Lab Report not admissible in DWI case

Lab Report not admissible in DWI case

       Bullcoming v New Mexico 131 S. Ct. 2705 (2011),   The Sixth Amendment’s Confrontation Clause gives the accused “[i]n all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[testimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report’s statements. 

       Petitioner Bullcoming’s jury trial on charges of driving while intoxicated (DWI) occurred after Crawford, but before Melendez-Diaz. Principal evidence against him was a forensic laboratory report certifying that his blood-alcohol concentration was well above the thresh- old for aggravated DWI. Bullcoming’s blood sample had been tested at the New Mexico Department of Health, Scientific Laboratory Division (SLD), by a forensic analyst named Caylor, who completed, signed, and certified the report. However, the prosecution neither called Caylor to testify nor asserted he was unavailable; the record showed only that Caylor was placed on unpaid leave for an undisclosed reason. In lieu of Caylor, the State called another analyst, Razatos, to validate the report. Razatos was familiar with the testing device used to analyze Bullcoming’s blood and with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcoming’s blood sample. Bullcoming’s counsel objected, asserting that introduction of Caylor’s report without his testimony would violate the Confrontation Clause, but the trial court overruled the objection, admitted the SLD report as a business record, and permitted Razatos to testify. Bullcoming was convicted, and, while his appeal was pending before the New Mexico Supreme Court, this Court decided Melendez-Diaz.

       JUSTICE GINSBURG delivered the opinion of the Court with respect

to all but Part IV and footnote 6.

       The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.  

(a) If an out-of-court statement is testimonial, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.  

(i) Caylor’s certification reported more than a machine-generated number: It represented that he received Bullcoming’s blood sample intact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Bullcoming’s sample, adhering to a precise protocol; and that he left the report’s remarks section blank, indicating that no circumstance or condition affected the sample’s integrity or the analysis’ validity. These representations, relating to past events and human actions not revealed in raw, machine- produced data, are meet for cross-examination. The potential ramifications of the state court’s reasoning, therefore, raise red flags. Most witnesses testify to their observations of factual conditions or events. Where, for example, a police officer’s report recorded an objective fact such as the read-out of a radar gun, the state court’s reasoning would permit another officer to introduce the information, so long as he or she was equipped to testify about the technology the observing officer deployed and the police department’s standard operating procedures. As, e.g., Davis v. Washington, 547 U. S. 813, 826, makes plain, however, such testimony would violate the Confrontation Clause. The comparative reliability of an analyst’s testimonial report does not dispense with the Clause. Crawford, 541 U. S., at 62. The analysts who write reports introduced as evidence must be made available for confrontation even if they have “the scientific acumen of Mme. Curie and the veracity of Mother Teresa.” Melendez-Diaz, 557 U. S., at ___, n. 6. 

  (ii) Nor was Razatos an adequate substitute witness simply because he qualified as an expert with respect to the testing machine and the SLD’s laboratory procedures. Surrogate testimony of the kind Razatos was equipped to give could not convey what Caylor knew or observed about the events he certified, nor expose any lapses or lies on Caylor’s part. Significantly, Razatos did not know why Caylor had been placed on unpaid leave. With Caylor on the stand, Bullcoming’s counsel could have asked Caylor questions designed to reveal whether Caylor’s incompetence, evasiveness, or dishonesty accounted for his removal from work. And the State did not assert that Razatos had any independent opinion concerning Bullcoming’s blood alcohol content. More fundamentally, the Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fair trial, it does not follow that such rights can be disregarded because, on the whole, the trial is fair. United States v. Gonzalez-Lopez, 548 U. S. 140 . If a “particular guarantee” is violated, no substitute procedure can cure the violation. Id., at 146. 

     (b)  Melendez-Diaz precluded the State’s argument that introduction of the SLD report did not implicate the Confrontation Clause because the report is nontestimonial. Like the certificates in Melendez-Diaz , the SLD report is undoubtedly an “affirmation made for the purpose of establishing or proving some fact” in a criminal proceeding. 557 U. S., at ___. Created solely for an “evidentiary purpose,” id., at ___, the report ranks as testimonial. In all material respects, the SLD report resembles the certificates in Melendez-Diaz . Here, as there, an officer provided seized evidence to a state laboratory required by law to assist in police investigations. Like the Melendez-Diaz analysts, Caylor tested the evidence and prepared a certificate concerning the result of his analysis. And like the Melendez-Diaz certificates, Caylor’s report here is “formalized” in a signed document, Davis , 547 U. S., at 837, n. 2. Also noteworthy, the SLD report form contains a legend referring to municipal and magistrate courts’ rules that provide for the admission of certified blood-alcohol analyses. Thus, although the SLD report was not notarized, the formalities attending the report were more than adequate to qualify Caylor’s assertions as testimonial. 

SUPPLEMENTAL REPORT OF THE SUPREME COURT COMMITTEE ON MUNICIPAL COURT PRACTICE 2015 - 2017 TERM May 15, 2017

 SUPPLEMENTAL REPORT OF THE 

SUPREME COURT COMMITTEE ON 

MUNICIPAL COURT PRACTICE 

2015 - 2017 TERM 

May 15, 2017

TABLE OF CONTENTS 

PAGE 

I. INTRODUCTION……………………………………………………………………….1 

II. RULES AMENDMENTS RECOMMENDED FOR ADOPTION 

A. Proposed amendment to Rule 7:3-2 (“Hearing on First Appearance; Right to Counsel”) and Rule 7:6-1 (“Arraignment”) ….………………………………………2 

III. CONCLUSION ….……………………………………………………………………8 1 

I. INTRODUCTION 

The Municipal Court Practice Committee ("Committee") recommends that the Supreme Court adopt the proposed rule amendments contained in this supplemental report. Where rule changes are proposed, deleted text is bracketed [as such], and added text is underlined as such. No change to a paragraph of the rule is indicated by ". . . no change." 2 

II. RULE AMENDMENTS RECOMMENDED FOR ADOPTION 

A. Proposed amendment to Rule 7:3-2 (“Hearing on First Appearance; Right to Counsel”) and Rule 7:6-1 (“Arraignment”) 

A Committee member requested a Court Rule amendment which would remove discretion from municipal courts in the decision whether to grant a waiver of first appearance and arraignment for a defendant who is represented by counsel. The Committee member, a municipal court practitioner, stated that in his experience certain municipal courts would frequently refuse to grant first appearance or arraignment waivers for represented defendants and instead require defendants to appear in person. He asserted that courts should be required to grant such requests. 

The Committee member initially suggested removing the court’s discretion by modifying Rule 7:6-1, “Arraignment,” to delete the phrase “unless the court otherwise orders” from subsection (b) “Written Statement”: 

A defendant who is represented by an attorney and desires to plead not guilty may do so[, unless the court otherwise orders,] by the filing, at or before the time fixed for arraignment, of a written statement, signed by the attorney, certifying that the defendant has received a copy of the complaint and has read it or the attorney has read it and explained it to the defendant, that the defendant understands the substance of the charge, and that the defendant pleads not guilty to the charge. 

In considering this proposal, several members who are municipal court judges said they believed it is important for a judge to retain the discretion to deny a request for waiver of first appearance/arraignment from a represented defendant. One member explained that such discretion might be exercised if, for instance, a defendant would respond better to an in-person communication from the judge. 3 

However, the majority of Committee members did not agree that the municipal court should retain this discretion and accepted the removal of the phrase “unless the court otherwise orders” from Rule 7:6-1(b). 

Following this decision, several Committee members expressed concern that defendants who have waived their right to first appearance/arraignment receive full and proper notice of their rights from their attorneys. In response, the Committee member who proposed the rule change suggested several additional amendments to Rule 7:6-1, setting forth the rights which the attorney should advise the defendant and further details of the procedure by which the waiver may be effectuated. 

The Committee members agreed to add the requirement that the attorney’s letter must provide that he/she has requested or will request discovery within three days of the filing of the letter of representation and waiver of first appearance/arraignment, and that the attorney advise the defendant that if the defendant is not a United States citizen, he/she should seek legal advice on the immigration consequences of the matter before the court. 

The members further recommended adding to Rule 7:6-1 the requirement that the attorney advise the defendant of the range of penal consequences for each offense charged, of the right to remain silent, and that any statement made may be used against the defendant. These requirements parallel the list of rights set forth in Rule 7:3-2, “First Appearance.” 

During the discussions, several Committee members stated that the existing requirement in Rule 7:6-1(b) that attorneys “certify” they have complied with the 4 

rule appeared unnecessary, since attorneys are officers of the court.1 Therefore, the Committee recommended removing the requirement that the attorney certify and instead permit the attorney to send a letter “stating” that he/she has complied with the rule. 

1 The parallel Part III rule, Rule 3:4-2(f), sets forth a certification requirement when an attorney sends a letter to court seeking waiver of the defendant’s first appearance. 

The Committee agreed to include additional details regarding the procedure for submission of the letter of representation and request for waiver. The members determined that the letter of representation and waiver may be submitted to the court by mail, facsimile, or by e-filing or email if the court regularly accepts those methods. 

The Committee also agreed to add that upon receipt of the letter of representation and waiver of first appearance/arraignment, the court shall adjourn the defendant’s matter for a reasonable time sufficient for defendant’s receipt of discovery and upon defendant’s actual appearance, and the court shall personally inquire of defendant that all the elements of waiver were knowingly and voluntarily made with defendant’s consent, or if not, the court shall conduct an arraignment at that time. 

Several members additionally suggested that it may be appropriate and helpful to also include a reference to waiver of first appearance/arraignment in a Court Rule which governs a defendant’s first appearance -- either Rule 7:3-1 or Rule 7:3-2. The members noted that, in practice, the first appearance and arraignment in municipal court are most often combined into a single court appearance, although the two processes are addressed in separate Court Rules. 5 

To ensure greater clarity, the Committee agreed to include a cross-reference to waiver within Rule 7:3-2(a), “Hearing on First Appearance,” by adding the phrase “unless waived pursuant to Rule 7:6-1.” 

The Committee also considered the fact that the Part III Court Rules governing criminal procedure explicitly do not provide incarcerated defendants with the option to waive a first appearance (unless ordered by the court) and evaluated whether the same restriction should apply to municipal cases. Rule 3:4-2(f) states in pertinent part: “…Unless otherwise ordered by the court, a defendant who is represented by an attorney and is not incarcerated may waive the first appearance by filing, at or before the time fixed for the first appearance, a written statement in a form prescribed by the Administrative Director of the Courts, signed by the attorney….” During discussion, one member emphasized that if an individual is incarcerated, he/she has presumably already had a first appearance at some point. The Committee thus determined that a reference to incarcerated defendants was not necessary. 

The proposed amendments to Rule 7:3-2 and Rule 7:6-1 follow. 6 

7:3-2. Hearing on First Appearance; Right to Counsel 

(a) Hearing on First Appearance. At the defendant's first appearance, unless waived pursuant to Rule 7:6-1, the judge shall inform the defendant of the charges and shall furnish the defendant with a copy of the complaint or copy of the electronic ATS/ACS record of the complaint, if not previously provided to the defendant. The judge shall also inform the defendant of the range of penal consequences for each offense charged, the right to remain silent and that any statement made may be used against the defendant. The judge shall inform the defendant of the right to retain counsel or, if indigent, to have counsel assigned pursuant to paragraph (b) of this rule. The defendant shall be specifically asked whether legal representation is desired and defendant's response shall be recorded on the complaint. If the defendant is represented at the first appearance or then affirmatively states the intention to proceed without counsel, the court may, in its discretion, immediately arraign the defendant pursuant to R. 7:6-1. 

(b) No change. 7 

7:6-1. Arraignment 

(a) No change. 

(b) [Written Statement] Waiver of First Appearance and Arraignment. A defendant who is represented by an attorney and desires to plead not guilty may do so[, unless the court otherwise orders,] and waive the first appearance and arraignment, by the filing, by mail or by facsimile, or by e-filing or email if the court regularly accepts those methods, at or before the time fixed for first appearance and arraignment, of a [written statement,] letter of representation and waiver of first appearance and arraignment, signed by the attorney, [certifying] stating that: (1) the attorney represents the defendant and has requested or will request discovery within three days of the filing of the letter of representation and waiver of first appearance and arraignment, (2) the defendant has received a copy of the complaint and has read it or the attorney has read it and explained it to the defendant, (3) [that] the defendant understands the substance of the charge, and that the defendant pleads not guilty to the charge[.], (4) the attorney has advised the defendant that if the defendant is not a United States citizen, defendant should seek legal advice on the immigration consequences of the matter before the court, (5) the attorney has advised the defendant of the range of penal consequences for each offense charged; and (6) the attorney has advised the defendant of the right to remain silent and that any statement may be used against the defendant. Upon receipt of the letter of representation and waiver of first appearance and arraignment, the court shall adjourn the defendant’s matter for a reasonable time sufficient for defendant’s receipt of discovery. Upon defendant’s actual appearance, the Court shall personally inquire of defendant that all the elements of waiver were knowingly and voluntarily made with defendant’s consent, or if not, the court shall conduct an arraignment at that time. 8 9 

III. CONCLUSION 

The members of the Municipal Court Practice Committee appreciate the opportunity to serve the Supreme Court in this capacity. 

Respectfully submitted: 

Robert T. Zane, P.J.M.C., Chair 

Thomas M. North, P.J.M.C., Vice-Chair 

Ma’isha Aziz, J.M.C. 

Scott J. Basen, J.M.C. 

David S. Bunevich, Esq. 

Richard T. Burke, Esq. 

Cataldo Fazio, J.M.C. 

Elaine B. Frick, J.M.C. 

Jeffrey Evan Gold, Esq. 

Roger Haley, P.J.M.C. 

Carol M. Henderson, A.A.G. 

Edward H. Herman, P.J.M.C. 

James Ligouri, P.J.M.C. 

Dominick M. Manco, Esq. 

Marcy M. McMann, Esq. 

Robyn B. Mitchell, D.A.G. 

Michael Mitzner, Esq. 

Richard E.A. Nunes, Esq. 

Anthony C. Nwaneri, Esq. 

Victoria Pratt, C.J.M.C. 

Diene Hernández-Rodríguez, Esq. 

Louis S. Sancinito, Esq. 

Cassandra T. Savoy, J.M.C. 

H. Robert Switzer, J.M.C. 

Michael L. Testa, Jr., Esq. 

Daniella Trancho, C.M.C.A. 

Mary Wiesemann, M.D.M. 

Miles S. Winder, III, Esq. 

AOC Staff: 

Steven A. Somogyi, Assistant Director 

Julie A. Higgs, Esq., Chief (Committee staff) 

Tina LaLena, C.M.C.A., Chief 

State v Bryant 227 NJ 60 2016

State v Bryant 227 NJ 60 2016

Expungement NJ

HISTORY OF DRUG COURTS IN NJ

HISTORY OF DRUG COURTS IN NJ
Drug courts resulted from a shift in the unsuc- cessful National Policy of “War on Drugs” of the 1970s and 1980s.The New Jersey Legislature also enacted the Comprehensive Drug Reform Act of 1986 (CDRA) for drug offenses (Presumption of Mandatory Incarceration, Mandatory Minimum Sentencing). Repeated drug offenders received extensive jail sentences.
The mission of drug courts is to stop the abuse of alcohol and other drugs and related criminal activity. The program is based on a concept of Therapeutic Jurisprudence.
Drug courts are a highly specialized team process within the existing Superior Court structure that addresses non-violent drug-related cases. They are unique in the criminal justice environment because they build a close collaborative relationship between criminal justice and drug treatment professionals.
Drug court programs are rigorous, requiring intensive supervision based on frequent drug testing and court appearances, along with tightly structured regimens of treatment and recovery services.
The drug court judge heads a team of court staff, attorneys, probation officers, substance abuse evaluators and treatment professionals who work together to support and monitor a participant’s recovery. They maintain a critical balance of authority, supervision, support and encouragement.
This level of supervision permits the program to support the recovery process, but also allows supervisors to impose appropriate therapeutic

sanctions when participants cannot comply with the program.
There are four phases of progress for drug court participants:
• stabilization,
• positive change,
• relapse prevention, and • commencement
Drug Court Programs became a permanent part of the State Judiciary in 2002 and operate in all 21 NJ counties. In 2010, Drug Court Program graduates achieved the following successes:

1. Integration of alcohol and other drug treatment services with justice system case processing;
2. Using a non-adversarial approach;
3. Eligible participants are identified early and promptly placed in DC program;
4. Provide access to a continuum of alcohol, drug, and other related treatment;
5. Monitored abstinence by frequent alcohol and other drug testing;
6. A coordinated strategy;
7. Ongoing judicial interaction with each drug court participant;
8. Monitoring and evaluation measure the achievement;
9. Continuing interdisciplinary education to promote effective drug court planning, implementation, and operations;
10. Forging partnerships among drug courts, public agencies, and community-based orga- nizations.

	Drug Court	Traditional Court
Rearrest Rate	16%	54%
Reconviction	8%	43%
Cost	$11,379	$38,900(state prison individuals)

 

The New Jersey Office of the Public Defender (OPD) represents approximately 90 percent of defendants that apply and participate in the Drug Court Program New Jersey throughout the 21 counties in the state, pursuant to N.J.S.A. 2C: 35-14. The OPD attorneys provide legal advice to non-violent offenders who plead guilty to, or are convicted of a felony charge.

The OPD Drug Court Unit coordinates the activities of approximately 40 attorneys situated in all 21 counties of the state and conducts periodic training programs to ensure that the attorneys keep abreast of the most recent developments concerning the Drug Court Program.

 source http://www.state.nj.us/defender/documents/Drug%20Court%20Brochure-11-30-2016.pdf

NJ DWI Statute 2017

NJ DWI Statute 2017 

39:4-50  Driving while intoxicated

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 nor more than $1,000, 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.).

(3)For a third or subsequent violation, a person shall be subject to a fine of $1,000, and shall be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse, except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center 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.).

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 for a first or second offense 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.  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 Mental Health and Addiction Services' 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, or R.S.39:5-22.  Upon sentencing, the court shall forward to the Division of Mental Health and Addiction Services' Intoxicated Driving Program Unit a copy of a person's conviction record.  A fee of $100 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 Mental Health and Addiction Services and the commission, but subject to the approval of the Division of Mental Health and Addiction Services, 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 Mental Health and Addiction Services.

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 for the first offender program or a per diem fee of $100 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 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 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 four years; and, for a third offense, be fined $2,000, imprisoned for 180 days in a county jail or workhouse, except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center, 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 $125, of which amount $50 shall be payable to the municipality in which the conviction was obtained, $50 shall be payable to the Treasurer of the State of New Jersey for deposit into the General Fund, and $25 which shall be payable as follows: in a matter where the summons was issued by a municipality's law enforcement agency, to that municipality to be used for the cost of equipping police vehicles with mobile video recording systems pursuant to the provisions of section 1 of P.L.2014, c.54 (C.40A:14-118.1); in a matter where the summons was issued by a county's law enforcement agency, to that county; and in a matter where the summons was issued by a State law enforcement agency, to the General Fund.

amended 1952, c.286; 1964, c.137; 1965, c.134; 1966, c.141, s.1; 1971, c.103; 1977, c.29, s.1; 1981, c.47, s.1; 1981, c.537, s.1; 1982, c.53, s.2; 1982, c.58, s.1; 1983, c.90, s.2; 1983, c.129, s.1; 1983, c.444, ss.1,3, (s.3 eff. date amended 1984, c.4, s.2); 1984, c.243, s.1; 1986, c.126; 1993, c.296, s.6; 1994, c.184, s.1; 1995, c.243; 1997, c.277, s.1; 1999, c.185, s.4; 1999, c.417, s.7; 2000, c.83, s.1; 2000, c.117; 2001, c.12; 2002, c.34, s.17; 2003, c.314, s.2; 2003, c.315, s.2; 2004, c.8, s.2; 2009, c.201, s.1; 2014, c.54, s.2.