To: Commission From: Christopher Cavaiola and Laura C. Tharney Re: Title 39 Driving while intoxicated Date: July 11, 2011 M E M O R A N D U M

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1 To: Commission From: Christopher Cavaiola and Laura C. Tharney Re: Title 39 Driving while intoxicated Date: July 11, 2011 M E M O R A N D U M Various officials have asked the Commission to consider revising the provisions of Title 39 that pertain to driving while intoxicated, N.J.S. 39: :4-51b. During the course of work on this project, Staff has undertaken a comprehensive review of the laws of all 50 states, Washington D.C., Puerto Rico, and the U.S. Virgin Islands to determine where New Jersey stands in relation to other states and territories on DUI/DWI policies. This review focused primarily on legislation that specifically addressed the use of ignition interlock devices and the criminalization of DUI/DWI offenses. The chart forwarded with this Memorandum contains information compiled by the National Highway Traffic Safety Administration and the National Council on State Legislatures. The chart contains, for the purposes of comparison, information pertaining to: minimum sanctions imposed on DWI first offenders; administrative sanctions for DWI first offenders; sanctions for repeat DWI offenders; sanctions for high-bac offenders 1 ; information regarding ignition interlock imposition; the latest date that DUI/DWI laws were proposed or modified in each state; and the criminal status of DWI in each state. Staff is using the attached chart, as well as additional materials, to assess how New Jersey law compares to the laws of other states (as well as Washington, D.C., Puerto Rico and the U.S. Virgin Islands). As the Commission is aware, New Jersey is one of the states that mandates the installation of ignition interlock devices for high-bac first offenders (those with a blood alcohol content greater than.15). Currently, the New Jersey statute calls for the installation of the ignition interlock device in the vehicle principally operated by the offender if a driver is convicted of a first DWI offense with a blood alcohol level of.15% or greater. N.J.S. 39:4-50; N.J.S. 39: In such cases, the ignition interlock is required to be installed during the period of license suspension (seven months to a year) and for six months to one year following license restoration. N.J.S. 39: The law now permits, but does not require, the installation of an ignition interlock in the vehicle principally operated by a first time offender whose blood alcohol level did not exceed.15%. N.J.S. 39:4-50; N.J.S. 39: Current law also calls for the installation of an ignition interlock in cases of a second or subsequent DWI offense. N.J.S. 39:4-50; N.J.S. 39: For a second offense within 10 years of the first, the interlock is to be installed during the period of license suspension (two years) and for one to three years following restoration. N.J.S. 39: For a third offense within 10 years of the second, the interlock is to be installed during the period of license suspension (10 years) and for one to three years following restoration. N.J.S. 39: High-BAC is not treated uniformly throughout the states. A number of states do not have statutory provisions pertaining to high-bac. Those states that do tend to describe it as a BAC exceeding either.15% or.20%. Other states describe it as a BAC exceeding.16%,.17% or.18%. Title 39 - Driving while intoxicated Memorandum 7/11/11 Page 1

2 A brief review of the chart reveals that the penalties for a first DUI conviction vary considerably. The period of incarceration that may be imposed ranges from no incarceration (in states like Maine and New Hampshire) to 2 years (in Vermont) or 2.5 years for a first offense (in Massachusetts). Most states impose a maximum period of incarceration of either six months (14 jurisdictions) or one year (13 jurisdictions). Other jurisdictions set the maximum period of incarceration at not more than: 48 hours (4 jurisdictions), 72 hours (Texas), 5 days (Hawaii), 15 days (New York), 30 days (3 jurisdictions), 60 days (4 jurisdictions), 90 days (3 jurisdictions) and 93 days (Michigan). The period of license suspension or revocation for a first DWI offense also ranges considerably from 2 days (Washington, D.C.) to one year (Georgia). Most states impose a maximum period of suspension/revocation of either 90 days (19 jurisdictions) or six months (12 jurisdictions). Other jurisdictions set the maximum period of license suspension/revocation at not more than: 7 days (Virginia), 30 days (5 jurisdictions), 45 days (Maryland), 4 months (2 jurisdictions) and nine months (Colorado). The penalties for second and subsequent offenders vary in a similar manner from jurisdiction to jurisdiction. As the attached chart illustrates, there has been considerable change to DWI law and policies in almost every state since New Jersey enacted Ricci s Law (effective in January of 2010). According to the National Conference of State Legislatures State Traffic Legislation Database, the National Highway Traffic Safety Association, and the Governors Highway Safety Association, each one of the 50 states has either enacted or proposed legislation that modifies current impaired driving legislation since January In 2010, 61 bills were enacted in 28 states that made changes to DWI laws. Thus far in 2011, 46 bills have been enacted in 23 states that make changes to the DWI laws. Laws pertaining specifically to ignition interlock devices have recently been adopted in a number of states to mandate installation or to strengthen existing requirements for monitoring and installation practices. As of May 2011, 49 states require the installation of ignition interlock devices for first or subsequent offenders 2. Eleven of those 49 states have mandatory ignition interlock device installation requirements for all DWI offenders, some of them include first offenders. Of the 28 states that made changes to DWI laws in 2010, at least 17 made specific changes to ignition interlock device requirements and of the 23 states that made changes to their DWI laws to this time in 2011, at least nine states have dealt specifically with changes to current ignition interlock device laws. The changes to the laws pertaining to ignition interlock devices (IIDs) vary considerably from state to state. Most recently-enacted legislation concerning ignition interlock devices deals with: increasing the length of time during which an IID must be installed; mandating installation for first-time or subsequent DUI offenders; modifying the reporting requirements for the IIDs, and incentivizing the installation of IIDs when their installation is not mandatory (for example, imposing a 90 day license suspension for a first-time DUI but offering the option of reducing the suspension to 30 days if the offender agrees to the installation of the IID for six months). 2 Alabama is the only state that does not mandate the installation of ignition interlock devices for any offenders. Title 39 - Driving while intoxicated Memorandum 7/11/11 Page 2

3 The length of time the ignition interlock device must be installed varies among the jurisdictions reviewed. Most states require that an IID be installed for a period ranging from six months to one year for an initial installation. The laws of the various jurisdictions vary considerably with regard to when IIDs are to be installed. In some states, like New Jersey, they are required to be installed after a lengthy period of license suspension. Other states incentivize the installation of IIDs. There is some consistency among the jurisdictions with regard to IIDs, however, since many require IIDs for high-bac offenders and offenders who refuse a chemical test at the time of arrest. In addition, the various jurisdictions lengthen the period within which an IID is required to be installed in a vehicle when there is a repeat DUI offense or the equipment has been tampered with. During the course of this project, the Commission has been asked to consider whether the criminalization of DWI would be useful or appropriate in New Jersey. Right now, New Jersey is one of only five states in the United States that does not criminalize DWI offenses under any circumstances. A 2010 National Council of State Legislatures report entitled Criminal Status of State Drunk Driving Laws was analyzed to determine New Jersey s position compared to the other states. When the laws of the fifty states, plus Washington, D.C., Puerto Rico and the U.S. Virgin Islands were considered, it was revealed that 47 jurisdictions criminalize drunk driving under some circumstances. In some jurisdictions, criminalization hinges on things like: whether the individual has prior DUIs; whether the individual has a prior criminal record; or the severity of the incident (was there an accident involving death or serious injury). One state criminalizes DUI/DWI for fifth and subsequent offenses. Fifteen states criminalize DUI/DWI for fourth and subsequent offenses. Twenty-Four states criminalize DUI/DWI for third or subsequent offenses. Three states criminalize DUI/DWI offenses for second and subsequent offenses. Two states only criminalize DUI/DWI offenses if they are related to some kind of bodily injury to another person. There are five states that currently do not criminalize DWI offenses at all. New Jersey is one of those states; the others are Georgia, Maryland, Pennsylvania, and Washington. In these states, DWI is always described as a violation or an offense, never a crime. Arguments can certainly be made both for and against the criminalization of DWI offenses in New Jersey and Staff is interested in comments from the Commission regarding this issue. In New Jersey, there were more than 20 bills introduced during this session of the Legislature pertaining to drunk drivers or drunk driving. The proposals included in those bills included: (1) increasing the period of license suspension for certain drunk driving offenses; (2) requiring immediate suspension of the driver s license of an alleged drunk driver who causes a death; (3) criminalizing drunk driving at the level of the fifth or subsequent offense; (4) criminalizing DUI with a person 17 years of age of younger in the vehicle; (5) eliminating the downgrading of DWI offenses that occur more than 10 years after a previous conviction; (6) enhancing the penalties for drunk drivers with a BAC of.17% or greater; (7) requiring breath or a blood sample of drivers in motor vehicle accidents involving death or certain bodily injuries (another bill required breath or blood samples in accidents involving pedestrians); (8) requiring permanent driver s license suspension for a third drunk driving offense; (9) requiring mandatory jail time for certain DWI convictions involving a high-bac offender; (10) requiring DWI Title 39 - Driving while intoxicated Memorandum 7/11/11 Page 3

4 offenders to wear an alcohol monitoring device; and (11) requiring that an IID be installed on a vehicle owned or leased by a drunk driver only after the period of suspension concludes. There are other known difficulties with the current law that have not, to Staff s knowledge, been addressed by proposed legislation. These issues include the fact that, as a result of the way that the current law is drafted, some municipal court judges have said that they are constrained to order the installation of IIDs in cases where drivers who are multiple-time offenders were convicted of driving under the influence of drugs, not alcohol. Staff continues its ongoing work on this project and, for its next draft of potential statutory language, seeks to incorporate the recommendations of experts in this area. One such individual is Dr. Richard Roth of New Mexico who has, for years, engaged in research concerning DWI and the use of ignition interlocks. Dr. Roth s research has been supported by the New Mexico TSB, NHTSA, PIRE, RWJ, and Impact DWI and he conducts an annual study in an effort to estimate the number of ignition interlocks currently installed in the United States, and the rates for the number of interlocks per capita and per fatal impaired driving crash for every individual state. His 2010 study was commissioned by Mothers Against Drunk Driving (MADD) under a cooperative agreement with the National Highway Traffic Safety Administration (NHTSA). Dr. Roth recently distributed updated lecture materials to the nearly 400 hundred individuals who attended one of the lectures that he provided in association with NHTSA. He noted, when he distributed those materials, that not only have a number of states adopted new laws incorporating the recommendations that he provides in his lectures but that the federal government is also moving in the direction of providing additional incentives for states to pass interlock legislation. Dr. Roth suggested that the largest interlock loopholes that remain in many states are: 1. offenders only have to install interlocks if they want to drive legally; 2. there is no effective alternative for those who claim that they are not driving; 3. there are hard revocation periods before offenders become eligible for interlocks; 4. compliance-based-removal is not utilized; and 5. probation resources are focused on interlocked offenders rather than on the noninterlocked offenders who are four times more likely to re-offend. Roth, Ignition Interlocks and Drunk Driving, Region 1 Interlock Institute, April 12-13, 2011, Sponsored by MADD and NHTSA. Based on his years of research, Dr. Roth indicated that his recommendations for a model interlock program are: 1. Mandatory Interlocks as a condition of probation for all convicted offenders. 1 yr for 1 st, 2 yrs for second, 3 yrs for 3 rd, and 5 yrs for 4 or more. 2. Electronic Sobriety Monitoring for convicted offenders who claim no vehicle or not driving. Daily requirement of morning and evening alcohol-free breath tests as a condition of probation. (or $1000/yr for supervised probation) 3. An ignition interlock license available to all persons revoked for DWI with no other restrictions. Allow MVD to set fee to cover cost. Title 39 - Driving while intoxicated Memorandum 7/11/11 Page 4

5 4. An Indigent Fund with objective standards such as eligibility for income support or food stamps. 5. Vehicle immobilization or interlock between arrest and adjudication. Offender s choice. (or Void Vehicle Registration or Interlock as a condition of Bond) 6. Vehicle forfeiture for driving a non-interlocked vehicle while revoked for DWI. 7. Compliance Based Removal: No end to revocation period before satisfaction of at least one year of alcohol-free driving with an IID. (eg miles and 1 year with no recorded BAC>0.05 by any driver). 8. Criminal sanction for circumvention of IID. Staff will continue to review these and other recommendations in an effort to draft revised statutory language that will increase the efficiency and effectiveness of New Jersey law in this area. Title 39 - Driving while intoxicated Memorandum 7/11/11 Page 5