SENATE, No. 1693
STATE OF NEW JERSEY
INTRODUCED NOVEMBER 18, 1996
By Senator BASSANO
An Act concerning testing certain persons for the usage of controlled dangerous substances and intoxicating liquor and amending R.S.39:4-50 and supplementing chapter 4 of Title 39 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in this act:
"Controlled dangerous substance" shall have the same meaning as the term is defined in N.J.S.2C:35-2.
"Director" means the Director of the Division of Motor Vehicles in the Department of Transportation.
"Offender" means a person who has been convicted of a violation of R.S.39:4-50.
2. (New section) a. The director shall enter into a contract with a person, entity or corporation to conduct random testing of offenders for usage of intoxicating liquor and controlled dangerous substances. The director, in consultation with the Department of Health, shall develop guidelines for such testing. All offenders shall be subject to random testing for the periods set forth in R.S.39:4-50. If an offender refuses to be tested, the director shall not reinstate that offender's driver's license until the expiration of the required period of testing. The cost of the testing shall be borne by the offender.
b. Any test results indicating usage of a controlled dangerous substance or a blood alcohol concentration of 0.10% or more by weight of alcohol in the offender's blood shall be reported to the director within 24 hours. Upon receipt of positive test results, the director shall, without hearing, immediately issue a preliminary suspension of any license certificate or nonresident reciprocity privilege to operate any motor vehicle or motorized bicycle held by the offender. Along with the notice of preliminary suspension, the director shall issue a notice of proposed final suspension, revocation or other final agency action, and shall afford the offender the right to a preliminary hearing to contest the preliminary suspension and a plenary hearing to contest the proposed final agency action. In the case of a first offender under R.S.39:4-50, the director shall suspend the offender's driver's license for six months. In the case of a second offender under R.S.39:4-50, the director shall suspend the offender's driver's license for one year. In the case of a third offender under R.S.39:4-50, the director shall suspend the offender's driver's license for two years.
The preliminary suspension shall remain in effect pending a final agency decision on the proposed final agency action, unless a request for a preliminary hearing is received by the division no later than the 10th day from the date on which the notice was mailed. The proposed final agency action shall take effect on the date specified in the notice unless a request for a plenary hearing is received by the division no later than the 10th day from the date on which the notice was mailed. Upon timely request by the offender, a preliminary hearing shall be held by an administrative law judge no later than the 15th day from the date on which the division receives the request. The preliminary hearing shall be for the purpose of determining whether, pending a final agency decision on the matter, the preliminary suspension issued by the director shall remain in effect. Adjournment of the hearing shall be given only for good cause shown. If the preliminary hearing is otherwise postponed or delayed solely at the instance of someone other than the offender, the judge shall immediately order that the offender's license certificate or nonresident reciprocity privilege be restored pending the rescheduled preliminary hearing.
At the preliminary hearing, the parties shall proceed on the papers submitted to the judge, including the test results and the offender's prior driving record submitted by the division, and any brief affidavits permitted by the judge from persons who shall be witnesses at the final hearing. The parties also may present oral arguments. The judge shall immediately determine whether the offender refused to submit to testing or if test results indicated the usage of a controlled dangerous substance or a blood alcohol concentration of 0.10% or more; and, if so, whether in the interest of public safety, the preliminary suspension shall be continued pending the final agency decision on the matter. The administrative law judge shall transmit his findings to the director. Any plenary hearing to contest the proposed final agency action shall conform to the requirements for a plenary hearing contained in subsection b. of R.S.39:5-30.
Any determination resulting from any preliminary or plenary hearing held pursuant to this subsection shall not be admissible evidence in a criminal or quasi-criminal proceeding on the alleged violation or violations.
c. Pursuant to the provisions of the "Administrative Procedures Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the director, in consultation with the Commissioner of Health, shall promulgate rules and regulations to effectuate the purposes of this act.
3. R.S.39:4-50 is amended to read as follows:
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).
In sentencing an offender under this section and in accordance with the provisions of P.L. , c. (C. ) (now pending before the Legislature as this bill), the court shall order the offender to undergo random testing for usage of intoxicating liquor or controlled dangerous substances as defined in N.J.S.2C:35-2. The court shall order such testing to commence immediately upon the return of the offender's driver's license after the period of suspension has been served. The court record shall note this requirement as shall the records of the division. In the case of a first offense, the court shall order the offender to undergo this testing for a period of two years after the restoration of the offender's driver's license. In the case of a second offense, the court shall order the offender to undergo this testing for a period of five years after the restoration of the offender's driver's license. In the case of a third offense, the court shall order the offender to undergo this testing for a period of 10 years after the restoration of the offender's driver's license.
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.).
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)
4. This act shall take effect on the first day of the sixth month after enactment; however, the director may take such anticipatory action as deemed necessary prior to the effective date to provide for its timely implementation.
STATEMENT
This bill would authorize the Director of the Division Motor Vehicles in the Department of Transportation to enter into a contract with a person, corporation or entity to test persons convicted of driving while intoxicated ("DWI") for use of controlled dangerous substances and alcoholic beverages. The director, in consultation with the Department of Health, would develop guidelines governing this testing. Any person convicted of a DWI violation under R.S.39:4-50 (driving while intoxicated) would be subject to the random testing.
The bill requires the court to order commencement of the testing immediately upon the return of the offender's driver's license after the offender has served the DWI suspension. The offender would be subject to random testing for two years after the first DWI conviction, five years after a second DWI conviction and 10 years after a third DWI conviction. If the offender refuses to be tested, his driver's license would continue to be suspended until the required period of testing had expired.
The director would be authorized to immediately suspend, without a hearing, the offender's driver's license upon notice of test results indicating use of a controlled dangerous substance or that the offender's blood alcohol concentration was greater than 0.10% (the legal standard for intoxication). However, the offender would be permitted to request a hearing before an administrative law judge to determine whether the director's preliminary suspension should be continued pending the final agency decision. The offender may also request a hearing to contest the proposed final suspension. The hearing would be conducted in the same manner as hearings for administrative suspensions of driver's licenses for other motor vehicle violations as set forth in R.S.39:5-30.
In the case of a first DWI offense under R.S.39:4-50, the director would be required to suspend the offender's driver's license for six months for a positive test result. In the case of a second DWI offense under R.S.39:4-50, the director would be required to suspend the offender's driver's license for one year. In the case of a third DWI offense under R.S.39:4-50, the director would be required to suspend the offender's driver's license for two years.
Requires random testing for drugs and alcohol of persons convicted of driving while intoxicated.