(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 $500.00 nor more than $1,000.00, 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.) or shall have his registration certificate and
registration plates revoked for two years under the provisions of
section 2 of P.L.1995, c.286 (C.39:3-40.1).
(3) For a
third or subsequent violation, a person shall be subject to a fine of
$1,000.00, 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.) or shall have his
registration certificate and registration plates revoked for 10 years
under the provisions of section 2 of P.L.1995, c.286 (C.39:3-40.1).
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 and Senior Services.
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 Alcoholism and Drug Abuse's 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 Alcoholism and Drug Abuse's
Intoxicated Driving Program Unit a copy of a person's conviction
record. A fee of $100.00 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 Alcoholism and Drug
Abuse and the commission, but subject to the approval of the Division
of Alcoholism and Drug Abuse, 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 Alcoholism and Drug Abuse.
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 $75.00 for the first offender program or a per diem fee
of $100.00 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 and Senior Services 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 and Senior Services 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 $100, of which amount $50
shall be payable to the municipality in which the conviction was
obtained and $50 shall be payable to the Treasurer of the State of New
Jersey for deposit into the General Fund.