An article relating to the use of a prior conviction under New Jersey's Baby DWI Statute in a subsequent adult DWI case authored by Frank T. Luciano whose office is located in Bergen County. For almost 35 years, Mr. Luciano has represented clients accused of drunk driving/DWI. He works in Bergen, Passaic, Hudson, Morris and Essex Counties.
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Can a prior conviction under New Jersey's Baby DWI Statute enhance the penalties of a subsequent adult DWI conviction?

CAN A PRIOR CONVICTION UNDER NEW JERSEY'S
BABY DWI STATUTE ENHANCE THE PENALTIES OF
A SUBSEQUENT ADULT DWI CONVICTION?


New Jersey has enacted a special statute that is conceived to control the operation of a motor vehicle by underage drinkers. The statute, which prohibits an underage driver from operating a motor vehicle with a blood alcohol concentration of 0.10% or more is commonly referred to as the "Baby DWI Statute."


This article was prepared to analyze whether a prior conviction under the Baby DWI Statute can be used to enhance the penalties required by N.J.S.A. 39:4-50 (DWI Statute). As you can see from other writings on this website, including, my book titled " New Jersey's DWI Survivor's Guide", the penalties that can be imposed on repeat offenders become exponential higher with each additional conviction.

A. The Distinctions between the Baby DWI Statute and the DWI Statute

To better understand the legal analysis that follows, it may be well to begin by identifying the significant distinctions that exist between the Baby DWI Statute and the DWI Statute. That comparison follows:

1. The Baby DWI Statute prohibits an underage drinker from operating a motor vehicle with a "blood alcohol concentration (BAC) of 0.01% or more, but less than 0.08%" (parenthetical information added). The per se component of the DWI Statute triggers liability at a BAC of 0.08% or more.

2. The statutory title for the Baby DWI Statute is "Operation of a Motor Vehicle by a Person Who Consumed Alcoholic Beverages but is Under the Legislative Age to Purchase Alcoholic Beverages; Penalties." The DWI Statute, on the other hand, is titled "Driving While Intoxicated." Plainly, from these statutory titles and a fair reading of the text of both statutes, it must be concluded that a conviction can result under the Baby DWI Statute without intoxication.

3. The DWI Statute has a rather elaborate scheme to enhance penalties with each successive conviction. The Baby DWI Statute does not. Indeed, an underage driver can violate the Baby DWI Statute on multiple occasions without regard to the prospects of escalating penalties.

4. Under the DWI Statute, the court must warn a convicted defendant of the penalties associated with subsequent convictions and the consequences of driving on the revoked list, where the underlying cause of revocation was a drunk-driving offense. In this regard, and perhaps more importantly, which requires enhanced penalties for driving on the revoked list if the suspension was caused by a drunk-driving (DWI/DUI) conviction, does not authorize sentencing enhancements where there is a conviction under the Baby DWI Statute.

5. There is a marked difference in the quantity and intensity of the penalties authorized by the two statutes. Obviously, the penalties sanctioned by the DWI Statute are more severe.

B. Legal Analysis

There are two reasons why a court should conclude that a prior conviction under the Baby DWI Statute cannot be used to enhance penalties under the DWI Statute.

In order to develop the first, it must be recognized that a court can correct an illegal sentence and that is especially so in the well-regulated area of drunk driving.With that important thought in mind, attention is next directed to State v. Watkins, 2009 WL 857071 (App. Div. 2009).1 In the Watkins case, the defendant had a prior DWI conviction and a prior Baby DWI conviction at the time he was convicted of another DWI offense and an offense under the Refusal Statute. The issue on appeal was whether consecutive license suspension terms were appropriate, given the defendant's status as a second offender. Although the court recognized the prior conviction under the Baby DWI Statute, it did not conclude that the sentence was illegal because the prior Baby DWI conviction, if considered, would have required the defendant to be sentenced as a third offender. By the necessary implication of the court's decision in that case, a defendant under the DWI Statute should not be sentenced as a second offender under the DWI Statute because of his prior conviction under the Baby DWI Statute.

The second reason that militates against a conclusion that a prior Baby DWI conviction can be used to escalate sentencing under the DWI Statute must begin with the DWI Statute itself.

A careful reading of various parts of the DWI Statute should lead even a distant observer to conclude that its enhanced penalty sections can only apply to a conviction under its express terms. See, N.J.S.A. 39:4-50 (a) (3), where it is said that "[a] person convicted of a previous violation under this section need not be charged as a second offender. . . " or (b) "[a] person convicted under this section must satisfy screening . . " or (c) "[u]pon conviction of a violation of this section. . . " (emphasis supplied). These statutory observations are further influenced by a principal of law that requires statutes of this nature to be continued against the government.

While it is recognized that a sentencing court can consider extra-territorial drunk driving convictions to enhance penalties, that judicial prerogative is not compelled by the language of the DWI Statute, but rather, another statute, that is called the Driver License Compact Act. In those instances where foreign convictions have been used to enhance penalties under the DWI Statute, it must be shown that the foreign conviction was "substantially similar" to the offense in this state. This "substantially similar" concept is now embodied in the text of the DWI Statute, where it is said that:

A conviction of a violation of 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%.

In a case decided in 2003, the defendant had two prior DWI convictions. Later, he was arrested in Utah for another DWI offense, where his BAC was 0.89%. As the procedural history of that case developed, however, the defendant agreed to plead to an "alcohol-related reckless driving" offense and not a DWI offense. When the Division of Motor Vehicles learned of this conviction, the defendant's driving privileges were administratively suspended for 720 days. That decision was ultimately reversed on appeal, when the court concluded that the Utah conviction was not substantially similar to a conviction under the DWI Statute. The focus of the court's decision was that under the Utah statute, the use of "any alcohol" could produce a conviction without any evidence of impaired driving, and that was so, even thought the defendant's BAC at the time of the arrest was 0.89%.

Manifestly, the Baby DWI Statute is substantially dissimilar to the DWI Statute. The lowest range of a BAC under the DWI Statute (i.e. "0.08% or more") does not reach the upper range of the BAC level under the Baby DWI Statute (i.e. " less than 0.08%). Moreover, and perhaps more importantly, the Baby DWI Statue does not require the underage driver to be intoxicated, but one option in the DWI Statute does.

C. Conclusion

A conviction under the Baby DWI Statute cannot be used to enhance penalties under the DWI Statute because the DWI Statute does not authorize such enhancements. Alternatively, the elements of the Baby DWI Statute are substantially dissimilar to those of the DWI Statute and, to that extent, sentencing enhancements should not be allowed.

If you have an issue of this nature develop in Bergen, Passaic, Hudson and Morris County, I am an attorney that can assist you in maximizing your results.


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