DWI with Children in the Car in New Jersey, Part 1: Disorderly Persons Offense

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.”

New Jersey’s DWI statute sets mandatory penalties, sometimes including jail time, for different levels of the offense. Section 2C:44-1(e) of the New Jersey Code of Criminal Justice, on the other hand, establishes a presumption of non-incarceration for certain people who have been convicted of anything lower than a crime of the second degree. It applies to people who have no prior convictions, who are not involved in organized crime, and for whom the court does not conclude that “imprisonment is necessary for the protection of the public.” It does not apply if state law otherwise requires incarceration.

Prior DWI convictions may override the presumption of non-incarceration. In a 2010 decision, the Appellate Division considered a DWI defendant’s argument that the trial court failed to apply the presumption when it sentenced him to forty-five days in jail, among other penalties, for DWI with a child in the car. The defendant cited the fact that he had no prior criminal convictions. The court ultimately rejected this argument, based in part on the defendant’s two prior DWI convictions that occurred twenty-five and thirty years earlier.

Attorney Evan Levow represents people charged with alleged DWI, including DWI involving children in the car, in New Jersey municipal courts. He can help you understand your rights and options, guide you through the court process, and prepare the best defense for your case. Please contact Levow DWI Law, P.C. today online or at (877) 593-1717 to schedule a free and confidential consultation with a member of our skilled and experienced team.

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