DWI Penalties

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PENALTIES DEFENDANTS FACE FOR DRUNK DRIVING AND BREATH TEST REFUSAL

Generally. Although not a crime in New Jersey, drunk driving and breath test refusal can lead to serious penalties and other consequences, including:

• Court imposed assessments of up to $1,409 for DWI and $1,159 for refusal
• Administrative assessments of between $4,005 and $5,225
• Revocation of driving and vehicle registration privileges for up to 20 years
• Alcohol ignition interlock in every vehicle you customarily operate during and following your driving privilege revocation
• Jail for six months
• Intoxicated Driver Resource Center (“IDRC”) attendance for 48 hours
• Insurance premium increases of several hundred percent in some instances
• Further education, evaluation, and treatment on the IDRC’s recommendation
• Inadmissibility to Canada
• Deportation

Sentencing Factors. When sentencing one convicted of drunk driving, breath test refusal, or reckless driving, among other similar offenses, courts will consider these factors:

• Whether the conduct posed a high risk of danger to the public
• Whether the conduct caused physical harm or property damage
• The defendant’s driving record
• The defendant’s age and length of time as a licensed driver
• Number, seriousness, and frequency of prior infractions
• Whether the defendant was infraction-free for a substantial period
• Whether the nature and extent of the defendant’s driving record indicates that there is a substantial risk that he or she will commit another violation
• Whether the character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation
• Whether the defendant’s conduct was the result of circumstances unlikely to recur
• Whether a license suspension would cause excessive hardship to the defendant and/or dependants
• The need for personal deterrence
• Any other relevant factors

Aggravating Factors. These are circumstances that tend to make court believe that a defendant deserves greater punishment than the court would ordinarily impose:

• An accident and its victims input
• High breathalyzer readings (say 0.15 or more, depending on the court)
• Bad driving record
• Offenses soon after restoration of driving privileges
• Poor relations with the police officers involved
• Unusual or dangerous driving leading to the police stop
• Youth

Mitigating Factors. While the court can impose no less than minimum penalties required by law, it may consider mitigating factors. These are circumstances which indicate that the defendant deserves less punishment:

• Low breath test results
• Good driving record
• Good relations with the police officers involved
• Otherwise careful or nonexistent driving
• Rehabilitation efforts
• Adverse affect on employment and family

Mandatory Minimum Sentences. Penalties for drunk driving and breath test refusal are very serious. There is little difference in penalties regardless whether one pleads guilty or loses after a trial. Indeed, going to trial often improves the ultimate outcome either by a reduction in consequences or an acquittal.

Although not considered “crimes” in New Jersey, those who are convicted of these offenses are punished more severely than most people convicted of crimes. A conviction for drunk driving and breath test refusal may likely be considered a crime for enhancement purposes in most states and will be considered a crime by Canadian officials for the purpose of excluding you from that country.

A list if current statutorily and administratively authorized penalties and other consequences for drunk driving and breath test refusal, listed with the statutory and administrative reference authorizing each penalty, follow. In addition to these statutory and administrative consequences, one must also consider the effect on employment, housing, ability to travel, family demands, medical needs, and available alternatives.

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Drunk Driving and Breath Test Refusal

Court Imposed Penalties for Drunk Drving

Assessments

$ 300- 500 Fine for first offense. N.J.S. 39:4-50(a)(1).

$ 600-1,000 Fine for first offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50(g)(3).

$ 500-1,000 Fine for second offense. N.J.S. 39:4-50(a)(2).

$1,000-2,000 Fine for second offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50(g)(3).

$1,000 Fine for third or subsequent offense. N.J.S. 39:4-50(a)(3).

$2,000 Fine for third or subsequent offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50(g)(3).

$ 0-1,000 Additional fine when a child in a vehicle driven by a parent or guardian. N.J.S. 39:4-50.15.

$ 125 Surcharge. N.J.S. 39:4-50(i).

$ 100 Drunk Driving Enforcement Fund. N.J.S. 39:4-50.8.

$ 50 Victims of Crime Compensation Board. N.J.S. 2C:43-3.1.

$ 75 Safe Neighborhood Services Fund. N.J.S. 2C:43-3.2.

$ 39 Court costs. N.J.S. 22A:3-4, 39:5-41.

$ 20 Physician’s fee (if applicable). N.J.S. 39:5-39.

Confinement

12-48 hours Intoxicated Driver Resource Center attendance for first offense. N.J.S. 39:4-50(a)(1).

48 hours Intoxicated Driver Resource Center attendance second offense. N.J.S. 39:4-50(a)(2).

0-30 days Imprisonment for first offense. N.J.S. 39:4-50(a)(1).

0-60 days Imprisonment for first offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50(g)(3).

2-90 days Imprisonment for second offense. N.J.S. 39:4-50(a)(2).

30 days (180 hours) community service. N.J.S. 39:4-50(a)(2).

60 days (360 hours) community service. N.J.S. 39:4-50(g)(3).

4-180 days Imprisonment for second offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50(g)(3).

180 days Imprisonment for third or subsequent offense. N.J.S. 39:4-50(a)(3).

Driving Privilege Forfeiture

3 month forfeiture of driving privilege for first offense with .08 or .09 blood alcohol content or when under influence of alcohol. N.J.S. 39:4-50(a)(1)(i).

7-12 month forfeiture of driving privilege for first offense with .10 blood alcohol content or higher or when under influence of drugs. N.J.S. 39:4-50(a)(1)(ii).

1-2 year forfeiture of driving privilege for first offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50(g)(3).

2 year forfeiture of driving privilege for second. N.J.S. 39:4-50(a)(2).

4 year forfeiture of driving privilege for second offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50(g)(3).

10 year forfeiture of driving privilege for third offense. N.J.S. 39:4-50(a)(3).

20 year forfeiture of driving privilege for third offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50(g)(3).

6 months additional forfeiture of driving privilege when a child is in a vehicle driven by a parent or guardian. N.J.S. 39:4-50.15.

Alcohol Ignition Interlock

0-12 months alcohol ignition interlock following driving privilege restoration from a first offense with less than .15 blood alcohol content or when under influence of alcohol without result. N.J.S. 39:4-50(a)(1)(i), N.J.S. 39:4-50.17(a)(1).

6-12 months alcohol ignition interlock following driving privilege restoration from a first offense with .15 blood alcohol content or when under influence of drugs. N.J.S. 39:4-50(a)(1)(ii), N.J.S. 39:4-50.17(a)(2).

1-3 years alcohol ignition interlock following driving privilege restoration from a second or subsequent offense. N.J.S. 39:4-50(a)(2), N.J.S. 39:4-50(a)(3), N.J.S. 39:4-50.17(a).

An interlock must be installed “in the motor vehicle principally operated by the offender during and following the period of license suspension….” How this applies to offenders who do not own or operate vehicles during their driving privilege forfeiture has not yet been determined.

NOTE on Consecutive and Concurrent Sentencing

Drunk driving and refusal penalties must run consecutively, except for first offenders. For first offenders, municipal courts may run penalties for drunk driving and breath test refusal either consecutively or concurrently. As a practical matter, first offender assessments are almost always run consecutively and Intoxicated Driver Resource Center attendance requirements are almost always run concurrently. Whether the remaining aspects of a first offender sentence run consecutively or concurrently will vary from court to court.

NOTE on Sentence Enhancement for Multiple Offenders

Currently, a prior drunk driving conviction will be treated as if it were a prior breath test refusal conviction for sentencing on a subsequent breath test refusal offense. Until recently, the opposite was not true. Then, on January 7, 2010, a panel of judges from New Jersey’s intermediate appellate court held that a prior breath test refusal conviction occurring after March 15, 2005, would be treated as a prior drunk driving conviction for sentencing purposes. See State v. Ciancaglini, 411 N.J.Super. 280 (App.Div.), certif.gr. 202 N.J. 43 (2010). The New Jersey Supreme Court agreed to hear a challenge to the Appellate Division’s decision on May 7, 2010. The case was argued recently, and a decision is pending. Until the Supreme Court makes this decision, no one can tell for sure how a person with a prior refusal conviction should be classified for sentencing purposes.

Court Imposed Penalties for Breath Test Refusal

Assessments

$ 300- 500 Fine for first offense. N.J.S. 39:4-50.4a(a).

$ 600-1,000 Fine for first offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50.4a(b).

$ 500-1,000 Fine for second offense. N.J.S. 39:4-50.4a(a).

$1,000-2,000 Fine for second offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50.4a(b).

$1,000 Fine for third or subsequent offense. N.J.S. 39:4-50.4a(a).

$2,000 Fine for third or subsequent offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50.4a(b).

$ 100 Drunk Driving Enforcement Fund. N.J.S. 39:4-50.8.

$ 39 Court costs. N.J.S. 22A:3-4, 39:5-41.

Confinement

12-48 hours Intoxicated Driver Resource Center attendance for first offense. N.J.S. 39:4-50.4a(a).

Driving Privilege Forfeiture

7-12 month forfeiture of driving privilege for first offense. N.J.S. 39:4-50.4a(a).

1-2 year forfeiture of driving privilege for first offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50.4a(b).

2 year forfeiture of driving privilege for second offense. N.J.S. 39:4-50.4a(a).

4 year forfeiture of driving privilege for second offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50.4a(b).

10 year forfeiture of driving privilege for third offense. N.J.S. 39:4-50.4a(a).

20 year forfeiture of driving privilege for third offense within 1,000 feet of primary or secondary school or school crossing. N.J.S. 39:4-50.4a(b).

Alcohol Ignition Interlock

6-12 months alcohol ignition interlock following driving privilege restoration from a first offense. N.J.S. 39:4-50.4a(a), N.J.S. 39:4-50.17(a)(2).

1-3 years alcohol ignition interlock following driving privilege restoration from second or subsequent offense. N.J.S. 39:4-50.4a(a), N.J.S. 39:4-50.17(a).

An interlock must be installed “in the motor vehicle principally operated by the offender during and following the period of license suspension….” How this applies to offenders who do not own or operate vehicles during their driving privilege forfeiture has not yet been determined.

NOTE on Consecutive and Concurrent Sentencing

Drunk driving and refusal penalties must run consecutively, except for first offenders. For first offenders, municipal courts may run penalties for drunk driving and breath test refusal either consecutively or concurrently. As a practical matter, first offender assessments are almost always run consecutively and Intoxicated Driver Resource Center attendance requirements are almost always run concurrently. Whether the remaining aspects of a first offender sentence run consecutively or concurrently will vary from court to court.

NOTE on Sentence Enhancement for Multiple Offenders

Currently, a prior drunk driving conviction will be treated as if it were a prior breath test refusal conviction for sentencing on a subsequent breath test refusal offense. Until recently, the opposite was not true. Then, on January 7, 2010, a panel of judges from New Jersey’s intermediate appellate court held that a prior breath test refusal conviction occurring after March 15, 2005, would be treated as a prior drunk driving conviction for sentencing purposes. See State v. Ciancaglini, 411 N.J.Super. 280 (App.Div.), certif.gr. 202 N.J. 43 (2010). The New Jersey Supreme Court agreed to hear a challenge to the Appellate Division’s decision on May 7, 2010. The case was argued recently, and a decision is pending.

Administratively Imposed Penalties for Drunk Driving or Refusal or Both

Bureau of Alcohol Countermeasures

$ 100 Alcohol Education, Rehabilitation, and Enforcement Fund. N.J.S. 39:4-50(b).

$ 150 – 200 Intoxicated Driver Resource Center total per diem fees. N.J.S. 39:4-50(f).

Costs of further education and/or treatment. N.J.A.C. 10:162-2.4.

Indefinite suspension of driving privilege for failure to comply with Intoxicated Driver Resource Center or Intoxicated Driver Program fee or program requirements. N.J.A.C. 10:162-2.5.

Division of Motor Vehicles

$ 100 Driver License Restoration Fee. N.J.S. 39:3-10a.

$3,000 Merit Rating Plan Surcharge if less than two driving privilege forfeitures under N.J.S. 39:4-50 or N.J.S. 39:4-50.4a occur within three years. N.J.S. 17:29A-35.b(2).

$4,500 Merit Rating Plan Surcharge if more than two driving privilege forfeitures under N.J.S. 39:4-50 or N.J.S. 39:4-50.4a occur within three years. N.J.S. 17:29A-35.b(2).

$ 525- 675 Merit Rating Plan point assessment. N.J.S. 17:29A-35.b(3).

Additional assessments for late or missed payments.

1-3 year forfeiture of commercial driving privilege for first offense. N.J.S. 39:3-10.20(a)(1).

Lifetime forfeiture of commercial driving privilege for second offense. N.J.S. 39:3-10.20(c).

Other Consequences Required by Law for Drunk Driving or Refusal or Both

Sentence enhancement on subsequent convictions of N.J.S. 39:4-50, N.J.S. 39:4-50.2 and -50.4a, and N.J.S. 39:3-40.

Cancellation of automobile insurance “of the named insured or of any other operator who either resides in the same household or customarily operates an automobile insured under the policy….” N.J.S. 17:29C-7, N.J.A.C. 11:3-8.9; see N.J.A.C. 11:3-34.4, N.J.A.C. 11:3-34 App. (re assessment of nine insurance eligibility points).

Insurance premium increases. See N.J.A.C. 11:3-34.4, N.J.A.C. 11:3-34 App. (re assessment of nine insurance eligibility points).

Denial of application for automobile insurance coverage. See N.J.A.C. 11:3-33, App.B; see also N.J.A.C. 11:3-34.4, N.J.A.C. 11:3-34 App. (re assessment of nine insurance eligibility points).

Disqualification from employment as driver for livery transportation services. N.J.A.C. 10:50-1.10(d)(1).

Disqualification as a motor vehicle defensive driving course instructor or provider of an on-line or computer assisted course. N.J.A.C. 13:21-24.4(a) and (b); see N.J.A.C. 13:23-2.36(d), N.J.A.C. 13:23-3.12(b).

Disqualified as motorcycle safety instructor. N.J.S. 27:5F-37, N.J.A.C. 13:85-6.1(a).

No particular mark or special organization plates for 10 years. N.J.S. 39:3-33.5(a), N.J.A.C. 13:20-34.4(b).

No vanity or personalized plates ever. N.J.S. 39:3-33.5a; see N.J.A.C. 13:20-34.4(b), N.J.A.C. 13:20-39.10(a).

No cause of action permitted for recovery of economic or non-economic loss sustained as a result of the accident. N.J.S. 39:6A-4.5(b).

No admission into Canada. Canada’s Immigration and Refugee Protection Act, sec.36; see Criminal Code of Canada, sec.253 and sec.255.

Deportation (see an immigration attorney if you are not a citizen of the United States).

Reciprocal consequences (see www.ncdd.com to consult an attorney from your home state if you are not licensed in New Jersey).

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Underage Operation with a Blood-Alcohol Content Above 0.01 Percent

Court Imposed Penalties

$ 39 Court costs. N.J.S. 22A:3-4, 39:5-41.

12-48 hours Intoxicated Driver Resource Center attendance for first offense. N.J.S. 39:4-50.14.

30-90 day forfeiture of driving privilege. N.J.S. 39:4-50.14.

15-30 days community service. N.J.S. 39:4-50.14.

Administratively Imposed Penalties

Bureau of Alcohol Countermeasures

$ 100 Alcohol Education, Rehabilitation, and Enforcement Fund. N.J.S. 39:4-50(b).

$ 150 – 200 Intoxicated Driver Resource Center per diem fees. N.J.S. 39:4-50(f).

$ ? Costs of further education and/or treatment. N.J.A.C. 10:162-2.4.

Indefinite suspension of driving privilege for failure to comply with Intoxicated Driver Resource Center or Intoxicated Driver Program fee or program requirements. N.J.A.C. 10:162-2.5.

Division of Motor Vehicles

$ 100 Driver License Restoration Fee. N.J.S. 39:3-10a.

Other Consequences Required by Law

Insurance premium increases. See N.J.A.C. 11:3-34.4, N.J.A.C. 11:3-34 App. (re assessment of nine insurance eligibility points).

Denial of application for automobile insurance coverage. See N.J.A.C. 11:3-33, App.B; see also N.J.A.C. 11:3-34.4, N.J.A.C. 11:3-34 App. (re assessment of nine insurance eligibility points).