Our state must change the way we deal with alcohol abuse and motor vehicle operation. Rather than increase the severity of punishment for DWI violations, we should consider what other states have done in creating incentives to change drivers' behavior.
One method that makes a lot of sense is to expand our drug courts to include drivers convicted of DWI or to set up DWI courts. Our Legislature's adoption last August of N.J.S.A. 2C:40-26 reflects a one-dimensional approach without emphasizing recovery from alcohol abuse. The new law substantially increases penalties for drivers whose licenses are suspended as a result of a prior DWI conviction and who then operate a motor vehicle, by creating new, indictable fourth-degree criminal offense in two situations.
These enhanced penalties arise when a defendant drove for a second or subsequent time during suspension for a DWI or refusal conviction or had a prior DWI or refusal conviction, was convicted of a second or subsequent DWI or refusal, and drove while suspended. As a fourth-degree offender under the new law, the defendant would be prosecuted by the county prosecutor with exposure to a "fixed minimum sentence" of incarceration for at least 180 day, without parole. Previously, the defendant only faced a minimum of 10 to 90 days in jail if no alternative non-custodial sentence was available.
The new law raises interesting legal questions. Is a defendant entitled to admission into the pretrial intervention program? Are prior out of state DWI or driving while suspended violations covered by the law? N.J.S.A. 2C:40-22 suggests these violations should not be considered. Furthermore, should a jury trial occur for related DWI or refusal charges?
From a public policy viewpoint, the new law reflects a lack of will to cope with the problem of alcohol abuse and motor vehicle operation. Many legislators acknowledge that DWI laws fail to effectively deal with the very real problems arising from alcohol use. However, they follow a safe, "politically correct" course, adopting increasingly severe mandatory penalties.