So you’ve had a “few too many” at a bar or party, and don’t want to risk a DWI. So you hand your friend your car keys, since they had less to drink than you, or maybe said they were “good to drive.” Everyone has that buddy that can “hold ’em” and be fine, right?

A few minutes after pulling on to the road, the red lights go on behind you and you’re pulled over by police. The cop smells alcohol on your friend, and puts them thru the roadside sobriety test.

Your friend fails the test, fails the breathalyzer at the station, and is charged with DWI. The officer then hands you a ticket for violation of NJSA 39:4-50(a) – or what NJ DWI lawyers call the “allowing” statute. Yes folks, you are facing the same DWI penalties as the driver, even though you were a passenger. First, I’m happy to analyze your case over the phone, so call me at 908-782-5313, even on weekends or evenings.

The “allowing” offense is defined as follows:

N.J.S.A. 39:4-50(a):

1. 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;

2. Permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more [but less than 0.10%] by weight of alcohol in the defendant’s blood;

But what if you didn’t know that the driver was over the limit? In fact, without your own breathalyzer machine, you wouldn’t. The state has recognized this problem in the case of   State v. Skillman, 226 N.J. Super. 193, 199-200, 543 A.2d 1016 (App. Div. 1988). The Court in that case held, quote:

“Accordingly, we [the Court] hold that before a person may be convicted of permitting another person to operate a motor vehicle under the influence of intoxicating liquor or drugs, or in violation of the statutory standard for blood alcohol level, the State must produce evidence from which the trier of fact may reasonably infer, beyond a reasonable doubt, that such owner or custodian [of the vehicle] knew or reasonably should have known, of the permittee’s impaired condition to drive.” 

Thus, a defense to a charge of N.J.S.A. 39:4-50(a) must center on the fact that you did not know the driver was intoxicated. The police dash-cam video of the driver performing the roadside tests, receipts from the bar (showing how many drinks the driver purchased) and other objective evidence may be introduced to show that you lacked the knowledge that the driver was indeed intoxicated.

Note that the standard detailed above is an objective one, not a subjective one:

The allowing offense under N.J.S.A. 39:4-50(a) requires a showing of knowledge in an objective sense, not subjective. Thus the test is what a reasonable person knew or should have known from the attendant circumstances, not what the defendant actually knew regarding the intoxicated state of the person whom he permitted to drive. State v. Zanger, 370 N.J. Super. 360, 851 A.2d 134 (Law Div. 2004).

However, your own intoxication/drunkenness is NOT a defense to a charge of 39:4-50(a):

“Plainly stated, a permittor (i.e, the vehicle owner) who voluntarily becomes impaired or intoxicated by alcohol, narcotics or drugs should be held to have knowledge of a permittee’s impaired condition to drive, if a sober person, of ordinary intelligence and in the exercise of reasonable care, should have known of the permittee’s impaired condition to drive.   Self-induced intoxication or insobriety does not afford a permittor an excuse or defense.”  State v. Zanger 851 A. 2d 134 (2004).

Your best defense to a charge of N.J.S.A. 39:4-50(a) is an experienced NJ attorney. It is a serious charge which carries serious consequences. An experienced attorney will demand all evidence the State intends to introduce, and carefully scrutinize and argue all possible defenses in Court. Call me today at 908-782-5313 for a free case analysis and discussion.