DWI Defense Update: Drunk Driving Penalties Enhanced for DWIs that Occur Near Schools

For those who don’t remember the year 1999, it was a landmark year in many respects. We saw the debut of the HBO series “The Sopranos,” which put the Garden State once again in the spotlight; former President Bill Clinton was acquitted in the impeachment proceedings held in the United States Senate; and Dr. Jack Kevorkian, referred to as “Doctor Death” by many, was found guilty of second-degree murder for administering a lethal injection to a terminally ill man.

What few may likely not recall was the passing by our state senate of Filomena’s Law in December of that year. This legislation was part of a number of DWI-related reforms which provided for enhanced punishment for drunk driving offenses when such incidents occur in a school zone. As New Jersey drunk driving defense attorneys, we know that numerous drunken driving arrests occur every month in the Garden State involving charges related to Filomen’s Law.

Filomena’s Law states that a charge of drunken driving shall be an enhanced offense if a driver is caught operating a motor vehicle while under the influence within 1000 feet of school property. The term property can mean that which is owned by or leased to any elementary school, secondary school or school board, and which is used for school purposes.

The extent of this law includes motorists who are known to have been under the influence while passing through a school zone crossing, assuming that the municipality has legally designated any such crossing as such. Furthermore, even in cases where a school zone crossing may not have been officially designated by local ordinance, a DWI defendant may still face enhanced punishment for his or her drunken driving offense if the prosecution can prove to the court that the driver knew juveniles were present near that crossing at the time of the drinking and driving offense.

What we are asked quite often by potential clients is whether or not the state has the evidence needed to prove a charge of DWI in a school zone. Regarding this, we usually refer to one of several general requirements necessary for sentencing a defendant under the enhancements provided by Filomena’s Law. The nature of these requirements is based on strict liability, as follows:

A prosecutor does not need to prove in any way that a motorist was aware that he or she was driving within 1000 feet of school property or through a designated school crossing zone in order to trigger the mandatory enhanced punishment. Furthermore, there is no requirement that children had to have been present at the time of the violation; neither does school need to have been in session. The law, in effect, provides police and prosecutors with a so-called “24/7” blanket over all school zones and school-crossings whenever DWI is concerned.

In addition, there is no stipulation as to the time of day that a DWI needs to take place in order to trigger the enhanced punishment provided by Filomena’s Law. It also makes no difference is a driver knows he was in a school zone or school crossing, nor does it matter if a motorist is randomly stopped within such a zone or crossing. These are all strict liability crimes. In fact, the only time that a court might consider the driver’s state of mind when a DWI in a school-zone/crossing enhancement violation is pending would be in cases where the “crossing” is not designated as such by local ordinance or resolution.

Other elements in the prosecution of a “DWI in a school zone” offense can include evidence in the form of a certified map to show that the defendant was in fact arrested within 1000 feet of a school zone, as well as that the arrest met the typical requirements of a “normal” DWI offense. As many readers already know, an accused drunk driver must have been stopped by police based on probable cause, plus there must be blood-alcohol content (BAC) evidence showing the driver to have been over the legal limit of intoxication. Naturally, proof of a breath test refusal or failure to pass field sobriety testing(s) can also be used as evidence of guilt by the prosecution.

Under the law, even first-time offenders pay stiffer fines and other penalties. A first-time DWI in a school zone offense calls for a fine ranging from $606 to $1006. Jail time of 60 days or less is also mandatory. Loss of driving privileges can range from one to two years. For a second-time offense — for which Filomena’s Law does not allow for the regular DWI “step down” provisions — fines range from $1006 to $2006, plus the defendant must complete 60 days of community service (360 equivalent hours).

It should be stated that there is also a mandatory minimum jail term attached to a conviction for second-time offenders. This includes no fewer than 96 hours in jail and cannot be suspended by the court, nor served as probationary time. However, on the other end of the spectrum, the jail time may be extended to maximum of 180 days by the court; though half of that time may be substituted for an additional 90 days of community service (in addition to the mandatory 60 days).

Anyone who may be facing a “DWI in a school zone offense” should contact a qualified attorney to learn about their rights under the law. To many people accused of such an offense, the penalties under Filomena’s Law no doubt appear unduly harsh, especially considering the provisions for loss of one’s driver’s license and the potential jail time. An experienced attorney skilled in defending motorists charged with DWI or drug DUI can provide valuable advice when facing these serious charges and potentially hefty penalties.