New Jersey Criminal Defense Law Blog : New Jersey Criminal Defense Lawyer & Attorney : John Marshall Law Firm : Drug Crimes, Domestic Violence : Monmouth, Middlesex & Union Counties

The New Jersey Assembly is considering an amendment to the penalties for DWI related vehicular homicide.  The bill is referred to as "Josh's Law" and proposes to increase the mandatory jail sentence to 10-20 years from 5-10 for those found guilty of vehicular homicide.  The bill was sponsored in response to the death of Josh Moren, a young man who was killed by a drunk driver possessing a blood alcohol content in excess of four times the legal limit.  

It is always sad to learn of another DWI related death.  While a life was lost, the question of incarceration is always something that needs to be fact sensitive in my judgment.  There is no question that a stiff jail sentence would be warranted when an accused is driving with a blood alcohol content of .35 but how about the high school senior with a .08% blood alcohol content and no prior history of any kind?  Do we destroy two lives to equal the score?  This is a very difficult question and I believe that the enactment of a mandatory jail term of 10-20 years will be too inflexible.  

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The NY Post posted its letters to the editor on the subject of Vito Fosella's DWI.  There have been a litany of descriptions all over the press concerning the perception of the Senator following his arrest.  He has been described as, among other things, "disgraced" and "humiliated" as a result of his DWI while in office. The letters took issue with the lack of compassion for Fosella.

I have to agree with the comments of the writers.  While a DWI is a serious offense, we find all segments of our society in our office seeking defense representation for this charge - doctors, educators, etc.  In fact, New Jersey has even had Superior Court, Appellate Division and/or Supreme Court Jurists who have been issued DWI summonses.  People make mistakes and thankfully no one was injured by the Senator.  I certainly believe that more good could have been accomplished by the Senator on this issue had he remained in office.  I am sure there are many with a much different view.  

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The working definition of "under the influence of alcohol" as related by the case law has not changed much in the past 100 years. In State v. Emery, the New Jersey Supreme Court quoted with approval a definition that dated back to at least 1917. The court held "N.J.S.A. 39:4-50 penalizes a person who drives while under the influence of intoxicating liquor. Although prosecutions pursuant to these provisions are commonly and colloquially termed 'drunken driving cases', it is settled that the statute does not require as a prerequisite to conviction that the accused be absolutely drunk, in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Emery, 27 N.J. 348 (1958).

So, at one extreme, it is not necessary that the defendant be intoxicated in the sense of being sodden with alcohol in order to be under the influence. At the other extreme, the condition of being under the influence must mean something more than having partaken of a single drink, even though physiologically, the smallest amount of alcohol has some slight effect or influence on the drinker. Considering these issues, it appears that the Legislature intended to strike a balance between these two extremes when using the term "under the influence". The concept of being "under the influence of alcohol" is a general condition as a result of which a motor vehicle operator is so affected in judgment and control that it is improper for him to drive. Notice that the standard is improper, not unsafe, although proof of erratic driving is generally admissible as evidence of being under the influence. The proper standard of proof is proof of an impairment of either mental faculties or physical coordination.

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The impoundment of motor vehicles of suspected intoxicated drivers is now mandatory. Whenever a person has been arrested for a violation of N.J.S.A. 39:4-50 for drunk driving or for refusing to submit to a breath test, the arresting officer must impound the motor vehicle that the defendant was operating. The vehicle must remain in impound for atleast 12 hours. The law enforcement agency that impounds the vehicle may charge a reasonable fee for towing and storage of the vehicle. The vehicle may continue to be impounded until the fee has been paid.

After the initial 12 hour waiting period, either the defendant or his agent may reclaim the vehicle. The owner or lessee of the vehicle (who is other than the defendant or an authorized agent of the defendant when the defendant is the owner), may reclaim the vehicle prior to the expiration of the 12 hour waiting period provided that such person can meet certain statutory requirements. These include:

1. Presentation of current driving credentials, including a valid license, proof of ownership, proof of lawful authority to operate a vehicle, and proof of current liability insurance;

2. Proof that the operator is capable of operating a vehicle in a safe manner and would not be in violation of any provision of the motor vehicle statutes.

3. Proof that the person receiving the vehicle can comply with any other conditions for release of the vehicle that have been established by the arresting law enforcement agency.

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