blog, July 7, 2014

Court Can Require Ignition Interlock after Refusal to Submit to Chemical Testing, Even if Police Did Not Include It in Warning, New Jersey DWI Attorney Blog, July 5, 2014

New Jersey Law Allows Expungement of Many Criminal Records, but Not in DWI Cases, New Jersey DWI Attorney Blog, July 1, 2014

Photo credit: David Wright [CC-BY-SA-2.0], via Wikimedia Commons.