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Being too intoxicated to know right from wrong is no defense to the charge of letting another drunk drive your car, a Camden County, N.J., judge has ruled. In a trial court decision approved for publication on June 14, Superior Court Judge William Cook found that being drunk does not create the lack of knowledge defendants need to avoid prosecution under N.J.S.A. 39:4-50(a) for putting their vehicles in the hands of someone who is drunk. The case, State v. Zanger, 51-2003, is one of first impression, but lawyers who represent drivers say the ruling is another example of New Jersey’s near-zero tolerance for defenses to alcohol-related offenses — particularly in cases where, like this one, a death ensued. One lawyer says the message in Cook’s opinion is this: If you designate a driver before you start drinking, make sure the designee drives his or her own car. Michael Zanger was charged with drunken driving under the “permitting” law on April 20, 2003, after his car, with his friend Zachary Romanet at the wheel, crashed in Pennsauken, N.J., killing Romanet. Zanger appealed his municipal court conviction, arguing that because he was drunk when he let Romanet use the car, he could not reasonably know Romanet was drunk and therefore was not guilty. According to Cook’s opinion, Zanger, 20, and Romanet, 18, started their day by smoking marijuana in the early afternoon. When they left at around 7 p.m. for a basketball game in Philadelphia, Zanger gave Romanet the keys to the car and Romanet drove. At the game, they each drank eight or nine 16-ounce Miller Lite beers and when they left the game Zanger did not feel “unbelievably drunk,” but he felt too impaired to drive. Neither man wore his seat belt. Zanger was asleep when the car went out of control, struck a curb and flipped, tossing Romanet out. Romanet’s blood alcohol level was .17 percent; Zanger’s was .21. Zanger’s lawyer, Robert Harbeson, argued that his client’s insobriety negated a finding that he knew or should have known Romanet was intoxicated, as required by cases interpreting N.J.S.A. 39:4-50(a), such as State v. Skillman, 226 N.J. Super. 193 (1988). Cook, applying the objective standards used in cases of criminal intent, reasoned that “a permittor who voluntarily becomes impaired or intoxicated by alcohol, narcotics or drugs should be held to have knowledge of the 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 intoxification or insobriety does not afford a permittor an excuse or defense,” he concluded. “Even if a permittor lacks actual knowledge of the permittee’s impaired condition to drive, he is nonetheless guilty if he ‘reasonably should have known’ of the permittee’s impaired condition to drive,” the judge said. Harbeson, of Haddonfield, N.J.’s Archer & Greiner, declined to comment. William Sharlow, a spokesman for the Camden County Prosecutor’s Office, says there is nothing in the record of the case, decided March 14, to suggest it was appealed. Three DWI defense lawyers say it has long been settled that being too drunk to make a decision about whether to drive is no defense to drunken driving. Extending the principle to the “permitting” charge does not seem to be a long leap, they say. Even so, Arnold Fishman, a Haddon Heights, N.J., defense lawyer, says the decision punishes people who seemed to at least try to do the right thing. “There are certain factual situations where we ought to be giving them a medal,” he says. “Like the safe haven situation where a guy pulls off the road to sleep it off. We convict those guys. We ought to be giving those guys a medal… . But this climate in this state in particular is such that municipal court judges are virtually cowed into finding everyone guilty.” Fishman says that as a result of the opinion, people who head for a night on the town and designate a nondrinking driver should make sure the designated driver brings his or her own car. There may come a point, as it did in the Zanger case, that the car owner does not realize the designated driver is too drunk, too. “If you have a designated driver you now have to make sure the designated driver has his own car,” he says. “If he’s driving your car, you are dog meat.” Peter Lederman says courts have been reluctant to carve any exception or any defense to drunken driving that is afforded to other criminal defendants, defenses such as state of mind and necessity. In extending the drunken driving statutes to “permittors,” the legislature maintained the focus on drunken drivers; in effect, owners of vehicles were added to the layer of prevention against drunken driving. “But if you are drunk, and another person is the designated driver, that seems to fly in the face of the purpose of the statute,” says Lederman, of Freehold, N.J.’s Lomurro Davison Eastman & Munoz. As a practical matter, he adds, the decision may have minimal impact because in most cases in which owners and designated drivers are found to be intoxicated, DWI charges against the owner-passengers are usually dismissed. Morristown’s Peter Gilbreth says, “It’s another case, and there are hardly any exceptions that are supporting the whole DWI concept. There’s very little wriggle room for any kind of DW case, now. “As a criminal defense lawyer it’s making our jobs much more difficult,” he says. “I think society is very pleased with that because it’s keeping two drunk people out of a car. From a societal viewpoint it eliminated a potential for double tragedy.”

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