"Baby" DWI and Inference of Fault in a Vehicular Homicide

MORRISTOWN, NJ, December 14, 2012

Your teenager has just been in a multi-car motor vehicle accident. Your mind starts to race. Is my child okay? Were any other people injured or killed? Was my child driving recklessly or under the influence of alcohol or drugs? If the answer is yes to any of the questions above, your child may be facing multiple motor vehicle violations, and even criminal charges, such as death by auto (or vehicular homicide) or assault by auto. Before becoming overwrought with worries and concerns for your child's future, take some comfort in the knowledge that there are defense issues in all criminal matters, including a vehicular homicide offense. It may be possible to spare your child from a lifetime of disabilities associated with a criminal record.

In the State of New Jersey, the prosecution must prove beyond a reasonable doubt that the motor vehicle operator was driving recklessly in order to establish guilt for a death by auto offense (N.J.S.A. 2C:11-5). The state does not always need eyewitness testimony to prove reckless driving on the part of the operator. Recklessness can be inferred by either the driver falling asleep at the wheel, the driver having not slept in over 24 hours prior to the operating of a vehicle, or the driver was under the influence of alcohol or drugs. Therefore, if a young adult is charged with a "baby" DWI, does that infer recklessness?

A charge or even a conviction of 39:4-50.14 (a "baby" DWI) does not infer guilt in a vehicular homicide. Many people assume that a "baby" DWI violation is the same as an adult driving while intoxicated violation, except the driver is under the legal drinking age. In actuality, under 39:4-50.14, a "baby" DWI is "operation of a motor vehicle by a person who has consumed alcohol but is under the legal age to purchase alcoholic beverages." If a young motorist whose blood alcohol content (BAC) is 0.01%, but less than 0.08%, he or she may be guilty under this section. However, an underage DWI does not automatically infer intoxication. The statute for driving while intoxicated defines a DWI as driving with a BAC of 0.08% or greater.

The New Jersey legislature developed the "baby" DWI statute as a means to punish and dissuade young adults under the legal drinking age from drinking and driving. A youth does not need to be drunk, intoxicated, or visibly under the influence to be charged with this violation. This has lead to the question of whether a person charged with 39:4-50.14 can be held criminally culpable for vehicular homicide.

Due to the shared terminology between the two offenses, prosecutors have made multiple attempts to declare that a "baby" DWI proves recklessness. However, the criminal statute for vehicular homicide does not state that alcohol consumption under the legal age infers criminal culpability. In these circumstances, the court may rely other evidence, such as the observations of law enforcement, early responders, and/or medical personnel to determine whether the young driver's senses were impaired by alcohol. Some key factors include slurred speech, bloodshot eyes, loud or abrasive behavior, disheveled appearance, or the smell of alcohol on the breath, and failure to properly perform balance tests.

Young adults under the legal drinking age may be charged with both a DWI and a "baby" DWI, if his or her BAC was 0.08% or greater. The information provided in this article is not legal advice and does not substitute for quality professional legal representation. If you or your child has been charged with death by auto and driving under the influence of drugs and alcohol, ensure that you obtain the best possible defense by consulting an experienced criminal defense attorney.

To contact any of the criminal law attorneys at Maynard & Sumner, L.L.C., call 973-540-0054 or visit www.njlawattorney.com.