All states make it criminal to operate a motor vehicle while drunk or using drugs that impair driving faculties. New Jersey is no exception and its DUI/DWI laws include both "per se" and impairment-based violations. Anyone driving in New Jersey should get a complete overview of the current law and the penalties for violating them.
State Prohibitions on Drunk Driving
There are driving while intoxicated (DWI) statutes and driving under the influence (DUI) statutes, and these laws all have the same purpose: to make it illegal to drive while drunk or using drugs. In New Jersey, the term used in the statute is driving while intoxicated (DWI).
Under the New Jersey statute, Title 39, Section 39:4-50, it is a DWI for a person to operate a vehicle "while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug." This type of offense does not require any particular blood alcohol concentration (BAC) level, but is established by evidence of erratic driving or other impairment.
It is also a violation of the statute to drive with a blood alcohol concentration of 0.08 percent or higher. This is termed a per se DUI or DWI. Per se means "in and of itself." It is an appropriate term for this offense since proof that the driver's BAC was 0.08 percent or higher is sufficient proof by itself to convict the driver of a DWI/DUI. The legal BAC limit in New Jersey for a commercial driver is far lower at 0.04 percent.
New Jersey's Other DWI Violations
The impairment and per se DWIs set out in New Jersey laws are very common across the country, with most states having the same or similar laws. However, the state makes a few other related situations DWI crimes that are much less common. These involve holding an individual liable for allowing another person to operate a vehicle.
Under New Jersey DWI law, it is a violation for a person who owns or controls a motor vehicle to allow another person to operate it if the person given permission to drive is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drugs, or if they have a BAC of 0.08 percent or higher. That means that a person can be arrested and prosecuted under New Jersey's DWI statute even if they are sober if they allow someone who is drunk or impaired to drive their vehicle.
Operating a Vehicle in New Jersey
The New Jersey statute makes it illegal to operate a motor vehicle while under the influence or with a BAC level over the legal limit. The term "operating a motor vehicle" means different things under different DWI laws. In some states, the person must be actually driving; in other states, it is enough if they are sitting in the car.
In New Jersey, a person can be convicted of a DWI for "operating or attempting to operate" a vehicle under the influence. That means that actually driving the vehicle is not a requirement. In order to convict a person of an impairment DWI or a per se DWI, the prosecutor must establish intent to drive, but actual physical movement of the car is not essential. Intent to drive can be evidenced by actual physical control of a vehicle, plus an overt action toward driving, like putting the keys in the ignition or starting the car.
Under the Influence in New Jersey
Another important term in the statute is "under the influence." New Jersey drivers are violating the DWI statute if they operate a motor vehicle while under the influence of intoxicating liquors, narcotics, hallucinogens or habit-producing drugs. The term under the influence is not specifically defined in the statute. But it has been interpreted by New Jersey courts as describing a substantial deterioration or diminution of a person's mental faculties or physical capabilities that results from use of alcohol or drugs.
Narcotic, Hallucinogenic, Habit-Producing Drugs
Impairment DWIs – those not dependent on chemical testing or BAC levels – are those where a driver is under the influence of "intoxicating liquor, narcotic, hallucinogenic or habit-producing drugs." Intoxicating liquor is a pretty common concept, and most people understand this to include beer, cider, wine or any other beverage containing alcohol, whether medicated or not, and in any form.
Some narcotic, hallucinogenic and habit-producing drugs are well known like heroin and cocaine. There may be differences of opinion as to whether this phrase includes substances that a person sniffs or inhales, so to prevent ambiguity, this is clarified in the statute as including any substance containing a chemical capable of releasing any toxic vapors or fumes for the purpose of inducing a condition of intoxication, including:
- 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.
Also included is 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 fumes or vapors of such chemical substance.
New Jersey Implied Consent Laws
Most New Jersey DWI convictions involve per se DWIs, based on a person's BAC level. That makes sense since these are much easier to prosecute than impairment DWIs. Once a person takes a chemical test, the result is sufficient, if over the legal limit, for a conviction. This is obvious to New Jersey drivers and could result in drivers refusing to take the breathalyzer test.
To that end, New Jersey – together with most other states – has adopted an implied consent law, premised on the idea that driving on the roads in the state is a privilege, not a right. The law provides that anyone who takes advantage of that privilege by driving on New Jersey streets or highways consents to taking a chemical test if requested by law enforcement for DWI purposes. Note that drivers do not explicitly agree to this; they are deemed to agree to it by the fact of driving in New Jersey.
The police in New Jersey will not force an unwilling driver to take a test, but refusal has consequences. Anyone who refuses to take a chemical test when stopped for a DWI will have their license revoked for a year and they will be fined between $300 and $500. A person who refuses a second time will lose their driving privileges for three years and will be assessed a fine of between $500 and $1,000. A third refusal means a 10-year driver's license suspension and a fine of $1,000.
Administrative Sanctions for Breath Test Refusal
Note that administrative sanctions for refusing a chemical or breath test are entirely separate from any criminal penalties. An administrative ruling to revoke a person's license for refusal is not reversed or affected in any way by the outcome of the criminal case. The revocation stands whether they are found innocent of the DWI charge or even if they are not charged at all. Generally, if a driver is given an administrative license revocation as well as a criminal license revocation, the sentences apply consecutively, one after the other, not concurrently.
Criminal Penalties for DWIs
Anyone convicted of a DWI in New Jersey faces criminal penalties including potential jail time, criminal fines, criminal license revocation, community service and a substance abuse program at the state Intoxicated Driver Resource Center (IDRC). The severity of the sanctions depends in large part on the driver's prior DWI record. A first offender is subject to the least severe sanctions, but they increase with each subsequent conviction.
Every driver convicted of a DWI, whether first or subsequent offense, is required to participate in a drug and alcohol screening and evaluation. They must complete any treatment programs recommended by the IDRC and pay for them.
Note that every driver convicted of a DWI in New Jersey is also required to install an ignition interlock device (IID) on every vehicle they own and/or drive, including work vehicles and motorcycles. These IIDs are machines like breathalyzers that are attached to the car. They prevent a car from starting unless the driver blows into the device and demonstrates that they are not under the influence of alcohol. The period of time a driver must use an IID depends on their driving history.
First, Second and Third Offenses
Criminal penalties for a first-time offender in New Jersey include a jail sentence if the court decides that is appropriate. The maximum jail time is 30 days. The maximum fine is between $250 and $400 for a BAC above 0.08 percent and 0.9 percent, or $300 to $500 for a BAC of 0.10 percent or more or if the driver was under the influence of drugs. The IDRC period is between 12 and 48 hours. Recent statutory amendments eliminated license revocations for first offenses if their BAC level was below 0.15 percent. Instead, the driver will have to use an IID for between three and 12 months.
A second offender usually will be sentenced to at least 48 hours in jail, but can get a sentence of up to 90 days. The criminal fine is up to $1,000, and a second offender must complete the entire IDRC program. They can be assigned 30 days of community service and be ordered to use IIDs in all cars they drive for between one to three years.
A third offender can get up to 180 days in jail, 90 days of community service, the complete IDRC program, and a fine of $1,000. The IID mandate is between one and three years.
DWI Fines in New Jersey
Note that for any DWI conviction, there are a variety of applicable fines in addition to the criminal fine. They include the $280 IDRC fee, $100 drunk driving fund, $100 Alcohol Education and Rehabilitation Fund (AERF), $75 neighborhood services fund, plus the $1,500 per year DWI surcharge fee.
DWI Aggravating Circumstances
If the circumstances of a DUI charge include certain aggravating conditions, the penalties are increased. For example, if there is a passenger in the car at the time of the DWI arrest who is under the age of 18, the driver is also charged with a disorderly persons offense. This can increase the mandated community service hours and extend the license revocation period.
- DUI Driving Laws: New Jersey
- northjersey.com: NJ to Impose New Penalties
- DUIProcess: New Jersey DUI Laws and Penalties
- Inspiration Feed: 11 Questions About New Jersey Interlock Device Laws for 2020
- Justia: 2019 New Jersey Revised Statutes Title 39 Section 39:4-50 - Driving while intoxicated.
- New Jersey: Guide to Criminal Penalties DWIs
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.