DWI in New Jersey When Driving on or Near School Property, Part 1: Defining the Offenses

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.

The law specifically states that neither the defendant’s awareness that they are at or near a school, nor the actual presence of children, is relevant to sentencing. A defendant could therefore face enhanced sentencing under subsection (g) when they had no idea they were subject to that law, and no children were anywhere nearby. This has formed the basis for much of the criticism of the law.

The penalty for a first offense under subsection (g) includes up to 60 days in jail, a fine of $500 to $800, and a license suspension of one to two years. This is almost as extensive as the penalties for a second violation of subsection (a). The 2004 decision by the New Jersey Supreme Court addressed how to handle sentencing in situations in which someone violated subsection (g) and then subsection (a), or situations in which someone violated both subsections in reverse. The court determined that the order in which the offenses occurred is an important factor.

DWI attorney Evan Levow represents people in New Jersey who are facing charges of alleged DWI involving school zones or children in municipal court. He can guide you through the court process, prepare the best available defense for you, and advocate for your rights both in and out of court. You can contact us online or at (877) 593-1717 today to schedule a free and confidential consultation with a member of our knowledgeable and experienced team.