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New Jersey DWI Statute

New  Jersey DWI Statute N.J.S.A. 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 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, 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 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 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 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; provided that 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, orR.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  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 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.