S994

SENATE, No. 994

STATE OF NEW JERSEY

INTRODUCED MARCH 21, 1996

By Senator EWING

An Act concerning restricted use licenses, supplementing chapter 4 of Title 39 of the Revised Statutes and amending R.S.39:3-40 and R.S.39:4-50.

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

1. (New section) This act shall be known and may be cited as "The Restricted Use Driver's License Law."

2. (New section) a. A person who forfeits the privilege to operate a motor vehicle over the highways of this State pursuant to a conviction for a third or subsequent violation of R.S.39:4-50 and whose New Jersey driver's license has been collected by the court and forwarded to the Director of the Division of Motor Vehicles may, following a period of two years of the suspension, apply to that court for a restricted use driver's license subject to the conditions provided in this act.

b. A person who applies for a restricted use driver's license shall include with the application an affidavit certifying:

(1) the hours during which and the locations between which it is necessary for him personally to operate a motor vehicle for the purposes of employment, education or medical services; and

(2) that he has satisfied the penalties imposed by the court for conviction of a third or subsequent violation of R.S.39:4-50 except for the 10 year license suspension.

3. (New section) a. An application to the court for a restricted use driver's license shall be accompanied by certification from the chief of the Intoxicated Driving Program Unit in the Department of Health that the applicant is eligible for a restricted use driver's license pursuant to the provisions of subsection c. of this section.

b. The certification shall be in a form approved by the Division of Alcoholism and Drug Abuse in the Department of Health.

c. To become eligible for this license, the applicant must have been therapeutically discharged from a residential rehabilitation program approved by the Division of Alcoholism and Drug Abuse after a minimum of 28 days of inpatient treatment or psychiatric evaluation and counseling and be progressing satisfactorily toward recovery by being drug and alcohol free after 60 days of an outpatient treatment or counseling program approved by the Department of Health, or until the applicant has successfully completed the program, whichever is later. The applicant shall also have made a commitment, in writing, to the Department of Health for participation in an approved local aftercare program such as regular attendance at meetings of Alcoholics Anonymous or Narcotics Anonymous, as the case may be, for three consecutive years. During this period, an Intoxicated Driver Resource Center shall closely monitor the offender's progress. The applicant shall agree to periodic urine testing throughout the aftercare period at his expense at an approved treatment program or medical facility. If the offender at any time refuses to undergo urine testing for alcohol or drug usage, or tests positive on two or more occasions under uniform standards established by the Department of Health, the court shall, upon the application of the chief of the Intoxicated Driving Program Unit, revoke the offender's restricted use license.

4. (New section) a. Upon submission of the personal affidavit required by section 2 of this act, certification of eligibility as required by section 3 of this act, and the recommendation of the chief of the Intoxicated Driving Program Unit, the court shall review the application within 30 days and may direct the Director of the Division of Motor Vehicles to issue a restricted use driver's license to the applicant. When determining whether or not to direct that a restricted use driver's license be issued, the court shall also consider the following:

(1) the circumstances surrounding the commission of the offense including the reckless nature of the driving that may have led to a death resulting from the commission of the offense; and

(2) the probability that the defendant will repeat the offense.

b. If the court does not direct the director to issue a restricted use driver's license, the application shall be deemed denied. If denied, the defendant may reapply after six months if he receives an evaluation from an approved treatment program at that time that he is progressing satisfactorily through all therapeutic requirements of section 3 of this act.

c. Notice of the court's decision regarding the application for a restricted use driver's license shall be forwarded to the applicant within 10 days after the decision is made.

5. (New section) a. The Director of the Division of Motor Vehicles shall issue a restricted use driver's license to a person who has applied therefor pursuant to section 2 of this act if the court has directed the issuance pursuant to section 4 of this act. If the application is approved, the director shall provide instructions to the applicant concerning the issuance of the restricted use driver's license. The restricted use driver's license shall be in a form prescribed by the director and shall be issued as promptly as is practicable in accordance with procedures established by the director.

b. A restricted use driver's license issued under this section shall authorize the licensee to operate a motor vehicle during certain hours and between certain points solely for the purpose of either traveling to and from his place of employment, education, or medical services or pursuing his employment or education, or both. The limitations on the authorized use of the license shall be determined by the director, and those limitations as well as the penalties provided for in subsection e. of this section shall be indicated on the license or on an attachment thereto.

c. The director may impose a fee of no more than $15 for the issuance of a restricted use driver's license.

d. A restricted use driver's license shall expire at the time of the expiration of the suspension or revocation period of the licensee's basic driver's license except where determined by the court, pursuant to a recommendation by the chief of the Intoxicated Driving Program Unit, that a restricted use driver's license be continued. If the chief of the Intoxicated Driving Program Unit reports to the court that the offender has satisfied the aftercare requirements of this act and the court is in agreement, the Director of the Division of Motor Vehicles shall be directed by the court to restore the offender's basic driver's license pursuant to procedures he prescribes.

e. A restricted use licensee who operates a motor vehicle between points or during hours other than those indicated on the restricted use driver's license or a licensee who the chief of the Intoxicated Driving Program Unit, upon the report of the Intoxicated Driver Resource Center, finds is not progressing satisfactorily in his course of aftercare rehabilitation pursuant to the requirements of section 3 of this act, may be fined not less than $100 or more than $500, may be ordered by the court to perform community service for a period of 30 days, and may be sentenced to imprisonment for a term of not less than 48 consecutive hours or more than 90 days, which shall not be suspended or served on probation. The offender's restricted use driver's license may be suspended. If this license is suspended, no additional restricted use license shall be issued to the offender for three years and only then if the offender can demonstrate regular attendance at an Alcoholics Anonymous or other approved after care program for the previous three years and that he is drug and alcohol free.

If, while operating a motor vehicle during unauthorized hours or between unauthorized points, a licensee is involved in an accident resulting in serious personal injury or death to another person, the above penalties shall apply and shall all be mandatory except the sentence of imprisonment shall be for not less than 45 days or more than 90 days. In addition, the director immediately shall revoke the person's restricted use driver's license and shall extend the period of suspension or revocation of the licensee's basic driver's license for an additional period of two years. After the additional period of suspension or revocation expires, the licensee may apply to the director for a license to operate a motor vehicle, which application may be granted at the discretion of the director. No additional restricted use license shall be issued to the offender for three years and only then if the offender can demonstrate regular attendance at an Alcoholics Anonymous or other approved after care program for the previous three years and that he is drug and alcohol free.

If a restricted use licensee violates the provisions of R.S.39:4-50, in addition to the penalty provisions provided for therein and without regard to whether the violation occurred during authorized hours or between authorized points, the licensee shall be fined not less than $1,000 or more than $1,500, shall be imprisoned for a term of not less than 90 or more than 180 days, and shall thereafter forfeit his right to operate a motor vehicle over the highways of this State for an additional period of 10 years. No additional restricted use license shall be issued to the offender for three years and only then if the offender can demonstrate regular attendance at an Alcoholics Anonymous or other approved aftercare program for the previous three years and that he is drug and alcohol free.

6. R.S.39:3-40 is amended to read as follows:

39:3-40. No person to whom a driver's license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal, suspension, revocation, or prohibition, except as provided by sections 1 through 5, inclusive, of P.L. , c. (C. ) (now pending before the Legislature as this bill)..

No person whose motor vehicle registration has been revoked shall operate or permit the operation of such motor vehicle during the period of such revocation.

A person violating this section shall be subject to the following penalties:

a . Upon conviction for a first offense, a fine of $500.00 and, if that offense involves the operation of a motor vehicle during a period when the violator's driver's license is suspended for a violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), revocation of the violator's motor vehicle registration privilege in accordance with the provisions of sections 2 through 6 of P.L.1995, c.286 (C.39:3-40.1 through C.39:3-40.5);

b. Upon conviction for a second offense, a fine of $750.00, imprisonment in the county jail for not more than five days and, if the second offense involves the operation of a motor vehicle during a period when the violator's driver's license is suspended and that second offense occurs within five years of a conviction for that same offense, revocation of the violator's motor vehicle registration privilege in accordance with the provisions of sections 2 through 6 of P.L.1995, c.286 (C.39:3-40.1 through C.39:3-40.5);

c. Upon conviction for a third offense or subsequent offense, a fine of $1,000.00, imprisonment in the county jail for 10 days and, if the third offense involves the operation of a motor vehicle during a period when the violator's driver's license is suspended and that third offense occurs within five years of a conviction for the same offense, revocation of the violator's motor vehicle registration privilege in accordance with the provisions of sections 2 through 6 of P.L.1995, c.286 (C.39:3-40.1 through C.39:3-40.5);

d. Upon conviction, the court shall impose or extend a period of suspension not to exceed six months;

e. Upon conviction, the court shall impose a period of imprisonment for not less than 45 days, if while operating a vehicle in violation of this section a person is involved in an accident resulting in personal injury to another person;

f. (1) Notwithstanding subsections a. through e., any person violating this section while under suspension issued pursuant to section 2 of P.L.1972, c.197 (C.39:6B-2), upon conviction, shall be fined $500.00, shall have his license to operate a motor vehicle suspended for an additional period of not less than one year nor more than two years, and may be imprisoned in the county jail for not more than 90 days.

(2) Notwithstanding the provisions of subsections a. through e. of this section and paragraph (1) of this subsection, any person violating this section under suspension issued pursuant to R.S.39:4-50, section 2 of P.L.1981, c.512 (C.39:4-50.4a) or P.L.1982, c.85 (C.39:5-30 et seq.), shall be fined $500, shall have his license to operate a motor vehicle suspended for an additional period of not less than one year or more than two years, and shall be imprisoned in the county jail for not less than 10 days or more than 90 days.

g. In addition to the other applicable penalties provided under this section, a person violating this section whose license has been suspended pursuant to section 6 of P.L.1983, c.65 (C.17:29A-35) or the regulations adopted thereunder, shall be fined $3,000. The court shall waive the fine upon proof that the person has paid the total surcharge imposed pursuant to section 6 of P.L.1983, c.65 (C.17:29A-35) or the regulations adopted thereunder. Notwithstanding the provisions of R.S.39:5-41, the fine imposed pursuant to this subsection shall be collected by the Division of Motor Vehicles pursuant to section 6 of P.L.1983, c.65 (C.17:29A-35), and distributed as provided in that section, and the court shall file a copy of the judgment of conviction with the director and with the Clerk of the Superior Court who shall enter the following information upon the record of docketed judgments: the name of the person as judgment debtor; the Division of Motor Vehicles as judgment creditor; the amount of the fine; and the date of the order. These entries shall have the same force and effect as any civil judgment docketed in the Superior Court;

h . A person who owns or leases a motor vehicle and permits another to operate the motor vehicle commits a violation and is subject to suspension of his license to operate a motor vehicle and to revocation of registration pursuant to sections 2 through 6 of P.L.1995, c.286 (C.39:3-40.1 through C.39:3-40.5) if the person:

(1) Knows that the operator's license to operate a motor vehicle has been suspended for a violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a); or

(2) Knows that the operator's license to operate a motor vehicle is suspended and that the operator has been convicted, within the past five years, of operating a vehicle while the person's license was suspended or revoked.

(cf: P.L.1995, c.286, s.1)

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

39:4-50. Driving while intoxicated

39:4-50. (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.

Whenever an operator of a motor vehicle has been involved in an accident resulting in death, bodily injury or property damage, a police officer shall consider that fact along with all other facts and circumstances in determining whether there are reasonable grounds to believe that person was operating a motor vehicle in violation of this section.

If the driving privilege of any person is under revocation or suspension for a violation of any provision of this Title or Title 2C of the New Jersey Statutes 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. In the case of any person who at the time of the imposition of sentence is less than 17 years of age, the forfeiture, suspension or revocation of the driving privilege imposed by the court under this section shall commence immediately, run through the offender's seventeenth birthday and continue from that date for the period set by the court pursuant to paragraphs (1) through (3) of this subsection. 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 chief of the Intoxicated Driving Program Unit 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 and Drug Abuse Intoxicated Driving Program 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 Rules Governing the Courts of the State of New Jersey, or R.S.39:5-22. Upon sentencing, the court shall forward to the Bureau of Alcohol Countermeasures within the Intoxicated Driving Program Unit a copy of a person's conviction record. A fee of $100.00 shall be payable to 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 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 the 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 required to pay a per diem fee of $75.00 for the first offender program or a per diem fee of $100.00 for the second offender program, as appropriate. Any increases in the per diem fees after the first full year shall be determined pursuant to rules and regulations adopted by the Commissioner of Health in consultation with the Governor's Council on Alcoholism and Drug Abuse pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

An additional fee, established by the Department of Health by rule or regulation, may be imposed to assist the Intoxicated Driver Resource Centers in defraying the cost of monitoring the recovery of the offender throughout rehabilitation and during aftercare. Of this amount, up to $150 per year shall be paid by the driver to the Department of Health to defray the cost of its oversight activity. The Intoxicated Driving Program Unit in the Department of Health may permit the centers to also charge up to $50 for evaluations related to violations of R.S.39:4-50 committed by out-of-state drivers; further, $25 may be charged to any first, second, third or subsequent offender who misses any scheduled class at the centers.

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

The Commissioner of Health 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.1995, c.243, s.1)

8. This act shall take effect on the first day of the fifth month after enactment.

STATEMENT

Third and subsequent offenders of the State's drunk and drugged driving law must now lose their licenses for ten full years. During this time, some of them may be successful in curtailing their dependence on alcohol or drugs but may be hard pressed to earn a living because of continuing State-imposed limitations on their mobility. This bill is designed to encourage more offenders of this type to become alcohol and drug free so that they can resume normal lifestyles without being risks on the road to themselves and others.

This bill permits a person to apply for a restricted use driver's license solely for the purpose of traveling to and from his place of employment, education, or medical services, if his driver's license has been forfeited upon conviction of a third or subsequent offense for operating a motor vehicle while under the influence of an intoxicant or drugs.

The applicant must provide an affidavit, certification, and recommendation to the court which initially revoked or suspended his driver's license. The affidavit must set forth the applicant's reason for needing the license at certain hours and the applicant's satisfaction of any related penalties. The certification must be obtained from the Intoxicated Driver Program Unit in the Department of Health and must state that the applicant is eligible for receipt of the restricted license.

To qualify as eligible, the applicant must have been evaluated and treated recently in an inpatient residential substance abuse facility for at least 28 days and have progressed satisfactorily during 60 days of subsequent outpatient treatment or counseling. He must be prepared to make a commitment to a three year aftercare program with periodic urine testing and to being virtually drug and alcohol-free or lose his restricted use license. The court only then may direct the Director of the Division of Motor Vehicles to issue the restricted use license.

A person who obtains a restricted use driver's license is subject to certain penalties if he violates the various restrictions imposed on him or violates motor vehicle laws while the restricted use license is in effect. If the licensee operates a motor vehicle between points or during hours other than those indicated on the license, or is determined to be progressing unsatisfactorily in the prescribed rehabilitation program, he may be fined $100 to $500, may have to perform community service for 30 days, may be jailed for two to 90 days and may have his restricted use license suspended for a minimum of three years subject to certain conditions.

If, during unauthorized operation of a motor vehicle, he is involved in an accident resulting in death or serious personal injury, he is subject to similar penalties, except that he will be sentenced to imprisonment for not less than 45 days or more than 90 days and have his basic license suspended for an additional two years. If a licensee commits another violation of R.S.39:4-50 while the restricted use license is in effect, he is subject to a fine of not less than $1,000 or more than $1,500, imprisonment for 90 to 180 days, and forfeiture of his privilege of operating a motor vehicle for an additional 10 years. For these violations, the offender will be barred from applying for a restricted use license again for three years. When reapplying at that time, all offenders must be drug and alcohol free and able to demonstrate three years of regular attendance at an approved aftercare program such as Alcoholics Anonymous and that they are drug and alcohol free.

The sponsor believes that these penalties are appropriate if the offender has abused the opportunity for rehabilitation and judicial leniency afforded to him under this bill.

A basic license may be restored following the expiration of the term of the basic license suspension period, subject to the recommendation of the Intoxicated Driving Program Unit and the direction of the court. However, a restricted use license may be continued beyond the term of the license suspension period. Lastly, the applicant may be charged a fee, set by the Department of Health, to help pay for the expanded public role of the Intoxicated Driver Resource Centers and the State. Up to $150 of that fee could be used by the State Health Department to help defray its cost of monitoring the recovery of the offender. Furthermore, the centers would be permitted, for the first time, to charge up to $50 to out-of-state offenders and to charge $25 for drunk driving offenders who miss any scheduled classes.

Permits third or subsequent offender of drunken driving law to apply for restricted use driver's license.