ASSEMBLY, No. 788

 

STATE OF NEW JERSEY

 

Introduced Pending Technical Review by Legislative Counsel

 

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

 

 

By Assemblywomen FARRAGHER and J. SMITH

 

 

An Act concerning certain spinal cord and head injured persons, amending R.S.39:4-50, P.L.1981, c.512 and P.L.1983, c.531.

 

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

    1. R.S.39:4-50 is amended to read as follows:

    (a) 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 0.10% or more by weight of alcohol in the defendant's 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 0.10% or more by weight of alcohol in the defendant's blood, shall be subject:

    (1) For the first offense, to a fine of not less than $250.00 nor more than $400.00 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of the Intoxicated Driver Resource Centers established under subsection (f) of this section and, in the discretion of the court, a term of imprisonment of not more than 30 days and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of not less than six months nor more than one year.

    (2) For a second violation, a person shall be subject to a fine of not less than $500.00 nor more than $1,000.00, and shall be ordered by the court to perform community service for a period of 30 days, which shall be of such form and on such terms as the court shall deem appropriate under the circumstances, and shall be sentenced to imprisonment for a term of not less than 48 consecutive hours, which shall not be suspended or served on probation, nor more than 90 days, and shall forfeit his right to operate a motor vehicle over the highways of this State for a period of two years upon conviction, and, after the expiration of said period, he may make application to the Director of the Division of Motor Vehicles for a license to operate a motor vehicle, which application may be granted at the discretion of the director, consistent with subsection (b) of this section.

    (3) For a third or subsequent violation, a person shall be subject to a fine of $1,000.00, and shall be sentenced to imprisonment for a term of not less than 180 days, except that the court may lower such term for each day, not exceeding 90 days, served performing community service in such form and on such terms as the court shall deem appropriate under the circumstances and shall thereafter forfeit his right to operate a motor vehicle over the highways of this State for 10 years.

    (4) For the first offense or any subsequent violation, the court shall collect from the defendant a surcharge of $25 in addition to any other surcharge, fine or fee imposed on that defendant. The surcharge shall be deposited in the Alcohol Education, Rehabilitation and Enforcement Fund, established pursuant to section 3 of P.L.1983, c.531 (C.26:2B-32), to support the Spinal Cord and Head Injury Assistance Program created under that section.

    If the driving privilege of any person is under revocation or suspension for a violation of any provision of this Title at the time of any conviction for a violation of this section, the revocation or suspension period imposed shall commence as of the date of termination of the existing revocation or suspension period. A court that imposes a term of imprisonment under this section may sentence the person so convicted to the county jail, to the workhouse of the county wherein the offense was committed, to an inpatient rehabilitation program or to an Intoxicated Driver Resource Center or other facility approved by the Director of the Division of Alcoholism and Drug Abuse in the Department of Health; provided that for a third or subsequent offense a person shall not serve a term of imprisonment at an Intoxicated Driver Resource Center as provided in subsection (f).

    A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

    (b) A person convicted under this section must satisfy the screening, evaluation, referral, program and fee requirements of the Division of [Alcoholism's] Alcoholism and Drug Abuse's Intoxicated Driving Programs Unit, and of the Intoxicated Driver Resource Centers and a program of alcohol education and highway safety, as prescribed by the Director of the Division of Motor Vehicles. The sentencing court shall inform the person convicted that failure to satisfy such requirements shall result in a mandatory two day term of imprisonment in a county jail and a driver license revocation or suspension and continuation of revocation or suspension until such requirements are satisfied, unless stayed by court order in accordance with Rule 7:8-2 of the N.J. Court Rules, 1969, or R.S.39:5-22. Upon sentencing, the court shall forward to the Bureau of Alcohol Countermeasures within the Intoxicated Driving Programs Unit a copy of a person's conviction record. A fee of $80.00 shall be payable to the Alcohol Education, Rehabilitation and Enforcement Fund established pursuant to section 3, P.L.1983, c.531 (C.26: 2B-32) to support the Intoxicated Driving Programs Unit.

    (c) Upon conviction of a violation of this section, the court shall collect forthwith the New Jersey driver's license or licenses of the person so convicted and forward such license or licenses to the Director of the Division of Motor Vehicles. The court shall inform the person convicted that if he is convicted of personally operating a motor vehicle during the period of license suspension imposed pursuant to subsection (a) of this section, he shall, upon conviction, be subject to the penalties established in R.S.39:3-40. The person convicted shall be informed orally and in writing. A person shall be required to acknowledge receipt of that written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S.39:3-40. In the event that a person convicted under this section is the holder of any out-of-state driver's license, the court shall not collect the license but shall notify forthwith the director, who shall, in turn, notify appropriate officials in the licensing jurisdiction. The court shall, however, revoke the nonresident's driving privilege to operate a motor vehicle in this State, in accordance with this section. Upon conviction of a violation of this section, the court shall notify the person convicted, orally and in writing, of the penalties for a second, third or subsequent violation of this section. A person shall be required to acknowledge receipt of that written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of this section.

    (d) The Director of the Division of Motor Vehicles shall promulgate rules and regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) in order to establish a program of alcohol education and highway safety, as prescribed by this act.

    (e) Any person accused of a violation of this section who is liable to punishment imposed by this section as a second or subsequent offender shall be entitled to the same rights of discovery as allowed defendants pursuant to the Rules Governing Criminal Practice, as set forth in the Rules Governing the Courts of the State of New Jersey.

    (f) The counties, in cooperation with the Division of Alcoholism and Drug Abuse and the Division of Motor Vehicles, but subject to the approval of the Division of Alcoholism and Drug Abuse, shall designate and establish on a county or regional basis Intoxicated Driver Resource Centers. These centers shall have the capability of serving as community treatment referral centers and as court monitors of a person's compliance with the ordered treatment, service alternative or community service. All centers established pursuant to this subsection shall be administered by a certified alcoholism counselor or other professional with a minimum of five years' experience in treatment of alcoholism. All centers shall be required to develop individualized treatment plans for all persons attending the centers; provided that the duration of any ordered treatment or referral shall not exceed one year. It shall be the center's responsibility to establish networks with the community alcohol education, treatment and rehabilitation resources and to receive monthly reports from the referral agencies regarding a person's participation and compliance with the program. Nothing in this subsection shall bar these centers from developing their own education and treatment programs; provided that they are approved by the Division of Alcoholism and Drug Abuse.

    Upon a person's failure to report to the initial screening or any subsequent ordered referral, the Intoxicated Driver Resource Center shall promptly notify the sentencing court of the person's failure to comply.

    Required detention periods at the Intoxicated Driver Resource Centers shall be determined according to the individual treatment classification assigned by the Bureau of Alcohol Countermeasures. Upon attendance at an Intoxicated Driver Resource Center, a person shall be assessed a per diem fee of $50.00 for the first offender program or a per diem fee of $75.00 for the second offender program, as appropriate.

    The centers shall conduct a program of alcohol education and highway safety, as prescribed by the Director of the Division of Motor Vehicles.

    The Director of the Division of Alcoholism and Drug Abuse shall adopt rules and regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), in order to effectuate the purposes of this subsection.

(cf: P.L.1986, c.126, s.1)

 

    2. Section 2 of P.L.1981, c.512 (C.39:4-50.4a) is amended to read as follows:

    2. The municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of R.S. 39:4-50, shall refuse to submit to the chemical test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) when requested to do so, for 6 months unless the refusal was in connection with a subsequent offense under this section, in which case the revocation period shall be for 2 years.

    The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marihuana, whether the person was placed under arrest, and whether he refused to submit to the test upon request of the officer, and if these elements of the violation are not established, no conviction shall issue. In addition to any other requirements provided by law, a person whose operator's license is revoked for refusing to submit to a chemical test shall satisfy the requirements of a program of alcohol education or rehabilitation pursuant to the provisions of R.S.39:4-50. The revocation shall be independent of any revocation imposed by virtue of a conviction under the provisions of R.S.39:4-50.

    In addition to issuing a revocation, the municipal court shall fine a person convicted under this section, a fine of not less than $250.00 nor more than $500.00.

    For the first offense or any subsequent violation, the court shall collect from the defendant a surcharge of $25 in addition to any other surcharge, fine or fee imposed on that defendant. The surcharge shall be deposited in the Alcohol Education, Rehabilitation and Enforcement Fund, established pursuant to section 3 of P.L.1983, c.531 (C.26:2B-32), to support the Spinal Cord and Head Injury Assistance Program created under that section.

(cf: P.L.1981, c.537, s.2)

 

    3. Section 3 of P.L.1983, c.531 (C.26:2B-32) is amended to read as follows:

    3. a. An Alcohol Education, Rehabilitation and Enforcement Fund is established as a nonlapsing, revolving fund in a separate account in the Department of Health. The fund shall be credited from July 1, 1990 through June 30, 1991, with 27.6% of the tax revenues, and from July 1, 1991 through June 30, 1992, with 53.3% of the tax revenues, collected pursuant to section 3 of P.L.1980, c.62 (C.54:32C-3), the amount thereof to be dedicated 75% to rehabilitation, 15% to enforcement and 10% to education, and the fund thereafter shall be annually credited with the amount of tax revenues collected from the alcoholic beverage tax as is provided in section 2 of P.L.1990, c.41 (C.54:43-1.1), which amount shall be dedicated 75% to rehabilitation, 15% to enforcement and 10% to education. Interest received on moneys in the fund shall be credited to the fund. Pursuant to the formula set forth in section 5 of this act, moneys appropriated pursuant to law shall only be distributed to the counties by the Department of Health, without the assessment of administrative costs, to develop and implement an annual comprehensive plan for the treatment of alcoholics and drug abusers and for expenditures according to the dedications provided herein.

    b. (1) A separate account shall be established within the fund to serve as repository for the surcharges collected pursuant to paragraph (4) of subsection (a) of R.S.39:4-50 and section 2 of P.L.1981, c.512 (C.39:4-50.4a) to support a Spinal Cord and Head Injury Assistance Program. These moneys shall be appropriated for the payment of the cost of care for moderate or severe spinal cord or head injuries suffered by a New Jersey resident as the result of a motor vehicle accident for which a driver is convicted of a violation of R.S. 39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), except that any person convicted under these statutes for this accident shall not be eligible for assistance.

    (2) Payment may be provided for the cost of: acute care; rehabilitation; equipment necessary for activities of daily living; and transitional living which shall provide a person, in a residential setting, with a time-limited, goal-oriented treatment program designed to improve the person's physical and social functioning, as well as care and supervision.

    (3) Assistance shall not be provided to any person unless and until all insurance benefits available for the care provided to that person have been exhaused. To the extent of the assistance it has provided, the program shall have first claim to any funds received by the accident victim as the result of a settlement or other payment made in connection with the accident.

    (4) Pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) the Commissioner of Health shall establish eligibility and payment standards and other regulations necessary for implementation of the Spinal Cord and Head Injury Assistance Program.

(cf: P.L.1990, c.41, s.4)

 

    4. This act shall take effect immediately but shall apply only to offenses committed and injuries suffered after the effective date.


STATEMENT

 

    This bill assesses a surcharge of $25, in addition to all other penalties or fees against a person convicted of drunk or drugged driving or of refusing to submit to a chemical test to determine blood alcohol content. Surcharge revenues would be placed in the Alcohol Education, Rehabilitation and Enforcement Fund to establish a Spinal Cord and Head Injury Assistance Program. This program would pay the costs of acute care, rehabilitation, transitional living and certain equipment required by victims of drunk or drugged driving accidents with spinal cord and head injuries. Payments would be made only after all inusurance benefits available to the victim had been exhausted and would not be available to persons convicted of drunk driving.

 

 

 

Imposes surcharge on drunk drivers to establish Spinal Cord and Head Injury Assistance Fund.