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Come this spring, New Jersey lawyers might start telling their clients to think twice before they come to the aid of friends or family members arrested for drunken driving. “John’s Law” — a bill that’s racing toward enactment — would place a good Samaritan squarely in the shoes of the DWI arrestee that someone picks up at the stationhouse. “Whenever a person is summoned … in order to transport or accompany the arrestee from the premises of a law enforcement agency, the [agency] shall provide that person with a written statement advising him of his potential criminal and civil liability for permitting or facilitating the arrestee’s operation of a motor vehicle while the arrestee remains intoxicated,” runs the text of the bill, S-1587, sponsored by William Gormley, R-Atlantic, and James Cafiero, R-Cape May. Although it’s unclear to lawyers whether the bill seeks to enlarge third-party liability or simply to drive the point home to those who undertake it, John’s Law is aimed at preventing the type of tragedy that occurred last July, when a man arrested for DWI and picked up by a friend got right back into his car and caused an accident, killing the law’s namesake, 22-year-old John Elliot of Egg Harbor. The bill passed the New Jersey Senate on Feb. 15 by a 38-0 vote, and the Assembly is expected to pass it as early as its next voting session, March 8. It’s likely that acting Gov. Donald DiFrancesco will sign the bill — given that he voted for it as Senate president — though a spokesman says DiFrancesco will review the measure in his acting governor’s capacity. There is no opposition to the bill, but lawyers who specialize in DWI cases say that John’s Law hasn’t been terribly well thought out. They say it doesn’t appear to impose new liability on persons who allow drunken drivers behind the wheel, which is already prohibited by N.J.S.A. 39:4-50. It merely provides warnings of their liability under current law, which, say the lawyers, is far from clear. When a person is charged with allowing someone to drive drunk, it’s usually when he’s a passenger in his own car, after he’s asked someone else to drive, says Arnold Fishman, a Haddon Heights solo. Thus, if the police arrest the driver for DWI, they’ll also charge the passenger-owner. There is no question, then, that a relative or friend who hands their own car over to a DWI suspect after picking him or her up at the stationhouse is criminally liable, say lawyers — and in that case the warnings to be given are accurate. But the warnings go beyond that. They will advise persons picking up the DWI suspect that they are liable “for permitting or facilitating” the suspect’s driving of any car — whether or not it’s the car of the person picking them up. That would imply that someone could face liability for picking up a DWI arrestee if the arrestee eventually gets into another car that night and begins driving, without the knowledge of the person who picked him or her up. According to Peter Lederman, who chairs the state Bar’s Municipal Court Practice Section, imposing liability in situations where a person has no control over what a DWI suspect does after he’s released is untenable. Lederman questions, for example, whether a taxi driver would face liability for transporting a DWI arrestee from the police station to a place where he could potentially get into another car. So far, the courts have agreed. In 1993, the Appellate Division reversed a judge who ruled that a person could be held civilly liable for not stopping his drunken friend from driving the drunk’s own car. Lombardo v. Hoag, 269 N.J. Super. 36 (App. Div. 1993). The panel found that the trial judge’s interpretation would impose liability on gas station attendants, toll both collectors or anyone else who even observed a drunken person behind the wheel and didn’t stop it. Lombardo would seem to undermine liability for the death of John Elliot himself. The driver who ran into Elliot was driving his own car. His friend had driven him back to his own car after picking him up at the police station. Cafiero says that in his opinion, people are liable if they facilitate or make it easy for someone else to drive drunk — even if, strictly speaking, it’s not their own car. The case of John Elliot is the perfect example, he says, as the friend practically invited the arrestee to drive again by taking him to his car. Cafiero says the police and courts have to look at the circumstances to determine whether someone reasonably could prevent a drunken-driving occurrence, or whether they’re just a powerless observer. And in any event, says Assemblyman John Gibson, who is sponsoring the bill in the Assembly, the warnings themselves will save lives because they will make people aware of the potential consequences if they let the arrestee behind the wheel again. Gibson also emphasizes that the proposed law would require police to impound the car of a DWI arrestee for at least 12 hours. That will ensure that, at the very least, the arrestee doesn’t drive his or her own car while still intoxicated. If the car is owned or leased by someone else, that person may obtain the release of the vehicle prior to the end of the 12-hour period. In either case, the person claiming the vehicle must present a valid driver’s license, proof of ownership and insurance, must appear to be able to drive the care safely and must also “meet any other conditions for release established by the law enforcement agency.” Defense lawyer Lederman says that last catchall provision gives the police too much discretion to deny release of the vehicle for picky reasons — say, if the defendant has given the police a hard time or if police simply don’t like the defendant. Lederman also points out that the proposed law lets the police hold onto the car until the person pays the expenses for towing and storage of the car. Those charges will impact more on poor people, who, he says, might not be able to get their car back for work. It’s not fair to impose such costs on average working people, says Lederman, based on an unproven charge of DWI. But Gibson says that police already have authority to impound cars and often do so. The bill would simply mandate impoundment for a minimum period, to prevent another tragedy.

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