Article by Peter Lederman
Our State must change the way we deal with alcohol abuse and motor vehicle operation. Rather than continually increasing the severity of punishment for violation of DWI laws, we should consider what States in our region, as well as around the country have done in aggressively treating drivers with motor vehicle offenses involving alcohol. These programs not only punish drivers, but incentivize their behavior to resolve alcohol issues.
Our Legislature’s recent adoption of NJSA 2C: 40-26 reflects a one dimensional approach which allows recidivisim, by simply ramping up penalties such as mandatory incarceration, without incentivizing recovery from alcohol substance abuse. NJSA 2C: 40- 26 substantially increases penalties for drivers whose licenses are suspended as a result of a prior DWI conviction, who then operated a motor vehicle, before restoration of their driving privileges. The new statute changes existing law, N.J.S.A. 39:3-40, which makes it a motor vehicle violation generally, to operate a motor vehicle while suspended and enhances existing penalties, by creating a new indictable 4th degree criminal offense which occurs in two situations.
These enhanced penalties arise when a driver has driven suspended for a second or subsequent time during the period of suspension arising out of a DWI or Refusal conviction. The statute contemplates a further violation if the driver had a prior DWI or Refusal conviction, was convicted of a second or subsequent DWI or Refusal and drove while suspended, as a result of that second or subsequent violation.
As a 4 degree offender, the defendant’s case would proceed through the Superior Court and be prosecuted as a criminal offense by the County Prosecutor, with indictment, jury trial and exposure to the general penalties for violation of a 4th-degree offense. These penalties include a fine of up to $10,000, up to eighteen months in jail and a criminal record. The specific language of the new law provides for a “fixed minimum sentence” of incarceration for not less than 180 days, during which the defendant would not be eligible for parole.
From a legal standpoint, the new law raises interesting questions. For example, is a defendant entitled to admission into the Pre-Trial Intervention Program, which is available to most nonviolent first offenders. Secondly, are out of state violations included as prior DWI or Driving While Suspended violations contemplated by the law. The language of NJSA 2C:40-22 suggests that such out of state violations should not be considered. Furthermore, should a defendant seek a jury trial as to this violation, would he also be entitled to have the jury consider the accompanying DWI or Refusal charge. Our courts have consistently denied demands in DWI cases for jury trials.
From a public policy viewpoint, the new law reflects a lack of will on the part of the Legislature to cope with the problem of alcohol use and abuse, as it relates to motor vehicle operation. Many Legislators agree that present DWI laws fail to deal effectively with the very real problems of driving and alcohol use. However, they follow the safe course of enacting “politically correct” legislation attempting to satisfy an unquenchable appetite to appear “tough on DWI” by continually increasing the severity of mandatory penalties.
Laws should encourage conduct which advances the well being of society. This, however, can not be achieved by only applying penalties which become more and more severe. So much was recognized by Governor Christie, in his State of the State speech on January 31 of this year. In that speech the Governor supported increasing the scope of Drug Courts, which allow defendants charged with non-violent drug-related offenses, to participate in a diversionary program of strict supervision which focuses on addiction issues, rather than incarceration and punishment. The program further incentivizes compliance through offering significant reductions in penalties that would otherwise be imposed. As Governor Christie stated, “we want to help you, not throw you away”, by transferring the emphasis from incarceration to treatment.
Drug Courts sometimes referred to as “problem-solving” or “specialized courts”, were first developed in the late 1980’s as a response to increases in drug offenses. These courts are designed to reduce recidivism through immediate intervention, nonadversarial adjudication, hands-on judicial involvement, treatment programs with clear rules and structural goals and an approach that brings together judge, prosecutor, defense attorney, treatment provider and correctional staff. Hundreds of these courts have been established throughout the country.
Unfortunately, drivers charged with violations of laws such as 2C: 40-26 and suffer from substance issues arising out of alcohol use, have no access to the New Jersey Drug Court program. Rather than making these defendants criminals, our criminal justice system should encourage defendants to adopt sobriety and healthier alcohol habits by participating in a DWI Court, similar to the Drug Courts supported by Governor Christie. These programs would provide both the structure and rehabilitation goals found in “Drug Courts” for drivers with alcohol problems to achieve the best results where serious alcohol abuse issues are identified in DWI and DWI related cases.
At the same time, different approaches have been taken by other states to incentivize changes in behavior and discourage conduct which leads to driving while intoxicated charges. Rather than merely punishing drivers, they are actively encouraged to change their behavior as it relates to alcohol use and motor vehicle operation.
New York has had a “Conditional Drivers License” law for over twenty years, where a first offender can drive to work, obtain medical treatment and transport children to school. To obtain these limited driving privileges, the driver must enroll in the New York State Drinking Driver Program which requires regular weekly participation and satisfaction of other program requirements. New York also has a hardship privilege which allows limited operation for work and school after thirty days, provided the driver has had no prior DWI or Refusal Violations during the previous five years. Pennsylvania also has a program that mitigates statutory penalties where a driver qualifies for participation in the Accelerated Rehabilitation Disposition (“ARD”) program. This program is limited to first offenders and second offenders where the previous violation occurred more than ten years earlier. Drivers can not be admitted where the charge involves DWI with a child under 14 in the car or where there has been an accident resulting in serious injury or death. The program further requires participation in a supervised rehabilitation program and two years of probation. Upon completion of the program, DWI charges are dismissed and all records are expunged.
Both Maryland and Delaware have similar types of programs. In Maryland a driver charged with driving while intoxicated for a first offense can participate in the Probation Before Judgment (“PBJ”) program. After successful participation in this program, drivers charged with DWI will have no record of a conviction. Delaware’s program, the “First Offender DWI Program” allows qualifying drivers significantly shorter suspensions upon participation in a program of counseling evaluation and alcohol education.
These programs provide a sample of efforts neighboring states are making to encourage drivers to change behavior and to avoid future driving while intoxicated offenses. They are designed to identify mistakes in alcohol use, improve habits concerning alcohol and incentivize safe driving.
2C: 40-26 reflects the trajectory of our laws in an opposite direction. Governor Christie’s call for a “transformation” in the way we treat drug abuse and incarceration, should also be a call to transform the way we treat alcohol abuse and drunken driving. Our State needs to consider the types of programs States throughout our country have adopted, to employ more creative ways of achieving highway safety and freedom from alcohol addiction. Now is the time for our legislature to adopt legislation which will actively and effectively deal with DWI, not just increase mandatory sanctions.