The violation of Driving with suspended drivers license is set forth at NJSA 39:3-40.
This section states, “no person to whom a drivers license has been refused or whose driver’s license or reciprocity privilege has been suspended or revoked or who has been prohibited from obtaining a driver’s license, shall personally operate a motor vehicle during the period of refusal suspension, revocation or prohibition.” The statute also prohibits the operation of a motor vehicle whose registration has been revoked.
Conviction for Driving with suspended drivers license 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 MVC. 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 (NJ) MUST SHOW DUE PROCESS AND ADEQUATE NOTICE
The first and foremost is that of adequate notice of the suspension. In Parsekian v. Cresse, 75 NJ 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 NJ 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 defendant’s 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 NJ 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 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 NJ 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 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 driver’s license was suspended by a court, the state in a subsequent Driving with suspended drivers license offenses 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 Motor Vehicle Commission
Where the driver was suspended by the Division of Motor Vehicles, the state must introduce
Notice of scheduled suspension.
Proof of mailing notice.
Order of suspension.
Proof of mailing order.
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.
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.
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 NJ 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
NJ 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 NJ 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 may be permitted in Driving While Suspended matters. Many court adhere to the language of State v. Somma 215 NJ Super. 142 (Law Div 1986) where the court determined that the failure to pay the $50.00 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 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, including insurance surcharge points of up to 9 for 3 years.
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 NJR. 576 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 NJ 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, or 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 MVC, prior to suspending a license, or taking specific action against a driver must mail a notice to the driver informing them of the proposed suspension or other action. The proposed action to be taken against any licensee by the 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 pre hearing 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
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)
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. 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 NJ 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 NJ Super. at 631
The sentence imposed was reversed and the matter remanded for sentencing as a first offender.
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.