Driving While Revoked

housands of motorists in New Jersey are stopped for routine traffic violations then are often surprised to be informed their license is revoked or suspended. Where the minimum costs would be $1,261 in fines, surcharge and costs, motorists need an attorney with knowledge and skill in handling driving while suspended matters. Over the past decade Municipal Court practice has diversified requiring the need for crafted trial counsel to provide adequate representation for clients concerning both disorderly persons and motor vehicle offenses. One such area that requires the talents of a skilled trial counsel involves the defense of Driving While Revoked or Suspended. The terms "Driving While Suspended" and "Driving While Revoked" are generally used in the same term. Revoked sometimes refers to the court revoking or stopping someone's ability to apply for a driver's license in New Jersey. Although this may seem like a hopeless situation at first, the reality is that it offers an attorney the opportunity to be creative in finding possible ways to avoid a fine, prolonged license suspension, and even the possible incarceration of your client.
The violation of driving while suspended or revoked is set forth at NJSA 39:3-40.
Although most municipal court matters are considered minor by

many citizens it is obvious from the possible penalties involved that this is a serious offense carrying the possibility of both stiff fines and incarceration. As attorneys, it is incumbent upon us to try and provide the most favorable result for the client.
There are two types of license suspension:
1. Court imposed suspension
2. Administrative / MVC/DMV suspension
The most common scenario reflects where that the client, 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 Motor Vehicle Commission MVC, formerly Division of Motor Vehicles (DMV), thereby making them ineligible to operate a motor vehicle for a prescribed period of time in this state.
If the client is aware that they are on the suspended list and acknowledged they were suspended to the police officer there is little room for creative Lawyering. The lawyer in this case would most likely discuss how to mitigate penalties. However, more often than not the attorney will be faced with the client who claims that they were unaware of their placement on the suspension list.
The scenario that will often be presented by the client is that he/she was stopped by police for an unrelated motor vehicle violation. In the process of the police encounter they were informed by the officer that their license has been suspended and they were issued an additional summons for DWS.


In this case an attorney can use their creative abilities to achieve a favorable result for the client. 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 HAS FAILED TO 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 DMV sent to a written notice of proposed suspension (for failure to satisfy a summons) by regular mail. The DMV thereafter sent an


order of suspension by ordinary mail. The notices were mailed to the defendant's last address. By failing to leave a forwarding address informing the DMV 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 DMV 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 Hammond. In Hammond there was insufficient evidence of any notice to Hammond of a possible revocation of his registration certificate. Therefore, there is no adequate proof to indicate that due process was satisfied in this case. Hammond, 116 N.J. Super. at 248.

NOTICE BY IN-COURT SUSPENSION
If your client is on the suspension list because he was suspended in a Courtroom for a prior violation, grounds to defend are very limited. The most common violations which carry mandatory suspensions on first offense by the Municipal Courts are for driving while intoxicated (first

offense 7-12 months), driving while suspended (up to 6 months), driving without insurance (1 year), possession of Marijuana or paraphernalia (6 months-2 years). A Municipal Court also has the power to suspend a driver's 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 court's discretion, justify such revocation (39:5-31).
If the client's driver's license was suspended by a court, the state in a subsequent DWS needs to introduce into evidence only a certified abstract from the MVC/DMV. 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 acted without the defendant being present. Possibly, the prior suspension could be attached in the original court as being illegal and/or unconstitutional. This may be permitted under State v. Laurick. 120 NJ 1 (1990)

NOTICE BY MVC/DMV
Where the client was suspended by the MVC/DMV, 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 MVC/DMV.
If the order of suspension was mailed on December 1, 2003 and the


DWS offense took place December 2, 2003, a good defense argument is that the Order did not reach his house until after the ticket for DWS.
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 driver's 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 it's 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 $100.00 MVC/DMV 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 DWS matters. Many prosecutors and courts acknowledge State v. Somma 215 N.J. Super. 142 (Law Div 1986) where the court determined that the failure to pay the $30.00 fee for restoration of the suspended driver's license does not extend the period of suspension. Many times individuals are told by a court their license is suspended for a certain number of


months, but they are usually not told they must pay a restoration fee to actually get their license back. Individuals who pay a surcharge late will have their licenses suspended initially for the failure to pay. Even after the surcharge is paid they remain suspended until the $30.00 restoration fee is paid. Often, "plea" bargaining" or "alternative dispositions" can be worked out to avoid the harsh consequences of DWS and the equitable rationale of State v. Somma is followed.

OUT OF STATE SUSPENSIONS

If a person's driver's license has been suspended in another state, they can still be charged with DWS under NJSA 39:3-40. Whether the prosecutor can present sufficient evidence for a court to find the driver guilty beyond a reasonable doubt is a different story. In State v. Profita 183 N. J. Super. 425 (App. Div 1982), defendant was a New York driver suspended in New York for failure to respond to a summon. She drove in New Jersey and was charged with driving while suspended and admitted she knew she was suspended in New York. The Court affirmed the conviction even through the New Jersey MVC/DMV took no action to suspend her New Jersey driving privileges.
If the defendant in Profita did not admit her license was suspended and was unaware her license was suspended, the prosecutor may have evidence problems. Certainly the due process-notice requirements of Wenof, Hammond and Parsekian v. Cresse continue to apply.
Few drivers are aware of the new provisions of NJAC 11:3-34,

which allows insurance companies to charge additional surcharge to drivers. These new insurance company surcharges are in a addition to MVC/DMV surcharges and fines. Several insurance companies have already received approval to charge between $137.00 and $318.00 for each point a driver accumulates. For Driving While Suspended a driver is given 9 Automobile Eligibility Points.

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 driver's license. Pursuant to NJSA 39:4-139.10(b) the judge or the Division of Motor Vehicles may now suspend the driver's license of on owner license or operator who has not answered or appeared in response to a failure to appear notice or has not paid or otherwise satisfied outstanding parking from penalties.
If the suspension was ordered by a court, good defense counsel can obtain from the suspending court copies of notices mailed to the defendant. The due process/ notice requirements still apply. If the originating court failed to give proper notice of the proposed suspension, defense counsel should argue the later court thereafter cannot find the defendant guilty of DWS. Many times in DWS the State will only offer into


evidence an abstract which contains a small yellow strip of paper. The paper often will indicate the suspension was "in count" and no proof of mailing is needed. However, DWS does actually mail out a notice and Order of suspension. Courts rarely suspend an car owner's driving privilege if the driver is not present in Court.

CONTESTING PROPOSED ADMINISTRATIVE
SUSPENSIONS

The MVC/DMV, prior to suspending a license, or taking specific action against a driver must mail a notice to the driver informing them of the proposed suspension or other action. The proposed action to be taken against any licensee by the MVC/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 MVC/DMV may either deny the request for a hearing, require a prehearing conference with a MVC/DMV employee, or transmit of the matter to the Office of Administrative Law for a hearing pursuant to NJAC 1:1.

The MVC/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 MVC/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 DWS calls for mandatory enhanced penalties on conviction second and third offense. What counts as an offense? Both the MVC/DMV 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 MVC/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. Black's Law Dictionary defines conviction as "the final judgment in a verdict or finding of guilty..."
Black's Law Dictionary (6 ed. 1990) at 333. NJSA 2C:44-4(a) defines "prior conviction of an offense" as "an adjudication by a court of competent jurisdiction that the defendant committed an offense constitutes a prior conviction,"
Emphasis supplied. Conviction has also been defined as " the confession of the accused in open court or the verdict returned by the jury which ascertains and publishes the fact of guilt." Tucker 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 MVC/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.

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

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

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

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

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

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

c. Upon conviction for a third offense or subsequent offense, a fine of $1,000.00, imprisonment in the county jail for 10 days. If the third or a subsequent offense involves the operation of a motor vehicle during a period when the violator's driver's license is suspended and the third or subsequent offense occurs within five years of a conviction for the same offense, revocation of the violator's motor vehicle registration privilege shall be revoked 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 operator's 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 operator's 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 person's license was suspended or revoked;

i. If the violator's driver's license to operate a motor vehicle has been suspended pursuant to section 9 of P.L. 1985, c.14 (C.39:4-139.10), 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;

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

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

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 violator's driver's 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 violator's driver's 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 person's 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 court's 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 violator's 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 violator's driver's license was suspended, the court shall suspend the person's 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 court's 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.

39:3-40.2. Issuance of temporary registration certificate, plates
3. a. The director may issue a temporary registration certificate and temporary registration plates for a motor vehicle for which the registration certificate and registration plates have been revoked under the provisions of section 2 of P.L. 1995, c.286 (C.39:3-40.1) if:

(1)the name of the applicant for the temporary registration appeared upon the revoked registration certificate as a joint owner or joint lessee of the motor vehicle; or

(2)the applicant for the temporary registration is the spouse, child, dependent, parent or legal guardian of the violator or owner and certifies, in a manner prescribed by the director, that the operation of the motor vehicle is necessary for specified employment, educational, health or medical purposes.

The application shall be in a manner and form prescribed by the director. The application also shall include a signed certification that the applicant shall not knowingly permit the violator to operate the motor vehicle until the violator's license and driving privileges have been restored by the


director and that any violation of this provision shall result in the revocation of the temporary registration issued for the motor vehicle under the provisions of this section, that the motor vehicle shall be ineligible for the temporary registration authorized under this act, and that the motor vehicle may be impounded in accordance with the provisions of section 4 of P.L. 1995, c.286 (C.39:3-40.3) and the temporary registration certificate and temporary registration plates seized.

b. The director shall issue a temporary registration certificate and temporary registration plates for a motor vehicle registered under the provisions of this section. As prescribed by the director, the temporary registration plates shall bear a special series of numbers or letters so as to be readily identifiable by law enforcement officers.

c. The director may issue a new registration to a lessor of a vehicle for which the registration has been revoked pursuant to section 2 of P.L. 1995, c.286 (C.39:3-40.1) provided that the vehicle is not leased to the same lessee.

d. The temporary registration authorized under this section shall expire and become void on the last day of the sixth month following the calendar month in which it was issued. All such temporary registrations may be renewed, upon application, by the director.

The fee schedule for the temporary registration authorized under this section shall be prescribed by the director. The schedule may provide for differing fees based upon the manufacturer's shipping weight and the model year of the motor vehicle; provided, however, that no such temporary registration fee shall exceed $75. The registrant also shall pay a non-recurring $25 fee for the temporary registration plates issued by the director.


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
- driver's license suspension not to exceed 6 months


-9 car insurance eligibility points for each violation
$750 MVC/DMV surcharges

2nd Offense
- $750 fine, and
- driver's license suspension not to exceed 6 months, and
- imprisonment 1- 5 days,
-9 car insurance eligibility points for each violation
$750 MVC/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
driver's license is suspended (see N.J.S.A. 39:3-40.1)

3rd or Subsequent Offense - $1000 fine, and
- driver's license suspension not to exceed 6 months, and
- imprisonment for 10 days, -9 car insurance eligibility points for each violation
$750 MVC/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 driver's
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 defendant's driver's 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 defendant's driver's 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
- driver's license suspension not less than 12 months, nor more than 30 months, and


- may impose incarceration not to exceed 90 days
$750 MVC/DMV surcharges
-9 car insurance eligibility points for each violation

2nd Offense
- $1250 fine, and
- driver's 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 MVC/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 driver's license is suspended (see N.J.S.A. 39:3-40.1)

3rd or Subsequent Offense
- $1500 fine, and
- driver's 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 MVC/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 driver's
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
-driver's 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 driver's license is suspended (see N.J.S.A. 39:3-40.1)
$750 MVC/DMV surcharges
-9 car insurance eligibility points for each violation

2nd Offense
-$1250 fine, and
- driver's 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 driver's license is suspended (see N.J.S.A. 39:3-40.1)
$750 MVC/DMV surcharges
-9 car insurance eligibility points for each violation

3rd or Subsequent Offense
- $1500 fine, and
- driver's 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 driver's license is suspended (see N.J.S.A. 39:3-40.1)
$750 MVC/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
- driver's 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 MVC/DMV surcharges
-9 car insurance eligibility points for each violation

2nd Offense
- $1250 fine, and
- driver's 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
driver's license is suspended (see N.J.S.A. 39:3-40.1)
$750 MVC/DMV surcharges
-9 car insurance eligibility points for each violation

3rd or Subsequent Offense
- $1500 fine, and
- driver's 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 violator's registration certificate for the
period driver's 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
- driver's license suspension not to exceed 6 months, and
- $3000 fine to be collected by MVC/DMV. Fine to be waived upon payment of total surcharge imposed
-9 car insurance eligibility points for each violation

2nd Offense
- $750 fine, and
- driver's license suspension not to exceed 6 months, and
- imprisonment not more than 5 days, and
- $3000 fine to be collected by MVC/DMV. Fine to be waived upon payment of total surcharge imposed,
$750 MVC/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
driver's license is suspended (see N.J.S.A. 39:3-40.1)

3rd or Subsequent Offense
- $1000 fine, and


- driver's license suspension not to exceed 6 months, and
- imprisonment for 10 days, and
- $3000 fine to be collected by MVC/DMV. Fine to be waived upon payment of total surcharge imposed
$750 MVC/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 driver's license is suspended (see N.J.S.A. 39:3-40.1)

CONCLUSION
The defense of a person charged with driving while suspended is not
impossible. There are a number of viable defense and arguments which can be pursued to achieve a successful result. Advocacy, commitment and persistence are essential to defending a client in any municipal court matter.

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

ABOUT THE AUTHOR

Kenneth Vercammen is a Litigation Attorney in Metuchen, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Criminal & Municipal Court trials, and contested administrative law hearings.

Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept. as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

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;

If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.