39 :4-50 Driving while intoxicated 2019

39 :4-50 Driving while intoxicated 2019

  39:4-50. (a) 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 the person owns or which is in the person's 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. In addition, the court shall order the person to forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.);

   (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 a narcotic, hallucinogenic or habit-producing drug, or the person permits another person who is under the influence of a 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;

   in the case of a person who is convicted of operating a motor vehicle while under the influence of a narcotic, hallucinogenic or habit-producing drug or permitting another person who is under the influence of a narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by the person or under the person's custody or control, the person shall forfeit the 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;

   in the case of a person whose blood alcohol concentration is 0.10% or higher but less than 0.15%, the person shall forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.);

   in the case of a person whose blood alcohol concentration is 0.15% or higher, the person shall forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than four months or more than six months following installation of an ignition interlock device in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.);

   (iii) (Deleted by amendment, P.L.2019, c.248)

   (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 terms 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, or more than 90 days, and shall forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than one year or more than two years upon conviction.

   After the expiration of the license forfeiture period, the person 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 the right to operate a motor vehicle over the highways of this State for eight 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 Division of Mental Health and Addiction Services 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 Addiction Professionals 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)   (Deleted by amendment, P.L.2019, c.248)

   (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.

State v. Paris AOC Directives Not binding on courts

State v. Paris AOC Directives Not binding on courts

Superior Court of New Jersey, Law Division, Burlington County May 1, 1986 214 N.J. Super. 220 (N.J. Super. App. Div. 1986) 

HAINES, A.J.S.C. 

Defendant, Joseph Paris, Jr. appeals from a refusal of the Bordentown Township Municipal Court in Burlington County to dismiss a complaint charging him with drunk and careless driving. This court, addressing the appeal, concludes that the motion was denied for improper reasons, requiring a remand. 

Defendant was issued a summons on October 19, 1985. It required his appearance in the municipal court on November 20. On October 21, he retained counsel. Counsel called the clerk of the court on October 28 (when he learned the matter had been rescheduled for November 6) and obtained a continuance so she could obtain discovery material from the State. A discovery request was sent to the State on the same day. On November 4, counsel received notice from the court scheduling the trial for November 20. He received the State's DWI report on November 12 with a request for notification of any defense expert witnesses to be called at the trial. On that date, defendant obtained an expert, transmitted the State's discovery material to him and requested a report. On the same date, he requested the clerk of the court to arrange a continuance until December 18, 60 days from the date of the issuance of the summons. He confirmed the request by letter to the municipal  court prosecutor, also advising him of the name of the expert witness. On November 18, he received notice scheduling the hearing for the requested date of December 18, 1985; a copy of that notice was sent to the state trooper who issued the summons. On November 19, 1985, he was advised by the State that it intended to produce an expert witness. On November 20, he demanded a copy of the State's expert's report from the prosecutor. Defense counsel received his expert's report on November 22, 1985. On December 2, 1985, defense counsel requested a further postponement from December 18, 1985 because his expert witness had hearings scheduled in another municipal court on that date. 

On December 4, 1985, defense counsel received a letter from the Division of State Police advising: 

. . . that the State Police will gladly provide you with material regarding the prosecution's expert as you requested. We ask only that you provide us first with the same information as it pertains to the defense expert you plan to introduce at trial . . . Our expert will not be used as part of prosecution's case-in-chief, but rather, in rebuttal of your expert's contentions. Therefore, no report can be or will be prepared in advance.

 A response of doubtful validity.

On that same date, State was provided with the report of defendant's expert and the matter was conferenced by the municipal court judge. He advised counsel that he could not grant a request for a continuance beyond December 18, referring to certain unidentified "directives" as a reason for his refusal. He therefore scheduled defendant's trial for 8:00 a.m. on December 18, making the date and time peremptory. This arrangement permitted the defense expert's early appearance in the Bordentown Municipal Court while accommodating his engagement to testify in another court on the same day. The State, despite defendant's request, has never delivered any discovery material to him except its DWI report. 

Defendant appeared on December 18, 1985 at 8:00 a.m. with his expert witness. The case was called three times between  8:00 a.m. and 8:47 a.m. and no State witnesses appeared. Defendant moved to dismiss for lack of prosecution. The prosecutor advised the court that the complaining witness, Trooper Alexander, confusing his dates, thought the matter was scheduled for December 20, 1985 but that he and the State's expert could be available later in the day. He then requested a continuance to another date. Defendant objected to the continuance. He agreed to try the matter later in the day and, alternatively, to stipulate to the admission of the Trooper's report on the basis of which the defense expert could provide an opinion. The motion to dismiss was denied, the alternative offers rejected and the matter continued to January 15, 1986. The Court, in denying the motion, relied in part upon certain unidentified "guidelines." 

The prosecutor in arguing the appeal, identified these as two directives issued by the Administrative Office of the Courts ("AOC") and claimed that they provide authority for the denial of the motion to dismiss. 

An administrative rule adopted by the Burlington County Assignment Judge requiring drunk driving cases to be tried within 60 days was discussed and enforced in State v. Potts, 185 N.J. Super. 607 (Law Div. 1982). The rule, however, did not long survive. In State v. Detrick, 192 N.J. Super. 424 (App.Div. 198 3), the court held that speedy trial rules, not administrative rules, governed dismissals for lack of prosecution. Later, the New Jersey Supreme Court adopted its own 60-day directive for drunk driving cases. Directive # 1-84, contained in a memorandum from Chief Justice Robert N. Wilentz (dated July 26, 1984), is still in force and has the same effect as the assignment judge's directive. However, in apparent recognition of Detrick, the directive was made subject to speedy trial rules. Consequently, it is not a consideration when addressing a motion to dismiss. 

A second directive, circulated by the AOC on October 22, 1985, was set forth in the following "Bulletin Letter": 

 ADMINISTRATIVE OFFICE OF THE COURTS 

Justice Complex — CN 037 MUNICIPAL COURT Trenton, New Jersey BULLETIN LETTER #9/10-85

To the Judges of the Municipal Courts: 

DISMISSALS FOR LACK OF PROSECUTION 

It has come to our attention that in some instances, municipal court judges may be dismissing drunk driving cases because of the failure of the police officer to appear.

Please be advised that if the complaining witness fails to appear, the judge should not automatically dismiss the complaint, especially if the complainant is a police officer. If the defendant is in court and ready to proceed the judges should question the court clerk or municipal prosecutor as to any notice given to the complainant and an attempt to contact the complainant should be made immediately. In most instances there should be no difficulty in contacting local officers and having them come immediately to the court. Before dismissing a complaint for lack of prosecution, the judge should consider all factors, including the seriousness of the charge, so there is no miscarriage of justice. In appropriate cases, the judge may postpone the hearing and fix a new trial date.

If an officer did not appear and the case is dismissed for lack of prosecution, the judge should, in writing, so notify the Chief of Police or officer in charge of the State Police Barracks, or the person in charge of the particular enforcement agency and request a written explanation. If there are any problems of communication between the court and enforcement agencies regarding appearances by officers, the judge should see that they are corrected. When warranted, the judge may refer the matter to the County Prosecutor or the Attorney General for an investigation.

The municipal court judge should not have placed any reliance upon the advice contained in this letter. It cannot affect the present appeal. 

The Administrative Director of the Courts is appointed by the Chief Justice of the Supreme Court who is the administrative head of the court system. N.J. Const.(1947) Art. VI, § VII, par. 1. Rules governing the administration of our courts are made by the Supreme Court. N.J. Const. (1947) Art. VI, § II, par. 3. Consequently, the Director acts as the agent of the Chief Justice and of the Supreme Court. Administrative directives issued from his office are therefore not only entitled to great respect but have binding effect with reference to management matters in the court system. Neither he nor the Supreme Court, however, can direct the exercise of judicial discretion. In our system of justice, judges act independently. They must if the court system is to maintain integrity. Canon 1 of the Code of Judicial Conduct provides: 

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

In re Gaulkin, 69 N.J. 185 , 192 (1976), referred to our court system as "independent of partisan political or other outside pressures of any kind. So was and is being served the interest of the people of New Jersey in an independent judiciary." The United States Supreme Court, in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646(1871), said: 

It is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful. [ 80 U.S. at 347]

The issue of independence usually arises in a setting involving an encroachment by one branch of government upon the powers of another. Here, the question is one of encroachment upon judicial independence by the administrative arm of the court system itself, but the rule can be no different. Destruction from within is as unacceptable as destruction from without. 

The Director's "Bulletin Letter" trespassed upon judicial territory. It advised municipal court judges how to act when deciding motions to dismiss. Such decisions are judicial decisions. State v. D'Orsi, 113 N.J. Super. 527 (App.Div. 197 1), certif. den. 58 N.J. 335 (1971). Consequently, the directive must be disregarded. 

Judicial reliance upon any of the directives presents other obvious constitutional problems. The instruction provided by  the "Bulletin Letter" is markedly discriminatory. It singles out drunk driving cases for special treatment. It deals only with complaining witnesses who fail to appear "especially if the complainant is a police officer," thus providing selective treatment, not only for the State, but for particular State witnesses. Elaborate procedures are to be followed by municipal court judges when the State's witness (but only the State's witness) does not appear. In those cases, the judge is encouraged not to dismiss. The bulletin does not require the same considerate treatment of defendant or defense witnesses. No judge may rest the exercise of his or her discretion upon so lopsided an approach. To do so would be a denial of the constitutional right of equal protection. U.S. Const., Amend. XIV; N.J. Const. (1947) Art. I, par. 1. Wilson v. Long Branch, 27 N.J. 360 (1958) states the rule: 

The requirement of equal protection is satisfied if all persons within a class reasonably selected are treated alike. And a classification is reasonable if it rests upon some ground of difference having a real and substantial relation to the basic object of the particular enactment or on some relevant consideration of public policy. [at 377]

Obviously, the parties to a criminal proceeding are within the same class when often important questions of adjournment are addressed. 

Under the circumstances, this matter is remanded to the Bordentown Township Municipal Court for reconsideration of the dismissal motion in the light of this opinion. In the event the judge of that court, in the exercise of judicial discretion, decides that the motion should not be granted, the imposition of financial sanctions against the State should be considered. See State v. Audette, 201 N.J. Super. 410(App.Div. 1985), in which the Appellate Division said: 

We conclude that the better course would have been to grant the State's motion for postponement, its first motion in that regard. The judge could have sanctioned the State for the demonstrable expenses defendant bore to attend the aborted hearing of November 9. Such a sanction of out-of-pocket costs and expenses, if imposed by the judge, would have been sufficient in the circumstance. [at 414, citations omitted]

State v. Patel A non-indigent defendant must show that the outcome would have been different had he been represented(A-13-18) (081069) decide August 7, 2019

State v. Patel A non-indigent defendant must show that the outcome would have been different had he been represented(A-13-18) (081069) decide August 7, 2019 

ALBIN, J., writing for the Court. 

In State v. Laurick, the Court held that a defendant is not subject to an enhanced custodial sentence for a second or subsequent driving while intoxicated (DWI) conviction if he was not advised of his right to counsel in an earlier DWI proceeding and entered an uncounseled guilty plea or went to trial without counsel. 120 N.J. 1, 16-17 (1990). Here, the Court considers the applicable standards for both indigent and non-indigent defendants who seek relief from an enhanced custodial sentence for a second or subsequent DWI based on a claimed denial of notice of the right to counsel in an earlier DWI case. 

In 2015, defendant Charudutt Patel was charged in two separate instances with DWI. Patel had twice before been convicted of DWI. In 1994, he pled guilty to DWI in the Piscataway Municipal Court. In 2010, Patel pled guilty to DWI in the North Brunswick Municipal Court. Because of the passage of more than ten years between the first and second convictions, Patel was sentenced as a first-time offender. See N.J.S.A. 39:4-50(a). The two 2015 DWI charges exposed Patel to potential third and fourth DWI convictions. Patel claimed that his 1994 conviction in the Piscataway Municipal Court was uncounseled and therefore could not be used for custodial enhancement purposes pursuant to Laurick. Thus, for Laurick purposes, Patel contended that he stood before the court as a second-time offender, and he moved to bar the use of his allegedly uncounseled 1994 DWI guilty plea to enhance any custodial sentence in the pending DWI cases. 

In support of his Laurick motion, Patel filed two certifications averring that he was indigent at the time of his 1994 DWI guilty plea, that he appeared in the Piscataway Municipal Court without an attorney, and that the municipal court judge did not advise him of his right to retain one. Patel did retain an attorney in 2010 to represent him on the DWI charge in North Brunswick. In 2016, no documents remained in the Piscataway Municipal Court to disprove Patel’s certifications. 

The court denied Patel’s Laurick motion. Patel filed a motion for reconsideration and a third certification to clarify his earlier certifications. He asserted that in 1994, “the Judge never advised me that I had a right to retain an attorney nor did he advise me that I

1 

had a right to an appointed attorney at no charge. Therefore, I simply pled guilty.” The court denied the motion for reconsideration, stating that in the absence of municipal court records, Patel’s certifications were insufficient to prove that he was denied notice of his right to counsel twenty-two years earlier and that, in any event, he should have filed his Laurick motion in 2010 when he was charged with his second DWI in North Brunswick. 

The Law Division denied Patel’s appeal. He then pled guilty to the third DWI incident, in exchange for which other charges, including the fourth DWI charge, were dropped. The Appellate Division affirmed, and the Court granted Patel’s petition for certification. 235 N.J. 337 (2018). 

HELD: To secure relief from an enhanced custodial sentence for a subsequent DWI conviction, a non-indigent defendant must establish that in the earlier uncounseled DWI proceeding, (1) he was not advised or did not know of his right to counsel and (2) had he known of his right to counsel, he would have retained a lawyer. A defendant contending he was indigent must establish that in the earlier uncounseled DWI proceeding (1) he was not advised and did not know of his right to appointed counsel, (2) he was entitled to the appointment of counsel under the applicable financial means test, R. 7:3-2(b), and (3) had he been properly informed of his rights, he would have accepted appointed counsel. Because denial of counsel is a structural defect in the proceeding, to secure relief from an enhanced custodial sentence, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented. The Court removes the five-year limitation in Laurick petitions and amends Rule 7:10-2(g)(2), effective immediately, to provide the following: “(2) Time Limitations. A petition seeking relief under this Rule may be filed at any time.” Here, Patel’s unrebutted certifications established that his 1994 plea was uncounseled, and he had no obligation to establish that he would not have pled guilty or been convicted at trial had he been represented by counsel. The Court therefore reverses the judgment of the Appellate Division and remands the matter for proceedings consistent with this opinion. 

1. The right to the assistance of counsel is guaranteed to all defendants charged with DWI. Knowledge of one’s right to counsel is indispensable to the exercise of that right. For that reason, all municipal court judges must “inform the defendant of the right to retain counsel or, if indigent, to have counsel assigned pursuant to [Rule 7:3-2(b)].” R. 7:3-2(a). The court also must ask the defendant “whether legal representation is desired” and record the response “on the complaint.” Ibid. Because of the singular importance of the right to counsel, the denial of counsel is deemed a structural defect in the framework of the proceedings -- a defect that cannot be quantitatively assessed and therefore defies a harmless error analysis. A defendant denied the right to counsel does not have to establish prejudice on direct appeal; prejudice is presumed. (pp. 13-16) 

2. In Laurick, the Court held that a prior uncounseled DWI conviction could “not be used to increase a defendant’s loss of liberty,” but made clear that there was no impediment to 

2 

the use of other collateral consequences of the uncounseled conviction, such as a period of license suspension or financial penalties. 120 N.J. at 4. The Court set different standards of proof for indigent and non-indigent DWI defendants who sought to bar the use of the prior uncounseled DWI conviction for custodial sentence enhancement purposes. See id. at 11. The non-indigent defendant must show, like indigent defendants, a “lack of notice as well as the absence of knowledge of the right to be represented by counsel of one’s choosing,” but must also show “that the lack of notice otherwise affected the outcome.” Id. at 11, 17. The Court did not explain its reasons for placing a higher burden on non-indigent defendants. In State v. Hrycak, the Court “reaffirmed] [its] holding in Laurick that an uncounseled DWI conviction may not be used to enhance the period of incarceration for a subsequent offense,” restated the Laurick formula, and again set different standards for indigent and non-indigent defendants as to whether prior uncounseled DWI convictions could be used for custodial sentence enhancement purposes. 184 N.J. 351, 354, 362-63 (2005). (pp. 16-21) 

3. In State v. Schadewald, the Appellate Division altered the tests for indigent and non- indigent defendants challenging prior uncounseled DWI convictions articulated in Laurick and Hrycak. See 400 N.J. Super. 350, 354-55 (App. Div. 2007). In that case, the Appellate Division held that both indigent and non-indigent defendants must “demonstrate that if they had been represented by counsel, they had a defense to the DWI charge and the outcome would, in all likelihood, have been different.” Id. at 354. The Appellate Division in this case followed the Schadewald paradigm. (pp. 21-22) 

4. Schadewald treats equally two classes of similarly situated defendants. That being said, Schadewald is in clear conflict with the holdings in both Laurick and Hrycak and arguably imposes an unduly burdensome standard by requiring that indigent and non- indigent defendants prove that the outcome would have been different had they been represented by counsel. Denial of counsel -- here the denial of the opportunity to retain counsel or secure appointed counsel -- is a structural defect in the proceedings, not quantifiable by any traditional measurement and therefore not typically susceptible to a harmless-error analysis. And when notice of the right to counsel is not given in DWI cases, to obtain the special form of relief recognized in Laurick, neither indigent nor non- indigent defendants should be required to establish that the outcome of the proceeding would have been different had they been given the opportunity to retain counsel or secure appointed counsel. (pp. 22-24) 

5. The Court adopts the standards reprinted in the HELD paragraph above and notes that the defendant has the burden of proving that his prior uncounseled DWI conviction was based on the municipal court’s failure to advise him of his right to counsel. If municipal courts retain the records mandated by New Jersey court rules and jurisprudence, determining whether there was compliance with the notice requirements should not be difficult. The defendant must secure the relevant documents to establish a violation of the notice requirement. In the absence of documentary evidence or witnesses with a 

3 

recollection, the defendant is in a position to do no more than file an affidavit averring that he was not advised of his right to counsel and did not know that he could retain counsel. The defendant who claims he was indigent at the time of the prior proceeding should attest that he was not advised and did not know of his right to appointed counsel, and was unable to afford an attorney. In future cases, he also should attach to his affidavit or certification documents that would establish his indigence. (pp. 24-25) 

6. In the present case, the Piscataway Municipal Court has indicated that no record remains of whether Patel’s 1994 DWI guilty plea was uncounseled or whether Patel was given notice of his right to counsel and, if indigent, the right to appointed counsel. Patel filed three certifications in the Piscataway Municipal Court in support of his application to bar the use of his 1994 DWI conviction to enhance his custodial term. Patel has made clear in his certifications that had he been advised of his right to counsel, he would have sought the assistance of counsel -- preferably appointed counsel -- and, if he had resources, retained counsel. Patel’s assertions -- like those of the defendant in Laurick -- have gone unrebutted. See Laurick, 120 N.J. at 6. Patel has satisfied his burden of showing that his prior uncounseled DWI conviction was caused by the municipal court’s failure to advise him of his right to counsel. (pp. 26-27) 

7. The current court rules provide that a petition for Laurick relief “shall not be accepted for filing more than five years after entry of the judgment of conviction or imposition of the sentence sought to be attacked, unless it alleges facts showing that the delay in filing was due to defendant’s excusable neglect.” R. 7:10-2(g)(2); R. 7:10-2(b)(2). In the present case, Patel submits that he sought relief from his prior uncounseled conviction at the only time that it made sense to do so and that therefore any “delay” should be deemed excusable. State v. Bringhurst, 401 N.J. Super. 421 (App. Div. 2008), supports this point. The Bringhurst court reasoned that because “a second or subsequent [DWI] conviction may occur at any time in the future, it would be illogical to apply the Rule’s five-year time limit mechanistically to deny all [Laurick] applications.” Id. at 433. That logic accords with recommendations by the Municipal Court Practice Committee to allow a Laurick petition to be filed at any time. The Court now adopts the language proposed by the Committee and amends in part Rule 7:10-2(g), effective immediately, to provide: 

“(2) Time Limitations. A petition seeking relief under this Rule may be filed at any time.” 

(pp. 27-31) 

The judgment of the Appellate Division is REVERSED and the matter is REMANDED for further proceedings. 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion. 

4 

Voluntary consent to blood and urine found here STATE v. BRITTANY N. BYER,

Voluntary consent to blood and urine found here
STATE 

v.
BRITTANY N. BYER,
Defendant-Appellant. ________________________

Argued August 27, 2019 – Decided September 4, 2019
Before Judges Gilson and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 16-08- 0658.

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-4161-17T4
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Defendant Brittany Byer appeals from a March 27, 2017 decision denying her motion to suppress her statements to police, as well as urine and blood draw evidence, following a fatal car crash. We affirm for the reasons expressed in the thorough and well-written opinion of Judge Cristen P. D'Arrigo.
We summarize the facts from testimony adduced during a two-day hearing conducted by the judge. They are set forth in detail in his twenty-two page decision.
In December 2015, defendant was involved in a serious auto accident. Defendant was conscious and transported to the hospital because she had pain in her foot. The driver of the other vehicle was unconscious, suffered grave injuries, and later died.
Officers Frederick DeMary and Anne Marie McCormick were assigned to investigate. According to her testimony, McCormick responded to the hospital where defendant was taken to obtain blood and urine samples. Neither McCormick nor defendant were aware the other driver would expire. McCormick encountered defendant lying in a hospital bed, alert and unrestrained.

2

A-4161-17T4

Defendant orally acknowledged and then signed a card confirming McCormick had recited her Miranda1 rights. Defendant also signed a consent form for a blood and urine draw, which McCormick had also read to her. McCormick testified that defendant was unable to urinate, and, rather than wait, defendant requested a catheter in order to provide a sample. After obtaining the samples, McCormick then left the hospital, again leaving defendant unrestrained and free to depart the hospital. McCormick informed DeMary defendant had signed the Miranda card and the consent form for the samples.
While on route to the hospital to interview defendant, DeMary learned the other driver had died. DeMary recorded the interview with defendant less than two hours after she had been Mirandized. Defendant claimed her vehicle had slipped on black ice, causing the accident. According to the judge's decision, "DeMary stated that she had slow and slurred speech and made comments unrelated to the accident. When asked whether she had consumed any alcohol, she became upset and hostile." Defendant was permitted to return home and was not arrested or charged until the toxicology reports were returned.
Defendant also testified at the hearing. Judge D'Arrigo found her testimony "less than credible," noting she had "selective memory of the events"

1 Miranda v. Arizona, 384 U.S. 436 (1966). 3

A-4161-17T4

and "was particularly evasive on the issue of the urine draw." Specifically, "[s]he recalled events before and after the consents were signed and samples were collected, yet does not recall being administered her rights, waiving her rights, or even giving samples."
Citing the relevant case law, Judge D'Arrigo found defendant had not been in custody while she was in the hospital and was free to leave. More importantly, the judge noted "even if [d]efendant was in custody at the hospital[,] [d]efendant was read her Miranda rights and knowingly and voluntarily waived those rights." The judge concluded the signature on the Miranda form belonged to defendant, and defendant never
indicate[d] that she did not understand what . . . McCormick was saying with respect to her Miranda rights[, and] gave no indication that she wished to remain silent or speak with an attorney. . . . She was able to relay details of the accident providing further evidence of her ability to voluntarily and knowingly waive her rights.
The judge explained the circumstances did not warrant that defendant be re-Mirandized by DeMary because "there were no intervening events that would dilute the effectiveness of the waiver." Indeed, defendant had not left the hospital between McCormick and DeMary's arrival and, at best, there was only

4

A-4161-17T4

a ninety-minute interval between the issuance of the Miranda warning and the recorded interview.
The judge also found defendant had consented to the blood and urine draw. He concluded "[s]he understood what was happening and the nature of the officer's request." This appeal followed.
POINT I – BECAUSE A WARRANT WAS NOT OBTAINED TO COLLECT BLOOD AND URINE SAMPLES FROM APPELLANT, THE TEST RESULTS SHOULD HAVE BEEN SUPPRESSED.
POINT II – APPELLANT DID NOT GIVE KNOWING AND VOLUNTARY CONSENT TO PROVIDE BLOOD AND URINE SAMPLES, THEREFORE, ALL RESULTS SHOULD HAVE BEEN SUPPRESSED.
POINT III – APPELLANT'S STATEMENTS TO POLICE SHOULD HA VE BEEN SUPPRESSED BECAUSE APPELLANT DID NOT KNOWINGLY AND VOLUNTARILY WAIVE HER MIRANDA RIGHTS.
I.
"[A]n appellate court reviewing a motion to suppress must uphold the
factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (alteration in original) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). "Those findings warrant particular deference when they are

5

A-4161-17T4

'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original) (quoting Robinson, 200 N.J. at 15). "Thus, appellate courts should reverse only when the trial court's determination is 'so clearly mistaken that the interests of justice demand intervention and correction.'" State v. Gamble, 218 N.J. 412, 425 (2014) (quoting State v. Elders, 192 N.J. 224, 244 (2007)). "A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference." Ibid. (citing State v. Gandhi, 201 N.J. 161, 176 (2010)). "Therefore, a trial court's legal conclusions are reviewed de novo." Ibid.
In light of our standard of review, we conclude defendant's arguments on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Our review of the record demonstrates no basis to second-guess Judge D'Arrigo's detailed findings of facts and conclusions of law that defendant was not in police custody, had been properly Mirandized and waived those rights, and voluntarily consented to the blood and urine draw.

Affirmed.

6

A-4161-17T4

New DWI Statute Revises certain drunk driving penalties; expands use of ignition interlock devices. P.L.2019, c.248. Senate bill S824

 Reduced DL suspension for DWI with law Expanding Use of Ignition Interlock Devices P.L.2019, c.248.

     On 8/23/2019 new laws signed expanding the use of ignition interlock device for those convicted of drunk driving offenses and of refusing breath tests. The legislation (S824) also reduces the length of license suspension and forfeitures for these offenses. New law takes effect December 1, 2019
    This law requires that first time offenders install ignition interlock devices (IID), at a cost to the offender. IIDs and suspensions from then on are based upon the severity of the offense.
         

If someone does not own a car.

n  Attest to Court that you don’t own, lease or operate a motor vehicle – Lose License for Interlock Period

Offense	BAC	Suspension
1st	0.08 to 0.10	3 months
1st	0.10 to 0.15	7 to 12 months if you don’t own a car
1st	Over 0.15	9 to 15 months if you don’t own a car
2d offense		2 to 4 years if you don’t own a car

    It is better to buy a cheap car and pay for interlock so you can get your license restored

First-time offenders with BAC of:
0.08 to 0.10 

Fine	Old $250-400 + 389	New same
IDRC	12-48 hrs	same
Jail	30 days discretionary	same
Suspension	90 days	New Until install of Interlock
Interlock	6 months – 1yr discretionary (after suspension)	3 months after install Source: NJ Bar seminar

 (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] . In addition, the court shall [forthwith] order the person to forfeit [his] the right to operate a motor vehicle over the highways of this State [for a period of three months] until the person installs an ignition interlock device in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, for the purpose of complying with the provisions of  P.L.1999, c.417 (C.39:4-50.16 et al.); 

     First Offense 0.10 to 0.15 - must install ignition interlock at own cost

Fine	Old $300-500 + 389	New same
IDRC	12- 48 hrs	same
Jail	30 days discretionary	same
DUID	7-12 months DL suspension	same
Suspension	7-12 months	New Until install of interlock
Interlock	6 months -1yr Discretionary (after suspension)	7-12 months after install Source: NJ Bar Assoc Seminar

 (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]; 

     in the case of a person who is convicted of operating a motor vehicle while under the influence of a narcotic, hallucinogenic or habit-producing drug or permitting another person who is under the influence of narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by the person or under the person’s custody or control, the person shall [forthwith] forfeit [his] the 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;  

higher than 0.15 - must install ignition interlock at own cost

Fine	$300-500 +389	same
IDRC	12 -48 hrs	same
Jail	30 days discretionary	same
Suspension	7-12 months	Until install of interlock and for 4- 6 months after installation
Interlock	6 months – 1yr mandatory during suspension and 6 months -1 yr after suspension	Interlock remains between 9- 15 months after license restored Source: NJ Bar Assoc Seminar

      in the case of a person whose blood alcohol concentration is 0.10% or higher but less than 0.15%, the person shall forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, for the purpose of complying with the provisions of  P.L.1999, c.417 (C.39:4-50.16 et al.);  

     in the case of a person whose blood alcohol concentration is 0.15% or higher, the person shall forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than four months or more than six months following installation of an ignition interlock device in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, for the purpose of complying with the provisions of  P.L.1999, c.417 (C.39:4-50.16 et al.);

Second

Fine	Old $500-1000 +389	New same
IDRC Community Service	48 hours 30 days	Same same
Jail	2 – 90 days discretionary (substitute IDRC for jail)	same
Suspension	2 years	1 – 2 years
Interlock	1-3 years + during suspension period	During period of suspension and 2- 4 years after restoration Source: NJ Bar Assoc Seminar

   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] or more than 90 days, and shall forfeit [his] the right to operate a motor vehicle over the highways of this State for a period of not less than one year or more than two years upon conviction[, and after].  

     After the expiration of [said] the license forfeiture period, [he] the person 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.).  

Third offense

Fine	Old $1000 +389	New same
IDRC	48 hours	same
Jail	180 days w/ possible 90 reduction for treatment	same
Suspension	10 years	8 years
Interlock	During period of suspension and 2-4 years after restoration

     (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] the right to operate a motor vehicle over the highways of this State for [10] eight 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.).   

Refusal

n  If in connection with 1^stDWI then suspended until the defendant installs an interlock for 9-15 months after the license is restored

Section 2 of P.L.1981, c.512 (C.39:4-50.4a) is amended to read as follows:  

     2.    a.  [Except as provided in subsection b. of this section, the] The municipal court shall [revoke the right to operate a motor vehicle of] order any [operator] person who, after being arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14), [shall refuse] refuses to submit , upon request, to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) [when requested to do so, for not less than seven months or more than one year unless]:

(1)       if the refusal was in connection with a first offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.); 

n  If in connection with a 2^ndDWI license is suspended for 1 to 2 years after the interlock is installed; it shall remain 2 to 4 years after the restoration

(2)       if the refusal was in connection with a second offense under this section, [in which case the revocation period shall be for two years or unless], to forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than one year or more than two years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.); 

Third Refusal If the refusal was in connection with a 3^rdor subsequent DWI then license is suspended for 8 years after the interlock device is installed and remains 2 to 4 years after the license is restored

All other penalties for refusal are the same – IDRC, Fines, Penalties, etc.

     (3) if the refusal was in connection with a third or subsequent offense under this section [in which case the revocation shall be for ten years], to forfeit the right to operate a motor vehicle over the highways of this State for a period of eight years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of  P.L.1999, c.417 (C.39:4-50.16 et al.).  A conviction or administrative determination 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 section.  

What if you are poor? Revised N.J.S.A.39:4-50.17

u(a) If family income does not exceed 100% of the federal poverty level, the monthly leasing fee is 50% of the regular fee.

u(b) If family income does not exceed 149% of the federal poverty level, the monthly leasing fee shall be 75% of the regular fee.

u(c) Qualifying individuals are not be required to pay 

uinstallation fee

ucost for monitoring of the device

ufees for calibration or removal of the device.

Federal Poverty Level (1/11/2019): $12,490/year + $4,420 each additional person – U.S. Dept. of Health and Human Services[source: NJ Bar seminar]

39:4-50.17: whether the offender qualifies for a reduced fee for monthly rental of an ignition interlock device pursuant to section 6 of P.L.2009, c.201 (C.39:4-50.17a) categorized by family income exceeding 100 percent or 149 percent of the federal poverty level; the percentage these offenders constitute of the total  number of offenders; and the number of these offenders that reside in each county;   

School zone DWI eliminated

39:4-50.19 Violation of law; penalties.  No changes

   4. a. A person who fails to install an interlock device ordered by the court in a motor vehicle owned, leased or regularly operated by him shall have his driver's license suspended for one year, in addition to any other suspension or revocation imposed under R.S.39:4-50, unless the court determines a valid reason exists for the failure to comply.  A person in whose vehicle an interlock device is installed pursuant to a court order who drives that vehicle after it has been started by any means other than his own blowing into the device or who drives a vehicle that is not equipped with such a device shall have his driver's license suspended for one year, in addition to any other penalty applicable by law.

   b.   A person is a disorderly person who:

   (1)   blows into an interlock device or otherwise starts a motor vehicle equipped with such a device for the purpose of providing an operable motor vehicle to a person who has been ordered by the court to install the device in the vehicle;

   (2)   tampers or in any way circumvents the operation of an interlock device; or

   (3)   knowingly rents, leases or lends a motor vehicle not equipped with an interlock device to a person who has been ordered by the court to install an interlock device in a vehicle he owns, leases or regularly operates.

   c.   The provisions of subsection b. of this section shall not apply if a motor vehicle required to be equipped with an ignition interlock device is started by a person for the purpose of safety or mechanical repair of the device or the vehicle, provided the person subject to the court order does not operate the vehicle.

   L.1999, c.417, s.4; amended 2009, c.201, s.3.

revised 39:4-50.18  Notification to NJMVC of ignition interlock device installation.

   3. a. The court shall notify the Chief Administrator of the New Jersey Motor Vehicle Commission when a person has been ordered to install an ignition interlock device in a vehicle pursuant to the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.).  The commission shall require that the device be installed before restoration of the person's driver's license that has been forfeited pursuant to R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a).

   b.   The commission shall imprint a notation on the driver's license stating that the person shall not operate a motor vehicle unless it is equipped with an ignition interlock device and shall enter this requirement in the person's driving record.  The expiration date of the device requirement shall not be imprinted on the license. 

   c.   Notwithstanding the provisions of section 2 of P.L.1999, c.417 (C.39:4-50.17), an ignition interlock device shall be removed on the date the person completes the installation period only if the person submits to the chief administrator a certification from the vendor that:

   (1)   during the final 30 days of the installation period there was not more than one failure to take or pass a test with a blood alcohol concentration of 0.08% or higher unless a re-test conducted within five minutes of the initial test indicates a blood alcohol concentration of less than 0.08%; and

   (2)   the person complied with all required maintenance, repair, calibration, monitoring, and inspection requirements related to the device.

   d.   If the vendor does not issue a certification to the person because there were two or more violations of paragraph (1) of subsection c. of this section, the vendor shall forward the violation information to the chief administrator and the court.  The court shall decide whether to extend the period of ignition interlock device installation for up to 90 days or issue the certification to the chief administrator.

   L.1999, c.417, s.3; amended 2019, c.248, s.5.

During of the period of IID installation imposed by the sentencing judge, the defendant may not operate any vehicle that is not equipped with an IID. (NJSA 39:4-50.17(c)).  A notation to this effect will be imprinted on the operator’s license. (NJSA 39:4-50.18(b)).