DWI Statutes Explained

The primary statutory section governing DWI in New Jersey is in the traffic code, specifically 39:4-50. I have attempted to explain each section of the statute in an easy to understand way.

The main statute (39:4-50) reads as follows:

"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:" (To the following penalties as stated in the penalties section of the website.)

The Synopsis:

There are four elements that the State must prove to convict a person of DWI. Those elements are: 1. Operates; 2. A motor vehicle; and 3. Under the influence of alcohol or drugs.

It is important to note that issues surrounding each element of this of this offense has been litigated throughout the New Jersey courts on how they apply to certain situations. I will attempt to synthesize the law below:

1. OPERATION:

The Supreme Court of NJ has clarified what constitutes "Operation" pursuant to the DWI statutes. It stated in State v. Sweeney, 40 N.J. 359, 360-61 (1963):

"[A] person "operates" -- or for that matter, "drives" -- a motor vehicle under the influence of intoxicating liquor, within the meaning of N.J.S.A. 39:4-50 and 39:4-50.1, when, in that condition, he enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains in the driver's seat behind the steering wheel, with the intent to move the vehicle, and that in this case the trial court could clearly infer such intent from the evidence."

However, see State v. Daly, 64 N.J. 122, 125 (1973), where a defendant, who had been drinking at a tavern, was found reclining in the driver's seat of his car, parked in the tavern lot with the engine running to power the heater. He testified that he realized he had too much to drink and decided to "sleep it off." Based upon these facts, operation was not established because "evidence from which any intent could be inferred beyond a reasonable doubt" was not presented. The Court concluded:
The statutory sanction is against "operating" a motor vehicle while intoxicated. We conclude, as we did in Sweeney, that in addition to starting the engine, evidence of intent to drive or move the vehicle at the time must appear.

A further expansion of what constitutes "operation" was set forth in State v. Mulcahy, 107 N.J. at 479. The arresting officer watched the defendant stagger from a tavern to his car, which was illegally parked in front of a tavern. As the defendant was about to insert his keys into the ignition, the officer reached through the window grabbing the keys from his hand. The Court accepted the "split-second choice" made by the arresting officer as probable cause to require a breath test. The action of attempting to turn on the ignition presented evidence of the intent to drive establishing "operation" and supporting the defendant's conviction under N.J.S.A. 39:4-50.4a.

2. UNDER THE INFLUENCE:

Alcohol vs. Drugs

Pursuant to 39:4-50: "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. . ."

Furthermore, the statute also states:

"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."

The Synopsis:

The DWI statute is fairly broad in what constitutes being under the influence. Generally speaking, it essentially states that operating a motor vehicle under the influence of a substance that causes intoxication will constitute the element of "under the influence." In each case, it is always important to see whether a person was charged with an alcohol related "DWI" (Driving While Intoxicated") or a drug related "DUI" (Driving Under the Influence"). The proofs the State must submit for a conviction of 39:4-50 are very different depending on whether a charge is related to alcohol or drugs. Generally speaking, the breath test is extraordinarily relevant in an alcohol related DWI charge, whereas the breath test is of no relevance to a strictly drug related DUI charge because there would be no detection of alcohol in one's blood. In an alleged DUI, the State must take further measures to obtain a conviction. These measures often included: the taking of a blood or urine sample to determine the type of drugs that may have been ingested in one's body; an evaluation of a Drug Recognition Expert ("DRE") who can determine which drug a person is most likely under the influence of; other evidence that may have been retrieved on a person or in a motor vehicle that would indicate the use of drugs; as well as even a person's own statements made to the police that allude to the use of drugs.

3. MOTOR VEHICLE:

The definition of a "Motor Vehicle" in New Jersey is fairly broad:

"Motor vehicle" includes all vehicles propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks and motorized bicycles. (N.J.S.A. 39:1-1)

The Synopsis:

Essentially, anything with a motor is a "Motor Vehicle" within the confines of the DWI statute.