New Jersey’s driving while intoxicated (DWI) law applies to most motor vehicles, such as cars, trucks, motorcycles, and e-bikes. Riders of non-motorized bicycles are not subject to New Jersey DWI laws. A separate statute addresses operating a watercraft while under the influence of alcohol or drugs. The boating while intoxicated (BWI) statute is similar to the DWI law, but not identical. The fact that the two laws have different penalties has some important effects. Courts can use prior DWI convictions to enhance the penalties for a new DWI offense. The New Jersey Appellate Division has held that past BWI convictions do not count as prior convictions when determining the penalties for a DWI conviction.
The structure of the BWI law is almost identical to the DWI statute. It prohibits operating a “vessel” in two situations:
– While under the influence of drugs or alcohol; or
– With blood alcohol content (BAC) of 0.08 percent or more.
It defines “vessel” as “a boat or watercraft…used or capable of being used as a means of transportation on water.” A “power vessel” is one that has “machinery for propulsion.” The BWI statute applies to power vessels and vessels that are at least twelve feet long. A canoe that is less than twelve feet long, for example, would not be covered by the law since it is not a power vessel. A motorboat of any length would be covered.
The BWI statute also determines penalties the same way as the DWI statute. It establishes four levels of the offense:
1. First offense with BAC of at least 0.08 percent but less than 0.10 percent;
2. First offense with BAC of 0.10 percent or more, or while under the influence of drugs;
3. Second offense; and
4. Third or subsequent offense.
Penalties may include driver’s license suspension, loss of boating privileges, fines, and jail time.
The DWI statute allows courts to consider prior convictions from other states, as long as the law in that state is “substantially similar” to the New Jersey law. Courts have used the “substantially similar” standard to determine whether prior BWI convictions should count toward penalty enhancements in DWI cases. For example, if a person charged with DWI has one prior DWI conviction and one BWI conviction, would their current case be a second or third conviction? At least two Appellate Division decisions have held that the BWI conviction would not count.
In a 2005 decision, the Appellate Division held that a prior BWI conviction does not apply in a DWI case because the two statutes “do not mirror one another.” The periods of mandatory license suspension were different. Based on this, the court concluded that the Legislature did not intend “the penalty provisions of these two statutes…to mutually enhance each other.” The court cited this decision in a 2011 ruling. This appears to be the most recent reported case on the matter.
DWI is a serious offense in New Jersey that can have a substantial impact on your life. If you are facing charges in a New Jersey municipal court, you need an experienced DWI attorney who can guide you through the process and advocate for your rights. Evan Levow has dedicated his entire practice to DWI defense. He is available to answer your questions and discuss your options. To schedule a free and confidential consultation to see how we can help you, please contact us today online or at (877) 593-1717.