39:3-40 Penalties for driving while license suspended, etc.

39:3-40  Penalties for driving while license suspended, etc.

39:3-40. No person to whom a driver's license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal, suspension, revocation, or prohibition.

No person whose motor vehicle registration has been revoked shall operate or permit the operation of such motor vehicle during the period of such revocation.

Except as provided in subsections i. and j. of this section, a person violating this section shall be subject to the following penalties:

a.Upon conviction for a first offense, a fine of $500.00 and, if that offense involves the operation of a motor vehicle during a period when the violator's driver's license is suspended for a violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), revocation of the violator's motor vehicle registration privilege in accordance with the provisions of sections 2 through 6 of P.L.1995, c.286 (C.39:3-40.1 through C.39:3-40.5);

b.Upon conviction for a second offense, a fine of $750.00, imprisonment in the county jail for at least one but not more than five days and, if the second offense involves the operation of a motor vehicle during a period when the violator's driver's license is suspended and that second offense occurs within five years of a conviction for that same offense, revocation of the violator's motor vehicle registration privilege in accordance with the provisions of sections 2 through 6 of P.L.1995, c.286 (C.39:3-40.1 through C.39:3-40.5);

c.Upon conviction for a third offense or subsequent offense, a fine of $1,000.00 and imprisonment in the county jail for 10 days. If the third or a subsequent offense involves the operation of a motor vehicle during a period when the violator's driver's license is suspended and the third or subsequent offense occurs within five years of a conviction for the same offense, revocation of the violator's motor vehicle registration privilege in accordance with the provisions of sections 2 through 6 of P.L.1995, c.286 (C.39:3-40.1 through C.39:3-40.5);

d.Upon conviction, the court shall impose or extend a period of suspension not to exceed six months;

e.Upon conviction, the court shall impose a period of imprisonment for not less than 45 days or more than 180 days, if while operating a vehicle in violation of this section a person is involved in an accident resulting in bodily injury to another person;

f. (1) In addition to any penalty imposed under the provisions of subsections a. through e. of this section, any person violating this section while under suspension issued pursuant to section 2 of P.L.1972, c.197 (C.39:6B-2), upon conviction, shall be fined $500.00, shall have his license to operate a motor vehicle suspended for an additional period of not less than one year nor more than two years, and may be imprisoned in the county jail for not more than 90 days.

(2)In addition to any penalty imposed under the provisions of subsections a. through e. of this section and paragraph (1) of this subsection, any person violating this section under suspension issued pursuant to R.S.39:4-50, section 2 of P.L.1981, c.512 (C.39:4-50.4a) or P.L.1982, c.85 (C.39:5-30a et seq.), shall be fined $500, shall have his license to operate a motor vehicle suspended for an additional period of not less than one year or more than two years, and shall be imprisoned in the county jail for not less than 10 days or more than 90 days.

(3)In addition to any penalty imposed under the provisions of subsections a. through e. of this section and paragraphs (1) and (2) of this subsection, a person shall have his license to operate a motor vehicle suspended for an additional period of not less than one year or more than two years, which period shall commence upon the completion of any prison sentence imposed upon that person, shall be fined $500 and shall be imprisoned for a period of 60 to 90 days for a first offense, imprisoned for a period of 120 to 150 days for a second offense, and imprisoned for 180 days for a third or subsequent offense, for operating a motor vehicle while in violation of paragraph (2) of this subsection while:

(a)on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;

(b)driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

(c)driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7) may be used in a prosecution under subparagraph (a) of this paragraph.

It shall not be relevant to the imposition of sentence pursuant to subparagraph (a) or (b) of this paragraph that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing.  Nor shall it be relevant to the imposition of sentence that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session;

g.(Deleted by amendment, P.L.2009, c.224);

h.A person who owns or leases a motor vehicle and permits another to operate the motor vehicle commits a violation and is subject to suspension of his license to operate a motor vehicle and to revocation of registration pursuant to sections 2 through 6 of P.L.1995, c.286 (C.39:3-40.1 through C.39:3-40.5) if the person:

(1)Knows that the operator's license or reciprocity privilege to operate a motor vehicle has been suspended for a violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a); or

(2)Knows that the operator's license or reciprocity privilege to operate a motor vehicle is suspended and that the operator has been convicted, within the past five years, of operating a vehicle while the person's license was suspended or revoked.

In any case where a person who owns or leases a motor vehicle knows that the operator's license or reciprocity privilege of the person he permits to operate the motor vehicle is suspended or revoked for any violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), the person also shall be subject to the following penalties: for a first or second offense, a fine of $1,000, imprisonment for not more than 15 days, or both; and for a third or subsequent offense, a fine of $1,000, imprisonment for not more than 15 days, or both, and forfeiture of the right to operate a motor vehicle over the highways of this State for a period of 90 days;

i.If the violator's driver's license to operate a motor vehicle has been suspended pursuant to section 9 of P.L.1985, c.14 (C.39:4-139.10) or for failure to comply with a time payment order, the violator shall be subject to a maximum fine of $100 upon proof that the violator has paid all fines and other assessments related to the parking violation that were the subject of the Order of Suspension, or if the violator makes sufficient payments to become current with respect to payment obligations under the time payment order;

j.If a person is convicted for a second or subsequent violation of this section and the second or subsequent offense involves a motor vehicle moving violation, the term of imprisonment for the second or subsequent offense shall be 10 days longer than the term of imprisonment imposed for the previous offense.

For the purposes of this subsection, a "motor vehicle moving violation" means any violation of the motor vehicle laws of this State for which motor vehicle points are assessed by the chief administrator pursuant to section 1 of P.L.1982, c.43 (C.39:5-30.5). 

Review of the Major Municipal Court Cases from 2013-2014

Review of the Major Municipal Court Cases from 2013-2014

Nov 25th Municipal Court Practice CLE Seminar 

When:      Tuesday, November 25, 2014 2:00 PM until 4:00 PM  Where:     MCBA Office 87 Bayard Street New Brunswick, New Jersey  08901 

Presenters:     Kenneth A. Vercammen, Esq., Edison  William G. Brigiani, Esq., East Brunswick 

To Register: http://www.mcbalaw.com/event/id/465040/Nov-25th-Municipal-Court-Practice-CLE-Seminar.htm   

Info Contact:    MCBA Jonathan Cowles  jcowles@mcbalaw.com 

Phone: 732.828.3433, x. 102           

             

Cost: $30-Young Lawyers; $40-MCBA Members; and $75-All Others

Click here to download a reservation form.

This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 2.0 hours of total CLE credit. Of these, 2.0 credits qualify for certification in municipal court law.

Some of the featured cases will include:

• State v Kates - Defendant can be entitled to Adjournment to Select Own Counsel;

• State v. Gibson - Police can’t search just because person is in no loitering area;

• State v. Coles - If Defendant detained, third person’s consent to search no good;

• State v. Lamb - Co-Occupant consent to search valid;

• State v. Witt - Suppression granted where stop based on driver high beams on;

• State v. Frye - Prior DWI counts for enhanced refusal;

• State v. Jones - No warrant for DWI blood needed tickets issued before 2013;

• State v. Sylvester - Driving While Suspended conviction upheld although DWI conviction vacated;

• . . . and a review of the most significant cases from 2013.

Top New Laws: New law finally establishes a Conditional Dismissal for 1st time offenders in Municipal Court

BY KENNETH A. VERCAMMEN

1 Court cannot consider Suppression Motion testimony unless agreed by defendant  State v Gibson __ NJ __ A-11-13

2  US Supreme Court requires warrant before taking of blood in DWI

 Missouri v McNeely 133 S. Ct. 1552 (2013)

       

3 Police seeing defendant-smoking joint in open door justified the warrantless entry into defendant’s apartment and the seizure of the marijuana cigarette.

 State v Walker 213 N.J. 281 (2013)

4 Sixteen-month delay for DWI inhibited defendant’s speedy trial right. State v Cahill 213 N.J. 253 (2013)

5 Bias statute requires proof of defendant intended bias, not victim perception. State v. Pomianek 213 N.J. 253 (2013)

6 Municipal Court Judge must recuse where there is an appearance of impartiality, not just actual conflict

   Judge can’t hear police cases in town where his son is a cop.

  In the Matter of ADVISORY LETTER NO. 7–11 OF the SUPREME COURT ADVISORY COMMITTEE ON EXTRAJUDICIAL ACTIVITIES 213 NJ 63 (2013)

7 Investigator violated rules by destroying notes. State v. Dabas 215 NJ 114 (2013)

         

8 Sometimes AIR permitted mid trial where defense did not claim prejudice

State v Wolfe 431 NJ Super. 356 (App. Div. 2013)

       

9 Prosecution should not interfere with defense ability to interview witnesses

State v Blazas 432 NJ Super. 326 (App. Div. 2013)

        

10 Police Officer reading inaccurate refusal warning is not a defense to refusal charge

State v. O’Driscoll 215 NJ 461 (2013)

           

11 Court must examine perceived attorney conflict before hearing motion to adjourn.

State v Vasquez 432 NJ Super 354 (App. Div. 2013)

12 Cellphone can’t be tracked without warrant State v. Earls 214 N.J. 564 (2013)

13. No suppression of blood result from 2008 based on 2013 new case

State v Adkins 433 NJ Super. 479 (App. Div. 2013)

14. After eviction, tenant does not have expectation of privacy State v Hinton 216 NJ 211(2013)

         

15. The community-caretaking doctrine is not a justification for the warrantless entry and search of a home in the absence of some form of an objectively reasonable emergency. State v Vargas 213 N.J. 301 (2013)

        

16. Denying Public defender client adjournment did not violate rights State v. Miller 216 NJ 76 (2013)

17. Failure by State Police to create and maintain a centralized statewide database not a violation of the Supreme Court Chun Order. 

State v Chun 215 NJ 489 (2013)   

         

18. Defendant can be entitled to Adjournment to Select Own Counsel. State v Kates 216 NJ 393 (2014)

19. Police can’t search just because person is in no loitering area.
    State v. Gibson 214 NJ 564 (2014)

20. In the Matter of Louis DiLeo 216 NJ 449 (2014)

         The Judge should have adjourned trial for defendants to have an attorney

21. If Defendant detained, third person’s consent to search no good. State v. Coles 217 NJ 467 (2014)

22. Co-Occupant consent to search valid. State v. Lamb ­­­­­

23 If mandatory 180 days without parole, can’t get credit for inpatient State v. French  __ NJ Super. __ (App. Div 2014)

24 Suppression granted where stop based on driver high beams on. State v. Witt 435 NJ Super. 608 (App. Div. 2014) 

25. Prior DWI counts for enhanced refusal. State v. Frye ­­­217 NJ. 566 (2014)

26 Driving While Suspended Conviction Upheld Although DWI Conviction Vacated. State v. Sylvester __ N.J. Super. __ (App. Div. 2014

27. No warrant for DWI blood needed for tickets issued before 2013. State v, Jones __ NJ Super. __ (App. Div. 2014)

Supervising chemist can testify in vehicular homicide if they independently verified correctness of blood test results State v. Michaels ­­­­__ NJ__ (2014)

29 Supervising chemist can testify in rape case if they independently verified correctness of DNA results State v.  Roach __ NJ __ (2014) 

30 Defendant has burden to timely to object to testimony by pathologist who did not perform the victim’s autopsy State v. Williams __ NJ__ (2014)

31 For unlicensed driver, can’t get both fine and jail. State v. Carreon __ NJ Super. __ (App. Div. 2014)

      Top new Laws:

       New law finally establishes a Conditional Dismissal for 1^st time offenders in Municipal Court. Ken Vercammen testified in favor of the passage before the Assembly Judiciary Committee.

No insurance Law 39:6 R-2 amended to provide discretion for no DL suspension

Judge can't order 60 days SLAP on 2nd offense dwi State v Dent

Judge can't  order 60 days SLAP on 2nd offense dwi State v Dent

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ROGER M. DENT,

Defendant-Respondent. NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

—————————————————————————————————

October 7, 2014

Submitted September 30, 2014 – Decided

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 07-13.

Warren W. Faulk, Camden County Prosecutor, attorney for appellant (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

Joseph C. Corbi, attorney for respondent.

PER CURIAM

Following a trial de novo in the Law Division finding defendant guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, the State appeals from that part of the September 13, 2013 order which sentenced defendant, "as a second-time offender for the purpose of incarceration, to sixty days imprisonment, which [d]efendant may serve in the County Supplemental Labor Service Program." The County Supplemental Labor Service Program (CSLSP) is a noncustodial community service program that does not hold participants overnight. N.J.S.A. 39:4 50(a)(2) and (3) clearly and unambiguously require a sentence of at least forty-eight consecutive hours of confinement in a county jail, a workhouse, or an inpatient treatment facility. Accordingly, we vacate the sentence and remand to the Law Division for resentencing.

I.

Prior to this incident, defendant had been convicted of DWI on three occasions: June 13, 1984; August 15, 1991; and June 9, 1999. However, the 1984 conviction was uncounseled, without waiver of the right to counsel, and a July 18, 2012, municipal court order states that the 1984 conviction "shall not be used to enhance the custodial aspect of any future conviction for [DWI]."

On July 28, 2011, defendant struck two cars stopped at a red light in Pennsauken Township. Defendant was intoxicated, had open beer containers in his car, and could not produce identification. Although no one was seriously injured, defendant struck his head on the windshield, indicating that he was not wearing a seatbelt when the accident occurred. Police arrested defendant and charged him with DWI, N.J.S.A. 39:4-50, careless driving, N.J.S.A. 39:4-97, improper documentation, N.J.S.A. 39:3-29, possession of an open container of alcohol, N.J.S.A. 39:4-51b, and failure to wear a seatbelt, N.J.S.A. 39:3-76.2f.

On March 5, 2013, after testimony and argument, the Pennsauken Township Municipal Court found defendant guilty on all counts, and sentenced him as a third-time offender to a jail term of 180 days, 10 years suspension of driver's license, and various fines, penalties, and court costs. Defendant appealed, and on September 12, 2013, after briefing and argument, the Law Division affirmed the conviction for DWI. However, the court found defendant had been inappropriately sentenced as a third-time offender for custodial sentencing purposes, and resentenced defendant, as a second-time offender, to sixty days in the CSLSP.

This appeal followed. The parties agree that under State v. Laurick, 120 N.J. 1, 4 (1990), and N.J.S.A. 39:4 50(a), defendant should be considered a second-time DWI offender for custodial sentencing purposes.

II.

We review Law Division sentencing for clear abuse of discretion. State v. Roth, 95 N.J. 334, 363 (1984). The sentence must "be based upon findings of fact that are grounded in competent, reasonably credible evidence[,]" and "apply correct legal principles in exercising its discretion." Ibid. "[P]enal statutes must be strictly construed and, . . . ambiguous language must be construed against the State." State v. Jones, 347 N.J. Super. 150, 153 (App. Div.) (citing State v. Galloway, 133 N.J. 631, 658-59 (1993)) certif. denied,172 N.J. 181 (2002).

N.J.S.A. 39:4-50(a) provides that:

(2) For a second [DWI] violation, a person . . . shall be ordered by the court to perform community service for a period of [thirty] days, . . . and shall be sentenced to imprisonment for a term of not less than [forty-eight] consecutive hours, which shall not be suspended or served on probation, nor more than [ninety] days . . . .

. . . .

(3) . . . A court that imposes a term of imprisonment for a first or second [DWI] offense . . . may sentence the person so convicted to the county jail, to the workhouse of the county wherein the offense was committed, to an inpatient rehabilitation program or to an Intoxicated Driver Resource Center or other facility approved by the chief of the Intoxicated Driving Program Unit in the Department of Health and Senior Services.

CSLSP is not a "facility approved by the chief of the Intoxicated Driving Program Unit in the Department of Health and Senior Services." Ibid.

Where the Legislature's mandate is clear, we need not look to extrinsic evidence to discern legislative intent. State v. Luthe,383 N.J. Super. 512 (App. Div. 2006). "The primary purpose behind New Jersey's drunk-driving statutes is to curb the senseless havoc and destruction caused by intoxicated drivers." State v. Tischio, 107 N.J. 504, 512 (1987), appeal dismissed, 484 U.S. 1038,108 S.Ct. 768, 98 L.Ed.2d 855 (1988). In particular, N.J.S.A. 39:4-50(a) discourages recidivism in DWI offenses by imposing escalating levels of deterrence on repeat offenders.

"[O]n the face of and in the light of the legislative history of N.J.S.A. 39:4-50, imprisonment was intended to be mandatory on conviction for the second [DWI offense] and all subsequent violations thereof." State v. Johnson, 42 N.J. 146, 174 (1964). AlthoughJohnson addressed a previous version of N.J.S.A. 39:4 50, the language of that law is substantially similar to the statute's present incarnation. See L. 1952, c. 137, § 1 ("For a subsequent [DWI] violation, [defendant] shall be imprisoned for a term of three months . . . . A magistrate who imposes a term of imprisonment under this section may sentence the person so convicted either to the county jail or to the workhouse . . . .").

In Luthe, supra, 383 N.J. Super. at 515, we held that " N.J.S.A. 39:4-50(a)(3) does not authorize noncustodial alternatives to the mandatory 180 day confinement" of third-time DWI offenders. N.J.S.A. 39:4-50(a)(3) provides that, "[f]or a third or subsequent [DWI] violation, a person . . . shall be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse[.]"

The language of N.J.S.A. 39:4-50(a)(2) and (3) relevant to second-time DWI offenders is similarly clear. The statute requires forty-eight hours of consecutive confinement, either in a jail, a workhouse, or an inpatient facility. Ibid. It does not allow for noncustodial alternatives. Here, the Law Division sentenced defendant to sixty days in a noncustodial community service program. The sentence violated the clear and unambiguous language of N.J.S.A. 39:4-50(a). Therefore, we vacate the sentence and remand to the Law Division for resentencing.

Defendant argues that he satisfied N.J.S.A. 39:4-50(a) by spending forty-eight consecutive hours in an Intoxicated Driver's Resource Center (IDRC). First, the record does not clearly indicate forty-eight consecutive hours of confinement. Second, the Law Division did not sentence defendant to forty-eight consecutive hours of confinement in an IDRC. Therefore, defendant's argument lacks merit. On remand, defendant can present evidence of time already served, and the Law Division shall address the amount of credit defendant should receive against his new sentence.

We vacate defendant's sentence and remand to the Law Division for resentencing consistent with this opinion. We do not retain jurisdiction.