Articles Posted in Defending the Case

The law behind driving while intoxicated (DWI) in New Jersey is more complicated than it might appear at first glance. Multiple court decisions interpreting the DWI statute have held that prosecutors do not have to provide direct evidence that a person was driving. They only need to prove that a person had both the intent and the opportunity to drive while impaired by alcohol. The New Jersey Superior Court, Appellate Division affirmed this view of the DWI statute in a February ruling. It denied the appeal of a defendant who was convicted after police found him sleeping in his car with the engine running. This is an important decision for both DWI lawyers and the general public.

New Jersey’s DWI statute establishes a two-part definition of the offense. The state must prove that a defendant (1) operated a vehicle (2) while impaired by drugs or alcohol. Prosecutors can prove the second point in several ways, including evidence of blood alcohol content (BAC) and eyewitness testimony from police about the defendant’s appearance and behavior. Much discussion of DWI defenses focuses on how the state proves impairment. Maybe the police failed to maintain the Alcotest device adequately, and the BAC evidence should be thrown out. Perhaps the officer who pulled a defendant over lacked a legal justification for the stop. Sometimes, however, defendants dispute the first element of the offense.

As the Appellate Division notes in its February decision, New Jersey courts have taken a broad view of what it means to “operate” a vehicle. In a 1987 decision, the New Jersey Supreme Court stated that “a pragmatic definition of this term is necessary” in order to fulfill the purpose of the DWI statute, which is “to deal with the risk that intoxicated drivers will cause harm to themselves and to others.” The court found that intoxicated drivers can pose this sort of risk “even before [they] may have put [their] car in motion.” It cited a 1963 decision, in which it held that “a person may be “operating” a motor vehicle…even when the vehicle has not been moved.”

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In New Jersey, driving while intoxicated (DWI) is not a criminal offense in most situations. Instead, it is a motor vehicle offense, defined in the same chapter of New Jersey law as offenses like reckless driving and driving with a suspended license. A conviction for DWI can still lead to significant penalties, including up to 180 days in jail, fines, and lengthy periods of driver’s license suspension. New Jersey law allows prosecutors to charge a person with one or more criminal offenses in connection with a DWI in certain circumstances. When a person allegedly commits DWI while a minor is a passenger in their vehicle, prosecutors can charge them with a misdemeanor-level offense. If the alleged offense involves a significant amount of risk to the child’s safety, the state can charge a person with the more serious offense of endangering the welfare of a child (EWC).

The EWC statute does not specifically mention DWI, but prosecutors have applied it to such situations on many occasions. It makes reference to several provisions in Title 9 of the New Jersey Revised Statutes, which address the abuse, abandonment, and neglect of children. Section 9:6-8.21(1)(c), for example, defines an “abused or neglected child” in part as one whose “parent or guardian” has “create[d] or allow[ed] to be created a substantial or ongoing risk of physical injury” that is likely to lead to the child’s death, disfigurement, or debilitating injury. Section 9:6-3 makes such acts or omissions by a responsible adult a criminal offense.

Abuse or neglect of a child is a “crime of the fourth degree” according to § 9:6-3. This is the equivalent of a felony offense in other state’s criminal codes. New Jersey uses the term “indictable crime” or “crime of the [X] degree” to refer to these levels of offense. The New Jersey Code of Criminal Justice, located in Title 2C, defines EWC as a crime of the second degree when it involves acts identified in provisions like § 9:6-8.21(1). These offenses are punishable by much longer terms of incarceration than motor vehicle offenses or misdemeanors, identified in New Jersey as “disorderly persons offenses.”
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New Jersey law defines driving while intoxicated (DWI) as a motor vehicle offense, instead of a criminal offense. In certain situations, however, a DWI case can lead to criminal charges. One way is when a person allegedly commits DWI while a minor is a passenger in the vehicle. In many cases, this is a separate offense classified as a “disorderly persons offense,” the equivalent of a misdemeanor under New Jersey law. If the circumstances of a particular case allegedly placed a child at particular risk, however, prosecutors could charge a defendant with a felony-level offense. While DWI with a minor is a more serious offense than DWI in most ways, it also differs from DWI in some unusual ways. A DWI with a minor conviction, for example, might be eligible for expungement, while a DWI conviction is not.

The main DWI statute, found in § 39:4-50 of the New Jersey Revised Statutes, actually defines at least four distinct offenses: first-time DWI, second DWI, third or subsequent DWI, and DWI in a school zone. DWI with a minor is found in § 39:4-50.15. It defines a “minor” as a person who is no more than seventeen years old. A “parent or guardian” is anyone with “a legal duty for…care, custody or control” of a minor, even on a temporary basis. This includes a driver with a minor as their passenger.

DWI with a minor is a disorderly persons offense. A person must be convicted of DWI in order to be found guilty of DWI with a minor, but the statute defines them as two separate offenses. The New Jersey Code of Criminal Justice, found in Title 2C of the New Jersey Revised Statutes, does not define criminal offenses with the familiar terms “felony” or “misdemeanor.” Instead, it uses the terms “crime” and “disorderly persons offense,” respectively, to refer to each. While New Jersey law states that a disorderly persons offense is not a “crime,” this only means that it is not a “felony.”
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A person commits the offense of driving while intoxicated (DWI) in New Jersey when they operate a motor vehicle while impaired by alcohol or a drug. The DWI statute establishes four levels of penalties. The first two levels apply to first offenses. The remaining levels apply to second offenses and third or subsequent offenses. The New Jersey Legislature amended the statute in 1999 to add enhanced penalties for DWI offenses that occur on or near school property, or in designated crosswalks. The general offense of DWI is codified in § 39:4-50(a) of the Revised Statutes, and the school-related provisions are in subsection (g). In 2004, the New Jersey Supreme Court ruled that subsection (g) is a separate offense from subsection (a). This has created some confusion about how to determine when a prior New Jersey DWI conviction should count toward a sentencing enhancement.

Subsection (a) sets two levels of penalties for a first DWI offense. If the defendant had a BAC of more than 0.08 percent, but less than 0.10 percent, the penalties include a fine of $250 to $400, jail time of 12 to 48 hours, and a three-month driver’s license suspension. Some penalties increase if the defendant’s BAC was 0.10 percent or higher, such as a fine of $300 to $500 and a license suspension of seven months to one year. The penalties increase for a second offense, and again for a third or subsequent offense, provided that the most recent previous offense occurred no more than 10 years earlier.

The New Jersey Legislature passed Senate Bill 854 in June 1999, and it was signed into law in August of that year. Legislators named the bill “Filomena’s Law,” after a school crossing guard who was killed by a drunk driver in 1997. The bill amended numerous provisions of New Jersey law, including sections of the Code of Criminal Justice addressing vehicular homicide and other offenses. It added subsection (g) to the DWI statute, which applies when a person commits DWI on school property, within 1,000 feet of school property, in a designated school crossing, or in an area the driver knows is being used as a school crossing.

New Jersey’s driving while intoxicated (DWI) statute sets multiple levels of penalties, primarily based on a defendant’s number of convictions within the prior decade. Enhanced penalties apply for a second offense within a ten-year period, and again for a third or subsequent offense. A 1999 amendment to the DWI statute created a separate set of penalties, found in subsection (g) of the statute, for DWI on or near school property. Uncertainty has arisen with regard to whether a conviction under one subsection should count as a prior offense in a new case under the other subsection, and how to apply the sentencing enhancements found in each subsection. Decisions from the New Jersey Supreme Court and the Appellate Division have held that the order in which the two offenses occur—(g) followed by (a), or (a) followed by (g)—is important.

The penalties for a second DWI conviction under subsection (a) include a fine of $500 to $1,000, imprisonment of forty-eight hours to ninety days, and driver’s license suspension for two years. A second offense under subsection (g) has harsher penalties: a fine of $1,000 to $2,000, imprisonment of ninety-six hours to 180 days, and a four-year license suspension. The penalties for a third or subsequent offense within ten years are also greater under subsection (g) than subsection (a).

A 2004 New Jersey Supreme Court ruling involved a defendant convicted of DWI under subsection (g), with a prior conviction under subsection (a). The municipal court applied subsection (g)’s enhanced penalties for a second offense. The Appellate Division affirmed this sentence, finding that a second DWI offense in a school zone “can be viewed as an escalating violation.”
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