NJ Senate approves change to DWI Law and require
interlock machine on car but permit DWI defendants to drive after having the
machine installed.
SENATE Bill No. 385 is now being submitted
to the Governor for signature. The Assembly approved the bill in June, 2014.
This
bill revises the penalty provisions for various drunk driving offenses,
particularly making changes concerning the use of, and applicable time periods
covering, driver’s license suspensions and installations of ignition interlock
devices on motor vehicles owned or operated by these drivers.
Drunk
Driving
Concerning the offense of driving under the influence of alcohol or drugs
(R.S.39:50-4), the bill revises the relevant penalty provisions as follows:
For
a first offense, if that offense involved a person’s blood alcohol
concentration of 0.08% or higher but less than 0.10%, or otherwise operating a
motor vehicle while under the influence of intoxicating liquor, the court would
order a 10-day license suspension, during which the person would have to
install an ignition interlock device in one motor vehicle owned, leased, or
principally operated by the person, whichever the person most often operates,
for three months, unless the court was clearly convinced, based on a series of
aggravating factors outweighing mitigating ones as set forth in the bill, to
instead order a license suspension of three months (the three month suspension
would also apply instead of device installation if the person did not own or
lease a motor vehicle and there was no motor vehicle the person principally
operated). Under current law, the license suspension is mandatory and
motorists have no way to get to work or school.
An ignition interlock device or breath
alcohol ignition interlock device (IID and BAIID) is a
mechanism, like a breathalyzer,
installed on a motor vehicle's dashboard.
Before the vehicle's motor can be started, the driver first must exhale into
the device; if the resultant breath-alcohol concentration analyzed result is
greater than the programmed blood alcohol
concentration (which varies between
countries), the device prevents the engine from being started. The NJ
ignition interlock device to prevent a vehicle from starting if the BAC exceeds
0.05%.
The aggravating and mitigating factors for consideration by the court to order
a license suspension instead of device installation would include, but not be
limited to: the nature and circumstances of the person’s conduct, including
whether such conduct posed a high risk of danger to the public; the person’s
driving record; whether the character and attitude of the person indicate that
the person would be likely or unlikely to commit another violation; and the
need for personal or general deterrence.
Under
the proposed law, if the court did order the installation of the ignition
interlock device, the person’s driver’s license would only be reinstated within
the 10-day suspension/device installation period by the New Jersey Motor
Vehicle Commission upon showing proof of such installation, and the commission
would imprint a notation concerning driving with the device on the person’s
driver’s license.
Additionally, for a person with an ignition interlock device installed, the
three-month installation period would be subject to possible extension for an
additional period equal to one-third of the originally designated period, for
attempting to operate the affected motor vehicle with a blood alcohol
concentration of 0.08% or higher during the last one-third of the installation
period, or for failing to present the affected vehicle for device servicing at
any time during the installation period. This extension would occur
without need of further court order, following notification of the event to the
court by the Chief Administrator of the Motor Vehicle Commission, which
notification would be supported by a certification from the ignition interlock
device manufacturer, installer, or other party set forth in regulation
responsible for the servicing or monitoring of the device.
If the first offense involved a person’s blood alcohol concentration of 0.10%
or higher but less than 0.15%, the court would order a 10-day license
suspension, during which the person would have to install an ignition interlock
device in one motor vehicle owned, leased, or principally operated by the
person, whichever the person most often operates, for not less than seven
months or more than one year, unless the court was clearly convinced, based on
the series of aggravating factors outweighing the mitigating ones as described
above, to instead order a license suspension of not less than seven months or
more than one year (the seven month to one year suspension would also apply
instead of device installation if the person did not own or lease a motor
vehicle and there was no motor vehicle the person principally operated). Under the current law, an ignition
interlock device is already required. f the person was ordered to install an
ignition interlock device, the person could only reinstate the person’s
driver’s license through the Motor Vehicle Commission upon showing proof of
such installation, and could have the installation period extended by an
additional period equal to one-third of the originally designated period in the
same manner as previously described.
If the first offense involved a person’s blood alcohol concentration of 0.15%
or higher, the court would order a 10-day license suspension, during which the
person would have to install an ignition interlock device in one motor vehicle
owned, leased, or principally operated by the person, whichever the person most
often operates, and maintain installation of the device during a period of
license suspension of not less than seven months or more than one year and
after license suspension for an additional period of not less than seven months
or more than one year, unless there was no such vehicle, in which case the
person would receive an initial period of suspension plus an additional period
of suspension equal to the total period the person would have had an ignition
interlock device installed.
With respect to the license suspension of a person with a blood alcohol
concentration of 0.15% or higher, the person would have the opportunity,
beginning 90 days after the start of the suspension, to petition the court to reinstate
the person’s driving privileges for the duration of the initially ordered
suspension period, subject to the person maintaining the installation of the
ignition interlock device in the person’s motor vehicle both for the remainder
of the initially ordered suspension period and afterward for the additional
seven-month to one-year period. Additionally, a person whose driving
privileges were suspended for an additional period because the person does not
own or lease a motor vehicle and there is no motor vehicle the person
principally operates, may petition the court that established the forfeiture
period, upon proof of owning, leasing, or principally operating a motor
vehicle, to reinstate the person’s driving privileges for the duration of the
initial and additional suspension period, subject to the person maintaining the
installation of an ignition interlock device in that vehicle. As above, a
person ordered to install an ignition interlock device could only reinstate a
driver’s license through the Motor Vehicle Commission upon showing proof of
such installation, and could have the installation period extended by an
additional period equal to one-third of the originally designated period in the
same manner as previously described.
If the offense involved a “drugged” driver (i.e., operating a motor vehicle
under the influence of a narcotic, hallucinogenic, or habit-producing drug),
the court would order a license suspension of not less than seven months or
more than one year, with no option to instead operate a motor vehicle
with an ignition interlock device installed.
For any such first offense of drunk or “drugged” driving occurring on or near a
school property or crossing, the bill would eliminate any enhanced penalties
currently available under the law and instead treat such an offense the same as
all other first offenses.
For
a second offense, the bill increases, for all drunk and “drugged” drivers,
the period of license suspension from the current law’s two years to instead a
period of not less than two years or more than four years. The court
would order a 10-day license suspension, during which the person would have to
install an ignition interlock device in each motor vehicle owned, leased, or
operated by the person to be maintained during the two to four year suspension
period, and to remain installed afterward for a period of not less than one
year or more than three years, unless there was no such vehicle, in which case
the person would receive an initial period of suspension plus an additional
period of suspension equal to the total period the person would have had an
ignition interlock device installed.
With respect to a second offender’s license suspension, a person who does not
own or lease a motor vehicle or have a motor vehicle the person operates may
petition the court that established the forfeiture period, upon proof of
owning, leasing, or operating a motor vehicle, to reinstate the person’s
driving privileges for the duration of the additional one to three year suspension
period (not the initial two to four year period), subject to the person
maintaining the installation of an ignition interlock device in that
vehicle.
As above for any first offender, a person who is a second offender ordered to
install an ignition interlock device could only reinstate a driver’s license
through the Motor Vehicle Commission upon showing proof of such installation,
and could have the installation period extended by an additional period equal
to one-third of the originally designated period in the same manner as
previously described for a first offender.
For a second offense occurring on or near a school property or crossing, the
bill would eliminate any enhanced penalties currently available under the law
and instead treat such an offense the same as all other second offenses.
For
a third or subsequent offense, the bill increases, for all drunk and
“drugged” drivers, the period of license suspension from the current law’s 10
years to instead a period of not less than 10 years or more than 20
years. The court would order a 10-day license suspension, during which
the person would have to install an ignition interlock device in each motor
vehicle owned, leased, or operated by the person to be maintained during the 10
to 20 year suspension period, and to remain installed afterwards for a period
of not less than one year or more than three years, unless there was no such
vehicle, in which case the person would receive an initial period of suspension
plus an additional period of suspension equal to the total period the person
would have had an ignition interlock device installed.
With respect to a third or subsequent offender’s license suspension, a person
who does not own or lease a motor vehicle or have a motor vehicle the person
operates may petition the court that established the forfeiture period, upon
proof of owning, leasing, or operating a motor vehicle, to reinstate the
person’s driving privileges for the duration of the additional one to three
year suspension period (not the initial 10 to 20 year period), subject to the
person maintaining the installation of an ignition interlock device in that
vehicle.
As above for both first and second offenders, a person who is a third or
subsequent offender ordered to install an ignition interlock device could only
reinstate a driver’s license through the Motor Vehicle Commission upon showing
proof of such installation, and could have the installation period extended by
an additional period equal to one-third of the originally designated period in
the same manner as previously described for first and second offenders.
For a third or subsequent offense occurring on or near a school property or
crossing, the bill would eliminate any enhanced penalties currently available
under the law and instead treat such an offense the same as all other third or
subsequent offenses.
Refusing
a Breath Test
Concerning the offense of refusing to submit to a breath test (section 2 of
P.L.1981, c.512 (C.39:4-50.4a)), the bill revises the relevant penalty
provisions as follows:
For
a first offense, the court would order a 10-day license suspension,
during which the person would have to install an ignition interlock device in
one motor vehicle owned, leased, or principally operated by the person,
whichever the person most often operates, for not less than seven months or
more than one year, unless the court was clearly convinced, based on the series
of aggravating factors outweighing the mitigating ones as described above for
drunk driving offenses, to instead order a license suspension of not less than
seven months or more than one year (the seven month to one year suspension
would also apply instead of device installation if the person did not own or
lease a motor vehicle and there was no motor vehicle the person principally
operated). As above with respect to drunk driving offenses, if the person was
ordered to install an ignition interlock device, the person could only
reinstate the person’s driver’s license through the Motor Vehicle Commission
upon showing proof of such installation, and could have the installation period
extended by an additional period equal to one-third of the originally
designated period in the same manner as previously described.
For any first offense of refusing a breath test occurring on or near a school
property or crossing, the bill would eliminate any enhanced penalties currently
available under the law and instead treat such an offense the same as all other
first offenses.
For
a second offense, the bill increases the period of license suspension from
the current two years to instead a period of not less than two years or more
than four years. The court would order a 10-day license suspension,
during which the person would have to install an ignition interlock device in
each motor vehicle owned, leased, or operated by the person to be maintained
during the two to four year suspension period and remain installed afterward
for a period of not less than one year or more than three years, unless there
was no such vehicle, in which case the person would receive an initial period
of suspension plus an additional period of suspension equal to the total period
the person would have had an ignition interlock device installed.
A person who does not own or lease a motor vehicle or have a motor vehicle the
person operates may petition the court that established the forfeiture period,
upon proof of owning, leasing, or operating a motor vehicle, to reinstate the
person’s driving privileges for the duration of the additional one to three
year suspension period (not the initial two to four year period), subject to
the person maintaining the installation of an ignition interlock device in that
vehicle.
As above with respect to any drunk driving offense, a person who is a second
offender ordered to install an ignition interlock device could only reinstate a
driver’s license through the Motor Vehicle Commission upon showing proof of
such installation, and could have the installation period extended by an
additional period equal to one-third of the originally designated period in the
same manner as previously described for a drunk driving
offense.
For a second offense of refusing a breath test occurring on or near a school
property or crossing, the bill would eliminate any enhanced penalties currently
available under the law and instead treat such an offense the same as all other
second offenses.
For a third or subsequent offense, the bill increases the period of
license suspension from the current 10 years to instead a period of not less
than 10 years or more than 20 years. The court would order a 10-day
license suspension, during which the person would have to install an ignition
interlock device in each motor vehicle owned, leased, or operated by the person
to be maintained during the 10 to 20 year suspension period, and to remain
installed afterwards for a period of not less than one year or more than three
years, unless there was no such vehicle, in which case the person would receive
an initial period of suspension plus an additional period of suspension equal
to the total period the person would have had an ignition interlock device
installed.
A third or subsequent offender who does not own or lease a motor vehicle or
have a motor vehicle the person operates may petition the court that
established the forfeiture period, upon proof of owning, leasing, or operating
a motor vehicle, to reinstate the person’s driving privileges for the duration
of the additional one to three year suspension period (not the initial 10 to 20
year period), subject to the person maintaining the installation of an ignition
interlock device in that vehicle.
As above with respect to any drunk driving offense, a person who is a third or
subsequent offender ordered to install an ignition interlock device could only
reinstate a driver’s license through the Motor Vehicle Commission upon showing
proof of such installation, and could have the installation period extended by
an additional period equal to one-third of the originally designated period in
the same manner as previously described for a drunk driving offense.
For a third or subsequent offense of refusing a breath test occurring on or
near a school property or crossing, the bill would eliminate any enhanced
penalties currently available under the law and instead treat such an offense
the same as all other third or subsequent offenses.
Ignition
Interlock Device Installation – License Reinstatement
With respect to all cases for which a person has been ordered to install one or
more ignition interlock devices, the court would notify the Chief Administrator
of the Motor Vehicle Commission. The commission would thereafter require
that the one or more devices be installed before the reinstatement of the
person’s driver’s license, whether after a 10-day suspension period or some
longer period as applicable to the specific offense. The commission would
imprint a notation on the reinstated driver’s license stating that the person
could not operate a motor vehicle unless it is equipped with an ignition
interlock device, and would enter this requirement in the person's driving
record.
Ignition
Interlock Device – Failure to Install, Tampering
Lastly, a person who fails to install an ignition interlock device as ordered
by a court, or who drives a device-equipped vehicle after being started by
means other than the person blowing into the device, or who drives an
unequipped vehicle, would be guilty of a disorderly persons offense. A
disorderly persons offense is ordinarily punishable by a term of imprisonment
of up to six months, a fine of up to $1,000, or both. Furthermore, the
court would suspend the person’s driver’s license for the period of time
associated with a drunk driving offense under R.S.39:4-50, except that the
applicable period applied by the court would be the period for a second offense
(not less than two years or more than four years) if the underlying act was
committed by a first offender drunk driver/breath test refusal, and would be
the period for a third or subsequent offense (not less than 10 years or more
than 20 years) if the underlying act was committed by a second offender drunk
driver/breath test refusal; the suspension period for a third or subsequent
offender drunk driver/breath test refusal would not be enhanced (remaining not
less than 10 years or more than 20 years).
Other proposed changes:
- provide, for all of the relevant drunk driving and breath test refusal
offenses described above, a 10-day license suspension period, during which an
offender would have to install an ignition interlock device in the one or more
motor vehicles required by the bill’s provisions;
- clarify the device installation requirements for repeat offenders, so that an
ignition interlock device would have to be installed in all motor vehicles
operated by such offenders (along with all vehicles owned or leased), not just
those vehicles “principally” operated by such offenders;
- add provisions to further explain the available penalties for offenders who
are required to install ignition interlock devices versus those offenders who
face license suspension because they do not have a motor vehicle in which a
device would be installed, as detailed above;
- update the existing law concerning the procedure to be followed by drunk
driving and breath test refusal offenders who are seeking the reinstatement of
their driver’s licenses through the Motor Vehicle Commission;
- update provisions of the relevant drunk driving statute, R.S.39:4-50, to
account for the enactment of P.L.2014, c.54 on September 10, 2014, providing a
$25 increase to the surcharge assessed against drunk driving violators ($100 to
$125) in order to, in part, help fund the installation of mobile video
recording systems on municipal police vehicles as required by that act;
- reinsert provisions concerning the currently operating supervised visitation
program for convicted offenders, providing visits to hospitals which receive
drunk driving victims, facilities caring for advanced alcoholics or drug
abusers, and public morgues or county medical examiner offices holding deceased
victims; the provisions were inadvertently marked for deletion by the
underlying bill (see R.S.39:4-50,
subsection (h)); and
- reinsert the penalty provisions for offenders who fail to install ignition
interlock devices, tamper with devices, or operate unequipped vehicles, as
detailed above, which were included in the bill as introduced but inadvertently
left out of the underlying bill.
FISCAL IMPACT:
The Office of Legislative Services expects the State to incur certain
additional but indeterminable costs as a result of this bill. These costs
are related to the possible redesign and associated processing of a license
that is capable of accommodating a notation on a reinstated driver’s license
that indicates a person is not authorized to operate a motor vehicle unless it
is equipped with an ignition interlock device. The costs are also related
to the court time that may be necessary to process these cases and to
adjudicate additional cases that may arise from the failure to install or
maintain, or from tampering with, ignition interlock devices that have been
ordered to be installed by the court.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053
Woodbridge Ave.
Edison, NJ
08817
(Phone)
732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
