February 04, 2010

Read this Article Before You Drink and Drive

by W. Timothy Howes, Esq.

Most New Jersey motorists know the basics about drinking and driving.  That is, most people know that if you are convicted of drunk driving or refusal, that you will pay a fine, lose your driving privilege as well as pay surcharges and greatly increased auto insurance premiums.  In some instances, however, New Jersey law sanctions a drunk driver as a felon or a child abuser.  Please read this article before you drink and drive.

The penalties for a first or second DWI in New Jersey are harsh, but most people who are convicted of a first or second offense can recover from the financial hit that they take and the drivers license suspension.  There are two smaller subsets of drunk driving cases that have implications way beyond fines, surcharges and license suspensions.  One is drunk driving with your child in the car.  The other is causing injury or death by driving drunk.

The first case type occurs when a parent drives drunk with his or her child in the car.  N.J.S.A. 39:4-50.15 provides that a “parent or guardian who is convicted of a violation of R.S. 39:4-50 and who, at the time of the violation, has a minor as a passenger in the motor vehicle is guilty of a disorderly persons offense.” In other words, the incident creates a criminal history, but not one that effects most types of employment.

Notably, the trend in New Jersey is toward charging this offense as an indictable (felony) offense.  There are two different statutes in use:  Endangering the Welfare of Children (N.J.S.A. 2C: 24-4), a third degree offense; and Cruelty and Neglect of Children (N.J.S.A. 9:6-1 and 9:6-3).  While neither of these statutes creates a per se indictable offense for driving drunk with a minor in the car, New Jersey prosecutors routinely charge one of these indictable offenses.  Indictable (felony) offenses have long lasting consequences, regardless of your legal history.  Prosecutors do not allow offenders into Pre Trial Intervention; therefore, you will likely end up with an indictable conviction on your record.  If you find yourself in this situation, you should contact an attorney immediately.  It is a very serious situation.

Further, when a motorist is arrested and charged with driving drunk with their children in the car, the police are required to contact the Division of Youth and Family Services (DYFS).  The law then requires DYFS to investigate and make a determination as to whether child neglect or abuse is present.  DYFS will routinely substantiate child neglect when they can prove that a parent or guardian drove drunk with their child in the car.  When DYFS substantiates abuse or neglect, you are placed in the DYFS Central Registry.  Once in the Central Registry, any serious background check will determine that you are a past perpetrator of child neglect.  This will prevent you from doing anything, either volunteer or for profit, with or for children if it requires a background check.

It gets even worse.  DYFS now routinely seeks care and supervision of families when even one of the parents drives drunk with their child in the car.  That status can lead to restrictions on the offending parent’s ability to parent their children.  That is, the Family Court would probably require supervised parenting time for the offending parent, as well as a battery of tests and participation in rehabilitative services.

One event can land you with two or three serious legal problems even if no one is injured.  In sum, if you are caught driving drunk with your children in the car, you can lose not only your drivers license, but also your employment, your standing in the community and your ability to enjoy unsupervised time with your children.

Where drunk driving leads to an injury, the second case type arises.  This case type does not depend on a relationship between the drunk driver and the injured person.  If you get behind the wheel while drunk and cause an accident resulting in a injury to another human being, you are subject to arrest for assault.  N.J.S.A. 2C: 12-1c defines one type of assault by auto as recklessly causing injury to another human being while driving a motor vehicle while intoxicated.  Most, if not all, prosecutors take the position that anyone who gets behind the wheel after drinking is reckless, and therefore guilty of assault by auto.  Once convicted of assault by auto, you are subject to jail time, probation and loss of your employment.

If you find yourself in these legal situations, you should contact Howes & Howes immediately.

This article can be found on the web at: http://www.njcases.com/132/

If you need legal help in matters similar to those described in this document, call Howes & Howes for a prompt, confidential consultation.

Howes & Howes

26 Anderson Street

Raritan, New Jersey 08869

Telephone: (908)704-0037

email: info@njcases.com