DWI with Children in the Car in New Jersey, Part 2: Crime of the Second Degree

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.”

DWI with a child in the car is a disorderly persons offense under New Jersey law. By the statute’s definition, a person must be convicted of DWI in order for a court to find them guilty of DWI with a minor. Since both offenses are defined by the Motor Vehicle Code, the municipal courts have jurisdiction over them. The Superior Court, Law Division, on the other hand, has jurisdiction over EWC cases.

In 2015, the Appellate Division considered an argument that the state cannot charge a defendant with both the disorderly persons offense of DWI with a child in the car and the second-degree crime of EWC. The defendant, who was facing DWI with a minor charges in municipal court, was also indicted for fourth-degree child abuse or neglect. A superseding indictment charged the defendant with second-degree EWC. The court ruled that prosecutors, as part of their “broad discretion…to enforce the State’s criminal laws,” could charge the defendant with both offenses.

Attorney Evan Levow represents people who are facing charges of alleged DWI with children in the car in New Jersey municipal court. He can prepare the best possible defense for you while advocating for your rights both in and out of court. To schedule a free and confidential consultation with a member of our experienced and knowledgeable team, please contact Levow DWI Law, P.C. today online or at (877) 593-1717.