Jun 16

Underage Drinking/Driving And Blood Alcohol Below 0.01

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39: 4-50.14 provides the following:

Any person under the legal age to purchase alcoholic beverages who operates a motor vehicle with a blood concentration of 0.01 or more, but less than 0.10, by weight of alcohol in his blood, shall forfeit his right to operate a motor vehicle over the highways of this State, or shall be prohibited from obtaining a license to operate a motor vehicle in this State for a period of not less than 30 or more than 90 days beginning on the date he becomes eligible to obtain a license or on the date of conviction, whichever is later, and shall perform community service for a period of not less than 15 or more than 30 days.

The plain reading of the Statute requires a blood concentration of 0.01 or more in order to sustain a conviction. The Statue goes on to emphasize this point by reiterating that a conviction may only be had by “weight of alcohol in his blood”. Therefore, the Defense contends that a plain reading of the Statute requires a blood alcohol concentration of 0.01 or more. This precludes a conviction based upon psycho-physicals, admissions, or any other proofs, other than a blood alcohol concentration verified by an Alcotest or any other State approved, such as a blood test, blood analysis.

A review of the legislative history further bolsters the Defense reading of the Statute, which refers to a blood alcohol concentration of 0.10 as the “statutory standard for designating a person as ‘driving under the influence’ of an alcoholic beverage”. See Assembly Judiciary, Law and Public Safety Committee Statement, Assembly, Nos. 1447 and 1426-L.1992, c. 189. Obviously, the Legislature was knowingly penalizing a “blood concentration of more than 0.01”. Indeed, the Legislative history goes on to clarify that:

the penalties provided in this bill are in addition to those the court is currently authorized to impose for the purchase, possession or consumption of alcoholic beverages for underage persons. The substitute includes a reference to R.S. 39-4-50 because it is not intended to preclude any effort to prosecute under that section for a possible DWI conviction.

Therefore, the Statute is strictly construed by the Legislature to impose an additional penalty for operating a motor vehicle with a blood alcohol concentration of more than 0.01, over and above the mere “purchase, possession or consumption of alcoholic beverages for underage persons”, but does not preclude “any efforts to prosecute under [39:4-50] for a possible DWI conviction”. Moreover, the Legislature is very clear as to the quantum of proof required under the Statute and that is a blood alcohol content of more than 0.01. There is nothing in the Statute or Legislative history to indicate that this particular sub-section of 39:4-50 can be proven by psycho-physicals, admissions, or otherwise. This is not a two prong Statute like 39: 4-50, rather a violation can only be proven by a blood alcohol concentration of more than 0.01.

An exhaustive search of Westlaw only revealed three (3) cases that touch upon 39: 4-50.14. Two of the cases, In re Broom, 193 N.J. 36 (2007) and State v. Watkins, an unpublished Appellate Division opinion, merely reference the statute with any further elaboration. State v. Chun, 194 N.J. 54, 74 (2008) also references 39: 4-50.14 but recites the statute and delves into the purpose behind the statute. Indeed, a reading of Chun could be interpreted to support the position advocated herein. Chun recites the exact language of the statute and goes on to quote the legislative purpose behind the statute, that being “to establish penalties for any driver under the age of 21 who is ‘found to have consumed an alcoholic beverage’” Id. at 73. By reciting the exact language of the statute and concluding that a person who has a blood alcohol concentration of more than 0.01 is “found to have consumed an alcoholic beverage” supports the contention that in order to satisfy the statute, a blood alcohol concentration of 0.01 is necessary to support a conviction.

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