Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Tuesday, June 21, 2011

Drug DWI Still Needs More than Lay Opinion, but Police Can Testify. State v. Bealor 187 NJ 574 (2006)-New articles, ABA newsletters & Community events

Drug DWI Still Needs More than Lay Opinion, but Police Can Testify. State v. Bealor 187 NJ 574 (2006)

Although evidentially competent lay observations of the fact of intoxication are always admissible, lay opinion in respect of the cause of intoxication other than from alcohol consumption is not admissible. However, competent lay observations of the fact of intoxication, coupled with additional independent proofs tending to demonstrate a defendant's consumption of narcotic, hallucinogenic, or habit-producing drugs as of the time of his arrest, constitute proofs sufficient to allow the fact-finder to conclude that defendant was intoxicated beyond a reasonable doubt and thus to sustain a conviction for driving under the influence in violation of N.J.S.A. 39:4-50. Source: Facts-on-Call Order No. 93118 .

Drug Crimes-New articles, ABA newsletters and Community events

Drug Crimes

The Municipal Courts of New Jersey have jurisdiction to hear the following drug-related offenses:

NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish;

NJSA 2C:35-10(b), using or being under the influence of CDS;

NJSA 2C:35-10(c), failure to deliver CDS to police;

NJSA 2C:36-2, possession of drug paraphernalia

Violation of these statutes constitute disorderly person offenses. If convicted, the court may impose a $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. The court has discretion to fine a defendant up to $1,000 and/or incarceration for up to six months. The $50.00 VCCB penalty also must be imposed.

Moreover, the court must suspend the defendants drivers license for a time period between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed.

If you elect to initially plead not guilty, your attorney will send a discovery letter/letter of representation to both the Municipal Prosecutor and the Municipal Court Clerk. If you have a drug problem, it is recommended that you attend a substance abuse treatment programs to seek help for any addiction. Proof of attendance of such a program is of benefit at sentencing or in obtaining an application for conditional discharge.

CONDITIONAL DISCHARGE

New Jersey State statute N.J.S.A. 2C: 36A-1 provides that a person not previously convicted of a drug offense and who has not previously been granted supervisory treatment under 24:21-27, 2C:43-12 or 2C: 36A-l may apply for a conditional discharge. The court upon notice to the prosecutor and subject to 2C: 36A-l(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).

Since the granting of a conditional discharge is optional to the court, you should be prepared to prove, through letters, documents, or even witnesses, that the defendants continued presence in the community or in a civil treatment program, will not pose a danger to the community.

You should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty, and $50.00 lab fee. The court further has the option to suspend a defendants drivers license between six months and two years.

The conditional discharge period is also between six months and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory.

SUPPRESSION MOTION

A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5-7. The court rules have been amended to provide the Suppression Motion can be held directly in the Municipal Court. Your attorney can subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is very important.

PRE-TRIAL

The Municipal Court prosecutor is responsible for providing discovery. Rules 3:13-3, 7:4-2, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990). The State must prove the substance seized was a controlled dangerous substance (CDS).

To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate prepared pursuant to N.J.S.A. 2C:35-19. If the State intends to introduce the lab certificate at the trial, a notice of an intent to proffer that certificate and all reports relating to the analysis of the CDS shall be served on defense counsel at least 20 days before the proceeding begins. This includes an actual copy of the lab certificate.

Within 10 days of receipt, the Defense counsel must notify the Prosecutor in writing. This will not only alert the Prosecutor to the Defendants objections concerning the admission of the lab certificate into evidence, but also set forth grounds for the objection, 2C:35-19c. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence.

THE TRIAL

The burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court CDS cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). The State must prove knowledge or purpose on the part of the defendant.

Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Purpose means it was defendants conscious intention to obtain or possess the item while being aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990).

If actual possession cannot be demonstrated, defendants constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975).

In State v. Shipp, 216 N.J. Super. 662,666 (App. Div. 1987), it was held that there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS secretly contained in envelopes in a vinyl bag resting on the back seat next to another passenger in the car.

In addition to establishing if the item seized is a CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutors witness will call witnesses to prove the location of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug.

If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence rule 8 hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. If the defendant elects to take the stand, defense counsel must be certain that he testifies with complete candor and does not try to embellish his protestations of innocence.

CONCLUSION

Drug related offenses carry substantial penalties which will effect a person for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances. Do not permit drug use and you will not have to worry about the substantial penalties.

New Drug Possession Law:

2C:35-10 Possession, use or being under the influence, or failure to make lawful disposition

2C:35-10. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition.

a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to:

(1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV other than those specifically covered in this section, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $35,000.00 may be imposed;

(2) Any controlled dangerous substance, or its analog, classified in Schedule V, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $15,000.00 may be imposed;

(3) Possession of more than 50 grams of marijuana, including any adulterants or dilutants, or more than five grams of hashish is guilty of a crime of the fourth degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or

(4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person.

Any person who commits any offense defined in this section while on any 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 any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service.

b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.

In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.

c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.

Amended 1988, c.44, s.5; 1997, c.181, s.6.

2C:35-10.2 Possession, etc. of gamma hydroxybutyrate; penalties 4. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, gamma hydroxybutyrate unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).

b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.

L.1997,c. 194, s.4.

2C:35-10.3 Possession, etc. of flunitrazepam; penalties 6. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, flunitrazepam, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).

b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.

L.1997,c. 194, s.6.

Drug Court-New articles, ABA newsletters and Community events

Drug Court

- Drug use in the US expanded with the crack cocaine epidemic of the mid-1980’s; the number of drug arrests skyrocketed

- The initial Criminal Justice System response was stricter laws that filled the US prisons

-As drug use was not influenced by the new laws, court dockets were overwhelmed and new strategies were developed to deal with the increase

-Expedited Drug Case Management, the early “Drug Courts” dealt with case processing issues only

-Even when mandated into treatment, most did not remain

________

2C:35-14 Rehabilitation program for drug and alcohol dependent persons; criteria for imposing special probation; ineligible offenders; prosecutorial objections; mandatory commitment to residential treatment facilities; presumption of revocation; brief incarceration in lieu of permanent revocation.

a. Notwithstanding the presumption of incarceration pursuant to the provisions of subsection d. of N.J.S.2C:44-1, and except as provided in subsection c. of this section, whenever a drug or alcohol dependent person is convicted of or adjudicated delinquent for an offense, other than one described in subsection b. of this section, the court, upon notice to the prosecutor, may, on motion of the person, or on the courts own motion, place the person on special probation, which shall be for a term of five years, provided that the court finds on the record that:

(1) the person has undergone a professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment; and

(2) the person is a drug or alcohol dependent person within the meaning of N.J.S.2C:35-2 and was drug or alcohol dependent at the time of the commission of the present offense; and

(3) the present offense was committed while the person was under the influence of a controlled dangerous substance, controlled substance analog or alcohol or was committed to acquire property or monies in order to support the persons drug or alcohol dependency; and

(4) substance abuse treatment and monitoring will serve to benefit the person by addressing his drug or alcohol dependency and will thereby reduce the likelihood that the person will thereafter commit another offense; and

(5) the person did not possess a firearm at the time of the present offense and did not possess a firearm at the time of any pending criminal charge; and

(6) the person has not been previously convicted on two or more separate occasions of crimes of the first, second or third degree, other than crimes defined in N.J.S.2C:35-10; and

(7) the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, robbery, kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws of any other state or the United States; and

(8) a suitable treatment facility licensed and approved by the Department of Health and Senior Services is able and has agreed to provide appropriate treatment services in accordance with the requirements of this section; and

(9) no danger to the community will result from the person being placed on special probation pursuant to this section.

In determining whether to sentence the person pursuant to this section, the court shall consider all relevant circumstances, and shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings, and shall also consider the presentence report and the results of the professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment.

As a condition of special probation, the court shall order the person to enter a treatment program at a facility licensed and approved by the Department of Health and Senior Services, to comply with program rules and the requirements of the course of treatment, to cooperate fully with the treatment provider, and to comply with such other reasonable terms and conditions as may be required by the court or by law, pursuant to N.J.S.2C:45-1, and which shall include periodic urine testing for drug or alcohol usage throughout the period of special probation. Subject to the requirements of subsection d. of this section, the conditions of special probation may include different methods and levels of community-based or residential supervision.

b. A person shall not be eligible for special probation pursuant to this section if the person is convicted of or adjudicated delinquent for:

(1) a crime of the first degree;

(2) a crime of the first or second degree enumerated in subsection d. of N.J.S.2C:43-7.2;

(3) a crime, other than that defined in N.J.S.2C:35-7, for which a mandatory minimum period of incarceration is prescribed under chapter 35 of this Title or any other law; or

(4) an offense that involved the distribution or the conspiracy or attempt to distribute a controlled dangerous substance or controlled substance analog to a juvenile near or on school property.

c. A person convicted of or adjudicated delinquent for an offense under section 1 of P.L.1987, c.101 (C.2C:35-7), subsection b. of section 1 of P.L.1997, c.185 (C.2C:35-4.1), or any crime for which there exists a presumption of imprisonment pursuant to subsection d. of N.J.S.2C:44-1 or any other statute, or who has been previously convicted of an offense under subsection a. of N.J.S.2C:35-5 or a similar offense under any other law of this State, any other state or the United States, shall not be eligible for sentence in accordance with this section if the prosecutor objects to the person being placed on special probation. The court shall not place a person on special probation over the prosecutors objection except upon a finding by the court of a gross and patent abuse of prosecutorial discretion. If the court makes a finding of a gross and patent abuse of prosecutorial discretion and imposes a sentence of special probation notwithstanding the objection of the prosecutor, the sentence of special probation imposed pursuant to this section shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution.

d. A person convicted of or adjudicated delinquent for a crime of the second degree or of a violation of section 1 of P.L.1987, c.101 (C.2C:35-7), or who previously has been convicted of or adjudicated delinquent for an offense under subsection a. of N.J.S.2C:35-5 or a similar offense under any other law of this State, any other state or the United States, who is placed on special probation under this section shall be committed to the custody of a residential treatment facility licensed and approved by the Department of Health and Senior Services, whether or not residential treatment was recommended by the person conducting the diagnostic assessment. The person shall be committed to the residential treatment facility immediately, unless the facility cannot accommodate the person, in which case the person shall be incarcerated to await commitment to the residential treatment facility. The term of such commitment shall be for a minimum of six months, or until the court, upon recommendation of the treatment provider, determines that the person has successfully completed the residential treatment program, whichever is later, except that no person shall remain in the custody of a residential treatment facility pursuant to this section for a period in excess of five years. Upon successful completion of the required residential treatment program, the person shall complete the period of special probation, as authorized by subsection a. of this section, with credit for time served for any imprisonment served as a condition of probation and credit for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to this section to a residential treatment facility. The person shall not be eligible for early discharge of special probation pursuant to N.J.S.2C:45-2, or any other provision of the law. The court, in determining the number of credits for time spent in residential treatment, shall consider the recommendations of the treatment provider. A person placed into a residential treatment facility pursuant to this section shall be deemed to be subject to official detention for the purposes of N.J.S.2C:29-5 (escape).

e. The probation department or other appropriate agency designated by the court to monitor or supervise the persons special probation shall report periodically to the court as to the persons progress in treatment and compliance with court-imposed terms and conditions. The treatment provider shall promptly report to the probation department or other appropriate agency all significant failures by the person to comply with any court imposed term or condition of special probation or any requirements of the course of treatment, including but not limited to a positive drug or alcohol test or the unexcused failure to attend any session or activity, and shall immediately report any act that would constitute an escape. The probation department or other appropriate agency shall immediately notify the court and the prosecutor in the event that the person refuses to submit to a periodic drug or alcohol test or for any reason terminates his participation in the course of treatment, or commits any act that would constitute an escape.

f. (1) Upon a first violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court in its discretion may permanently revoke the persons special probation.

(2) Upon a second or subsequent violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the persons special probation unless the court finds on the record that there is a substantial likelihood that the person will successfully complete the treatment program if permitted to continue on special probation, and the court is clearly convinced, considering the nature and seriousness of the violations, that no danger to the community will result from permitting the person to continue on special probation pursuant to this section. The courts determination to permit the person to continue on special probation following a second or subsequent violation pursuant to this paragraph may be appealed by the prosecution.

(3) In making its determination whether to revoke special probation, and whether to overcome the presumption of revocation established in paragraph (2) of this subsection, the court shall consider the nature and seriousness of the present infraction and any past infractions in relation to the persons overall progress in the course of treatment, and shall also consider the recommendations of the treatment provider. The court shall give added weight to the treatment providers recommendation that the persons special probation be permanently revoked, or to the treatment providers opinion that the person is not amenable to treatment or is not likely to complete the treatment program successfully.

(4) If the court permanently revokes the persons special probation pursuant to this subsection, the court shall impose any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which the person was convicted or adjudicated delinquent. The court shall conduct a de novo review of any aggravating and mitigating factors present at the time of both original sentencing and resentencing. If the court determines or is required pursuant to any other provision of this chapter or any other law to impose a term of imprisonment, the person shall receive credit for any time served in custody pursuant to N.J.S.2C:45-1 or while awaiting placement in a treatment facility pursuant to this section, and for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to this section to a residential treatment facility. The court, in determining the number of credits for time spent in a residential treatment facility, shall consider the recommendations of the treatment provider.

(5) Following a violation, if the court permits the person to continue on special probation pursuant to this section, the court shall order the person to comply with such additional terms and conditions, including but not limited to more frequent drug or alcohol testing, as are necessary to deter and promptly detect any further violation.

(6) Notwithstanding any other provision of this subsection, if the person at any time refuses to undergo urine testing for drug or alcohol usage as provided in subsection a. of this section, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the persons special probation. Notwithstanding any other provision of this section, if the person at any time while committed to the custody of a residential treatment facility pursuant to this section commits an act that would constitute an escape, the court shall forthwith permanently revoke the persons special probation.

(7) An action for a violation under this section may be brought by a probation officer or prosecutor or on the courts own motion. Failure to complete successfully the required treatment program shall constitute a violation of the persons special probation. A person who fails to comply with the terms of his special probation pursuant to this section and is thereafter sentenced to imprisonment in accordance with this subsection shall thereafter be ineligible for entry into the Intensive Supervision Program.

g. When a person on special probation is subject to a presumption of revocation on a second or subsequent violation pursuant to paragraph (2) of subsection f. of this section, or when the person refuses to undergo drug or alcohol testing pursuant to paragraph (6) of subsection f. of this section, the court may, in lieu of permanently revoking the persons special probation, impose a term of incarceration for a period of not less than 30 days nor more than six months, after which the persons term of special probation pursuant to this section may be reinstated. In determining whether to order a period of incarceration in lieu of permanent revocation pursuant to this subsection, the court shall consider the recommendations of the treatment provider with respect to the likelihood that such confinement would serve to motivate the person to make satisfactory progress in treatment once special probation is reinstated. This disposition may occur only once with respect to any person unless the court is clearly convinced that there are compelling and extraordinary reasons to justify reimposing this disposition with respect to the person. Any such determination by the court to reimpose this disposition may be appealed by the prosecution. Nothing in this subsection shall be construed to limit the authority of the court at any time during the period of special probation to order a person on special probation who is not subject to a presumption of revocation pursuant to paragraph (2) of subsection f. of this section to be incarcerated over the course of a weekend, or for any other reasonable period of time, when the court in its discretion determines that such incarceration would help to motivate the person to make satisfactory progress in treatment.

h. The court, as a condition of its order, and after considering the persons financial resources, shall require the person to pay that portion of the costs associated with his participation in any rehabilitation program or period of residential treatment imposed pursuant to this section which, in the opinion of the court, is consistent with the persons ability to pay, taking into account the courts authority to order payment or reimbursement to be made over time and in installments.

i. The court shall impose, as a condition of the special probation, any fine, penalty, fee or restitution applicable to the offense for which the person was convicted or adjudicated delinquent.

L.1987, c.106, s.1; amended 1999, c.376, s.2; 2001, c.129, s.2.

Drug Recognition Expert Defense-New articles, ABA newsletters and Community events

Drug Recognition Expert Defense

A Drug Recognition Expert (DRE) is a police officer who indicates they can recognize whether someone is on drugs, what kind of drugs they are on, and whether their ability to drive has been impaired. The theory of the DRE is that they claim to be able to determine whether someone is under the influence of drugs through a visual evaluation. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 19.

DREs frequently administer their tests when someone is arrested for drunk driving, but passes a breath test. The DRE's testimony may provide better evidence for the prosecution than toxicology reports. Blood tests may not measure the quantity of drugs taken and, even if they do, may not show a level high enough to prove impairment. Urine tests do not accurately pinpoint when the drugs were ingested and may not show the quantity. Therefore blood and urine tests alone may not be sufficient to prove the person was affected by drugs when they were driving. The DRE argues they can provide the link between the toxicology report and the Driving Under the Influence charge. The DRE offers testimony that the defendant failed the physical tests administered by the DRE, showing that the defendant may be impaired by the drugs in his system. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20. The DRE advises that their examination of the suspect is broken into 5 parts: 1. Coordination tests. The suspect must perform the "walk and turn," "one leg stand," "finger to nose," and "Romberg balance" test (where he must estimate when 30 seconds have passed while standing with his head tilted back and his eyes closed).

2. Eye tests. The DRE checks the suspect's pupil size under various lighting conditions. He checks for "horizontal gaze nystagmus" where the eyes twitch when looking off to the side and "vertical nystagmus" where the eyes twitch when looking up. The DRE also checks to see if the eyes cross normally when looking down at the nose.

3. Vital signs. The DRE measures the suspect's pulse, temperature and blood pressure.

4. Muscle tone. The DRE feels the suspects arm muscles to see if the are loose and rubbery or tense.

5. Visual inspection. The DRE inspects the suspects mouth and nose for signs of drug ingestion, the presence of drug debris and discoloration. The DRE checks the suspect's arms for needle marks. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20.

The DRE determines whether the results of the exam performed on the suspect match symptoms associated with 7 drug classes. The drug classes used are central nervous system (CNS) depressants, CNS stimulants, hallucinogens, phencyclidine, narcotic analgesics, inhalants, and cannabis. Journal of Analytical Toxicology, "Laboratory Validation Study of Drug Evaluation and Classification Program: Ethanol, Cocaine, and Marijuana", Vol. 20, October 1996, p. 468. For example, a person on a depressant should have normal pupils, but twitching eyes on the nystagmus tests, a slow pulse rate, low blood pressure, drowsiness, and slurred speech. Persons on cannabis should have dilated pupils, no eye twitching, a high pulse rate and blood pressure, their eyes may not cross normally when they look down their nose, and they may have disorientation. The DRE also interviews the arresting officer, reviews the breathalyzer results and asks the suspect if he has been using drugs. Finally, the DRE concludes whether the suspect is behaviorally impaired, if the impairment is drug-related, and the drug class or combination of classes likely to be causing the impairment. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20.

Drug Recognition Experts are Not Recognized by New Jersey Courts There is no decision from the New Jersey Supreme Court recognizing the reliability of DRE testimony as proof of driving under the influence. The written opinions which permit the admission of DRE testimony either say the evidence is "non-scientific" or do not address this issue. However, the recent U.S. Supreme Court case, Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999), extends the Daubert screening test for expert testimony to "non-scientific" testimony. Therefore, if the N.J. Supreme Court adopts Kumho, the DRE's testimony would not qualify as reliable evidence using the Daubert test. See Lawyers Weekly USA ,

"Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20.

Generally, the party offering results of a scientific test as evidence is required to show that the scientific technique has gained general acceptance within the scientific community. Romano v. Kimmelman, 96 N.J. 66 (1984); State v. Kelly, 97 N.J. 178 (1984); State v. Spann, 130 N.J. 484 (1993). There are three ways to show general acceptance within the scientific community of a particular procedure. (1) Testimony of knowledgeable experts. (2) Authoritative scientific literature. (3) Persuasive judicial decision. Windmere, Inc. v. International Ins. Co., 105 N.J. 373 (1987). A proponent of scientific evidence must show that the procedure or experiments are generally accepted in their field. Frye v. United States, 293 F. 1013 (D.C. Cir., 1923).

In pre-trial motions and at trial, defense lawyers can challenge the accuracy of the evaluation and the DRE's qualifications to perform the tests. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21. Laboratory studies were done in 1996 and 1998. The 1996 studies were undertaken to determine the validity of the variables of the Drug Evaluation and Classification (DEC) evaluation in predicting whether research volunteers had been administered ethanol, cocaine or marijuana and to determine the accuracy of DREs in detecting whether subjects had been dosed with ethanol, cocaine, or marijuana. Using discriminant function analysis, it was found that 17-28 variables of the DEC evaluation predicted the presence or absence of each of the three drugs (ethanol, cocaine and marijuana) with a high degree of sensitivity and specificity and low rates of false-positive and false-negative errors. The five best predictive variables were nearly as accurate as the entire subsets of 17-28 variables. When DREs concluded subjects were impaired by ethanol or drugs or both, their predictions were consistent with toxicological analysis in 51% of cases. When ethanol-only decisions, which were guaranteed to be consistent with toxicology, were excluded, DREs' predictions were consistent in 44% of cases. Journal of Analytical Toxicology, "Laboratory Validation Study of Drug Evaluation and Classification Program: Ethanol, Cocaine, and Marijuana", Vol. 20, October 1996, p. 475. This study provides a list of the symptoms that were found to be the best predictors of impairment by a particular class of drug. Journal of Analytical Toxicology, "Laboratory Validation Study of Drug Evaluation and Classification Program: Ethanol, Cocaine, and Marijuana", Vol. 20, October 1996, p. 470, 472, 474. If these symptoms are not consistent with those found present in the client on the DRE report, this may call into question the validity of the DRE's conclusion. Challenges to the DRE Aside from challenging the accuracy of the DEC, the defense attorney can challenge the DRE's qualifications. It may be argued that the DRE is not a medical doctor and has only had a nine day course and is therefore not qualified to make a subjective evaluation of the suspect's physiological symptoms. A lawyer can inquire into what training the DRE has been given in distinguishing the effects of drugs from those of other medical conditions. It should be pointed out that only one and a half pages of the 570 page DRE training manual covers medical conditions that can be confused with drug impairment. The defense attorney should get the DRE's training history to see how well he did in the course and what continued training he has had. The attorney should also try to find out what the DRE's track record is by requesting a copy of the running log which DREs are supposed to keep. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21. The defense attorney can also try to explain the suspect's symptoms. For example, high blood pressure, high pulse rate and muscle rigidity can be caused by the stress of an arrest. Other symptoms may be caused by mental conditions such as attention deficit disorder or mania or delirium, or a medical condition such as diabetes, hypertension or an abnormal movement disorder. There are many natural causes for nystagmus. In cases involving accidents, symptoms may be due to a concussion. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21. By reading the DRE manual, the defense should be able to find potential mistakes made by the DRE while conducting the test. The manual warns that any deviation from the protocol affects the conclusion. So if the DRE does not administer the evaluation under the conditions recommended by the manual, this presents the defense with a good argument that the results are not reliable. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21. Other possible arguments may emerge by comparing the DRE's report with the notes of the arresting officer. There may be inconsistencies. Another potential argument is that, even if the DRE correctly determines that the suspect was affected by drugs, that does not necessarily mean the suspect's driving ability was impaired. Lawyers Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21.

For more information, see Lawyers Weekly USA dated September 20, 1999. Copies of the above referenced 1996 and 1998 studies are available by fax from Lawyers Weekly USA. The 1996 study is "Laboratory Validation Study of Drug Evaluation and Classification Program: Ethanol, Cocaine, and Marijuana," Lawyers Weekly USA No. 9916532 (16 pages). The 1998 study is "Laboratory Validation Study of Drug Evaluation and Classification Program: Alprazolam, d-Amphetamine, Codeine, and Marijuana," Lawyers Weekly USA No. 9916533 (12 pages).

GLOSSARY OF TERMS

alcohol gaze nystagmus (AGN) - Gaze nystagmus caused by the effects of alcohol upon the nervous system.

caloric nystagmus - A vestibular system nystagmus caused by differences in temperature between the ears, e.g., one ear is irrigated with warm water and the other irrigated with cold water.

epileptic nystagmus - Nystagmus evident during an epileptic seizure.

field sobriety test (FST) - Any number of tests used by law enforcement officers, usually on the roadside, to determine whether a driver is impaired. Most FSTs test balance, coordination and the ability of the driver to divide his or her attention among several tasks as once. Other tests, such as the horizontal gaze nystagmus test, are used to measure a subject's impairment level.

fixation - ability of the eye to focus on one point.

gaze nystagmus - Nystagmus that occurs when the eyes gaze or fixate upon an object or image. Usually caused by a disruption of the nervous system.

horizontal gaze nystagmus (HGN) - Gaze nystagmus that occurs when the eyes gaze or move to the side along a horizontal plane.

jerk nystagmus - Nystagmus where the eye drifts slowly away from a point of focus and then quickly corrects itself with a saccadic movement back to the point of focus.

National Highway Traffic Safety Administration (NHTSA) - The agency within the United States Department of Transportation that administers traffic safety programs. NHTSA's duties include funding studies on field sobriety tests and training law enforcement officers in the administration of the standardized field sobriety test battery.

natural nystagmus - Nystagmus that occurs without any apparent physiological, vestibular, or neurological disturbance. Natural nystagmus occurs in approximately 2%-4% of the population.

neurological nystagmus - Nystagmus caused by some disturbance in the nervous system.

nystagmus - An involuntary bouncing or jerking of the eye caused by any number of vestibular, neurological or physiological disturbances.

oculomotor - Movement of the eyeball.

one-leg-stand (OLS) test - One of the three tests that make up the standardized field sobriety test battery. This test requires a subject to stand on one leg, look at his or her foot and count out loud to thirty. The subject is assessed on the ability to understand and follow instructions as well as the ability to maintain balance for thirty seconds. [post-publication note (August 1999), sentence should read: "...count out loud until told to stop."]

optokinetic nystagmus - A nystagmus evident when an object that the eye fixates upon moves quickly out of sight or passes quickly through the field of vision, such as occurs when a subject watches utility poles pass by while in a moving car. Optokinetic nystagmus is also caused by watching alternating moving images, such as black and white spokes on a spinning wheel.

oscillate - to move back and forth at a constant rate between two points

pathological disorder - Disruptions of the normal functions of organs of the body due to disease, illness, or damage.

pendular nystagmus - Nystagmus where the eye oscillates or swings equally in two directions.

physiological nystagmus - A nystagmus that occurs so that light entering the eye will continually fall on non-fatigued cells on the retina. Physiological nystagmus is so slight that it cannot be detected without the aid of instruments and it occurs in everyone.

positional alcohol nystagmus (PAN) - Positional nystagmus when the foreign fluid is alcohol.
PAN I - The alcohol concentration is higher in the blood than in the vestibular system.
PAN II - The alcohol concentration is lower in the blood than in the vestibular system.

positional nystagmus - Nystagmus that occurs when a foreign fluid is in unequal concentrations between the blood and the fluid in the semi-circular canals of the vestibular system.

post-rotational nystagmus - Nystagmus caused by disturbances in the vestibular system fluid when a person spins around. Post-rotational nystagmus lasts for only a few seconds after a person stops spinning.

resting nystagmus - Nystagmus that occurs as the eye are looking straight ahead.

rotational nystagmus - Nystagmus caused by disturbances in the vestibular system fluid when a person spins around. Rotational nystagmus occurs while the person is spinning.

saccadic - Movement of the eye from one fixation point to another.

smooth pursuit - The eye's course as it tracks a moving image.

Southern California Research Institute (SCRI) - A research organization that conducted the first two research studies that eventually produced the standardized field sobriety test battery. SCRI has conducted subsequent field sobriety test validation studies as well as drug recognition evaluation studies.

standardized field sobriety test (SFST) battery - A group of tests selected as the best field sobriety tests to increase the ability of law enforcement officers to detect driver impairment. The results of this battery, usually administered along the roadside, contribute extensively to a law enforcement officer's decision to arrest a person for impaired driving.

walk-and-turn (WAT) test - One of the three tests that make up the standardized field sobriety battery. This test requires a person to take nine heel to toe steps down a straight line, turn and take nine heel to toe steps back up the line. The subject is assessed on the ability to understand and follow instructions as well as the ability to maintain balance during the instruction stage and walking stage.

vertical nystagmus - nystagmus that occurs when the eyes gaze or move upward along a vertical plane.

vestibular system - The system of fluid-filled canals located in the inner ear that assists in balance, coordination and orientation.

vestibular system nystagmus - Nystagmus caused by a disturbance in the vestibular system.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

8. You must wait 5-10 years to expunge a first offense. 2C:52-3

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.

11. You may be required to do Community Service.

12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.

13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.

14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

15. You lose the presumption against incarceration in future cases. 2C:44-1

16. You may lose your right to vote.

The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.

Jail for Crimes and Disorderly Conduct:

If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.

NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;

(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;

(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;

(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.

2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:

a. (1) $200,000.00 when the conviction is of a crime of the first degree;

(2) $150,000.00 when the conviction is of a crime of the second degree;

b. (1) $15,000.00 when the conviction is of a crime of the third degree;

(2) $10,000.00 when the conviction is of a crime of the fourth degree;

c. $1,000.00, when the conviction is of a disorderly persons offense;

d. $500.00, when the conviction is of a petty disorderly persons offense;


Drug Recognition - Predicate Questions to Arresting/SFST Officer-New articles, ABA newsletters and Community events

Drug Recognition - Predicate Questions to Arresting/SFST Officer

  1. State your name for the record.
  2. Where are you employed?
  3. What is your current assignment with the police department?
  4. How long have you been assigned to traffic patrol?
  5. Were you on duty _____________(date)?
  6. Did you stop a _______________________________ (description of car)?
  7. When you walked up to the car what did you see?
  8. Did you notice anything else about the defendant?

  9. (There may be a number of foundation questions or questions surrounding the stop that you want to ask the officer. This list of predicate questions is strictly to assist in admitting the HGN test at trial. You will want to develop your own questions for other areas of examination.)
  10. Did you ask the defendant to perform field sobriety tests?
  11. What are field sobriety tests?
  12. Were you trained in administering these tests?
  13. Officer, I want to ask you specifically about a test known as horizontal gaze nystagmus or HGN. Are you familiar with this test?
  14. What part of the body are you observing when you give this test?
  15. Have you received specific training in the administration of the HGN test?
  16. What is HGN?
  17. Where did you receive your training in the administration of the HGN test?
  18. How many hours of training did you receive?
  19. When did you receive this training?
  20. Who were the instructors?
  21. Was there an alcohol workshop as part of your training?
  22. What is an alcohol workshop?
  23. So you know at the workshop that people have probably been drinking. Do you know how much an individual has had to drink before you test him/her?
  24. Do all of the subjects at the alcohol workshop drink?
  25. Do you know before administering the field sobriety tests whether a particular subject has been drinking or not?
  26. Other than the alcohol workshops, have you given the HGN test to persons that you knew were sober?
  27. Under what circumstances?
  28. What differences have you observed in the eye movements of sober persons vs. impaired persons in doing this exercise?
  29. When you learned the HGN test, were you required to pass a practical skills examination?
  30. Please describe this examination.
  31. As a result of your training, did you receive any certificates?
  32. From what organization(s) did you receive this certificate?
  33. Do you have this certificate here today?
    (If you wish to have the certificate entered into evidence, be sure to have a photocopy to submit. Have the officer bring the original in case there are questions about authenticity, however, enter the photocopy into evidence. Otherwise, the officer may not get the certificate back for months.)
  34. Have you had any additional training in the administration of the HGN test other than that which you have just described?
  35. Please describe that training.
  36. Approximately how many times have you given the HGN test?
  37. Do you keep a log of the times you have administered the HGN test?
  38. (This is not required and the officer may not maintain a log. Be sure to check this in advance.)
  39. What is your purpose in maintaining this log?
  40. Officer, based on your training and experience, is the presence of HGN a reliable indicator that a person has consumed alcohol?
  41. Is there a standard way in which the test for HGN should be given?
  42. Please describe the test.
    (You might offer as demonstrative evidence a videotape of the HGN test. However, some courts may find such evidence too prejudicial.)
  43. What specifically are you looking for when you administer this test?
  44. Did you give the test to the defendant in the same way that you have described?
  45. Did you ask the defendant if s/he understood what s/he was supposed to do?
  46. Did s/he indicate that s/he understood?
  47. Did the defendant have any difficulty in following your directions?
  48. Officer, I would like to ask you about the six clues you previously testified that you are looking for when you give this test. What is the first clue of the HGN test?
    (Lack of smooth pursuit)
  49. Can you describe for the jury what you mean by a lack of smooth pursuit?
  50. When you gave this part of the test to the defendant, what did you see?
  51. What is the second clue of the test?
    (Distinct nystagmus at maximum deviation)
  52. How long do you hold the stimulus at the point of maximum deviation?
  53. Why?
  54. When you gave this part of the test, what did you see?
  55. What is the final part of this test?
    (Angle of onset)
  56. How is this part of the test done?
  57. How do you estimate the angle of onset?
  58. When you gave this part of the test to the defendant, what did you see?
  59. What did your observations of the defendant's performance on this test indicate to you?
  60. In your experience, is there a connection between horizontal gaze nystagmus and the amount of alcohol a person has consumed?
  61. What is that connection?
    (Be clear before trial that you are not asking the officer to tell you that a specific angle of onset equals a specific BAC. The information you are seeking is that people who have been drinking tend to show nystagmus and the more they have had to drink, the easier the nystagmus is to see. You might even have a judge allow the officer to state that the earlier the angle of onset, the higher the BAC but be careful not to sound as if a numeric correlation is being made.)
  62. Officer, are the clues you saw when you administered the test to defendant indicative of alcohol impairment?
  63. Based on your training and experience, what does the presence of all six clues indicate?
  64. And how many clues did you see when you gave the test to the defendant?

Monday, June 20, 2011

Driving Without Insurance Defenses-New articles, ABA newsletters and Community events

Driving Without Insurance Defenses

Driving Without Insurance Defenses

Presumption does not equal guilty

By Kenneth A. Vercammen

The mandatory penalties imposed for driving without insurance are greater than the first-offender penalties for drunk driving or possession of marijuana. Mandatory penalties include automatic loss of license for one year, a $300-$1,000 fine and a period of community service to be determined by the municipal court. N.J.S.A. 39:6B-2. The no-car-insurance statute is one of the few strict liability statutes. There are also court costs and insurance surcharges of $250 per year for three years. Failure to produce at the time of trial an insurance card or insurance policy covering the date of the offense creates a rebuttable presumption that the person was uninsured when charged with the offense. Remember, however, that a presumption does not equal guilty.

In State v. Kopp, 171 N.J. Super. 528 (Law Div. 1980), a law division judge held that knowledge of lack of insurance is not a defense. However, the section, which imposes penalties against an individual who operates a motor vehicle without liability insurance, does not apply to a New Jersey resident who is driving an automobile owned by an out-of-state friend who had been in New Jersey for five weeks. State v. Arslanouk, 67 N.J. Super. 387 (App. Div. 1979).

The most important no-insurance case is State v. Hochman, 188 N.J. Super. 382 (App. Div. 1982). The Appellate Division examined and reversed a conviction for operating without liability insurance where the state failed to carry its burden of proving that automobile liability insurance was lawfully canceled. In this fact-specific case, defendant was charged with operating a vehicle he owned without insurance. It was stipulated that because of long hours defendant worked, he had asked his wife to look after household matters, including insurance matters, and gave her several thousand dollars each month to pay for them. Defendant Hochman’s wife arranged through an insurance broker to have Allstate insure the vehicle. The insurance broker then arranged to finance the insurance premiums through a “Lee Finance” financial service. The defendant’s wife then paid the broker and agreed to pay the balance to the financial service in monthly installments of $48.

Although Allstate claimed it mailed a cancellation notice, it stipulated that it had mailed the cancellation notice to an incorrect address, i.e., mailing it to 313 Park Street rather than 314 Park Street. The Appellate Division noted that in order to convict a defendant-owner of operating a motor vehicle in violation of the insurance provisions, the state did not have to show a culpable mental state, i.e., that defendant knew his vehicle was uninsured. The state simply had the burden of proving beyond a reasonable doubt that (1) defendant owned the vehicle, (2) the vehicle was registered in New Jersey, (3) defendant operated the vehicle or caused it to be operated upon any public road or highway in this state, and (4) the vehicle was without liability insurance coverage required by N.J.S.A. 39:6B-1.

The Appellate Division in Hochman held that the first three elements of the offenses were proven beyond a reasonable doubt. The pivotal issue was whether the state had proven beyond a reasonable doubt the fourth element of the defense, that the vehicle was uninsured. The question was thus whether the liability insurance policy had been lawfully and effectively canceled when defendant Hochman was charged for the offense. The court found that Allstate had not properly canceled the insurance policy. The Hochman court held;

A notice of cancellation of a policy of automobile liability insurance is effective in this State only if it is based on one

or more statutorily enumerated reasons, including the nonpayment of premiums. N.J.S.A. 17:29C-7(A)(a). Moreover, prior to March 10, 1981, where, as here, the cancellation was for nonpayment of premiums, the notice of cancellation must have been mailed or delivered by the insurance carrier (here Allstate) to the insured (here either defendant or his wife) at least ten days prior to the effective date of cancellation and must have been accompanied by a statement of the reason given for such cancellation. N.J.S.A. 17:29C-8. Weathers v. Hartford Ins. Group 77 N.J. 228, 234 (1978). Proof of mailing the notice, however, is not conclusive on the issue. The insured may still offer proof that he never received the notice “for the purpose of refuting the hypothesis of mailing.”

The Hochman court noted that although Allstate claimed that a notice of cancellation was sent to the defendant’s wife, this did not establish that the notice satisfied the statutory requirement of N.J.S.A. 17:29C-8. There is no proof that the notice mailed to the named insured (assuming that defendant’s wife was the insured named in the policy) or that it was mailed to the address shown in the policy, or that its contents complied with statutory requirements. The court held “thus, we are constrained to hold that the state failed to sustain its burden of proving beyond a reasonable doubt that the Allstate automobile liability insurance policy covering defendant’s vehicle was lawfully canceled. The Allstate policy therefore was presumptively in full force and effect... and defendant’s conviction for violating the compulsory insurance provisions of N.J.S.A. 39:6B-2 cannot stand.”

Operation is different in no-insurance matters than in drunk-driving cases. A defendant who is seated in the driver’s seat, behind the steering wheel of a vehicle that is under tow and was in physical control of the vehicle did not “operate” the vehicle for the purposes of prohibiting operating the vehicle while suspended, operating an uninsured vehicle and operating an unregistered vehicle, where the vehicle did not have an engine and was incapable of being operated under its own power. Counsel can argue the state must prove the defendant drove the vehicle. State v. Derby 256 N.J. Super. 702 (Law Div. 1992).

In a case involving Personal Injury Protection/No Fault PIP benefits, the Appellate Division ruled that an insurance company did not properly mail a notice of cancellation, thus the policy was not canceled. See Hodges v. Pennsylvania National Insurance Company, 260 N.J. Super. 217, 222-23 (App. Div. 1992).

In order to be effective, notice of cancellation “must be set in strict compliance with the provisions of N.J.S.A. 17:29C-10.” Lopez v. New Jersey Automobile Full Underwriting Association 239 N.J. Super. 13, 20,(App. Div.), certif. den. 122 N.J. 131 (1990) (absence of proof of personal knowledge of mailing by postal employee or insurer employee renders notice ineffective). The court questioned whether the stamped proof of payment of money in postage was proof of mailing. The Appellate Division in Hodges noted that our courts have interpreted the statute to require a precise proof of mailing, usually the official “U.S. Postal Service Certificate of Mailing.”

If a husband and wife, or both, are named in the policy, Lumbermens Mutual Casualty Co. v. Carriere, 170 N.J. Super. 437, 450 (Law Div. 1979), supports the proposition that both husband and wife named in the policy should receive notice.

A bad check will permit an insurer to cancel insurance policy. In Abdel-Rahman v. Ludas, 266 N.J. Super. 46, 48 (App. Div. 1993), the court held an insured’s failure to pay the premium, which occurs when the check is dishonored, entitles the insurer to cancel the policy.

Nonowner-operated Cases

The charge of simple operation without insurance in nonowner-operated cases presents additional viable defenses to the charge of no insurance. There is not a strict liability provision involving mere operators. The state must prove the operator knew or should have known from the attendant circumstances that the motor vehicle was without motor vehicle liability coverage. Such facts can be gathered from the relationship between the parties, whether or not the vehicle had a valid inspection sticker and testimony by the owner, who often is also issued an uninsured motorist charge.

In Matlad v. US Services, 174 N.J. Super. 499 (App. Div. 1980), where the husband cancelled the policy without telling his wife, deletion was void as against public policy and coverage continued for the wife. The defendant/owner must operate or cause the car to be operated. If a driver took the car without permission that day, the owner did not cause the vehicle to be operated.

The state is still required to provide discovery. Occasionally a case is dismissed because the state failed to provide discovery.

When there is no accident and sympathetic facts, a prosecutor should offer a plea bargain so a driver and taxpayer does not suffer a one-year loss of license. The prosecutors and courts should seek justice, not punishment, which would usually mean loss of a job due to no license. It is also time for the Legislature to enact a limited “Drive to work” license. ■

Reprinted with permission from the JANUARY11, 2010 edition of New Jersey Law Journal. © 2010 ALMMedia Properties, LLC. All rights reserved. Further duplication without permission is prohibited.


NJSA 39:6b-2 Driving Without Insurance - Strict Liability and Substantial Penalties-New articles, ABA newsletters and Community events

NJSA 39:6b-2 Driving Without Insurance - Strict Liability and Substantial Penalties


The mandatory penalties imposed for driving without insurance is greater than the first offender penalties for drunk driving or possession of marijuana. Mandatory penalties include automatic loss of license for one year, $300.00 fine and a period of community service to be determined by the Municipal Court. N.J.S.A. 39:6B-2 The no car insurance statute is one of the few strict liability statutes. "Every owner or registered owner of a motor vehicle registered or principally garaged in this state shall maintain motor vehicle coverage, under provisions approved by the Commissioner of Insurance." N.J.S.A. 39:6B-1 There are also court costs and insurance surcharges of $250.00 per year for three years. Failure to produce at the time of trial an insurance card or insurance policy covering the date of the offense creates a rebuttable presumption that the person was uninsured when charged with the offense.

In State v. Kopp, 171 NJ Super 528 (Law Div. 1980), the courts established that knowledge of lack of insurance is not a defense. The legislative intent is clear that knowledge of lack of insurance is not an essential element which must be proved in order to sustain a conviction of an owner who operates a car without insurance. However, the section which imposes penalties against an individual who operates a motor vehicle without liability insurance does not apply to a New Jersey resident who is driving an automobile owned by an out-of-state friend who had been in New Jersey for five weeks. State v. Arslanouk, 67 NJ Super 387 (App. Div. 1979)

The Appellate Division, in the State v. Hochman, 188 NJ Super 382 (App. Div. 1982) examined and reversed a conviction for operating without liability insurance where the State failed to carry its burden of proving that an automobile liability insurance was lawfully canceled. In this fact specific case, defendant was charged with operating a vehicle he owned without insurance. It was stipulated that because of long hours defendant worked, he had asked his wife to look after household matters, including insurance matters, and gave her several thousand dollars each month to pay for them. Defendant Hochmans wife arranged through an insurance broker to have Allstate insure the vehicle. The insurance broker then arranged to finance the insurance premiums through a "Lee Finance" financial service. The defendants wife then paid the broker and agreed to pay the balance to the financial service in monthly installments of $48.00. Id at 384.

Thereafter, defendant Hochmans wife made payments to the financial service through October 13, 1979. On October 15, 1979 Allstate informed defendants wife by mail that there was due and owing a premium of $331.00 and payment should be made immediately. The defendants wife notified the broker that she had received a letter from Allstate and reminded the broker that the insurance premiums were being financed through the finance agency pursuant to financing agreement arranged by it and therefore she did not have to pay the balance of the account.

The insurance broker informed the Defendant Hochmans wife that it would investigate the problem and contact her. In January 1980, because the defendants wife had not heard from the insurance broker, she again contacted the insurance broker and informed him that she had received no further correspondence from Allstate. She inquired into the status of the insurance of the vehicle, the broker informed the defendants wife they were still investigating the problem and would contact her when it had been resolved. It was further stipulated in Court that defendant was never told by his wife of the finance agreement or of the difficulties she had encountered with the insurance. In May 1980, defendant was transferred to another office and needed to use the car to get to work. According to stipulated facts, defendants wife told the defendant that the vehicle could be driven. Defendant, relying upon what his wife had told him and believing that the vehicle was insured, drove the vehicle until July 15, 1980 when he was charged with violating the compulsory insurance provisions of N.J.S.A. 39:6B-2.

The insurance broker, as an agent, had issued an insurance identification card indicating the insurance would remain in effect from the period August 28, 1979 to August 28, 1980. In December 1979 defendant and his wife moved from the residence in Montclair and left a forwarding address. Thereafter in preparing for trial defendant learned that in October and November 1979 Lee Finance had liquidated without informing its clients, including defendants wife.

Although Allstate claimed it mailed a cancellation notice, it stipulated that it had mailed the cancellation notice to an incorrect address, mailing it to 313 Park Street rather than 314 Park Street. The broker, First City, never informed defendants wife, despite her inquiry, that Allstate had canceled the insurance policy or that the finance agency had liquidated, or that she could reinstate the policy by paying the balance due on the annual premium. The Appellate Division noted that in order to convict a defendant-owner of operating a motor vehicle in violation of the insurance provisions, the State did not have to show a culpable mental state, i.e., that defendant knew his vehicle was uninsured. The State simply had the burden of proving beyond a reasonable doubt that (1) defendant owned the vehicle, (2) the vehicle was registered in New Jersey, (3) defendant operated the vehicle or caused it to be operated upon any public road or highway in this State, and (4) the vehicle was without liability insurance coverage required by N.J.S.A. 39:6B-1. Id at 387.

The Appellate Division held that the first three elements of the offenses were proven beyond a reasonable doubt. The pivotal issue was whether the State had proven beyond a reasonable doubt the fourth element of the defense, that the vehicle was uninsured. The question was thus whether the liability insurance policy had been lawfully and effectively canceled when Defendant Hochman was charged for the offense. The Court found that Allstate had not properly canceled the insurance policy. The Court held;

"A notice of cancellation of a policy of automobile liability insurance is effective in this State only if it is based on one or more statutorily enumerated reasons, including the nonpayment of premiums. N.J.S.A. 17:29C-7(A)(a). Moreover, prior to March 10, 1981, where, as here, the cancellation was for nonpayment of premiums, the notice of cancellation must have been mailed or delivered by the insurance carrier (here Allstate) to the insured (here either defendant or his wife) at least ten days prior to the effective date of cancellation and must have been accompanied by a statement of the reason given for such cancellation. N.J.S.A. 17:29C-8. Proof of mailing of the notice of cancellation to the named insured at the address shown in the policy was deemed sufficient proof of notice. N.J.S.A. 17:29C-10. Under this latter statue, cancellation was effective whether or not the insured actually received notice of cancellation because proof of mailing, not proof of receipt, was the determinative factor. See Weathers v. Hartford Ins. Group, 77 N.J. 228, 234 (1978. Proof of mailing the notice, however, is not conclusive on the issue. The insured may still offer proof that he never received the notice "for the purpose of refuting the hypothesis of mailing." Id. at 235. Thus, in Weathers, the Supreme Court held:

Although the inference of non-mailing provided by evidence of non-receipt might in most cases be outweighed by the inferences of mailing which may be drawn from a certificate of mailing whose reliability has been established, we discern no cogent reason for depriving the trier of fact of such evidence by holding it inadmissible , they are not conclusive of that issue and do not preclude the existence of a genuine issue of material fact in the face of a claim of non-receipt so as to entitle the insurer to judgment as a matter of law. See Sudduth v. Commonwealth County Mutual Ins. Co., 454 S. W. 2d 196 (Tex. Sup. Ct. 1970); 9 Wigmore on Evidence (3d ed. 1940) Sec. 2519; cf. Fitzpatrick v. Merchants and Manufacturers Fire Ins. Co., 122 N.J.L. 468 (E. &A. 1939). The contrary holding of Womack v. Fenton, 28 N.J. Super. 345 (App. Div. 1953), on this point is hereby overruled. Permitting the fact finder to consider the addressee-insureds denial of receipt of the notice of cancellation does not improperly add to the insurers statutory burden of proving mailing by requiring it to prove actual receipt of the notice since such testimony is admissible only as the basis for an inference of its non-mailing. The insurer still need only prove constructive notice by adequately establishing that the notice of cancellation was mailed. Hochman at 388-389 Weathers at 235-236

The court noted that although Allstate claimed that a notice of cancellation was sent to the defendants wife, this did not establish that the notice satisfied the statutory requirement of N.J.S.A. 17:29C-8. There is no proof that the notice mailed to the named insured (assuming that defendants wife was the insured named in the policy) or that it was mailed to the address shown in the policy, or that its contents complied with statutory requirements. The court held "thus, we are constrained to hold that the State failed to sustain its burden of proving beyond a reasonable doubt that the Allstate automobile liability insurance policy covering defendants vehicle was lawfully canceled. The Allstate policy therefore was presumptively in full force and effect... and defendants conviction for violating the compulsory insurance provisions of N.J.S.A. 39:6B-2 cannot stand. Hochman at 389-390.

The insurance statutes under Title 19 of the New Jersey laws contain provisions which sometimes provide that all members of a household are covered under a policy issued to one member even if their name is not set forth on the policy. The uninsured defendant who lives with someone who owns an insured car may be included under that persons policy.

Operation is different in non-insurance matters than in drunk driving cases. A defendant who is seated in the drivers seat, behind the steering wheel of a vehicle that is under tow and was in physical control of the vehicle did not "operate" the vehicle for the purposes of prohibiting operating the vehicle while suspended, operating uninsured vehicle and operating unregistered vehicle, where the vehicle did not have an engine and incapable of being operated under its own power. Counsel can argue the state must prove the defendant drove the vehicle. State v. Derby, 256 N.J. Super. 702, (Law Div. 1992).

In a case involving Personal Injury Protection/ No Fault PIP benefits the Appellate Division recently ruled that an insurance company did not properly mail a notice of cancellation, thus the policy was not canceled. In Hodges v. Pennsylvania National Insurance Company, _____ NJ Super. _____ (App. Div. 1992), plaintiff was in a motor vehicle accident operating a vehicle owned by her mother. Plaintiff filed a PIP suit against the insurance company which had refused to pay medical bills and property damage. Defendants insurance company claimed it canceled Alva Hodges policy on December 16, 1988 for failure to remit the premium payment. Defendant submitted two pages of a November 28, 1988 "JUA Mailing List," which indicated Alva Hodges as an insured who was scheduled to be sent a notice of cancellation. The mailing list contained two November 28 stamps of the Harrisburg Post Office and two stamps of postage for the numerous letters of $39.00 and $99.75. The two postage stamps together totaled $138.75. The list claimed a "total mailing" of 640 notices. Plaintiff pointed out that a mailing of 640 notices at $.25 per piece (the 1988 postage stamp price) should have totaled $160.00. Because defendant paid only $138.75, plaintiff contends that all the lists and notices may not have been mailed. The mailing list also contained a signature and certification of one of the defendants employees.

Plaintiffs counsel in Hodges pointed out that the Post Offices standard proof of mailing procedure differed from defendants use of a preprinted mailing list. Plaintiff pointed out that the US Postal Service utilizes a "Certificate of Mailing," PS Form 3817, for the purposes documenting proof of mailing by regular mail. Prior to the stamping of this receipt, the Postal Service employees individually compares the receipt with the item being mailed. These forms are available in advance from the Post Office. (A copy of the first class mailing Certificate of Mailing was included as a footnote to the Courts opinion.) The Hodges Court noted that N.J.S.A. 17:29C-10 specifically enumerates the circumstances on which a notice of cancellation is effective:

"no written notice of cancellation or of intention not to renew sent by an insurer to an insured in accordance with the provisions of an automobile insurance shall be effective unless a. (1) it is sent by certified mail, or (2) at the time of the mailing of said notice by regular mail, the insurer has obtained from the Post Office Department a date stamped proof of mailing showing the name and address of the insured and b. the insurer has retained a duplicate copy of the mailed notice which is certified to be true. Slip op at 6. [Emphasis added by the Court.]

In order to be effective, notice of cancellation "must be set in strict compliance with the provisions of N.J.S.A. 17:29C-10." Citing Lopez v. New Jersey Automobile Full Underwriting Association, 239 NJ Super. 13, 20, (App. Div.), certif. den. 122 N.J. 131 (1990) (absence of proof of personal knowledge of mailing by postal employee or insurer employee renders notice ineffective). The Court questioned whether the stamped proof of payment of money in postage was proof of mailing. The Appellate Division in Hodges noted that our Courts have interpreted the statute to require a precise proof of mailing, usually the official "U.S. Postal Service Certificate of Mailing."

In Celino v. General Accident Insurance, 211 N.J. Super. 538 (App. Div. 1986), the Court ruled that this specific postal certificate of mailing satisfied the statutes proof of mailing requirement. Celino at 540-541 (determining that the insurers notice was ineffective because insured failed to retain a duplicate copy of the notice, thereby violating part (b) of the statute). The Appellate Division in Celino determined that defendants proof of payment of postage and the employees certification fell far short of the quality of proof inherent in an official post office certificate. Because the defendants proofs were insufficient to establish compliance with the statute, there existed an unresolved issues of fact. The Appellate Division found that the trial court erred and granting in summary judgment and remanded the question as to notice for further proceedings.

If there is a question involving improper cancellation or improper notice, we would suggest your attorney prepare a subpoena to the insurance company and also a hand delivered subpoena to your insurance broker. You may discover notice of cancellation was improper or notices mailed to the wrong address. We all know the poor track record by JUA and MTF companies.

If a husband and wife, or both, are named in the policy, Lumbermens Mutual Casualty Co. v. Carriere 170 N.J. Super. 437, 450 (Law Div. 1979) supports the proposition that both husband and wife named in the policy should receive notice.

A cancellation notice is invalid if issued before the premium due date. Recently, in Christian v. Ormsby, _____ N.J. Super _____ (Law Div. decided December 18, 1992), the court held under N.J.S.A. 17:29C-8, an automobile insurer may not issue a cancellation notice to the insured for non-payment of premiums before the date on which the premium is due. (This case also dealt with the incompetent JUA.) The Christian notices of cancellation and a reminder notice were mailed by Liberty Mutual. However, the court found that the notice was ineffective to cancel the policy before the accident Plaintiff Christian was involved in. The court found that although the notice issued by Liberty Mutual to the Christians on October 21, 1987 stated its reason for cancellation as "non-payment of premium," the court found that, on the date the notice was mailed, the Christians premium to the JUA was not past due and the Christians were not yet in default.

The court also rejected the JUAs argument that the cancellation notice could have been mailed at any time after the premium notice, so long as it did not become effective until after the due date. The court interpreted the statutory language requires 15 days notice of cancellation in a language referring to "non-payment of premium" together to imply a legislative intent to provide with a 15-day grace period after default in the payment of an automobile insurance policy premium before the insurer is able to effectively cancel the policy. The purpose is to allow defaulting policyholders an opportunity during that grace period to pay their premiums and to keep the policy in force. Consequently, any cancellation notice issued before such default is premature and invalid.

A bad check will permit insurer to cancel insurance policy. In Abdel-Rahman v. Ludas, _____ NJ Super _____ (App. Div. decided July 7, 1993), an insurers acceptance of a check in payment of a premium is conditioned upon payment by the drawee institution. An insureds failure to pay the premium, which occurs when the check is dishonored, entitles the insurer to cancel the policy. On August 13, 1990, Ohio Casualty issued a three-month, short-term reinstatement of policy. Included in the reinstatement letter to the insured was a notice advising the reinstatement would be considered void from its inception if the check accepted in payment of the reinstatement was dishonored when presented to the drawee bank.

On August 22, Ohio Casualty learned that the check was dishonored by the insureds bank. Having a policy of presenting a check twice for payment, Ohio Casualty redeposited the check that same date. The check was again returned for insufficient funds on August 24. On both occasions the bank mailed notices of the dishonoring to the insured. The insureds bank statement also indicated that the checks had been dishonored.

Ohio Casualty canceled insured Ludas policy on September 6, 1990. On September 12, 1990, the company informed Ludas of the cancellation, which was retroactively effective July 29, 1990. The insured did no dispute the facts but claimed that the family made a mistake and deposited the money into the wrong account. Both the motion judge and the Appellate Division found that mere delivery of the check, "a worthless piece of paper," to the insurer was not enough to keep the policy in effect.

The non-insurance NJSBA 39:6B-2 statute provides there is a rebuttable presumption of no insurance if no card or policy produced. Remember, however, that a presumption does not equal guilty.

The charge of simple operation without insurance by the non-owner presents additional viable defenses to the charge of no insurance. There is not a strict liability provision involving mere operators. The State must prove the operator knew or should have known from the attendant circumstances that the motor vehicle was without motor vehicle liability coverage. Such facts can be gathered from the relationship between the parties, whether or not the vehicle had a valid inspection sticker and testimony by the owner who often is also issued an uninsured motorist charge.

In Matlad v. US Services, 174 NJ Super. 499 417 A. 2d 46 (App. Div. 1980), where husband canceled policy without telling wife, deletion was void as against public policy and coverage continued for wife. The defendant/owner must operate or cause the car to be operated. If a driver took the car without permission that day, the owner did not cause the vehicle to be operated.

The State is still required to provide discovery. Occasionally a case is dismissed because the State failed to provide discovery. The bottom line is never let your insurance expire. Mandatory penalties are automatic loss of license for one year, $300.00 fine and a period of community service to be determined by the Municipal Court. If you dont have insurance, dont drive.

No insurance penalties increased 2002

39:6B-2. Penalties

2. Any owner or registrant of a motor vehicle registered or principally garaged in this State who operates or causes to be operated a motor vehicle upon any public road or highway in this State without motor vehicle liability insurance coverage required by this act, and any operator who operates or causes a motor vehicle to be operated and who knows or should know from the attendant circumstances that the motor vehicle is without motor vehicle liability insurance coverage required by this act shall be subject, for the first offense, to a fine of not less than $300 nor more than $1,000 and a period of community service to be determined by the court, and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of conviction.? Upon subsequent conviction, he shall be subject to a fine of up to $5,000 and shall be subject to imprisonment for a term of 14 days and shall be ordered by the court to perform community service for a period of 30 days, which shall be of such form and on such terms as the court shall deem appropriate under the circumstances, and shall forfeit his right to operate a motor vehicle for a period of two years from the date of his conviction, and, after the expiration of said period, he may make application to the Director of the Division of Motor Vehicles for a license to operate a motor vehicle, which application may be granted at the discretion of the director. The directors discretion shall be based upon an assessment of the likelihood that the individual will operate or cause a motor vehicle to be operated in the future without the insurance coverage required by this act. A complaint for violation of this act may be made to a municipal court at any time within six months after the date of the alleged offense.

Failure to produce at the time of trial an insurance identification card or an insurance policy which was in force for the time of operation for which the offense is charged creates a rebuttable presumption that the person was uninsured when charged with a violation of this section.

L.1972,c.197,s.2; amended 1983, c.141, s.1; 1987, c.46; 1988, c.156, s.15; 1990, c.8, s.49; 1997, c.151, s.12.

39:6B-3. Uninsured motorist prevention fund The Uninsured Motorist Prevention Fund (hereinafter referred to as the "fund" ) is established as a nonlapsing, revolving fund into which shall be deposited all revenues from the fines imposed pursuant to section 2 of P.L. 1972, c. 197 (C. 39:6B-2). Interest received on moneys in the fund shall be credited to the fund. The fund shall be administered by the Division of Motor Vehicles in the Department of Law and Public Safety.? Moneys in the fund shall be allocated and used for the purpose of the administrative expenses of the fund and enforcement of the compulsory motor vehicle insurance law, P.L. 1972, c. 197 (C. 39:6B-1 et seq.) by the Division of Motor Vehicles.

L.1983, c. 141, s. 2, eff. April 20, 1983.

NJSA 39:3-40 Driving While Suspended in New Jersey-New articles, ABA newsletters and Community events

NJSA 39:3-40 Driving While Suspended in New Jersey

39:3-40 Driving on a Suspended License in New Jersey.

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 over $1,261 in fines, surcharge and costs, motorists should be certain not to allow their license to become suspended. If charged, motorists may need an attorney with knowledge and skill in handling driving while suspended matters.

The violation of Driving While Suspended is set forth at NJSA 39:3-40. This section states, no person to whom a drivers license has been refused or whose drivers license or reciprocity privilege has been suspended or revoked or who has been prohibited from obtaining a drivers 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 fine of $500.00. The defendant will also be surcharged a mandatory $250.00 per year for 3 years in every DWS by the DMV. Upon conviction for the second offense a fine of $750.00 and imprisonment in the county jail for not more than 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, upon the conviction the court shall impose or extend a period of suspension not to exceed 6 months. Also, upon conviction the court shall impose a period of imprisonment for not less than 45 days, if while operating a vehicle in violation of this section a person is involved in an accident resulting in personal injury to another person.

If an individual violates this section while under suspension issued pursuant to 39:4-50, driving while under the influence of liquor or drugs and is convicted, 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 may be in the county jail for not more than 90 days. The defendant will also be surcharged a mandatory $250.00 per year for 3 years.

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.

There are two types of license suspension :

1. Court imposed suspension

2. Administrative / Division of Motor Vehicles suspension

The most common scenario reflects where that the driver, through a motor vehicle violation, failure to pay surcharge or a accumulated points has been placed on a suspended list maintained by the New Jersey Division of Motor Vehicles (Division of Motor Vehicles), thereby making them ineligible to operate a motor vehicle for a prescribed period of time in this state.

If the driver is aware that they are on the suspended list and acknowledged they were suspended to the police officer there is little room for defense However, more often than not the driver claims that they were unaware of their placement on the suspension list.

The scenario that will often be presented by the driver 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 Driving While Suspended. Over the past decade several New Jersey cases have crafted the current position on the driving while suspended issue that often confronts many municipal courts throughout the state.

THE STATE MUST SHOW DUE PROCESS AND ADEQUATE NOTICE

The first and foremost is that of 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 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 Division of Motor Vehicles sent to a written notice of proposed suspension (for failure to satisfy a summons) by regular mail. The Division of Motor Vehicles thereafter sent an order of suspension by ordinary mail. The notices were mailed to the defendants last address. By failing to leave a forwarding address informing the Division of Motor Vehicles 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. 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 Division of Motor Vehicles 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 supra the defendant was found guilty that case was distinguished in Ha mmond. 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

If the driver 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 6-12 months), driving while suspended (up to 6 months), driving without insurance (1 year), possession of Marijuana or paraphernalia (6 months-2 years). A Municipal Court also has the power to suspend a drivers license for driving while suspended, reckless driving, excessive speeding, leaving the scene of an accident or even where the judge finds a person guilty of such a willful violation of the subtitle as shall in the courts discretion, justify such revocation (39:5-31).

If the drivers license was suspended by a court, the state in a subsequent Driving While Suspended needs to introduce into evidence only a certified abstract from the Division of Motor Vehicles. 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. Examples include defendant not notified to be in court and the court then acting without the defendant being present. Possibly, the prior suspension could be attached in the original court as being illegal and/or unconstitutional. This is permitted under State v. Laurick. 120 NJ 1 (1990)

NOTICE BY Division of Motor Vehicles

Where the driver was suspended by the Division of Motor Vehicles, the state must 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.

A certified abstract alone is not sufficient to convict if the defendant was suspended only by the Division of Motor Vehicles.

If the order of suspension was mailed on December 1, 1991 and the Driving While Suspended offense took place December 2, 1991, a good defense is that the Order did not reach his house until after the ticket for Driving While Suspended.

Many suspensions today are 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.

DEFENSES

A valid suspension of a drivers license cannot be effectuated in the absence of a written notice to the license 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 its research does not statutory revealing authority for the Municipal Judge to suspend driving privileges. Id at 362

Motorists suspended for any reason remains suspended until they pay a $50.00 Division of Motor Vehicles restoration fee. According to the harsh decision in State v. Zalta 217 N.J. Super. 142 (Law Div. 1987) even if a prior court imposed suspension is over 6 months on DWI, the suspension continues until actual restoration of the license.

Plea bargaining is permitted in Driving While Suspended matters. Many court adhere to the language of State v. Somma 215 N.J. Super. 142 (Law Div 1986) where the court determined that the failure to pay the $50.00 fee for restoration of the suspended drivers 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 Driving While Suspended and the equitable rationale of State v. Somma is followed.

Few courts inform a driver charged with Driving While Suspended 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 Division of Motor Vehicles insurance surcharges or face other new penalties.

Few drivers are aware of the new provisions of NJAC 11:3-34, operative date April 1, 1991, which allows insurance companies to charge additional surcharge to drivers. These new insurance company surcharges are in a addition to Division of Motor Vehicles surcharges and fines. Several non MTF insurance companies have already received approval to charge between $37.00 and $218.00 for each point a driver accumulates. For Driving While Suspended pursuant to 2C N.J.R. 576 a driver is given 9 Automobile Eligibility Points.

Hundreds of drivers in 1992 with be in for a rude awakening when they discover they were dropped by their personal carrier, sent to the MTF and have to pay substantial additional carrier surcharges on top of Division of Motor Vehicles surcharges.

Given the difficult economic times and high cost of insurance, many drivers simply cant afford to both drive to work and pay for insurance. These drivers will often get caught driving without insurance. The mandatory suspension for this violation will be putting hundreds of drivers on the ever increasing suspension list.

PARKING ADJUDICATION ACT OFFENDER

Scofflaws who took their parking tickets and threw them away or forgot to pay tickets will now have these 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 drivers license. Pursuant to NJSA 39:4-139.10(b) the judge or the Division of Motor Vehicles may now suspend the drivers 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.

CONTESTING PROPOSED ADMINISTRATIVE SUSPENSIONS

The DMV, prior to suspending a license, or taking specific actionagainst 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 DMV becomes effective on the date set forth on the notice except when otherwise specified, unless the licenses 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 DMV may either deny the request for a hearing, require a prehearing conference with a DMV employee, or transmit of the matter to the Office of Administrative Law for a hearing pursuant to NJAC 1:1.

The DMV 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 DMV and the licensee (ie- reduce suspension period -ex 180 days to 100 days).

If the license except 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)

ENHANCED PENALTIES

As set forth previously, the Driving While Suspended calls for mandatory enhanced penalties on conviction second and third offense. What counts as an offense? Both the Division of Motor Vehicles and a court can suspend a driver for driving while suspended.

In State vs. Conte, 245 NJ Super. 629 (Law Div. 1990) the court examined a case where a defendant driver had two prior administrative suspensions by the DMV 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:

The word conviction is not defined in the statute. Blacks Law Dictionary defines conviction as the final judgment in a verdict or finding of guilty... Blacks 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 vs. 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 vs. 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 DMV 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 vs. Conte, 245 N.J. Super. at 631

The sentence imposed was reversed and the matter remanded for sentencing as a first offender.

Updated statute in 2002:

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

39:3-40. No person to whom a drivers license has been refused or whose drivers license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a drivers 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 subsection i. 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 violators drivers 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 violators 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 not more than five days and, if the second offense involves the operation of a motor vehicle during a period when the violators drivers license is suspended and that second offense occurs within five years of a conviction for that same offense, revocation of the violators 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, imprisonment in the county jail for 10 days and, if the third offense involves the operation of a motor vehicle during a period when the violators drivers license is suspended and that third offense occurs within five years of a conviction for the same offense, revocation of the violators 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) Notwithstanding subsections a. through e., 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)Notwithstanding 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)Notwithstanding 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.In addition to the other applicable penalties provided under this section, a person violating this section whose license has been suspended pursuant to section 6 of P.L.1983, c.65 (C.17:29A-35) or the regulations adopted thereunder, shall be fined $3,000. The court shall waive the fine upon proof that the person has paid the total surcharge imposed pursuant to section 6 of P.L.1983, c.65 (C.17:29A-35) or the regulations adopted thereunder. Notwithstanding the provisions of R.S.39:5-41, the fine imposed pursuant to this subsection shall be collected by the Division of Motor Vehicles pursuant to section 6 of P.L.1983, c.65 (C.17:29A-35), and distributed as provided in that section, and the court shall file a copy of the judgment of conviction with the director and with the Clerk of the Superior Court who shall enter the following information upon the record of docketed judgments: the name of the person as judgment debtor; the Division of Motor Vehicles as judgment creditor; the amount of the fine; and the date of the order. These entries shall have the same force and effect as any civil judgment docketed in the Superior Court;

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 operators license 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 operators license 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 persons license was suspended or revoked;

i.If the violators drivers license to operate a motor vehicle has been suspended pursuant to section 9 of P.L.1985, c.14 (C.39:4-139.10), the violator shall be subject to a maximum fine of $100 upon proof that the violator has satisfied the parking ticket or tickets that were the subject of the Order of Suspension.

Amended 1941, c.344; 1945, c.222, s.2; 1947, c.25; 1964, c.9; 1968, c.323, s.10; 1981, c.38, s.1; 1982, c.45, s.2; 1983, c.90, s.1; 1986, c.38; 1992, c.203; 1994, c.64, s.2; 1995, c.286, s.1; 1999, c.185, s.3; 1999, c.423, s.3; 2001, c.213, s.1.

39:3-40.1. Revocation of registration certificate, plates 2. a. Any motor vehicle registration certificate and registration plates shall be revoked if a person is convicted of violating the provisions of:

(1)subsection a. of R.S.39:3-40 for operating a motor vehicle during a period when that violators drivers license has been suspended for a violation of R.S.39:4-50;

(2)subsection b. or c. of R.S.39:3-40 for operating a motor vehicle during a period when that violators drivers license has been suspended within a five-year period; or

(3)R.S.39:4-50 for a second or subsequent offense, if such revocation is ordered by the court as authorized under that section.

This revocation of registration certificate and registration plates shall apply to all passenger automobiles and motorcycles owned or leased by the violator and registered under the provisions of R.S.39:3-4 and all noncommercial trucks owned or leased by the violator and registered under the provisions of section 2 of P.L.1968, c.439 (C.39:3-8.1), including those passenger automobiles, motorcycles and noncommercial trucks registered or leased jointly in the name of the violator and the other owner of record.

b.At the time of conviction, the court shall notify each violator that the persons passenger automobile, motorcycle, and noncommercial truck registrations are revoked. Notwithstanding the provisions of R.S.39:5-35, the violator shall surrender the registration certificate and registration plates of all passenger automobiles, motorcycles, and noncommercial truck registrations subject to revocation under the provisions of this section within 48 hours of the courts notice. The surrender shall be at a place and in a manner prescribed by the Director of the Division of Motor Vehicles pursuant to rule and regulation. The court also shall notify the violator that a failure to surrender that vehicle registration certificate and registration plates shall result in the impoundment of the vehicle in accordance with the provisions of section 4 of P.L.1995, c.286 (C.39:3-40.3) and the seizure of said registration certificate and registration plates. The revocation authorized under the provisions of this subsection shall remain in effect for the period during which the violators license to operate a motor vehicle is suspended and shall be enforced so as to prohibit the violator from registering or leasing any other vehicle, however acquired, during that period.

c.If the violator subject to the penalties set forth in subsections a. and b. of this section for conviction of violating the provisions of R.S.39:3-40 was operating a motor vehicle owned or leased by another person and that other owner or lessee permitted that operation with knowledge that the violators drivers license was suspended, the court shall suspend the persons license to operate a motor vehicle and revoke the registration certificate and registration plates for that vehicle for a period of not more than six months. Notwithstanding the provisions of R.S.39:3-35, the owner or lessee shall surrender the registration certificate and registration plates of that vehicle within 48 hours of the courts notice of revocation. The surrender shall be at a place and in a manner prescribed by the Director of the Division of Motor Vehicles pursuant to rule and regulation. The court also shall notify the owner or lessee that a failure to surrender the revoked registration certificate and registration plates shall result in the impoundment of the vehicle in accordance with the provisions of section 4 of P.L.1995, c.286 (C.39:3-40.3) and the seizure of said registration certificate and registration plates. Nothing in this subsection shall be construed to limit the court from finding that owner or lessee guilty of violating R.S.39:3-39 or any other such statute concerning the operation of a motor vehicle by an unlicensed driver.

L.1995,c.286,s.2; amended 2000, c.83, s.2.

N.J.S.A. 39:3-40 Driving While Suspended

Offense 39:3-40 driving while license suspended- general provision 1st Offense - $500 fine, and - drivers license suspension not to exceed 6 months -9 car insurance eligibility points for each violation $750 DMV surcharges

2nd Offense - $750 fine, and - drivers license suspension not to exceed 6 months, and - imprisonment 1- 5 days, -9 car insurance eligibility points for each violation $750 DMV surcharges and - if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1)

3rd or Subsequent Offense - $1000 fine, and - drivers license suspension not to exceed 6 months, and - imprisonment for 10 days, -9 car insurance eligibility points for each violation $750 DMV surcharges and - if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1)

Note: For all offenses under this statute that involve an accident resulting in personal injury to another, the court is required to impose a period of imprisonment for not less than 45 days, or more than 180 days. N.J.S.A. 39:3-40(e). If the accident results in the death of another person, then the defendant shall be guilty of a crime of the third degree and the defendants drivers license shall be suspended for an additional period of one year. If the accident results in serious bodily injury to another person, then the defendant shall be guilty of a crime of the fourth degree and the defendants drivers license shall be suspended for an additional period of one year.

Offense 39:3-40 (f) (1) [no insurance suspensions] driving while license suspended due to conviction for N.J.S.A. 39:6B-2 (driving without insurance) 1st Offense - $1000 fine, and - drivers license suspension not less than 12 months, nor more than 30 months, and - may impose incarceration not to exceed 90 days $750 DMV surcharges -9 car insurance eligibility points for each violation

2nd Offense - $1250 fine, and - drivers license suspension of not less than 12 months nor more than 30 months, and - may impose period of incarceration of not more than 90 days, $750 DMV surcharges -9 car insurance eligibility points for each violation and - if 2nd offense occurs within 5 years of a conviction for 39:3-40, then revocation of registration certificate for period drivers license is suspended (see N.J.S.A. 39:3-40.1)

3rd or Subsequent Offense - $1500 fine, and - drivers license suspension of not less than 12 months nor more than 30 months, and - incarceration of not less than 10 days, nor more than 90 days, $750 DMV surcharges -9 car insurance eligibility points for each violation and - if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) Note: The fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are imposed notwithstanding the general penalty provisions listed above. This chart is based on the assumption that the fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are in addition to those found in N.J.S.A. 39:3-40(a)-(e). This reading of the statute is suggested by State v. Wrotny, 221 N.J. Super. 226, 228-30 (App. Div. 1987), though Wrotny does not explicitly hold as much. For a contrary reading of N.J.S.A. 39:3-40(f)(1)-(3), see State v. Walsh, 236 N.J. Super. 151, 155 (Law Div. 1989), and State v. Rought, 221 N.J. Super. 42, 47 (Law Div. 1987), which both held that the fines and penalties of N.J.S.A. 39:3-40(f)(1)-(3) are a substitute for those provided by N.J.S.A. 39:3-40(a)-(e). Before imposing sentence for a conviction under N.J.S.A. 39:3-40(f)(1)-(3), please consult these cases and any other relevant cases decided after the date of this chart.

Offense 39:3-40 (f) (2) [DWI suspensions] driving while license suspended due to conviction for: - 39:4-50 (driving while intoxicated), or - 39:4-50.4a (refusal to submit to chemical test), or - 39:5-30a to -30e (habitual offender) 1st Offense - $1000 fine, and -drivers license suspension of not less than 12 months, nor more than 30 months, and -incarceration of not less than 10 days, nor more than 90 days, and -revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) $750 DMV surcharges -9 car insurance eligibility points for each violation

2nd Offense -$1250 fine, and - drivers license suspension for not less than 12 months, nor more than 30 months, and - incarceration of not less than 10 days, nor more than 90 days, and - revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) $750 DMV surcharges -9 car insurance eligibility points for each violation

3rd or Subsequent Offense - $1500 fine, and - drivers license suspension for not less than 12 months, nor more than 30 months, and - incarceration of not less than 10 days, nor more than 90 days, and - revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) $750 DMV surcharges -9 car insurance eligibility points for each violation

Note: The fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are imposed notwithstanding the general penalty provisions listed above. This chart is based on the assumption that the fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are in addition to those found in N.J.S.A. 39:3-40(a)-(e). This reading of the statute is suggested by State v. Wrotny, 221 N.J. Super. 226, 228-30 (App. Div. 1987), though Wrotny does not explicitly hold as much. For a contrary reading of N.J.S.A. 39:3-40(f)(1)-(30), see State v. Walsh, 236 N.J. Super. 151, 155 (Law Div. 1989), and State v. Rought, 221 N.J. Super. 42, 47 (Law Div. 1987), which both held that the fines and penalties of N.J.S.A. 39:3-40(f)(1)-(3) are a substitute for those provided by N.J.S.A. 39:3-40(a)-(e). Before imposing sentence for a conviction under N.J.S.A. 39:3-40(f)(1)-(3), please consult these cases and any other relevant cases decided after the date of this chart.

Offense 39:3-40 (f) (3) [School Zone suspensions] driving while license suspended due to conviction for N.J.S.A. 39:4-50 or 39:4-50.4a, while driving in a school zone, or driving through a school crossing 1st Offense - $1000 fine, and - drivers license suspension for not less than 12 months, nor more than 30 months, and - incarceration of not less than 60 days nor more than 90 days $750 DMV surcharges -9 car insurance eligibility points for each violation

2nd Offense - $1250 fine, and - drivers license suspension for not less than 12 months, nor more than 30 months, and - incarceration of not less than 120 days nor more than 150 days - if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) $750 DMV surcharges -9 car insurance eligibility points for each violation

3rd or Subsequent Offense - $1500 fine, and - drivers license suspension for not less than 12 months, nor more than 24 months, plus may impose additional suspension not to exceed 6 months - incarceration for 180 days, and - if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of violators registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) Note: The fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are imposed notwithstanding the general penalty provisions listed above. This chart is based on the assumption that the fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are in addition to those found in N.J.S.A. 39:3-40(a)-(e). This reading of the statute is suggested by State v. Wrotny, 221 N.J. Super. 226, 228-30 (App. Div. 1987), though Wrotny does not explicitly hold as much. For a contrary reading of N.J.S.A. 39:3-40(f)(1)-(3), see State v. Walsh, 236 N.J. Super. 151, 155 (Law Div. 1989), and State v. Rought, 221 N.J. Super. 42, 47 (Law Div. 1987), which both held that the fines and penalties of N.J.S.A. 39:3-40(f)(1)-(3) are a substitute for those provided by N.J.S.A. 39:3-40(a)-(e). Before imposing sentence for a conviction under N.J.S.A. 39:3-40(f)(1)-(3), please consult these cases and any other relevant cases decided after the date of this chart.

Offense 39:3-40 (g) [Surcharge Suspensions] driving while license suspended for failure to pay surcharges under N.J.S.A. 17:29A-35 1st Offense - $500 fine, and - drivers license suspension not to exceed 6 months, and - $3000 fine to be collected by DMV. Fine to be waived upon payment of total surcharge imposed -9 car insurance eligibility points for each violation

2nd Offense - $750 fine, and - drivers license suspension not to exceed 6 months, and - imprisonment not more than 5 days, and - $3000 fine to be collected by DMV. Fine to be waived upon payment of total surcharge imposed, $750 DMV surcharges -9 car insurance eligibility points for each violation and

- if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1)

3rd or Subsequent Offense - $1000 fine, and - drivers license suspension not to exceed 6 months, and - imprisonment for 10 days, and - $3000 fine to be collected by DMV. Fine to be waived upon payment of total surcharge imposed $750 DMV surcharges -9 car insurance eligibility points for each violation

- if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1)

Speak with an experienced attorney to determine possible rights, defenses and mitigating factors.

CONCLUSION

A person is not automatically guilty of driving while suspended simply because the Division of Motor Vehicles claims they are suspended. 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. Speak with an attorney experienced in Municipal Court practice.