The Legal BAC Level in New Jersey
In the realm of driving under the influence (DUI/DWI) offenses, New Jersey law is unequivocal – intoxicated vehicular operation, whether by motor vehicle like a car, truck, motorcycle, or all-terrain vehicle, is forbidden. The concept of "intoxication" is commonly understood as having consumed enough alcohol to be impaired, but New Jersey statutes specifically codify "intoxication" under New Jersey’s Code of Criminal Justice, 39:4-50, which eventually led to the creation of the offense of driving while intoxicated, or as it’s known in New Jersey, "driving under the influence (DUI)." Implicit to establishing a DUI is an individual’s blood alcohol content (BAC) being above a certain level.
New Jersey motorists should thus be aware of New Jersey’s legal limit for BAC, which is the same for commercial drivers and the general driving population, to include passenger "car" drivers, "motorcycle" drivers, "all-terrain vehicle" (ATV) drivers, and "truck" drivers. That is, motorists at large – including non-commercial car, motorcycle, truck, and ATV drivers – are all subject to a 0.08 legal BAC limit. Failure to comply by abstaining from driving with a BAC of 0.08 or greater can earn a $250-$400 fine, undergoing a 12-48 hour IDRC (Intoxicated Driver Resource Center) educational course, a minimum of seven months up to one year (depending upon one’s prior convictions) suspension of his/her driver’s license, and up to 30 additional days of either community service or imprisonment. These penalties increase dramatically for individuals previously convicted of DUI/DWI and individuals who are commercially licensed drivers; they will be further discussed later in this article.
However, the law prescribes an even lower legal BAC limit for underage drinkers – aka "young drivers" – who commit underage drinking and driving offenses. A "young driver" is any individual under the age of 21 years who is caught operating a motor vehicle while under the influence of alcohol , and that includes any young driver with a BAC of 0.01 or more. NJ’s legal BAC limit for underage drivers is 0.01. Violating it will land the alleged offender a $500-$1,000 fine, a period of 30 days of community service, and a minimum 30-day suspension of his/her driver’s license. Where an individual under 17 years old commits an underage DUI/DWI, the Court will suspend the minor’s eligibility to obtain a driver’s license until such time as he/she is 18 years old or older and the minor will be prohibited from applying for a license until the minor turns 21 years old.
There are few exceptions to the general rule of having a BAC under 0.08 or below, or else risk being penalized within the aforementioned specter of generally escalating fines, suspensions, educational courses, community service, and imprisonment. In some cases, the presumption that alcoholic beverages underlying a DUI/DWI charge were intoxicating enough to have caused the alleged wrongdoing can be rebutted by showing that the defendant had consumed more non-alcoholic beverages than alcoholic beverages. Also, the law does not allow for the sentencing of individuals with similar BAC to different penalties. For example, individuals who drive commensurately, about 0.10 or higher, suffer more dire consequences than those cited for "low BAC" – those persons with a BAC of 0.08-0.09 at the time of their DUI/DWI arrest.
To avoid these harsh penalties, motorists must be sure to refrain from managing their vehicles with a BAC above New Jersey’s legal limit. This legal limit does not just apply to those suspected of, charged with, or arrested for, DUI/DWI violations. Rather, the limit is simply codified into the law and applies to all drivers on the road, not just commercial drivers or those underage who might be consuming alcohol. There are extensive sanctions available against anybody caught violating NJ’s legal BAC limit.
Penalties for Driving Over the Alcohol Limit in NJ
The legal ramifications of operating a motor vehicle with a blood alcohol concentration (BAC) exceeding the legal limit are both serious and wide-ranging. If a driver is stopped and found to be operating a motor vehicle above the legal limit of .08%, they can be penalized for violating New Jersey’s Driving While Intoxicated law.
Though a DWI charge is a criminal impairment charge, it does not carry the possibility of incarceration. The charge is an administrative one, charged under N.J.S.A. 39:4-50. As such, the penalties reflect that charge. They do include fines, license suspension, and possible installation and use of a breath alcohol ignition interlock device.
Specifically, the penalties for drivers convicted of driving with a BAC of .08% to .10% for the first offense include a fine of $300 to $500, loss of the ability to operate a motor vehicle for a period of three months to one year, and completion of an alcohol education and highway safety program. For a second offense within ten years, the penalties double: A fine of $300 to $800, plus suspension of the driver’s license for up to two years. The penalties continue to increase with each subsequent conviction within a ten year period, not only for DWI but for refusal to take a breath test.
N.J.S.A. 39:4-50.14(d) states, "In determining the actual period of license suspension or postponement, the court shall disregard any harm to third parties;" thereby taking the liberty of the driver into consideration—rather than the damage that could have been caused to others—as a mitigating factor only when deciding the period of license suspension. Rather, there is discretion given to the judge in determining the actual period of license suspension or postponement, based on the circumstances of each case. For instance, a driver with a more serious BAC, or an additional prior conviction over a ten year period, may face harsher penalties.
In some cases, however, penalties for motorists with a BAC over .10% can include loss of life or serious injury to others (which would be the result of a motor vehicle accident caused by the intoxicated driver). These scenarios carry criminal charges that fall under N.J.S.A. 2C.11-5 for homicide by auto, or assault charges under N.J.S.A. 2C:12-1 (assault by auto). Assault charges can carry up to 18 months in jail, as can homicide by auto. Homicide by auto, which involves recklessness and gross negligence, carries a longer jail sentence and more severe penalties. In practice, however, the period of incarceration imposed after a DWI charge may be suspended as long as a driver completes the terms of their sentencing agreement, which may include use of an ignition interlock device, community service, alcohol rehabilitation, etc.
While a motorist may face "worst case scenario" penalties when charged with a DWI, he or she may also be eligible for a conditional discharge program, which first time offenders for low level DWI may be permitted to complete as an Alternative Sentencing Program. The conditional discharge program requires a 6 month alcohol education program; random breathalyzer testing; installation of an ignition interlock device in the motor vehicle for a 6 month period; community service; and probationary supervision for up to 6 months.
When Alcohol Affects Your Ability to Drive
Alcohol has a well-established effect on our physical and mental capabilities. When consumed, alcohol is absorbed into our bloodstream and begins to move through our body. Various organs are affected in a multitude of ways. The effects of alcohol vary based on a number of factors including, the amount of alcohol consumed, tolerance, health and medical conditions, and the type of alcohol consumed.
The effects of alcohol are felt throughout the body, but most drastic changes occur through our cognitive and motor functions. The cognitive effects of alcohol are often described as a feeling of relaxation or calmness, in even small amounts. In large amounts, alcohol consumption is associated with difficulty concentrating, lack of coordination and judgement, confusion, and drowsiness. These impairments can significantly affect our ability to function at our normal level, which includes operating a motor vehicle. Although alcohol is an intoxicant, and one commonly associated with enjoyment and socializing, it is important to understand the dangers of its physical and mental effects on our body, particularly when driving. Although a blood alcohol level of .08% is considered legally intoxicated, impairments can still be felt long before one’s blood alcohol content ("BAC") reaches this point.
Central to assessing the ability to safely operate a motor vehicle is understanding how alcohol affects our cognitive and motor functions. Central to the assessment of an individual’s cognitive abilities are a number of standardized tests which are frequently used by law enforcement to assess a subject’s impairments. During a traffic stop, one of the first tests performed is the Horizontal Gaze Nystagmus ("HGN") test. This test is designed to assess an individual’s ability to follow an object, visually. Individuals who are under the influence of alcohol display a significant impairment to their ability to follow an object side-to-side, which results in eye movements that are jerky or erratic. The second test most often administered is the Walk-and-Turn test. With this test, an individual is asked to walk heel-to-toe in a straight line. Like the HGN test, this test identifies impairments in an individual’s ability to perform multiple tasks at the same time. The inability to equally process multiple actions, such as walking heel-to-toe while counting backwards, is often a first sign of an individual’s impairment. The final motor test is the One-Leg Stand test. This test assesses an individual’s ability to stand still and maintain balance while performing tasks simultaneously.
One of the final tests that is often used by law enforcement is the Breathalyzer. This test is designed to determine an individual’s BAC, and determine if one is driving above the legal limit. A BAC of .08% or above is considered legally intoxicated under New Jersey law. Although this number forms the legal basis for determining if an individual was "intoxicated," impairments usually begin to present themselves well before this BAC is reached. While driving with a BAC above .08% is in violation of New Jersey Statute N.J.S.A. 39:4-50, it is also possible to be charged with a violation of this statute below such BAC, based on the physical impairments noted by law enforcement.
The Significance of Field Sobriety and Breath Tests
In New Jersey, law enforcement officers have the option to request that a suspected DUI driver perform several field sobriety tests, including the walkthrough, nose touch, and finger count tests. New Jersey DUI drivers are not legally obligated to comply with field sobriety tests. However, if a driver refuses to participate in field sobriety tests, then a police officer can presume that the driver is intoxicated and make an arrest on those grounds alone. Refusing to participate in field sobriety tests can weaken a driver’s case by allowing a police officer to proceed with an arrest without sufficient probable cause. The Breathalyzer test is another opportunity for law enforcement officers to gauge a driver’s blood alcohol concentration (BAC) . A Breathalyzer is usually administered at the police station or at a nearby hospital. In order to take a Breathalyzer test, a driver must provide a sample of their breath – typically by blowing into a handheld machine. A BAC reading of .08 percent or more can lead to DUI charges. It is important to note that a Breathalyzer result of .08 percent is not legally sufficient evidence that a driver is guilty of driving under the influence. It is merely one piece of evidence that can be used against the driver. If Breathalyzer devices are not properly cleaned and calibrated, as is sometimes the case, then inaccurate results may be recorded. Additionally, certain medical conditions can cause a driver’s BAC to be artificially high, such as Acid Reflux Disease.
New Jersey’s DUI Defenses
Even with the increasing use of breath and drug tests, there are still defenses that can be used to try and contest a DUI charge in New Jersey. It is vital that anyone charged with DUI in New Jersey immediately hires a lawyer experienced the field of DUI law.
Many lawyers versed in the field of DUI law have an expert forensic chemist on staff who can challenge the readings of breath and blood tests. Using "litigation by ambush" strategy, your lawyer may be able to get the prosecutor in your case to agree to have the evidence independently tested.
It is also crucial to have an attorney on staff who has experience in administering the standardized field sobriety test. Oftentimes, they will be able to discredit the officer’s administration because of their state and federal training and experience. If this is successful the prosecution’s only evidence is the results of the intoxilizer which can be challenged as well.
A good DUI attorney will know the scientific basis behind the Intoxilyzer and may challenge the results obtained by the authoritative governmental agencies that maintain them as being unreliable. These experts will have access to numerous independent publications documenting the Intoxilyzer’s shortcomings.
A recognized expert forensic chemist often times will be able to propose a reasonable estimate of any substituted blood test for the breath test taken and be able to effectively challenge the accuracy of the Intoxilyzer’s breath test program.
Ways to Stay Sober Behind the Wheel
While it is always preferable to avoid situations that will tempt one to drive after consuming alcohol, this is sometimes unavoidable. Accordingly, people should understand the options that are available to them to get home safely. Obviously, if you know that you will be consuming alcohol at a holiday party, it is best to plan your transportation in advance. For example, taking public transportation or a taxi should be initial considerations . Of course, with the explosion of ride sharing apps like Uber and Lyft, public transportation or a taxi may not be necessary anymore. There also may be friends that live nearby who could be a designated driver, or perhaps your host lives close by so that walking home is an option. However, if all else fails and you are caught in a situation where there are no other options, or you simply made the bad decision to drive while under the influence, the following is a list of items to keep in mind or in the vehicle with you: