Allowing Intoxicated Operation

There is a charge in New Jersey for allowing another to operate a vehicle when that person is intoxicated. The allowing violation is set forth under N.J.S.A. 39:4-50(a) which provides:

(a) Except as provided in subsection (g) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant’s blood or 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 or permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant’s blood shall be subject (to the following penalties)…

This statute appears to be a strict liability offense which means it does not matter whether the person knew that the driver was intoxicated. This is the mens rea element of the statute: the state of mind of the person allowing the intoxicated individual to drive.¬†However, this is not how the statute has been interpreted by the Appellate Division in New Jersey. There is a requirement for proof of knowledge. In State v. Skillman, 226 N.J. Super. 193 (App. Div. 1988), the court held “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 knew or reasonably should have known, of the permittee’s impaired condition to drive.”

This is the current standard for allowing intoxicated operation in New Jersey.