NJSA 39:3-40 Driving While Suspended
in New Jersey DEFENSES Call Kenneth
Vercammen for representation 732-572-0500
in New Jersey DEFENSES Call Kenneth
Vercammen for representation 732-572-0500
More info at
www.njlaws.com/driving_on_a_suspended_license.htm Thousands of motorists in New Jersey are stopped for routine
traffic violations, then are surprised to be informed their license is
suspended. Where the minimum costs would
be $1,261 in fines, surcharge and costs, motorists need an attorney with
knowledge and skill in handling Driving While Suspended (DWS) matters. Over the past decade Municipal Court practice
has diversified requiring the need for crafted trial counsel to provide
adequate representation for clients concerning both disorderly persons and
motor vehicle offenses. Although this
may seem like a hopeless situation at first, the reality is that it offers an
attorney the opportunity to be creative in finding possible ways to avoid a
prolonged license suspension and even the possible incarceration of the client.
www.njlaws.com/driving_on_a_suspended_license.htm Thousands of motorists in New Jersey are stopped for routine
traffic violations, then are surprised to be informed their license is
suspended. Where the minimum costs would
be $1,261 in fines, surcharge and costs, motorists need an attorney with
knowledge and skill in handling Driving While Suspended (DWS) matters. Over the past decade Municipal Court practice
has diversified requiring the need for crafted trial counsel to provide
adequate representation for clients concerning both disorderly persons and
motor vehicle offenses. Although this
may seem like a hopeless situation at first, the reality is that it offers an
attorney the opportunity to be creative in finding possible ways to avoid a
prolonged license suspension and even the possible incarceration of the client.
The
violation of DWS is set forth at NJSA 39:3-40.
This section states, "no person to whom a drivers 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." The
statute also prohibits the operation of a motor vehicle whose registration has
been revoked.
violation of DWS is set forth at NJSA 39:3-40.
This section states, "no person to whom a drivers 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." The
statute also prohibits the operation of a motor vehicle whose registration has
been revoked.
PENALTIES
Conviction
under this statute brings the following penalties: Upon conviction of the first offense of a
fine of $500.00, the defendant will also be surcharged a mandatory $250.00 per
year for 3 years in every DWS by the MVC (formerly DMV); Upon conviction for
the second offense a fine of $750.00 and imprisonment in the county jail for 1
- 5 days; Upon conviction for the third offense, a fine of $1000.00 and
imprisonment in the county jail for 10 days.
Additionally, the statute states, that upon the conviction the court
shall impose or extend a period of suspension not to exceed 6 months. If DWS
and involved in an accident resulting in personal injury to another person, the
court shall impose a period of imprisonment for not less than 45 days.
under this statute brings the following penalties: Upon conviction of the first offense of a
fine of $500.00, the defendant will also be surcharged a mandatory $250.00 per
year for 3 years in every DWS by the MVC (formerly DMV); Upon conviction for
the second offense a fine of $750.00 and imprisonment in the county jail for 1
- 5 days; Upon conviction for the third offense, a fine of $1000.00 and
imprisonment in the county jail for 10 days.
Additionally, the statute states, that upon the conviction the court
shall impose or extend a period of suspension not to exceed 6 months. If DWS
and involved in an accident resulting in personal injury to another person, the
court shall impose a period of imprisonment for not less than 45 days.
If
an individual violates this section while under suspension under 39:4-50 (DWI),
they shall be fined $500.00 extra and have their license suspended for an
additional period not less than one year nor more than two years and mandatory
county jail for 10 - 90 days. If
suspended for Failure to Pay a Surcharge, there is an extra $3000.00 fine.
an individual violates this section while under suspension under 39:4-50 (DWI),
they shall be fined $500.00 extra and have their license suspended for an
additional period not less than one year nor more than two years and mandatory
county jail for 10 - 90 days. If
suspended for Failure to Pay a Surcharge, there is an extra $3000.00 fine.
Although
most municipal court matters are considered minor by many citizens it is
obvious from the possible penalties involved that this is a serious offense
carrying the possibility of both stiff fines and incarceration. As attorneys, it is incumbent upon us to try
and provide the most favorable result for the client.
most municipal court matters are considered minor by many citizens it is
obvious from the possible penalties involved that this is a serious offense
carrying the possibility of both stiff fines and incarceration. As attorneys, it is incumbent upon us to try
and provide the most favorable result for the client.
Few
courts inform a driver charged with DWS that the penalty is anything more than
a $500.00 fine plus up to six months loss of license. Most courts do not warn a defendant if he
pleads guilty he will have to pay MVC insurance surcharges and face other new
penalties.
courts inform a driver charged with DWS that the penalty is anything more than
a $500.00 fine plus up to six months loss of license. Most courts do not warn a defendant if he
pleads guilty he will have to pay MVC insurance surcharges and face other new
penalties.
Few
courts and attorneys are aware of the provisions of NJAC 11:3-34, which allows
insurance companies to charge additional surcharges to drivers who drive while
suspended. These insurance company
surcharges are in addition to MVC surcharges and fines. For Driving While Suspended pursuant to 2C
N.J.R. 576 a driver is given 9 Automobile Eligibility Points.
courts and attorneys are aware of the provisions of NJAC 11:3-34, which allows
insurance companies to charge additional surcharges to drivers who drive while
suspended. These insurance company
surcharges are in addition to MVC surcharges and fines. For Driving While Suspended pursuant to 2C
N.J.R. 576 a driver is given 9 Automobile Eligibility Points.
There are two types of license
suspension:
1. Court imposed suspension
2. Administrative / MVC suspension
The
most common scenario reflects where that the client, through a motor vehicle
violation, failure to pay a surcharge or accumulated points have been placed on
a suspended list maintained by the New Jersey Division of Motor Vehicles (MVC),
thereby making them ineligible to operate a motor vehicle for a prescribed
period of time in this state.
most common scenario reflects where that the client, through a motor vehicle
violation, failure to pay a surcharge or accumulated points have been placed on
a suspended list maintained by the New Jersey Division of Motor Vehicles (MVC),
thereby making them ineligible to operate a motor vehicle for a prescribed
period of time in this state.
If
the client is aware that they are on the suspended list and acknowledged to the
police officer that they were suspended, there is little room for creative
legal defenses. The lawyer in this case
would most likely discuss how to mitigate penalties or negotiate a plea
bargain. However, more often than not the attorney will be confronted by the
client who claims that they were unaware of their placement on the suspension
list.
the client is aware that they are on the suspended list and acknowledged to the
police officer that they were suspended, there is little room for creative
legal defenses. The lawyer in this case
would most likely discuss how to mitigate penalties or negotiate a plea
bargain. However, more often than not the attorney will be confronted by the
client who claims that they were unaware of their placement on the suspension
list.
The
scenario that will often be presented by the client is that he/she was stopped
by police for an unrelated motor vehicle violation. In the process of the police encounter they
were informed by the officer that their license has been suspended and they
were issued an additional summons for DWS.
scenario that will often be presented by the client is that he/she was stopped
by police for an unrelated motor vehicle violation. In the process of the police encounter they
were informed by the officer that their license has been suspended and they
were issued an additional summons for DWS.
THE STATE MAY BE
UNABLE TO SHOW DUE PROCESS AND ADEQUATE NOTICE
UNABLE TO SHOW DUE PROCESS AND ADEQUATE NOTICE
The
Prosecutor should be required to show adequate notice of the suspension. In Parsekian
v. Cresse 75 N.J. Super. 405 (App Div. 1962), the court ruled that it was
incumbent upon the Director of the State Division of Motor Vehicles (now MVC)
to provide fair and adequate notice to the licensed driver of the proposed
suspension of their license. The court
recognized that the Director could not arbitrarily suspend the license of a
driver without providing both notice and enunciating specific reasons as to why
the license was being suspended. A later
case, State v. Wenof 102 N.J. Super. (Law Div. 1968), both reinforced
and advanced the earlier Parsekian decision.
Prosecutor should be required to show adequate notice of the suspension. In Parsekian
v. Cresse 75 N.J. Super. 405 (App Div. 1962), the court ruled that it was
incumbent upon the Director of the State Division of Motor Vehicles (now MVC)
to provide fair and adequate notice to the licensed driver of the proposed
suspension of their license. The court
recognized that the Director could not arbitrarily suspend the license of a
driver without providing both notice and enunciating specific reasons as to why
the license was being suspended. A later
case, State v. Wenof 102 N.J. Super. (Law Div. 1968), both reinforced
and advanced the earlier Parsekian decision.
Wenof
represents the substantive foundation upon which all subsequent cases involving
the notice issue have been based. In Wenof,
the court again recognized the importance of adequate notice of
suspension. The court related,
"There is always a risk that notice may not reach the intended person, but
this is not the test for legal sufficiency.
The test is rather, whether the notice was reasonably calculated to
reach the intended parties." Id at 375. In Wenof, the MVC sent to a written
notice of proposed suspension (for failure to satisfy a summons) by regular
mail. The MVC thereafter sent an order
of suspension by ordinary mail. The notices were mailed to the defendant's last
address. By failing to leave a
forwarding address informing the MVC where he could be reached by mail, the
court stated "he should not be heard to complain of lack of due process,
He had it." The court found the defendant
guilty.
represents the substantive foundation upon which all subsequent cases involving
the notice issue have been based. In Wenof,
the court again recognized the importance of adequate notice of
suspension. The court related,
"There is always a risk that notice may not reach the intended person, but
this is not the test for legal sufficiency.
The test is rather, whether the notice was reasonably calculated to
reach the intended parties." Id at 375. In Wenof, the MVC sent to a written
notice of proposed suspension (for failure to satisfy a summons) by regular
mail. The MVC thereafter sent an order
of suspension by ordinary mail. The notices were mailed to the defendant's last
address. By failing to leave a
forwarding address informing the MVC where he could be reached by mail, the
court stated "he should not be heard to complain of lack of due process,
He had it." The court found the defendant
guilty.
In State v. Ferrier 294 NJ
Super. 198 (App. Div. 1996) a defendant attacked the validity of a suspension
four months earlier. A two judge panel rejected the challenged to a DWS and
held that “An order of suspension by the Director is a decision by a state
administrative agency which may only be challenged directly in the Appellate
Division after all administrative remedies have been exhausted. R.
2:2-3(a)(2); Pascucci v. Vagott 71 N.J. 40, 53 (1976). Jurisdiction to
consider an attack on a final decision of a state administrative agency is
vested exclusively in the Appellate Division by way of appeal; the Law Division
may not entertain such a challenge. State v. Doe 165 N.J. Super 392, 400 (App. Div. 1979). To
the extent that State v. Wenof, 102 N.J. Super 370, 374 (Law Div. 1968) and State
v. Kindler 191 N.J. Super. 358 (Law Div. 1983), suggest
the contrary, they are overruled.” However the 2 page Ferrier case did
not address a ticket where the MVC notice of suspension was not mailed until
after the DWS violation.
Super. 198 (App. Div. 1996) a defendant attacked the validity of a suspension
four months earlier. A two judge panel rejected the challenged to a DWS and
held that “An order of suspension by the Director is a decision by a state
administrative agency which may only be challenged directly in the Appellate
Division after all administrative remedies have been exhausted. R.
2:2-3(a)(2); Pascucci v. Vagott 71 N.J. 40, 53 (1976). Jurisdiction to
consider an attack on a final decision of a state administrative agency is
vested exclusively in the Appellate Division by way of appeal; the Law Division
may not entertain such a challenge. State v. Doe 165 N.J. Super 392, 400 (App. Div. 1979). To
the extent that State v. Wenof, 102 N.J. Super 370, 374 (Law Div. 1968) and State
v. Kindler 191 N.J. Super. 358 (Law Div. 1983), suggest
the contrary, they are overruled.” However the 2 page Ferrier case did
not address a ticket where the MVC notice of suspension was not mailed until
after the DWS violation.
In
State v. Hammond 116 N.J. Super. 244 (Cty. Ct. 1971) a notice of
scheduled suspension and order of suspension for failure to appear for motor
vehicle violations was mailed to defendant, but was returned undelivered to MVC
by postal authorities. The defendant was
charged with misstatement of fact in an application for registration of a motor
vehicle (39:3-37) and application for a registration certificate during
suspension (39:3-34). The defendant
thereafter applied for and obtained a New Jersey registration certificate for
vehicle.
State v. Hammond 116 N.J. Super. 244 (Cty. Ct. 1971) a notice of
scheduled suspension and order of suspension for failure to appear for motor
vehicle violations was mailed to defendant, but was returned undelivered to MVC
by postal authorities. The defendant was
charged with misstatement of fact in an application for registration of a motor
vehicle (39:3-37) and application for a registration certificate during
suspension (39:3-34). The defendant
thereafter applied for and obtained a New Jersey registration certificate for
vehicle.
While
in State v. Wenof the defendant was found guilty, that case was
distinguished in Hammond. In Hammond
there was insufficient evidence of any notice to Hammond of a possible
revocation of his registration certificate.
Therefore, there is no adequate proof to indicate that due process was
satisfied in this case. Hammond,
116 N.J. Super. at 248.
in State v. Wenof the defendant was found guilty, that case was
distinguished in Hammond. In Hammond
there was insufficient evidence of any notice to Hammond of a possible
revocation of his registration certificate.
Therefore, there is no adequate proof to indicate that due process was
satisfied in this case. Hammond,
116 N.J. Super. at 248.
NOTICE
BY IN-COURT SUSPENSION
BY IN-COURT SUSPENSION
If your client is on the suspension list
because he was suspended in a Courtroom for a prior violation, grounds to
defend are very limited. The most common
violations which carry mandatory suspensions on first offense by the Municipal
Courts are for driving while intoxicated (first offense 7-12 months), driving
while suspended (up to 6 months), driving without insurance (1 year), and
possession of Marijuana or paraphernalia (6 months-2 years). A Municipal Court also has the power to
suspend a driver's license for reckless driving, excessive speeding, or where
the judge finds a person guilty of such a willful violation of the subtitle as
shall in the court's discretion, justify such revocation (NJSA 39:5-31).
because he was suspended in a Courtroom for a prior violation, grounds to
defend are very limited. The most common
violations which carry mandatory suspensions on first offense by the Municipal
Courts are for driving while intoxicated (first offense 7-12 months), driving
while suspended (up to 6 months), driving without insurance (1 year), and
possession of Marijuana or paraphernalia (6 months-2 years). A Municipal Court also has the power to
suspend a driver's license for reckless driving, excessive speeding, or where
the judge finds a person guilty of such a willful violation of the subtitle as
shall in the court's discretion, justify such revocation (NJSA 39:5-31).
If a court suspended the client’s driver’s
license, the prosecution in a subsequent DWS needs to introduce into evidence a
certified abstract from the MVC. It is
not necessary for the state to demonstrate that notice was received by the
defendant. The defense may still
challenge the suspension by introducing evidence that the prior in-court
suspension was improper. For example, if
the defendant was not notified to be in court and the court then acted without
the defendant being present. Possibly,
the prior suspension could be attacked in the original court as being illegal
and/or unconstitutional. This may be
permitted under State v. Laurick 120 NJ 1 (1990), State v. Hrycak 184 N.J. 35 (2005), State v.
Bringhurst 401 NJ Super. 421 (App. Div. 2008).
However, State v. Ferrier indicates a defendant should not argue a prior
court suspension that was in error.
license, the prosecution in a subsequent DWS needs to introduce into evidence a
certified abstract from the MVC. It is
not necessary for the state to demonstrate that notice was received by the
defendant. The defense may still
challenge the suspension by introducing evidence that the prior in-court
suspension was improper. For example, if
the defendant was not notified to be in court and the court then acted without
the defendant being present. Possibly,
the prior suspension could be attacked in the original court as being illegal
and/or unconstitutional. This may be
permitted under State v. Laurick 120 NJ 1 (1990), State v. Hrycak 184 N.J. 35 (2005), State v.
Bringhurst 401 NJ Super. 421 (App. Div. 2008).
However, State v. Ferrier indicates a defendant should not argue a prior
court suspension that was in error.
NOTICE
OF SUSPENSION BY MVC
OF SUSPENSION BY MVC
Where the client was suspended by the MVC,
the state should be required to introduce 1. Notice of scheduled suspension. 2.
Proof of mailing notice. 3. Order of suspension. 4. Proof of mailing order. 5.
Certified motor vehicle abstract.
Defense counsel should argue a certified abstract alone is not
sufficient to convict if the defendant was suspended only by the MVC.
the state should be required to introduce 1. Notice of scheduled suspension. 2.
Proof of mailing notice. 3. Order of suspension. 4. Proof of mailing order. 5.
Certified motor vehicle abstract.
Defense counsel should argue a certified abstract alone is not
sufficient to convict if the defendant was suspended only by the MVC.
If the order of suspension was mailed on
December 1, 2008 and the DWS offense took place December 2, 2008, a good
defense argument is that the Order did not reach his house until after the
ticket for DWS.
December 1, 2008 and the DWS offense took place December 2, 2008, a good
defense argument is that the Order did not reach his house until after the
ticket for DWS.
Many suspensions today exist because
people forgot to pay an insurance surcharge.
Every insurance surcharge bill serves as a notice of suspension. Indigency is not a defense for failure to pay
a surcharge.
people forgot to pay an insurance surcharge.
Every insurance surcharge bill serves as a notice of suspension. Indigency is not a defense for failure to pay
a surcharge.
DEFENSES
A valid suspension of a driver's license
cannot be effectuated in the absence of a written notice to the licensee at his
last known address, reciting the fact that the suspension will take place and
the date of commencement of the suspension.
State v. Kindler 191 N.J. Super. 358, 360 (Law Div 1983). Failure to appear for a summons is not a
substitute for the written notice required by the statute, Id at
361. The court also noted that it's
research does not have statutory revealing authority for the Municipal Judge to
suspend driving privileges. Id at 362.
cannot be effectuated in the absence of a written notice to the licensee at his
last known address, reciting the fact that the suspension will take place and
the date of commencement of the suspension.
State v. Kindler 191 N.J. Super. 358, 360 (Law Div 1983). Failure to appear for a summons is not a
substitute for the written notice required by the statute, Id at
361. The court also noted that it's
research does not have statutory revealing authority for the Municipal Judge to
suspend driving privileges. Id at 362.
Motorists suspended for any reason remain
suspended until they pay a $100.00 MVC restoration fee. According to the harsh decision in State
v. Zalta 217 N.J. Super. 209 (App. Div 1987) even if a prior court imposed
suspension of 6 months is over, the suspension continues until actual
restoration of the license. Plea
bargaining is permitted in DWS matters.
Most Prosecutors agree with State v. Somma 215 N.J. Super. 142
(Law Div 1986) where the court determined that the failure to pay the $100.00
fee for restoration of the suspended driver's license does not extend the
period of suspension.
suspended until they pay a $100.00 MVC restoration fee. According to the harsh decision in State
v. Zalta 217 N.J. Super. 209 (App. Div 1987) even if a prior court imposed
suspension of 6 months is over, the suspension continues until actual
restoration of the license. Plea
bargaining is permitted in DWS matters.
Most Prosecutors agree with State v. Somma 215 N.J. Super. 142
(Law Div 1986) where the court determined that the failure to pay the $100.00
fee for restoration of the suspended driver's license does not extend the
period of suspension.
Many times individuals are told by a court
their license is suspended for a certain number of months, but they are usually
not told they must pay a restoration fee to actually get their license back.
Individuals who pay a surcharge late will have their licenses suspended
initially for the failure to pay. Even after the surcharge is paid they remain
suspended until the $30.00 restoration fee is paid. Often, "plea bargaining" or
"alternative dispositions" can be worked out to avoid the harsh
consequences of DWS and the equitable rationale of State v. Somma is followed.
their license is suspended for a certain number of months, but they are usually
not told they must pay a restoration fee to actually get their license back.
Individuals who pay a surcharge late will have their licenses suspended
initially for the failure to pay. Even after the surcharge is paid they remain
suspended until the $30.00 restoration fee is paid. Often, "plea bargaining" or
"alternative dispositions" can be worked out to avoid the harsh
consequences of DWS and the equitable rationale of State v. Somma is followed.
OUT OF STATE
SUSPENSIONS
SUSPENSIONS
If
a person's driver's license has been suspended in another state, they can still
be charged with DWS under NJSA 39:3-40.
Whether the prosecutor can present sufficient evidence for a court to
find the driver guilty beyond a reasonable doubt is a different story. In State v. Profita 183 N. J. Super.
425 (App. Div 1982), defendant was a New York driver suspended in New York for
failure to respond to a summons. She
drove in New Jersey and was charged with driving while suspended and admitted
she knew she was suspended in New York.
The Court affirmed the conviction even through the New Jersey MVC took
no action to suspend her New Jersey driving privileges.
a person's driver's license has been suspended in another state, they can still
be charged with DWS under NJSA 39:3-40.
Whether the prosecutor can present sufficient evidence for a court to
find the driver guilty beyond a reasonable doubt is a different story. In State v. Profita 183 N. J. Super.
425 (App. Div 1982), defendant was a New York driver suspended in New York for
failure to respond to a summons. She
drove in New Jersey and was charged with driving while suspended and admitted
she knew she was suspended in New York.
The Court affirmed the conviction even through the New Jersey MVC took
no action to suspend her New Jersey driving privileges.
If
the defendant in Profita did not admit her license was suspended and was
unaware her license was suspended, the prosecutor may have had evidence
problems. Certainly the due
process-notice requirements of Wenof, Hammond, and Parsekian v.
Cresse continue to apply.
the defendant in Profita did not admit her license was suspended and was
unaware her license was suspended, the prosecutor may have had evidence
problems. Certainly the due
process-notice requirements of Wenof, Hammond, and Parsekian v.
Cresse continue to apply.
A
little known 1991 Law caused havoc and driver license suspension to thousands
of individuals facing charges for violating any ordinance or disorderly person
offense in New Jersey by P.L. 1991, Chapter 240, approved August 5, 1991. Pursuant to NJSA 2A:8-27.1:
little known 1991 Law caused havoc and driver license suspension to thousands
of individuals facing charges for violating any ordinance or disorderly person
offense in New Jersey by P.L. 1991, Chapter 240, approved August 5, 1991. Pursuant to NJSA 2A:8-27.1:
“If
a defendant charged with a disorderly persons offense, a petty disorderly
persons offense, a violation of a municipal ordinance, or a violation of any
other law of this State for which a penalty may be imposed fails to
appear at any scheduled court proceeding after written notice has been given to
said defendant pursuant to the Rules Governing the Courts of the State of New
Jersey, a municipal court may order the suspension of the persons driving
privileges or nonresident reciprocity privilege or prohibit the person from
receiving or obtaining driving privileges until the pending matter is
adjudicated or otherwise disposed of, except by dismissal for failure of
defendant to appear.”
a defendant charged with a disorderly persons offense, a petty disorderly
persons offense, a violation of a municipal ordinance, or a violation of any
other law of this State for which a penalty may be imposed fails to
appear at any scheduled court proceeding after written notice has been given to
said defendant pursuant to the Rules Governing the Courts of the State of New
Jersey, a municipal court may order the suspension of the persons driving
privileges or nonresident reciprocity privilege or prohibit the person from
receiving or obtaining driving privileges until the pending matter is
adjudicated or otherwise disposed of, except by dismissal for failure of
defendant to appear.”
NJSA
2A:8-27.1 thus gives a Municipal Court the power to suspend a driver's license
for a person charged with violations such as littering or drinking in public if
they fail to or forget to appear.
2A:8-27.1 thus gives a Municipal Court the power to suspend a driver's license
for a person charged with violations such as littering or drinking in public if
they fail to or forget to appear.
Prior
to any action being taken this statute requires that the defendant shall be
given notice of the proposed action and afforded an opportunity to appear
before the court to contest the validity of the proposed action. Sometimes the
notice will not comply with due process requirements.
to any action being taken this statute requires that the defendant shall be
given notice of the proposed action and afforded an opportunity to appear
before the court to contest the validity of the proposed action. Sometimes the
notice will not comply with due process requirements.
NJSA
2A: 8-27.1(2) provides if a defendant sentenced to pay a fine or costs, make
restitution, perform community service, serve a term of probation, or do any
other act as a condition of that sentence fails to do so a municipal court may
order the suspension of the person's driving privileges or nonresident
reciprocity privilege or prohibit the person from receiving or obtaining
driving privileges until the terms and conditions of the sentence have been
performed or modified.
2A: 8-27.1(2) provides if a defendant sentenced to pay a fine or costs, make
restitution, perform community service, serve a term of probation, or do any
other act as a condition of that sentence fails to do so a municipal court may
order the suspension of the person's driving privileges or nonresident
reciprocity privilege or prohibit the person from receiving or obtaining
driving privileges until the terms and conditions of the sentence have been
performed or modified.
PARKING ADJUDICATION
ACT OFFENDER
ACT OFFENDER
"Scofflaws"
who took their parking tickets and threw them away or forgot to pay tickets now
have their licenses eventually suspended under the Parking Offense Adjudication
Act. (NJSA 39:4-139.2). If a person
fails to appear or pay for a ticket, the court may give notice to the vehicle
owner that the failure to appear or pay will result in suspension of driver's
license. Pursuant to NJSA 39:4-139.10(b)
the judge or the Division of Motor Vehicles will suspend the driver's license
of on owner license or operator who has not answered or appeared in response to
a failure to appear notice or has not paid or otherwise satisfied outstanding
parking from penalties.
who took their parking tickets and threw them away or forgot to pay tickets now
have their licenses eventually suspended under the Parking Offense Adjudication
Act. (NJSA 39:4-139.2). If a person
fails to appear or pay for a ticket, the court may give notice to the vehicle
owner that the failure to appear or pay will result in suspension of driver's
license. Pursuant to NJSA 39:4-139.10(b)
the judge or the Division of Motor Vehicles will suspend the driver's license
of on owner license or operator who has not answered or appeared in response to
a failure to appear notice or has not paid or otherwise satisfied outstanding
parking from penalties.
If
the suspension was ordered by a court, good defense counsel can obtain from the
suspending court copies of notices mailed to the defendant. The due process/ notice requirements should
apply as a defense. If the originating
court failed to give proper notice of the proposed suspension, defense counsel
should argue the later court thereafter can not find the defendant guilty of DWS. Many times in DWS the State will only offer
into evidence an abstract which contains a small yellow strip of paper. The paper often will indicate the suspension
was "in count" and no proof of mailing is needed. However, the MVC does actually mail out a
notice and Order of suspension. Courts
rarely suspend a car owner's driving privilege if the driver is not present in
Court.
the suspension was ordered by a court, good defense counsel can obtain from the
suspending court copies of notices mailed to the defendant. The due process/ notice requirements should
apply as a defense. If the originating
court failed to give proper notice of the proposed suspension, defense counsel
should argue the later court thereafter can not find the defendant guilty of DWS. Many times in DWS the State will only offer
into evidence an abstract which contains a small yellow strip of paper. The paper often will indicate the suspension
was "in count" and no proof of mailing is needed. However, the MVC does actually mail out a
notice and Order of suspension. Courts
rarely suspend a car owner's driving privilege if the driver is not present in
Court.
CONTESTING PROPOSED
ADMINISTRATIVE SUSPENSIONS
ADMINISTRATIVE SUSPENSIONS
The
MVC, prior to suspending a license, or taking specific action against a driver
must mail a notice to the driver informing them of the proposed suspension or other action. The proposed action to be taken against any
licensee by the MVC becomes effective on the date set forth on the notice except when otherwise
specified, unless the licensee or his/ her attorney shall make a request, in
writing, for a hearing within 25 days from the date of notice. New Jersey Administrative Code (NJAC)
13:19-1.2.
MVC, prior to suspending a license, or taking specific action against a driver
must mail a notice to the driver informing them of the proposed suspension or other action. The proposed action to be taken against any
licensee by the MVC becomes effective on the date set forth on the notice except when otherwise
specified, unless the licensee or his/ her attorney shall make a request, in
writing, for a hearing within 25 days from the date of notice. New Jersey Administrative Code (NJAC)
13:19-1.2.
NJAC
13:19-1.2 requires the request for a hearing to set forth all disputed facts,
legal issues and arguments. Under NJAC
13:19-1.2, the MVC may either deny the request for a hearing, require a
prehearing conference with a MVC employee, or transmit of the matter to the
Office of Administrative Law for a hearing pursuant to NJAC 1:1.
13:19-1.2 requires the request for a hearing to set forth all disputed facts,
legal issues and arguments. Under NJAC
13:19-1.2, the MVC may either deny the request for a hearing, require a
prehearing conference with a MVC employee, or transmit of the matter to the
Office of Administrative Law for a hearing pursuant to NJAC 1:1.
The
MVC employee who conducts the prehearing is referred to as a driver improvement
specialist. Often a resolution of the
proposed administrative action is reached between the MVC and the licensee (ie-
reduce suspension period -ex 180 days to 100 days).
MVC employee who conducts the prehearing is referred to as a driver improvement
specialist. Often a resolution of the
proposed administrative action is reached between the MVC and the licensee (ie-
reduce suspension period -ex 180 days to 100 days).
If
the licensee accepts the resolution of the proposed administrative action, the
license is to have abandoned any further opportunity to be heard NJAC
13:19-1.8(c).
the licensee accepts the resolution of the proposed administrative action, the
license is to have abandoned any further opportunity to be heard NJAC
13:19-1.8(c).
If
the parties cannot reach a resolution, the matter should be submitted to the
office of Administrative Law for a hearing NJAC 13:19-1.8(d)
the parties cannot reach a resolution, the matter should be submitted to the
office of Administrative Law for a hearing NJAC 13:19-1.8(d)
ENHANCED PENALTIES
As
set forth previously, the DWS law calls for mandatory enhanced penalties on
conviction second and third offense.
What counts as an offense? Both
the MVC and a court can suspend a driver for driving while suspended.
set forth previously, the DWS law calls for mandatory enhanced penalties on
conviction second and third offense.
What counts as an offense? Both
the MVC and a court can suspend a driver for driving while suspended.
In
State v. Conte 245 NJ Super. 629 (Law Div. 1990) the court examined a
case where a defendant driver had two prior administrative suspensions by the
MVC pursuant to NJSA 39:5-30 and NJAC 13:19-10.8. The driver had no prior court imposed
convictions.
State v. Conte 245 NJ Super. 629 (Law Div. 1990) the court examined a
case where a defendant driver had two prior administrative suspensions by the
MVC pursuant to NJSA 39:5-30 and NJAC 13:19-10.8. The driver had no prior court imposed
convictions.
NJSA
39:3-40 provides for penalties upon conviction. In a well reasoned opinion by Judge Robert
Longhi, on trial de novo, the court stated:
39:3-40 provides for penalties upon conviction. In a well reasoned opinion by Judge Robert
Longhi, on trial de novo, the court stated:
The
word conviction is not defined in the statute.
Black's Law Dictionary defines conviction as "the final judgment in
a verdict or finding of guilty..." Black's Law Dictionary (6 ed. 1990) at
333. NJSA 2C:44-4(a) defines "prior
conviction of an offense" as "an adjudication by a court of
competent jurisdiction that the defendant committed an offense constitutes a prior
conviction," Emphasis supplied.
Conviction has also been defined as " the confession of the accused
in open court or the verdict returned by the jury which ascertains and
publishes the fact of guilt." Tucker
v. Tucker 101 NJ Eq. 72, 73, 137 A. 40 (Ch. 1927).
word conviction is not defined in the statute.
Black's Law Dictionary defines conviction as "the final judgment in
a verdict or finding of guilty..." Black's Law Dictionary (6 ed. 1990) at
333. NJSA 2C:44-4(a) defines "prior
conviction of an offense" as "an adjudication by a court of
competent jurisdiction that the defendant committed an offense constitutes a prior
conviction," Emphasis supplied.
Conviction has also been defined as " the confession of the accused
in open court or the verdict returned by the jury which ascertains and
publishes the fact of guilt." Tucker
v. Tucker 101 NJ Eq. 72, 73, 137 A. 40 (Ch. 1927).
The
motor vehicle statute, NJSA 39:3-40, is quasi-criminal and penal in nature and
must be strictly construed against the State.
State v. Churchdale-Leasing Inc 115 N.J. 83, 102, 557 A. 2d 277
(1989). The word conviction, as it is
used in NJSA 39:3-40, refers only to a plea or a finding of guilty in a court
of competent jurisdiction and not an order of suspension entered by the MVC as
the result of an administrative proceeding.
The two prior suspensions are not convictions and defendant must be
viewed as a first offender under the statute.
State v. Conte 245 N.J. Super. at 631
motor vehicle statute, NJSA 39:3-40, is quasi-criminal and penal in nature and
must be strictly construed against the State.
State v. Churchdale-Leasing Inc 115 N.J. 83, 102, 557 A. 2d 277
(1989). The word conviction, as it is
used in NJSA 39:3-40, refers only to a plea or a finding of guilty in a court
of competent jurisdiction and not an order of suspension entered by the MVC as
the result of an administrative proceeding.
The two prior suspensions are not convictions and defendant must be
viewed as a first offender under the statute.
State v. Conte 245 N.J. Super. at 631
The
sentence imposed was reversed and the matter remanded for sentencing as a first
offender.
sentence imposed was reversed and the matter remanded for sentencing as a first
offender.
CONCLUSION
The
defense of a person charged with driving while suspended is not
impossible. There are a number of viable
defense and arguments which can be pursued to achieve a successful result. Advocacy, commitment and persistence are
essential to defending a client in any municipal court matter.
defense of a person charged with driving while suspended is not
impossible. There are a number of viable
defense and arguments which can be pursued to achieve a successful result. Advocacy, commitment and persistence are
essential to defending a client in any municipal court matter.
About the Author:
Kenneth Vercammen is a Litigation
Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State
Bar Association on personal injury, criminal / municipal court law and drunk
driving. He has published 125 articles
in national and New Jersey publications on municipal court and litigation
topics. He has served as a Special Acting Prosecutor in seven different cities
and towns in New Jersey and also successfully defended hundreds of individuals
facing Municipal Court and Criminal Court charges.
Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State
Bar Association on personal injury, criminal / municipal court law and drunk
driving. He has published 125 articles
in national and New Jersey publications on municipal court and litigation
topics. He has served as a Special Acting Prosecutor in seven different cities
and towns in New Jersey and also successfully defended hundreds of individuals
facing Municipal Court and Criminal Court charges.
In his private practice, he has devoted a
substantial portion of his professional time to the preparation and trial of
litigated matters. He has appeared in
Courts throughout New Jersey several times each week on many personal injury
matters, Municipal Court trials, criminal hearings and contested administrative
law hearings.
substantial portion of his professional time to the preparation and trial of
litigated matters. He has appeared in
Courts throughout New Jersey several times each week on many personal injury
matters, Municipal Court trials, criminal hearings and contested administrative
law hearings.
Since 1985, his primary concentration has
been on litigation matters. Mr.
Vercammen gained other legal experiences as the Confidential Law Clerk to the
Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA
District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a
Probation Officer, and an Executive Assistant to Scranton District Magistrate,
Thomas Hart, in Scranton, PA.
been on litigation matters. Mr.
Vercammen gained other legal experiences as the Confidential Law Clerk to the
Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA
District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a
Probation Officer, and an Executive Assistant to Scranton District Magistrate,
Thomas Hart, in Scranton, PA.
