Most people are aware that if they operate a motor vehicle while intoxicated, they can be charged with a DWI offense. But what very few people are aware of is that even if you are not driving the vehicle, you could still be found guilty of a DWI violation.
The New Jersey DWI statute is NJSA 39:4-50. Section (A) of this statute states: Except as provided in subsection (g) (school zone) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of.08% or more by weight of alcohol in the defendants blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of.08% or more by weight of alcohol in the defendants blood shall be subject : The penalties are all exactly the same regardless if you are driving drunk or allowing a person to drive drunk. The New jersey Supreme Court holds the Allowing offense at the same level of responsibility as the act of actual drunk driving, banning any plea bargaining, adhering to the Zero Tolerance policy. In State v Hessan, the Court said ” The act of unleashing a drunk driver onto the highways creates the very risk to the safety of other drivers and the public that is posed by the intoxicated driver.” However, on an Allowing offense, the State has to prove additional different elements than the original DWI charge.
The State has to prove that the person being charged with the allowing offense had owned the vehicle or had custody and control over it. The State also has to prove that the person being charged with the allowing offense had knowledge of the intoxication of the driver and had their consent to operate the vehicle. These elements are not so easy to prove at times.
A typical scenario for an allowing a drunk driver to operate a motor vehicle violation is when two or more friends go out drinking. At the end of the night, the driver tells the passengers that he is too drunk to drive home, and one of the passengers decide to drive home because they are only buzzed. The police stop the vehicle, the drunk owner is sound asleep in the passenger seat completely unaware as to what is happening. Both are arrested and charged with DWI. The same scenario happens if the registered owner of the vehicle is completely sober, in the passenger seat, but the driver is intoxicated. This is typically a husband and wife scenario in the vehicle.
If you or a loved one has been charged with an Allowing offense, you should hire a lawyer whose sole practice specializes in DWI / DUI defense. The facts and circumstances surrounding the allegation of the charge need to be closely examined to identify available defenses and mitigating factors.
The Law Office of Edward M. Janzekovich is a law firm with a sole focus of defending persons charged with DWI / DUI related offenses. The defense strategy used is to identify legal discrepancies in police procedure that implicate constitutional, medical, scientific or evidentiary issues, with the motor vehicle stop, field sobriety tests and blood alcohol tests.