Tuesday, February 10th, 2009
1. THE “PER SE LIMIT” WAS LOWERED.
On January 20, 2004, New Jersey revised their drunk driving laws. The major change to New Jersey DWI law is that it lowers the blood alcohol level in order for a driver to be found guilty of a DWI related offense. The BAC level was reduced from .10% to .08%. This amendment is known as “Florence’s Law.” It was enacted by the New Jersey Legislature largely in response to federal legislation that conditions the receipt of highway safety funds upon a voluntary adoption by the states of a minimum of .08% BAC level to establish the offense of drunk driving.
The main purpose of “Florence’s Law” is to revise the key element of the per se violation for drunk driving by lowering the BAC level from .10% to .08%. This means that evidence of a driver having a BAC of at least a .08%, based upon a reliable chemical test performed within reasonable period of time after the operation of a motor vehicle, is sufficient evidence to constitute the offense of drunk driving.
Basically, the new law creates two types of DWI cases. A person found guilty of having a BAC that ranges from at least .08% but less than .10% is guilty of the offense of driving while impaired. The license suspension for driving while impaired is significantly lower than they were under the old New Jersey DWI laws. A person convicted of driving while impaired receives a license suspension of only 3 months. Meanwhile, a driver who is convicted of a standard DWI, and who also has a BAC of .10% or higher, will receive a driver’s license suspension of 7 months to 1 year.
In summary there are some pros and cons to the revised New Jersey DWI laws. The negative aspects of the revised DWI laws are that it increases a person’s exposure to being convicted of a DWI related charge. Under the old DWI system, many drivers would have completely beaten the DWI charge, if their lawyer could prove that their respective BAC was below the per se level of .10%. A driver only has to consume a few alcoholic beverages for them to register a BAC of at least .08%. Moreover, the new law adds an additional month of license suspension for a DWI charge. Under the old law, the standard license suspension for DWI was 6 months. However, the revised DWI laws increases the minimum license suspension for a DWI to 7 months.
The benefits of the new law are that it gives the DWI driver many new options to resolve their case. Many courts are more than willing to downgrade a DWI charge to a driving while impaired offense. Municipal courts are swamped and they are not really equipped to handle and try many DWI cases. Nothing pleases a municipal court judge and their court administrator more than to resolve a DWI case. The municipal courts are carefully watched by the AOC, and they are always pushing to resolve DWI cases. Thus, under the new law, a driver can receive a 3-month suspension for the driving while impaired charge. However, under the old DWI laws, the driver would have received a license suspension of at least six months.
SUMMARY
The revised DWI laws create two tiers of offenses. The first offense occurs when a driver has a BAC of at least .08% but not greater than .10%. This type of offense is called driving while impaired or driving under the influence. A driver who has a BAC of .10% or higher is guilty of a standard DWI charge.
The license suspension for a driving while impaired conviction is 3 months. The license suspension for a DWI charge is 7 months to 12 months.
The major drawback to the new law is that it lowers the BAC level for a driver to be guilty of a DWI related charge. In the past, in many cases a driver with a borderline BAC could have beaten the DWI charge completely. However, under the revised DWI laws, the municipal court has another option to find the driver guilty of driving while impaired. The other drawback is that a conviction of driving while impaired conviction counts as regular prior DWI offense for sentencing purposes. This is especially important if the driver is convicted in the future for another DWI charge. Finally, a conviction for driving while impaired also has the same amount of surcharges as a regular DWI charge. A person who is convicted of a driving while impaired charge will still have to pay a total of $3,000 worth of DMV surcharges.
2. INCREASE IN THE TIME OF LICENSE SUSPENSION.
The New Jersey legislature increased the range of license suspension for a DWI charge when the BAC reading is .10% or higher. Now a DWI driver can receive a license suspension of 7 to 12 months. Under the prior laws, the DWI driver faced a suspension of 6 to 12 months.
3. A THIRD TIME DWI OFFENDER IS NOW GOING TO SPEND SOME SERIOUS TIME IN JAIL.
If a DWI driver is faced with a third offense, then he or she must retain a very experienced DWI lawyer. Under the prior laws, a third time DWI offender would most often receive a jail term of 180 days. However, a crafty lawyer often could find a way to keep the DWI driver out of jail by having him serve his jail term in a rehab center. Moreover, there was a provision in the old laws that permitted the DWI driver to perform 90 days of community service instead of serving time in the local county jail. For better or worse those days are over.
The New Jersey legislature now has a mandatory 90 day jail term for a third time DWI offender. A third time DWI offender can still serve the remaining 90 days of their term in a rehab center. However, there is no escaping the 90-day jail term in the county jail. This can be quite a shocking experience for a person who has never been to jail before.
4. HARSHER PENALTIES FOR REFUSAL TO SUBMIT.
Under the old laws, a driver who refused to submit to a breath test faced a license suspension of 6 to 12 months. The new laws have increased the sentence for a refusal charge to 7 to 12 months.
