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DRIVING WHILE SUSPENDED DEFENSES By Kenneth Vercammen, Esq. of Edison, NJ

Thousands of motorists in New Jersey are stopped for routine traffic violations, then are surprised to be informed their license is suspended. Where the minimum costs would be $1,261 in fines, surcharge and costs, motorists need an attorney with knowledge and skill in handling Driving While Suspended matters. Over the past decade Municipal Court practice has diversified requiring the need for crafted trial counsel to provide adequate representation for clients concerning both disorderly persons and motor vehicle offenses.

Although this may seem like a hopeless

situation at first, the reality is that it offers an attorney the opportunity to be creative in finding possible ways to avoid a prolonged license suspension and even the possible incarceration of the client. The violation of DWS is set forth at NJSA 39:3-40. This section states, "no person to whom a drivers license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal suspension, revocation or prohibition."

The statute also prohibits the

operation of a motor vehicle whose registration has been revoked.

PENALTIES Conviction under this statute brings the following penalties. Upon conviction of the first offense of a fine of $500.00, the defendant will also be surcharged a mandatory $250.00 per year for 3 years in every DWS by the MVC (formerly DMV). Upon conviction for the second offense a fine of $750.00 and imprisonment in the county jail for 1 - 5 days. Upon conviction for the third offense, a fine of $1000.00

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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 10 - 90 days. 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 suspension The most common scenario reflects where that the client, through a motor vehicle violation, failure to pay a surcharge or accumulated points have been placed on a suspended list maintained by the New Jersey Division of Motor Vehicles (MVC), thereby making them ineligible to operate a motor vehicle for a prescribed period of time in this state. If the client is aware that they are on the suspended list and acknowledged to the police officer that they were suspended, there is little room for creative legal defenses. The lawyer in this case would most likely discuss how to mitigate penalties or negotiate a plea bargain. However, more often than not the attorney will be confronted by the client who claims that they were unaware of their placement on the 2


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. THE STATE MAY BE UNABLE TO SHOW DUE PROCESS AND ADEQUATE NOTICE The Prosecutor should be required to show adequate notice of the suspension. In Parsekian v. Cresse, 75 N.J. Super. 405 (App Div. 1962), the court ruled that it was incumbent upon the Director of the State Division of Motor Vehicles (now MVC) to provide fair and adequate notice to the licensed driver of the proposed suspension of their license.

The court recognized that the Director could not

arbitrarily suspend the license of a driver without providing both notice and enunciating specific reasons as to why the license was being suspended. A later case, State v. Wenof, 102 N.J. Super. (Law Div. 1968), both reinforced and advanced the earlier Parsekian decision. Wenof represents the substantive foundation upon which all subsequent cases involving the notice issue have been based. In Wenof, the court again recognized the importance of adequate notice of suspension. The court related, "There is always a risk that notice may not reach the intended person, but this is not the test for legal sufficiency. The test is rather, whether the notice was reasonably calculated to reach the intended parties." Id at 375.

In Wenof, the MVC sent to a written notice of

proposed suspension (for failure to satisfy a summons) by regular mail. The MVC thereafter sent an order of suspension by ordinary mail. The notices were mailed to the defendant's last address. By failing to leave a forwarding address informing the MVC where he could be reached by mail, the court stated "he should not be heard to

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complain of lack of due process, He had it." The court found the defendant guilty. In State v Ferrier 294 NJ Super. 198 (App. Div. 1996) a defendant attacked the validity of a suspension four months earlier. A two judge panel rejected the challenged to a DWS and held that “An order of suspension by the Director is a decision by a state administrative agency which may only be challenged directly in the Appellate Division after all administrative remedies have been exhausted. R. 2:23(a)(2); Paccar v. Fagot, 71 N.J. 40, 53 (1976). Jurisdiction to consider an attack on a final decision of a state administrative agency is vested exclusively in the Appellate Division by way of appeal; the Law Division may not entertain such a challenge. State v. Doe, 165 N.J. Super. 392, 400 (App. Div. 1979). To the extent that State v. Wenof, 102 N.J. Super. 370, 374 (Law Div. 1968) and State v. Kindler, 191 N.J. Super. 358 (Law Div. 1983), suggest the contrary, they are overruled.� However the 2 page Ferrier case did not address a ticket where the MVC notice of suspension was not mailed until after the DWS violation. In State v. Hammond 116 N.J. Super. 244 (Cty. Ct. 1971) a notice of scheduled suspension and order of suspension for failure to appear for motor vehicle violations was mailed to defendant, but was returned undelivered to MVC by postal authorities. The defendant was charged with misstatement of fact in an application for registration of a motor vehicle (39:3-37) and application for a registration certificate during suspension (39:3-34). The defendant thereafter applied for and obtained a New Jersey registration certificate for vehicle. 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.

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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 prosecution in a subsequent DWS needs to introduce into evidence a certified abstract from the MVC. It is not necessary for the state to demonstrate that notice was received by the defendant. The defense may still challenge the suspension by introducing evidence that the prior in-court suspension was improper. 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 maybe permitted under State v. Laurick. 120 NJ I

(1990). However, State v, Ferrier indicates a defendant can not argue a prior court suspension that was in error.

NOTICE OF SUSPENSION BY MVC Where the client was suspended by the MVC, the state should be required to introduce 1. Notice of scheduled suspension. 2. Proof of mailing notice. 3. Order of suspension. 4. Proof of mailing order. 5. Certified motor vehicle abstract. Defense counsel should argue a certified abstract alone is not sufficient to convict if the 5


defendant was suspended only by the MVC. If the order of suspension was mailed on December 1, 2008 and the DWS offense took place December 2, 2008, a good defense argument is that the Order did not reach his house until after the ticket for DWS. 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 restoration fee. According to the harsh decision in State v. Zalta 217 N.J. Super. 209, 525 A.2d 328 (Appellate Divisiion1987) even if a prior court imposed suspension of 6 months is over, the suspension continues until actual restoration of the license. Plea bargaining is permitted in DWS matters. Prosecutors agree with State v. Somma 215 N.J. Super. 142 (Law Div 1986) where the court determined that the failure to pay the $100.00 fee for restoration of the suspended driver's license does not extend the period of suspension. Many times individuals are told by a court their license is suspended for a certain number of months, but they are usually not told they must pay a restoration fee to actually get their license back. Individuals who pay a surcharge late will have 6


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 summonses.

She drove in New Jersey and was charged with driving while

suspended and admitted she knew she was suspended in New York. The Court affirmed the conviction even through the New Jersey MVC took no action to suspend her New Jersey driving privileges. If the defendant in Profita did not admit her license was suspended and was unaware her license was suspended, the prosecutor may have evidence problems. Certainly the due process-notice requirements of Wenof, Hammond and Parsekian v. Cresse continue to apply. A little known 1991 Law caused havoc and driver license suspension to thousands of individuals facing charges for violating any ordinance or disorderly person offense in New Jersey by P.L. 1991, Chapter 240, approved August 5, 1991. Pursuant to NJSA 2A:8-27.1: “If a defendant charged with a disorderly persons offense, a petty disorderly persons offense, a violation of a municipal ordinance, or a violation of any other law of this State for which a penalty may be imposed fails to appear at any scheduled court proceeding after written notice has been given to said defendant pursuant to the 7


Rules Governing the Courts of the State of New Jersey, a municipal court may order the suspension of the persons driving privileges or nonresident reciprocity privilege or prohibit the person from receiving or obtaining driving privileges until the pending matter is adjudicated or otherwise disposed of, except by dismissal for failure of defendant to appear.� NJSA 2A:8-27.1 thus gives a Municipal Court the power to suspend a driver's license for a person charged violations such as littering or drinking in public if they fail to or forget to appear. Prior to any action being taken this statute requires that the defendant shall be given notice of the proposed action and afforded an opportunity to appear before the court to contest the validity of the proposed action. Sometimes the notice will not comply with due process requirements. NJSA 2A: 8-27.1(2) provides if a defendant sentenced to pay a fine or costs, make restitution, perform community service, serve a term of probation, or do any other act as a condition of that sentence fails to do so a municipal court may order the suspension of the person's driving privileges or nonresident reciprocity privilege or prohibit the person from receiving or obtaining driving privileges until the terms and conditions of the sentence have been performed or modified. Few courts inform a driver charged with DWS that the penalty is anything more than a $500.00 fine plus up to six months loss of license. Most courts do not warn a defendant if he pleads guilty he will have to pay MVC insurance surcharges and face other new penalties. Few courts and attorneys are aware of the provisions of NJAC 11:3-34, which allows insurance companies to charge additional surcharges to drivers who drive while suspended. These insurance company surcharges are in addition to MVC surcharges and fines. For Driving While Suspended pursuant to 2C N.J.R. 576 a driver is given 9 Automobile Eligibility Points. 8


PARKING ADJUDICATION ACT OFFENDER "Scofflaws" who took their parking tickets and threw them away or forgot to pay tickets now have their licenses eventually suspended under the Parking Offense Adjudication Act. (NJSA 39:4-139.2). If a person fails to appear or pay for a ticket, the court may give notice to the vehicle owner that the failure to appear or pay will result in suspension of driver's license. Pursuant to NJSA 39:4-139.10(b) the judge or the Division of Motor Vehicles will suspend the driver's license of on owner license or operator who has not answered or appeared in response to a failure to appear notice or has not paid or otherwise satisfied outstanding parking from penalties. If the suspension was ordered by a court, good defense counsel can obtain from the suspending court copies of notices mailed to the defendant.

The due

process/ notice requirements should apply as a defense. If the originating court failed to give proper notice of the proposed suspension, defense counsel should argue the later court thereafter can not find the defendant guilty of DWS. Many times in DWS the State will only offer into evidence an abstract which contains a small yellow strip of paper. The paper often will indicate the suspension was "in count" and no proof of mailing is needed. However, the MVC does actually mail out a notice and Order of suspension. Courts rarely suspend a car owner's driving privilege if the driver is not present in Court.

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 MVC 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

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a hearing within 25 days from the date of notice. New Jersey Administrative Code (NJAC) 13:19-1.2. NJAC 13:19-1.2 requires the request for a hearing to set forth all disputed facts, legal issues and arguments. Under NJAC 13:19-1.2,the MVC may either deny the request for a hearing, require a prehearing conference with a MVC employee, or transmit of the matter to the Office of Administrative Law for a hearing pursuant to NJAC 1:1. The MVC employee who conducts the prehearing is referred to as a driver improvement specialist. Often a resolution of the proposed administrative action is reached between the MVC and the licensee (ie- reduce suspension period -ex 180 days to 100 days). 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 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 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 10


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 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.

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

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

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DWS driving while suspended