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DWI Third-Degree Assault by Auto in New Jersey
(N.J.S.A. 2C:12-1(c))
What Is DWI Third-Degree Assault by Auto in NJ?
If you drive while intoxicated and cause an accident that injures another person, you can be charged not only with DWI but also with assault by auto under N.J.S.A. 2C:12-1(c). This is a criminal offense, and when injuries are severe, it can rise to a third-degree crime.
This page explains the statute, the penalties you face, how third-degree differs from other levels of assault by auto, defenses that may apply, and what you can expect in court. We also cover related offenses, like vehicular homicide, if a fatality occurs.
What the Law Says (N.J.S.A. 2C:12-1(c))
Assault by auto applies when a driver (or vessel operator) causes injury through reckless or intoxicated driving. A DWI is considered reckless under the law, so if a crash occurs while impaired, prosecutors can file assault by auto charges.
Levels of Assault by Auto:
- Disorderly persons offense: Reckless driving that causes bodily injury (minor injury).
- Fourth-degree crime: Reckless driving that causes serious bodily injury.
- Third-degree crime: DWI or refusal that causes serious bodily injury.
- Second-degree crime: DWI or refusal that causes injury on school property, within 1,000 feet of a school, or through a school crossing.
Key Notes:
- The statute also covers vessels (boats).
Using a hand-held phone while driving (39:4-97.3) can create an inference of recklessness.
Is “DWI in a School Zone” Still a Thing in New Jersey?
The separate traffic offense of “DWI in a school zone” under 39:4-50(g) was repealed in 2019. However, the criminal statute still contains a school-location enhancement:
- Second-degree: DWI/refusal crash causes serious bodily injury near a school.
Third-degree: DWI/refusal crash causes bodily injury near a school.
When a DWI Becomes Third-Degree Assault by Auto
A DWI becomes third-degree assault by auto when:
- The driver was intoxicated or refused testing, and
- The accident caused serious bodily injury.
Injury Definitions (N.J.S.A. 2C:11-1):
- Bodily injury: Physical pain, illness, or any impairment of condition.
- Serious bodily injury: Injury creating substantial risk of death, or causing severe, permanent disfigurement, or long-term loss or impairment of a bodily function.
In DWI/refusal cases:
- Serious bodily injury → Third-degree crime
- Bodily injury → Fourth-degree crime
Penalties for DWI + Assault by Auto in New Jersey
A conviction for third-degree assault by auto can bring:
- 3 to 5 years in state prison.
- Fines up to $15,000.
- Driver’s license suspension (length varies).
- Mandatory ignition interlock after license restoration.
- Baseline DWI penalties under 39:4-50.
Sentencing Notes:
- Many first-time third-degree convictions carry a presumption of non-incarceration.
- Pretrial Intervention (PTI) may be available in some cases.
- Judges can still impose prison sentences if aggravating factors are present.
What Prosecutors Must Prove in Assault by Auto Cases
To convict, prosecutors must show:
- The defendant was operating a motor vehicle or vessel.
- The defendant was intoxicated or refused testing (creating recklessness).
- An accident occurred.
- The victim suffered bodily or serious bodily injury.
- The injury was caused by the defendant’s reckless or intoxicated driving.
Review our guide on What Must NJ Prosecutors Prove to Convict You of DWI? – Your associated case with vehicular assault.
Possible Assault by Auto Defenses in NJ
Defense strategies often include:
- Causation disputes: Arguing that intoxication did not cause the accident.
- Degree reduction: Showing the injury was not “serious bodily injury.”
- Testing challenges: Attacking Alcotest procedures, refusal warnings, or lab handling.
- Accident reconstruction: Expert analysis to challenge fault.
- Mitigation strategies: Pursuing PTI or probation instead of custody for first-time offenders.
Related Offenses to DWI Assault by Auto
- DWI (39:4-50): The core impaired driving charge.
- Refusal (39:4-50.4a): Separate penalties for declining a breath test.
Vehicular Homicide (2C:11-5): If the victim dies, charges escalate to homicide with harsher sentencing.
See our full page on DWI Vehicular Homicide in New Jersey.
FAQs: Third-Degree Felony DWI in New Jersey
Charges & Elements
Is assault by auto a felony in NJ?
Yes. Third-degree assault by auto is an indictable crime (similar to a felony in other states).
Does assault by auto cover boats?
Yes. The statute applies to autos and vessels.
Do DWI and assault by auto merge?
No. Assault by auto is a criminal charge; DWI is a traffic offense. Both can be prosecuted.
What counts as “serious bodily injury”?
Risk of death, severe permanent disfigurement, or long-term loss of function.
Can I be charged if I refuse the breath test?
Yes. Refusal cases fall under the same grading scheme.
Does phone use matter?
Yes. Using a hand-held phone while driving may support recklessness.
Penalties & Sentencing
What are the penalties for third-degree assault by auto?
3–5 years in state prison, fines up to $15,000, and DWI penalties.
Is there a presumption against jail for first-time offenders?
Yes, but judges can still impose prison based on aggravating factors.
Can I get PTI instead of prison?
Possibly. PTI is discretionary and fact-specific.
Will my license be suspended?
Yes. Suspension and IID requirements flow from the DWI statute.
Location & School Zone
Is “DWI in a school zone” still a chargeable offense?
Not as a traffic offense (repealed in 2019). The assault-by-auto enhancement still applies.
How does the school-location enhancement work?
Serious bodily injury near a school → second-degree crime.
Bodily injury near a school → third-degree crime.
Process & Court
Do I get a jury trial?
Yes. Assault by auto is tried in Superior Court before a jury. DWI is tried in municipal court before a judge.
Can the victim drop the charges?
No. The State prosecutes; the victim’s wishes don’t control the case.
Will I owe restitution?
Courts can order restitution, and you may face a separate civil lawsuit.
Escalation
What if the victim dies?
The case may escalate to Vehicular Homicide (2C:11-5).
Mini Glossary of Key Terms
- DWI — Driving While Intoxicated.
- Assault by Auto — Causing injury through reckless or intoxicated driving.
- Bodily Injury — Pain, illness, or impairment.
- Serious Bodily Injury — Substantial risk of death, permanent disfigurement, or long-term impairment.
- DP offense — Disorderly persons offense (similar to a misdemeanor).
- IID — Ignition Interlock Device.
- PTI — Pretrial Intervention, a diversion program.
- N.J.S.A. — New Jersey Statutes Annotated.
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Protect Your Future After a DWI Auto Accident in NJ
If you are facing charges for DWI, third-degree assault by auto in New Jersey, you are up against severe criminal penalties — not just traffic consequences. A conviction can mean prison time, a permanent record, and lasting damage to your future.
Our New Jersey criminal lawyers are well-versed in how prosecutors handle these cases and know how to challenge the evidence effectively.
We have former prosecutors on staff!
Call us today at (908) 561-5577 or contact us. Your initial consultation will take place over the phone, and you can schedule an appointment at one of our office locations across New Jersey.
The sooner you act, the stronger your defense can be!
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