Can a prior conviction under New Jersey’s Baby DWI Statute enhance the penalties for 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 0.01% or more is commonly referred to as the “Baby DWI Statute.”

The 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 handbook titled “New Jersey’s DWI Survivor’s Guide”, the penalties that can be imposed on repeat offenders become exponentially higher with each additional conviction.

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

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

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%. The per se component of the DWI Statute triggers liability to 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 Stature, 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 drink-driving (DWI/DUI) conviction, does not authorize sentencing enhancements where there is a conviction under the Baby DWI Statute.

B. Legal Analysis

There are few 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.

The first relates to State v. Watkins, 2009 WL 857071 (App. Div. 2009). In the Watkins case, 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 repeat offender. Although the court recognized the prior conviction under the Baby DWI Statute, it concluded that the sentence was illegal because the prior Baby DWI conviction, if considered, would require the defendant to be sentenced as a third offender. By necessary implication, the court’s decision in that case, a defendant under the DWI Statute should not be sentenced as a repeat 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 strictly construed 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 a law of a substantially similar nature in another jurisdiction, . . . 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 the Utah 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 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. “0.8% 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 Statute 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 or someone you love has been charged with a DWI, careless driving or any other traffic violation or crime in New Jersey, Frank T. Luciano is ready to hear your case and craft a sound defense strategy. Begin the process by contacting him immediately at 973-471-0004.

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