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Arrested for DUI/DWI? Penalties in NJ
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In New Jersey Driving Under Influence (DUI) and Driving While Intoxicated
(DWI) are the same charge. The following is the new DWI law in New Jersey
with all of its amendments:
N.J.S.A. 39:4-50 Driving While Intoxicated
39:4-50. (a) Except as provided in subsection (g) of this section, a
person who operates a motor vehicle while under the influence of intoxicating
liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor
vehicle with a blood alcohol concentration of 0.08% or more by weight of
alcohol in the defendant's blood or permits another person who is under the
influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing
drug to operate a motor vehicle owned by him or in his custody or control or
permits another to operate a motor vehicle with a blood alcohol concentration
of 0.08% or more by weight of alcohol in the defendant's blood shall be
subject: (1) For the first offense: (i) if the person's blood alcohol
concentration is 0.08% or higher but less than 0.10%, or the person operates
a motor vehicle while under the influence of intoxicating liquor, or the or
more of the following chemical compounds: acetone and acetate, amyl nitrite
or amyl nitrate or their isomers, benzene, butyl alcohol, butyl nitrite,
butyl nitrate or their isomers, ethyl acetate, ethyl alcohol, ethyl nitrite
or ethyl nitrate, ethylene dichloride, isobutyl alcohol or isopropyl alcohol,
methyl alcohol, methyl ethyl ketone, nitrous oxide, n-propyl alcohol,
pentachlorophenol, petroleum ether, propyl nitrite or propyl nitrate or their
isomers, toluene, toluol or xylene or any other chemical substance capable of
causing a condition of intoxication, inebriation, excitement, stupefaction or
the dulling of the brain or nervous system as a result of the inhalation of
the fumes or vapors of such chemical substance. Whenever an operator of a
motor vehicle has been involved in an accident resulting in death, bodily
injury or property damage, a police officer shall consider that fact along
with all other facts and circumstances in determining whether there are
reasonable grounds to believe that person was operating a motor vehicle in
violation of this section. A conviction of a violation of a law of a
substantially similar nature in another jurisdiction, regardless of whether
that jurisdiction is a signatory to the Interstate Driver License Compact
pursuant to P.L. 1966, c.73 (C. 39: 5D-1 et seq.), shall constitute a prior
conviction under this subsection unless the defendant can demonstrate by
clear and convincing evidence that the conviction in the other jurisdiction
was based exclusively upon a violation of a proscribed blood alcohol
concentration of less than 0.08%.
If the driving privilege of any person is under revocation or suspension
for a violation of any provision of this Title or Title 2C of the New Jersey
Statutes at the time of any conviction for a violation of this section, the
revocation or suspension period imposed shall commence as of the date of
termination of the existing revocation or suspension period. In the case of
any person who at the time of the imposition of sentence is less than 17
years of age, the forfeiture, suspension or revocation of the driving
privilege imposed by the court under this section shall commence immediately,
run through the offender's seventeenth birthday and continue from that date
for the period set by the court pursuant to paragraphs (1) through (3) of
this subsection. A court that imposes a term of imprisonment for a first or
second offense under this section may sentence the person so convicted to the
county jail, to the workhouse of the county wherein the offense was
committed, to an inpatient rehabilitation program or to an Intoxicated Driver
Resource Center or other facility approved by the chief of the Intoxicated
Driving Program Unit in the Department of Health and Senior Services. For a
third or subsequent offense a person shall not serve a term of imprisonment
at an Intoxicated Driver Resource Center as provided in subsection (f). A
person who has been convicted of a previous violation of this section need
not be charged as a second or subsequent offender in the complaint made
against him in order to render him liable to the punishment imposed by this
section on a second or subsequent offender, but if the second offense occurs
more than 10 years after the first offense, the court shall treat the second
conviction as a first offense for sentencing purposes and if a third offense
occurs more than 10 years after the second offense, the court shall treat the
third conviction as a second offense for sentencing purposes. (b) A person
convicted under this section must satisfy the screening, evaluation,
referral, program and fee requirements of the Division of Alcoholism and Drug
Abuse's Intoxicated Driving Program Unit, and of the Intoxicated Driver
Resource Centers and a program of alcohol and drug education and highway
safety, as prescribed by the chief administrator. The sentencing court shall
inform the person convicted that failure to satisfy such requirements shall
result in a mandatory two-day term of imprisonment in a county jail and a
driver license revocation or suspension and continuation of revocation or
suspension until such requirements are satisfied, unless stayed by court order
in accordance with the Rules Governing the Courts of the State of New Jersey,
or R.S. 39:5-22. Upon sentencing, the court shall forward to the Division of
Alcoholism and Drug Abuse's Intoxicated Driving Program Unit a copy of a
person's conviction record. A fee of $100.00 shall be payable to the Alcohol
Education, Rehabilitation and Enforcement Fund established pursuant to
section 3 of P.L. 1983, c.531 (C. 26: 2B-32) to support the Intoxicated
Driving Program Unit. (c) Upon conviction of a violation of this section, the
court shall collect forthwith the New Jersey driver's license or licenses of
the person so convicted and forward such license or licenses to the chief
administrator. The court shall inform the person convicted that if he is
convicted of personally operating a motor vehicle during the period of
license suspension imposed pursuant to subsection (a) of this section, he
shall, upon conviction, be subject to the penalties established in R.S.
39:3-40. The person convicted shall be informed orally and in writing. A
person shall be required to acknowledge receipt of that written notice in
writing. Failure to receive a written notice or failure to acknowledge in
writing the receipt of a written notice shall not be a defense to a
subsequent charge of a violation of R.S. 39:3-40. In the event that a person
convicted under this section is the holder of any out-of-State driver's
license, the court shall not collect the license but shall notify forthwith
the chief administrator, who shall, in turn, notify appropriate officials in
the licensing jurisdiction. The court shall, however, revoke the
nonresident's driving privilege to operate a motor vehicle in this State, in
accordance with this section. Upon conviction of a violation of this section,
the court shall notify the person convicted, orally and in writing, of the
penalties for a second, third or subsequent violation of this section. A
person shall be required to acknowledge receipt of that written notice in
writing. Failure to receive a written notice or failure to acknowledge in
writing the receipt of a written notice shall not be a defense to a
subsequent charge of a violation of this section. (d) The chief administrator
shall promulgate rules and regulations pursuant to the "Administrative
Procedure Act," P.L. 1968, c.410 (C. 52: 14B-1 et seq.) in order to
establish a program of alcohol education and highway safety, as prescribed by
this act. (e) Any person accused of a violation of this section who is liable
to punishment imposed by this section as a second or subsequent offender
shall be entitled to the same rights of discovery as allowed defendants
pursuant to the Rules Governing the Courts of the State of New Jersey. (f)
The counties, in cooperation with the Division of Alcoholism and Drug Abuse and
the commission, but subject to the approval of the Division of Alcoholism and
Drug Abuse, shall designate and establish on a county or regional basis
Intoxicated Driver Resource Centers. These centers shall have the capability
of serving as community treatment referral centers and as court monitors of a
person's compliance with the ordered treatment, service alternative or
community service. All centers established pursuant to this subsection shall
be administered by a counselor certified by the Alcohol and Drug Counselor
Certification Board of New Jersey or other professional with a minimum of
five years experience in the treatment of alcoholism. All centers shall be
required to develop individualized treatment plans for all persons attending
the centers; provided that the duration of any ordered treatment or referral
shall not exceed one year. It shall be the center's responsibility to
establish networks with the community alcohol and drug education, treatment
and rehabilitation resources and to receive monthly reports from the referral
agencies regarding a person's participation and compliance with the program.
Nothing in this subsection shall bar these centers from developing their own
education and treatment programs; provided that they are approved by the
Division of Alcoholism and Drug Abuse. Upon a person's failure to report to
the initial screening or any subsequent ordered referral, the Intoxicated
Driver Resource Center shall promptly notify the sentencing court of the
person's failure to comply. Required detention periods at the Intoxicated
Driver Resource Centers shall be determined according to the individual
treatment classification assigned by the Intoxicated Driving Program Unit.
Upon attendance at an Intoxicated Driver Resource Center, a person shall be
required to pay a per diem fee of $75.00 for the first offender program or a
per diem fee of $100.00 for the second offender program, as appropriate. Any
increases in the per diem fees after the first full year shall be determined
pursuant to rules and regulations adopted by the person permits another
person who is under the influence of intoxicating liquor to operate a motor
vehicle owned by him or in his custody or control or permits another person
with a blood alcohol concentration of 0.08% or higher but less than 0.10% to
operate a motor vehicle, to a fine of not less than $250 nor more than $400
and a period of detainment of not less than 12 hours nor more than 48 hours
spent during two consecutive days of not less than six hours each day and
served as prescribed by the program requirements of the Intoxicated Driver
Resource Centers established under subsection (f) of this section and, in the
discretion of the court, a term of imprisonment of not more than 30 days and
shall forthwith forfeit his right to operate a motor vehicle over the
highways of this State for a period of three months; (ii) if the person's
blood alcohol concentration is 0.10% or higher, or the person operates a
motor vehicle while under the influence of narcotic, hallucinogenic or
habit-producing drug, or the person permits another person who is under the
influence of narcotic, hallucinogenic or habit-producing drug to operate a
motor vehicle owned by him or in his custody or control, or permits another
person with a blood alcohol concentration of 0.10% or more to operate a motor
vehicle, to a fine of not less than $300 nor more than $500 and a period of
detainment of not less than 12 hours nor more than 48 hours spent during two
consecutive days of not less than six hours each day and served as prescribed
by the program requirements of the Intoxicated Driver Resource Centers
established under subsection (f) of this section and, in the discretion of
the court, a term of imprisonment of not more than 30 days and shall forthwith
forfeit his right to operate a motor vehicle over the highways of this State
for a period of not less than seven months nor more than one year; (iii) For
a first offense, a person also shall be subject to the provisions of P.L.
1999, c.417 (C.39:4-50.16 et al.).
(2) For a second violation, a person shall be subject to a fine of not
less than $500.00 nor more than $1,000.00, and shall be ordered by the court
to perform community service for a period of 30 days, which shall be of such
form and on such terms as the court shall deem appropriate under the
circumstances, and shall be sentenced to imprisonment for a term of not less
than 48 consecutive hours, which shall not be suspended or served on
probation, nor more than 90 days, and shall forfeit his right to operate a
motor vehicle over the highways of this State for a period of two years upon
conviction, and, after the expiration of said period, he may make application
to the Chief Administrator of the New Jersey Motor Vehicle Commission for a
license to operate a motor vehicle, which application may be granted at the
discretion of the chief administrator, consistent with subsection (b) of this
section. For a second violation, a person also shall be required to install
an ignition interlock device under the provisions of P.L. 1999, c.417
(C.39:4-50.16 et al.) or shall have his registration certificate and
registration plates revoked for two years under the provisions of section 2
of P.L. 1995, c.286 (C.39:3-40.1).
(3) For a third or subsequent violation, a person shall be subject to a
fine of $1,000.00, and shall be sentenced to imprisonment for a term of not
less than 180 days in a county jail or workhouse, except that the court may
lower such term for each day, not exceeding 90 days, served participating in a
drug or alcohol inpatient rehabilitation program approved by the Intoxicated
Driver Resource Center and shall thereafter forfeit his right to operate a
motor vehicle over the highways of this State for 10 years. For a third or
subsequent violation, a person also shall be required to install an ignition
interlock device under the provisions of P.L. 1999, c.417 (C.39:4-50.16 et
al.) or shall have his registration certificate and registration plates
revoked for 10 years under the provisions of section 2 of P.L. 1995, c.286
(C.39:3-40.1). As used in this section, the phrase "narcotic,
hallucinogenic or habit-producing drug" includes an inhalant or other
substance containing a chemical capable of releasing any toxic vapors or
fumes for the purpose of inducing a condition of intoxication, such as any
glue, cement or any other substance containing one Commissioner of Health and
Senior Services in consultation with the Governor's Council on Alcoholism and
Drug Abuse pursuant to the "Administrative Procedure Act," P.L.
1968, c.410 (C. 52: 14B-1 et seq.). The centers shall conduct a program of
alcohol and drug education and highway safety, as prescribed by the chief
administrator. The Commissioner of Health and Senior Services shall adopt
rules and regulations pursuant to the "Administrative Procedure
Act," P.L. 1968, c.410 (C. 52: 14B-1 et seq.), in order to effectuate
the purposes of this subsection. (g) When a violation of this section occurs
while: (1) on any school property used for school purposes which is owned by
or leased to any elementary or secondary school or school board, or within
1,000 feet of such school property; (2) driving through a school crossing as
defined in R.S. 39:1-1 if the municipality, by ordinance or resolution, has
designated the school crossing as such; or (3) driving through a school
crossing as defined in R.S. 39:1-1 knowing that juveniles are present if the
municipality has not designated the school crossing as such by ordinance or
resolution, the convicted person shall: for a first offense, be fined not
less than $500 or more than $800, be imprisoned for not more than 60 days and
have his license to operate a motor vehicle suspended for a period of not
less than one year or more than two years; for a second offense, be fined not
less than $1,000 or more than $2,000, perform community service for a period
of 60 days, be imprisoned for not less than 96 consecutive hours, which shall
not be suspended or served on probation, nor more than 180 days, except that
the court may lower such term for each day, not exceeding 90 days, served
performing community service in such form and on such terms as the court
shall deem appropriate under the circumstances and have his license to
operate a motor vehicle suspended for a period of not less than four years;
and, for a third offense, be fined $2,000, imprisoned for 180 days in a
county jail or workhouse, except that the court may lower such term for each
day, not exceeding 90 days, served participating in a drug or alcohol
inpatient rehabilitation program approved by the Intoxicated Driver Resource
Center, and have his license to operate a motor vehicle suspended for a
period of 20 years; the period of license suspension shall commence upon the
completion of any prison sentence imposed upon that person. A map or true
copy of a map depicting the location and boundaries of the area on or within
1,000 feet of any property used for school purposes which is owned by or
leased to any elementary or secondary school or school board produced
pursuant to section 1 of P.L. 1987, c.101 (C. 2C:35-7) may be used in a
prosecution under paragraph (1) of this subsection. It shall not be relevant
to the imposition of sentence pursuant to paragraph (1) or (2) of this
subsection that the defendant was unaware that the prohibited conduct took
place while on or within 1,000 feet of any school property or while driving
through a school crossing. Nor shall it be relevant to the imposition of
sentence that no juveniles were present on the school property or crossing
zone at the time of the offense or that the school was not in session. (h) A
court also may order a person convicted pursuant to subsection a. of this
section, to participate in a supervised visitation program as either a
condition of probation or a form of community service, giving preference to
those who were under the age of 21 at the time of the offense. Prior to
ordering a person to participate in such a program, the court may consult
with any person who may provide useful information on the defendant's
physical, emotional and mental suitability for the visit to ensure that it
will not cause any injury to the defendant. The court also may order that the
defendant participate in a counseling session under the supervision of the
Intoxicated Driving Program Unit prior to participating in the supervised
visitation program. The supervised visitation program shall be at one or more
of the following facilities which have agreed to participate in the program
under the supervision of the facility's personnel and the probation department:
(1) a trauma center, critical care center or acute care hospital having basic
emergency services, which receives victims of motor vehicle accidents for the
purpose of observing appropriate victims of drunk drivers and victims who
are, themselves, drunk drivers; (2) a facility which cares for advanced
alcoholics or drug abusers, to observe persons in the advanced stages of
alcoholism or drug abuse; or (3) if approved by a county medical examiner,
the office of the county medical examiner or a public morgue to observe
appropriate victims of vehicle accidents involving drunk drivers. As used in
this section, "appropriate victim" means a victim whose condition
is determined by the facility's supervisory personnel and the probation
officer to be appropriate for demonstrating the results of accidents
involving drunk drivers without being unnecessarily gruesome or traumatic to
the defendant. If at any time before or during a visitation the facility's
supervisory personnel and the probation officer determine that the visitation
may be or is traumatic or otherwise inappropriate for that defendant, the
visitation shall be terminated without prejudice to the defendant. The
program may include a personal conference after the visitation, which may
include the sentencing judge or the judge who coordinates the program for the
court, the defendant, defendant's counsel, and, if available, the defendant's
parents to discuss the visitation and its effect on the defendant's future
conduct. If a personal conference is not practicable because of the
defendant's absence from the jurisdiction, conflicting time schedules, or any
other reason, the court shall require the defendant to submit a written
report concerning the visitation experience and its impact on the defendant.
The county, a court, any facility visited pursuant to the program, any
agents, employees, or independent contractors of the court, county, or
facility visited pursuant to the program, and any person supervising a
defendant during the visitation, are not liable for any civil damages
resulting from injury to the defendant, or for civil damages associated with
the visitation which are caused by the defendant, except for willful or
grossly negligent acts intended to, or reasonably expected to result in, that
injury or damage. The Supreme Court may adopt court rules or directives to
effectuate the purposes of this subsection. (i) In addition to any other
fine, fee, or other charge imposed pursuant to law, the court shall assess a
person convicted of a violation of the provisions of this section a surcharge
of $100, of which amount $50 shall be payable to the municipality in which
the conviction was obtained and $50 shall be payable to the Treasurer of the
State of New Jersey for deposit into the General Fund.
N.J.S.A. 39:4-50.14 Operation of a motor vehicle by person who has
consumed alcohol but is under the legal age to purchase alcoholic beverages;
penalties Any person under the legal age to purchase alcoholic beverages who
operates a motor vehicle with a blood alcohol concentration of 0.01% or more,
but less than 0.08%, by weight of alcohol in his blood, shall forfeit his
right to operate a motor vehicle over the highways of this State or shall be
prohibited from obtaining a license to operate a motor vehicle in this State
for a period of not less than 30 or more than 90 days beginning on the date
he becomes eligible to obtain a license or on the day of conviction,
whichever is later, and shall perform community service for a period of not
less than 15 or more than 30 days. In addition, the person shall satisfy the
program and fee requirements of an Intoxicated Driver Resource Center or
participate in a program of alcohol education and highway safety as
prescribed by the chief administrator. The penalties provided under the
provisions of this section shall be in addition to the penalties which the
court may impose under N.J.S. 2C:33-15, R.S. 33:1-81, R.S. 39:4-50 or any
other law.
N.J.S.A. 39:4-51 Sentence for violation of section N.J.S.A. 39:4-50 must
be served; release on work release program
A person who has been convicted of a first or second violation of section
39:4-50 of this Title, and in pursuance thereof has been imprisoned in a
county jail or workhouse in the county in which the offense was committed,
shall not, after commitment, be released therefrom until the term of
imprisonment imposed has been served. A person imprisoned in the county jail
or workhouse may in the discretion of the court, be released on a work
release program. No warden or other officer having custody of the county jail
or workhouse shall release therefrom a person so committed, unless the person
has been released by the court on a work release program, until the sentence
has been served. A person sentenced to an inpatient rehabilitation program
may upon petition by the treating agency be released, by the court, to an
outpatient rehabilitation program for the duration of the original sentence.
Nothing in this section shall be construed to interfere in any way with the
operation of a writ of habeas corpus, a proceeding in lieu of the prerogative
writs, or an appeal. The administrator shall adopt such rules and regulations
to effectuate the provisions of this section as he shall deem necessary.
CONCLUSION The State must clearly prove certain conditions, among others:
1. The equipment was in proper working order was periodically inspected
in accordance with procedures. Romano v. Kimmelman, 96 N.J. 66, 81 and 82
(1984) 2. The operator was qualified__i.e., properly certified__to administer
the instrument. Id.; State v. Ernst, 230 N.J. Super. 238 (App. Div. 1989),
cert den. 117 N.J. 40; 3. The test was given correctly-- ie in accordance
with official instructions and accepted procedures. Romano, supra at 81 and
82
The law entitles drunk driving defendants to pre_trial discovery.
R.3:13_3; R.7:4_2(h); State v. Young, 242 N.J. Super. 467, 470 (App. Div.
1990); State v. Ford, 240 N.J. Super. 44, 48 (App. Div. 1990); State v.
Utsch, 184 N.J. Super. 575, 579 (App. Div. 1982). Due process requires the
State disclose evidence that is material to either guilt or punishment;
indeed, the prosecution has a constitutional duty to turn over exculpatory
evidence that would raise reasonable doubt about a defendant's guilt. See
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), United
States v. Agurs, 427 U.S. 97, 98 S.Ct. 2392, 49 L.Ed. 2d 342 (1976). A wide
variety of materials in the State's possession could constitute exculpatory
information to which a defendant is entitled. Ford, supra at 52 A demand for
discovery has been served upon the prosecutor who has the responsibility to
answer. State v. Tull, 234 N.J. Super. 486, 494 (Law Div. 1989). A
defendant's right to discovery is not dependent upon an appraisal of the
beneficial value of the material sought to be discovered. State v. Polito,
116 N.J. Super. 552 (App. Div. 1977), Ford, supra at 51). Thus, a prosecutor
is expected to act reasonably when responding to a discovery demand. Tull,
supra at 496. The prosecutor may not refuse a discovery demand simply because
the information or materials sought are not in the municipal offices or
within easy reach. Id. at 495. The municipal prosecutor cannot refuse
production on the ground that the requested information is not known by the
prosecutor personally to be in existence when its existence is either common
knowledge of the police department or when the knowledge could be obtained by
reasonable inquiry. Id. at 500. The municipal prosecutor must either object
to what the prosecutor perceives to be irrelevant discovery requests, or
respond within 10 days of the receipt of the defendant's request for
discovery. Ford supra at 51; see Tull, supra at 500. The municipal prosecutor
may be sanctioned for failing to provide discovery. R.3:13_; see State v.
Audette, 201 N.J. Super. 410 (App. Div. 1985) State v. Polasky, 216 N.J.
Super. 549 (Law Div. 1986). A defendant who believes the State has not
supplied relevant materials reasonably required for the defense may give
notice to the State and the court prior to the date set for commencement of
trial where possible. Ford, supra at 52. Information relating to prerequisite
conditions establishing reliability is highly relevant, Ford, supra at 52,
and extremely material. Id. at 51. Thus, information concerning conditions
under which tests were held, the machine operator's competence, the
particular machine's state of repair and identification, and documentation of
the ampoule used for defendant's breath tests are all relevant inquiries. Id.
Conclusion If charged with Driving While Intoxicated, immediately
schedule an in-office appointment with a trial attorney. Don't rely on a real
estate attorney, public defender or a family member who simply attended law
school. When your driving privileges and ability to drive to work is on the
line, hire an experienced attorney.
KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge
Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030
TRIAL AND LITIGATION EXPERIENCE In his private practice, he has devoted a
substantial portion of his professional time to the preparation and trial of
litigated matters. He appears in Courts throughout New Jersey several times
each week on many personal injury matters, Criminal and Municipal/ traffic
Court trials, Probate hearings, and contested administrative law hearings.
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Thursday, January 1, 2015
Arrested for DUI/DWI? Penalties in NJ
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