New Jersey Drunk Driving (DWI) Defense Series: The School Zone Offense (4 of 7)

This article continues the New Jersey Drunk Driving (DWI) Defense Series by describing the "School Zone Offense."

A. The Offense

The so-called DWI School Zone Offense is not so much a separate offense under New Jersey's DWI statute, but rather a section of the statute that will allow the sentencing court to significantly enhance or increase your penalties. A violation under the School Zone section of the statute will occur if you are driving drunk where you are:
(1) within 1000 feet of property used for "school purposes" where the property is owned or leased to a school board, elementary school or secondary school; or,
(2) driving through a school crossing that has been designated as such by ordinance or resolution; or,
(3) driving through a school crossing that may not have been approved by ordinance or resolution, but where children are actually present.

As to the first two types of events, it is not necessary for the government to prove that you knew that you were passing through a school zone or a school crossing, nor is it relevant that school was not in session or that children were not present. Thus, you can be convicted of a DWI Offense in these two areas where the offense occurred in the middle of July at 3:00 a.m. on a Sunday and, as a result, you will receive the severe sentencing enhancements required by this provision of the statute. In short, the government has provided a 24-hour, seven-day-a-week safe-zone for children in a school zone.

If, however, the DWI Offense occurs in a school crossing that has not been approved by a local ordinance or resolution, which is the third provision under the statute, the government must prove that you "knew" that children were present when the offense occurred. The proofs associated with this issue may relate to the season, the day, the time, the neighborhood, the prominence of the school, signage, your familiarity with the neighborhood and a host of other factors.

B. The School Purpose Element

The statute that controls a DWI Offense in a school zone has significant similarities to the statute involving drug offenses in a school zone. Thus, in preparing a defense, the trial lawyer should be aware of principles of law developed in drug-related, school-zone cases, where the environment is even more hostile and a lot more aggressive The lessons learned in those cases can be put to good use in analyzing and defending the issues in a DWI School Zone Offense case, especially the "school purpose" component of the statute. As to the facts needed to establish the "school purpose" concept of a DWI School Zone Offense, it has been concluded in the context of a school-zone drug case, that once a site has been shown to be a school, it may be determined that it is used for school purposes because it is "self-evident," and that is so, despite the fact that the court recognized that schools are sometimes closed or put to other uses. In other cases, the "school purpose" issue may not be so evident. In one case, an athletic field owned by a town and used by the town's people for a number of non-school purposes, was determined to be "school zone" property, where it was leased to a parochial school for its athletic events on discrete days and times. In addressing issues of this nature, the court suggested that the jury's analysis can be pointed to "Drug Free School Zone" signs, other signs, flags or banners indicating school use; published schedules; newspaper articles, written lease agreements and the presence of uniformed children on the playing field.

C. The Distance Element

For the purpose of proving whether you were within 1000 feet of school property, the government may introduce into evidence an official map, which must have been approved by municipal ordinance or resolution and a kept on file in the municipality where the offense occurred. Once the map is properly authenticated and admitted into evidence, a court can presume that the site of the incident was, in fact, school property used for school purposes.

Even if a school-zone map is not produced, and that is an unlikely event, the government can show that the offense occurred within 1000 feet of school property by other means. In one case, a measuring tape was successfully used to establish the 1000-foot requirement, even though the tape's accuracy had not been certified by the State Division of Weights and Measures.

Finally, the owner or custodian of a motor vehicle can be found guilty of a DWI School Zone Offense if he/she knowingly permits someone who is under the influence to drive the vehicle.

Moreover, you can be convicted of a DWI School Zone Offense even if you are randomly stopped by police in a school zone. Thus, if a police officer follows your vehicle for some distance before he decides to pull you over, and the actual stop is within 1000 feet of a school property, you can be convicted of a DWI School Zone Offense.

1. A measuring tape, even a steel one, will contract or expand with the weather. It will also expand when pulled. Although the variance in length may be minor, the government should be made to be more solicitous in it proofs whenever it prosecutes a citizen for a DWI or Refusal Offense.

Copyright (c) 2008 Frank Luciano

Article Source: http://www.articlegoldmine.com

Frank T. Luciano, P.C. 147 Main Street, Suite 5 Lodi, NJ 07644 (973) 471-0004 ftluciano@aol.com www.ftlucianolaw.com

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