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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 driver's license or reciprocity privilege
has been suspended or revoked or who has been prohibited from obtaining
a driver's license, shall personally operate a motor vehicle during
the period of refusal suspension, revocation or prohibition."
The statute also prohibits the operation of a motor vehicle whose
registration has been revoked.
PENALTIES
Conviction under this statute brings the following penalties. Upon
conviction of the first offense of 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 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 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 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 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 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
- 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.
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 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 $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 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.
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 can't 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 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.
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. 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 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 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 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 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 and, if the third offense involves the operation
of a motor vehicle during a period when the violator's driver's
license is suspended and that third offense occurs within five years
of a conviction for the same offense, revocation of the violator's
motor vehicle registration privilege in accordance with the provisions
of sections 2 through 6 of P.L.1995, c.286 (C.39:3-40.1 through
C.39:3-40.5);
d.Upon conviction, the court shall impose
or extend a period of suspension not to exceed six months;
e.Upon conviction, the court shall impose
a period of imprisonment for not less than 45 days or more than
180 days, if while operating a vehicle in violation of this section
a person is involved in an accident resulting in bodily injury to
another person;
f. (1) 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.
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 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.
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 - driver's license suspension
not to exceed 6 months -9 car insurance eligibility points for each
violation $750 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 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 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 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 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 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 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 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 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 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 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 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 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
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 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
driver's 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.
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