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New Per Se Standard of 0.05 BAC? NJ’s Former Presumption of Non-intoxication

In May, 2013, the National Transportation Safety Board recommended that States should reduce the per se blood-alcohol level for DUI from 0.08 to 0.05.  It is unknown whether this recommendation will become law in New Jersey.  If it does, it will be a far cry from New Jersey’s original DUI law.

In 1951, the New Jersey Legislature enacted N.J.S.A. 39:4-50.1.   That statute provided that a 0.15 percent blood-alcohol level gave rise to a presumption of intoxication for purposes of a driving under the influence prosecution.  A blood-alcohol level below 0.05 percent gave rise to a presumption of non-intoxication, and a level between the two gave rise to no presumption.

At that time, New Jersey’s 0.15 percent standard was the most permissive in the country, although the penalties imposed were “among the most stringent.”  Nevertheless, studies revealed that most drivers were impaired at BAC levels significantly lower than the statutory presumption employed in the 1951 statute.  As a result, the Legislature amended N.J.S.A. 39:4-50.1, in 1977, to lower the presumptive BAC for intoxication purposes from 0.15 to 0.10 percent.

In 1983, the Legislature again amended the drunk driving statutes to take into account “mounting scientific findings,” to the effect that almost all drivers suffered reduced driving ability at a BAC of 0.10 percent.  At the same time, the amended statute brought the state into compliance with minimum federal grant standards.  Significantly, the amended version of N.J.S.A. 39:4-50 provided that a 0.10 percent BAC level constituted a per se offense, instead of simply giving rise to a presumption.

In 1990, the New Jersey Commercial Driver License Act was enacted.  It created an even more stringent standard to be applied to drivers of commercial vehicles.  It provides a penalty, in addition to any other applicable penalties, of a one to three-year commercial license suspension for commercial drivers caught driving with a BAC level of 0.04 percent or greater.  N.J.S.A. 39:3-10.13, -10.20(a)(1).  The 0.04 percent BAC standard for commercial drivers was enacted both to comply with the federal standard in the Commercial Motor Vehicle Safety Act of 1986 (codified at 49 U.S.C.A. § 31310), and in recognition of the fact that significant impairment occurred well below the otherwise applicable 0.10 percent BAC levels.

In 1992, the Legislature enacted an additional drunk driving prohibition by creating a new per se offense, which applies to drivers who are under the legal drinking age.  This most recently-added tier provides that any person under the age of twenty-one who is caught driving with a BAC level above 0.01 percent faces a thirty to ninety-day license suspension, in addition to community service requirements.  See N.J.S.A. 39:4-50.14. The statement attached to the legislation explained that the bill was intended to establish penalties for any driver under the age of twenty-one who is “found to have consumed an alcoholic beverage.”  The purpose of the enactment was two-fold: “to deter younger drivers from drinking and driving, and to establish an early detection and treatment program for young people….”

In 2003, the per se violation set forth in the statute was further reduced.  In order to comply with federal highway funding requirements, the statutory standard of 0.10 percent BAC was reduced to 0.08 percent BAC.  At the same time, the amendment created two separate, graduated penalties relevant to prosecution for a first offense.  As a result of this legislative enactment, first time offenders with a BAC level between 0.08 percent and 0.10 percent are subject to a three-month license suspension, but first time offenders with a BAC level of 0.10 percent or greater are subject to a seven to twelve-month license suspension.

In addition, throughout this time, penalties for second and third offenders have become increasingly harsh.  For example, registration revocation, ignition interlock device installation; imposing mandatory jail time or inpatient rehabilitation program time for a third or subsequent violation; and increasing penalties for refusal to submit to breath test.  Time will tell if the 0.05 per se recommendation will become law in New Jersey.

Daniel M. Rosenberg is a DUI defense attorney who practices in Burlington County, Camden County, Mercer County, Gloucester County and throughout New Jersey.   For legal assistance or representation, Mr. Rosenberg can be contacted at (609) 261-3400.

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