LEGAL GUIDE
Written by attorney Thomas Carroll Blauvelt

NY DWAI Offenses and NJ Driver's Licenses

N.J.S.A. 39:4-50, Driving While Intoxicated ["DWI"], exposes liability to: "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 ["BAC"] of 0.08% or more by weight of alcohol in the defendant's blood...." New Jersey law defines "under the influence" as a substantial deterioration or diminution of the mental faculties or physical capabilities of the defendant. State v. Tamburro, 68 N.J. 414, 421 (1975). It should be noted New Jersey's DWI statute was amended on January 20, 2004, reducing the "BAC" at which a person is considered to be guilty of drunk driving from 0.10% to 0.08%.

Pursuant to N.J.S.A. 39:4-50(a)3, a conviction of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact ... [will] constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%.

In New York, Driving While Ability Impaired (DWAI), NY VTL 1192.1 provides: "No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol. "Ability impaired" is defined as having a Blood Alcohol Level of .05% to .07 %. Under New York Law, the word "impaired" means that a motorist's physical and mental abilities necessary to operate a vehicle in a reasonable and prudent manner have been actually impaired, to any extent, by alcohol. The word "impaired" is to make worse or lessen. The driving of an automobile after the consumption of sufficient alcohol to lessen or impair physical and mental control to any significant degree, constitutes a violation of NY VTL 1192.1. See Division of Motor Vehicles v. Lawrence, 194 N.J. Super. 1 (App. Div. 1983).

Under NY VTL 1192.1, New York law imposes liability on drivers whose BAC is between .05% and .07% while New Jersey law does not. N.J.S.A. 39:4-50. There simply is no corresponding offense in New Jersey since it is perfectly legal to drive in New Jersey with a BAC of .07% or lower.

The divergent definitions the two states use in these statutes is also illuminating. In New York, a driver is guilty of the lower-tiered offense of driving while ability impaired if their physical and mental abilities necessary to operate a vehicle in a reasonable and prudent manner have been actually impaired, to any extent, by alcohol. By contrast, a New Jersey driver must ingest alcohol or drugs causing "a substantial deterioration or diminution of the mental faculties or physical capabilities of the defendant."

One could argue that N.J.S.A. 39:4-50 and NY VTL 1192.1 are not "substantially similar [in] nature."

A New Jersey driver's license holder may face an administrative license suspension by the NJMVC for a NY DWAI offense. People in this situation must clearly set forth their NY DWAI offense BAC by written stipulation on the NY court's record as to being "no higher than .07%". Otherwise, the NJMVC will notice the NJ driver's license holder of its intention to administratively suspend their NJ driving privilege for 7 - 12 months for a first offense.

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