State of New Jersey v. Idris R. Perry , 439 N.J. Super. 514 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1767-13T2
A-1768-13T2
A-1769-13T2
A-1770-13T2
A-2531-13T2
A-2533-13T2
A-2536-13T2
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v. APPROVED FOR PUBLICATION
March 3, 2015
IDRIS R. PERRY,
APPELLATE DIVISION
Defendant-Respondent.
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CARMEN NAY,
Defendant-Respondent.
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RAYMOND EVANS,
Defendant-Respondent.
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CHERYL PAPP,
Defendant-Respondent.
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
TAMMY M. MCINTYRE,
Defendant-Respondent.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRADLEY BREWER,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD J. WISSER,
Defendant-Appellant.
2 A-1767-13T2
Argued (A-1767-13, A-1768-13, A-1769-13,
A-1770-13, A-2533-13) and Submitted (A-2531-13,
A-2536-13) October 29, 2014 - Decided March 3, 2015
Before Judges Alvarez, Waugh, and Maven.
On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County, Indictment Nos.
13-01-0163 (A-1767-13); 13-05-0689 (A-1768-13);
13-03-0370 (A-1769-13); 13-06-0788 (A-1770-13).
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
13-02-0624 (A-2531-13).
On appeal from the Superior Court of New Jersey,
Law Division, Burlington County, Indictment No.
13-08-0889 (A-2533-13).
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County, Indictment No.
13-03-0600 (A-2536-13).
Brian D. Gillet, Assistant Prosecutor, argued the
cause for appellant State of New Jersey in
A-1767-13, A-1768-13, A-1769-13, A-1770-13 (Andrew
C. Carey, Middlesex County Prosecutor, attorney;
Mr. Gillet, of counsel and on the briefs).
Anthony Aldorasi, Assistant Deputy Public Defender,
argued the cause for appellant Brewer in A-2533-13
(Joseph A. Krakora, Public Defender, attorney; Mr.
Aldorasi, of counsel and on the brief).
James P. McClain, Atlantic County Prosecutor,
attorney for appellant State of New Jersey in
A-2531-13 (Deborah A. Hay, Assistant Prosecutor,
of counsel and on the brief).
Stephen J. Buividas, attorney for appellant Wisser
in A-2536-13.
Michele E. Friedman, Assistant Deputy Public
Defender, argued the cause for respondents Perry
(A-1767-13), Nay (A-1768-13), Evans (A-1769-13),
and Papp (A-1770-13) (Joseph E. Krakora, Public
3 A-1767-13T2
Defender, attorney; Ms. Friedman, of counsel and
on the brief).
Alexis R. Agre, Assistant Prosecutor, argued the
cause for respondent State of New Jersey in
A-2533-13 (Robert D. Bernardi, Burlington County
Prosecutor, attorney; Ms. Agre, of counsel and on
the brief).
Stefankiewicz & Barnes, attorneys for respondent
McIntyre in A-2531-13 (David A. Stefankiewicz, of
counsel and on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent State of New Jersey in
A-2536-13 (Samuel Marzarella, Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
ALVAREZ, P.J.A.D.
N.J.S.A. 2C:40-26(a) and (b) make driving while suspended a
fourth-degree criminal offense punishable by a mandatory minimum
jail term of 180 days under certain circumstances stemming from
driving while intoxicated (DWI), N.J.S.A. 39:4-50, or refusal to
submit to chemical testing (refusal), N.J.S.A. 39:4-50.4(a). In
these seven appeals, consolidated for decision, we address
whether charges can be brought under the statute when the act of
driving occurs beyond the determinate sentenced term of
suspension, but before reinstatement, while the driver continues
on administrative suspension. We conclude that the statute
criminalizes the operation of a motor vehicle only while the
4 A-1767-13T2
operator is serving the court-imposed term of suspension, and
not thereafter.
I
We briefly summarize the procedural history and factual
circumstances surrounding each defendant's charges. In each
case, either the State or defendant was granted leave to appeal
or filed a timely appeal as of right.
A.
Perry
On May 12, 2011, Idris Perry pled guilty to DWI and
refusal, and his driving privileges were suspended for a 300-day
period, ending March 7, 2012. Perry was issued a summons for
driving while suspended, N.J.S.A. 39:3-40, on the day before his
DWI and refusal suspension term would have expired. On May 30,
2012, he was again charged with operating a motor vehicle during
a period of suspension, resulting in the indictment on appeal
under N.J.S.A. 2C:40-26(a).
Judge Douglas K. Wolfson granted Perry's motion to dismiss
his indictment. The State thereafter moved for reconsideration.
In a written opinion dated October 21, 2013, consolidating his
decisions in the Perry, Carmen Nay, Raymond Evans, and Cheryl
Papp cases, Judge Wolfson denied the State's motion.
5 A-1767-13T2
Nay
On February 19, 2008, Nay pled guilty to DWI, resulting in
the suspension of her driving privileges for a seven-month1
period. Nay was convicted of driving while suspended on April
30, June 12, and September 22, 2010. Nay did not restore her
driver's license after the suspension periods expired. On March
15, 2013, Nay was charged with driving with a suspended license
in North Brunswick. She was indicted for operating a motor
vehicle during a period of license suspension, N.J.S.A.
2C:40-26(a).
Nay's motion to dismiss the indictment was granted by Judge
Wolfson after oral argument on September 23, 2013. Her matter
was included in Judge Wolfson's consolidated written opinion in
the four Middlesex County cases.
Evans
On July 13, 2011, Evans pled guilty to DWI and refusal.
The record does not disclose how long the court suspended
Evans's license. Since this was his first DWI, however, his
driving privileges could not have been suspended for more than
one year. On September 1, 2011, Evans was charged with driving
while suspended, and he pled guilty to that offense on November
1
The trial judge's opinion from October 21, 2013, mistakenly
states that the suspension was for three months.
6 A-1767-13T2
17, 2011. Evans certified that he did not restore his license
after the suspension period expired due to financial hardships,
which prevented him from paying the restoration fee. On January
6, 2013, he was charged with driving while suspended in East
Brunswick. He was indicted on March 7, 2013, for driving while
suspended, N.J.S.A. 2C:40-26(a).
Evans's motion to dismiss the indictment was granted after
oral argument on September 23, 2013. Judge Wolfson included the
decision in his consolidated opinion.
Papp
On August 11, 2005, Papp pled guilty to DWI, resulting in a
seven-month suspension of her driving privileges. She was
convicted of driving while suspended on September 14, 2005, and
again on September 9, 2008. Papp certified that, due to
financial hardship, she was unable to pay the restoration fees
after the suspension periods expired. On April 10, 2013, she
was charged with driving while suspended in the Township of
Woodbridge. On June 6, Papp was indicted for operating a motor
vehicle during a period of suspension under N.J.S.A. 2C:40-
26(a).
Papp's motion to dismiss the indictment was granted on
August 23, 2013. Judge Wolfson denied the State's motion for
reconsideration in his consolidated opinion.
7 A-1767-13T2
McIntyre
Tammy McIntyre pled guilty to a second DWI on May 31, 2008,
and received a two-year license suspension. Assuming McIntyre's
suspensions ran consecutively, her final, two-year DWI
suspension period ended on April 10, 2010. For reasons
unrelated to the DWI convictions, she was ineligible to restore
her license on October 10, 2012, when, for the fifth time since
her DWI offenses, she was charged with driving while suspended.
On February 26, 2013, an Atlantic County grand jury indicted her
under N.J.S.A. 2C:20-26(b).
On December 19, 2013, Judge Kyran Connor dismissed
McIntyre's indictment.
Brewer
On December 10, 2009, Bradley Brewer was convicted of a
second DWI and received a two-year license suspension ending on
December 10, 2011. Brewer failed to pay the administrative fee
to restore his license. On March 3, 2013, he was issued a
summons for driving while suspended in Mansfield Township. On
August 20, 2013, a Burlington County grand jury indicted Brewer
for driving during a period of license suspension, N.J.S.A.
2C:40-26(b).
On December 16, 2013, the trial court denied Brewer's
motion to dismiss his indictment.
8 A-1767-13T2
Wisser
Richard Wisser pled guilty to DWI on January 9, 1998. As
this was Wisser's fourth DWI offense,2 a ten-year license
suspension was imposed. During the suspension, Wisser was
convicted three times for driving while suspended, and
additional periods of suspension were imposed.
On September 13, 2012, Wisser was arrested for DWI, driving
while suspended, and other unrelated charges. On March 14,
2013, an Ocean County grand jury indicted him under N.J.S.A.
2C:40-26(b).
On September 9, the trial court denied Wisser's motion to
dismiss his indictment, and on December 10, 2013, denied his
motion for reconsideration.
B.
To summarize, in these appeals, two trial judges rendered
decisions contrary to the State's position and granted
applications to dismiss the indictments, while two ruled against
the defendants and allowed the indictments to stand. We review
de novo a trial court's construction of a statute. State v.
Revie, 220 N.J. 126, 132 (2014). The specific points of error
2
Wisser had previously been convicted of DWI on January 22,
1981, March 1, 1988, and May 2, 1989.
9 A-1767-13T2
raised by each appellant need not be repeated; they are
addressed by the following discussion.
II
The genesis of N.J.S.A. 2C:40-26 has been discussed in
detail elsewhere. See State v. Carrigan, 428 N.J. Super. 609,
613-14 (App. Div. 2012), certif. denied, 213 N.J. 539 (2013).
The statute was designed to "create[] criminal penalties for
persons whose driver's licenses are suspended for drunk driving
offenses and who, while under suspension for these offenses,
unlawfully operate a vehicle." Assembly Law and Public Safety
Committee, Statement to A. 4303 (Dec. 3, 2009). The significantly
enhanced consequences to driving while suspended were the
legislative response to "reports of fatal or serious accidents
that had been caused by recidivist offenders with multiple prior
DWI violations." Carrigan, supra, 428 N.J. Super. at 614. As
Carrigan points out, the bill was endorsed by the former
Director of the Governor's Council on Alcoholism and Drug
Awareness, who also recommended the creation of special-purpose
prison facilities for DWI driving recidivists. Ibid. No such
facilities have been created.
A.
It is well-established that the best indicator of
legislative intent is "the plain language chosen by the
10 A-1767-13T2
Legislature." State v. Gandhi, 201 N.J. 161, 176 (2010). In
interpreting a statute, we give the relevant language its
ordinary meaning and construe it "in a common-sense manner."
State in Interest of K.O., 217 N.J. 83, 91 (2014); see also
N.J.S.A. 1:1-1 (stating that the words of a statute are
customarily construed according to their generally accepted
meaning). We do not add terms which may have been intentionally
omitted by the Legislature, speculate, or otherwise engage in an
interpretation which would avoid its plain meaning. DiProspero
v. Penn, 183 N.J. 477, 492 (2005). Where plain language "leads
to a clear and unambiguous result, then the interpretive process
should end, without resort to extrinsic sources." State v.
D.A., 191 N.J. 158, 164 (2007).
The State contends that N.J.S.A. 2C:40-26 must be
interpreted to mean that an individual can be charged until he
or she pays the requisite license restoration fees, complies
with all administrative requirements, and is reinstated by the
Motor Vehicle Commission. In support, it cites both to the
statutory language and to State v. Zalta, 217 N.J. Super. 209
(App. Div. 1987). Defendants distinguish Zalta, responding that
to extend the meaning of "the period of license suspension" as
the State proposes violates the language of N.J.S.A. 2C:40-26
and renders the statute both unworkable and unconstitutional.
11 A-1767-13T2
The statute reads:
a. It shall be a crime of the fourth
degree to operate a motor vehicle during the
period of license suspension in violation of
R.S. 39:3-40, if the actor's license was
suspended or revoked for a first violation
of R.S. 39:4-50 or section 2 of P.L. 1981,
c. 512 (C. 39:4-50.4a) and the actor had
previously been convicted of violating R.S.
39:3-40 while under suspension for that
first offense. A person convicted of an
offense under this subsection shall be
sentenced by the court to a term of
imprisonment.
b. It shall be a crime of the fourth
degree to operate a motor vehicle during the
period of license suspension in violation of
R.S. 39:3-40, if the actor's license was
suspended or revoked for a second or
subsequent violation of R.S. 39:4-50 or
section 2 of P.L. 1981, c. 512 (C.
39:4-50.4a). A person convicted of an
offense under this subsection shall be
sentenced by the court to a term of
imprisonment.
[N.J.S.A. 2C:40-26(a) and (b).]
Zalta is inapposite because it answered a very different
question, namely, whether the Director of the former Division of
Motor Vehicles had the inherent authority "to keep a license in
suspension beyond the determinate period of suspension imposed
by the municipal court" in the context of N.J.S.A. 39:3-40.
Zalta, supra, 217 N.J. Super. at 213. That defendant had been
found guilty of driving before restoring his privileges after
the expiration of a Director-imposed six-month term of
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suspension. Id. at 212. He contended that his conviction for
driving while suspended should be vacated as he was guilty only
of driving while unlicensed. Ibid. In rejecting the argument,
we reasoned that the Director's authority included the power to
keep a license in suspension until a driver took the requisite
administrative steps to have it restored. Ibid. We noted that
the suspension of driving privileges was "not necessarily
punitive in purpose." Ibid.
The discussion in Zalta also concerned whether "a person of
ordinary intelligence acting in good faith" would interpret the
phrase, "during the period of [] suspension," as found in
N.J.S.A. 39:3-40, to mean he or she would know his license was
not restored until the Director reinstated it. This is entirely
different than the question considered here, in the context of a
criminal statute specifying the circumstances under which, if
convicted, a defendant would serve mandatory minimum jail time.
In N.J.S.A. 2C:40-26, the Legislature narrowed the field of
persons against whom charges could be lodged to target the group
against which it wished to act. In subsection (a), the offense
occurs if, and only if, the driver has been convicted of DWI or
refusal, and has "previously been convicted of [driving while
suspended] while under suspension for that first offense." It
follows that the second or subsequent offense must also occur
13 A-1767-13T2
while the driver is "under suspension for that first offense[,]"
i.e., either a DWI or a refusal. It would be illogical to
conclude that the first driving while suspended offense must
occur during the sentenced term of suspension, but not the
second or subsequent driving while suspended offense that
subjects the motorist to prosecution.
Subsection (b) provides that a driver commits the crime if
he drives "during the period of license suspension" while his
"license was suspended or revoked for a second or subsequent
[DWI or refusal] violation." The Legislature made this section
applicable solely to drivers with a license suspension for a
second or subsequent DWI or refusal violation.
The statute is silent as to those driving without
reinstatement beyond the court-imposed term of suspension. Had
the Legislature intended to include those persons, the necessary
language could have been easily included in both sections of the
law. It was not. Such language would, obviously, have cast the
far wider net the State proposes. The omission is significant,
and for us to interpret the statute as the State suggests would
be to add terms that may well have been intentionally excluded.
Additionally, common sense requires this interpretation
because of the universe of possible combinations giving rise to
prosecutions beyond the scope of the plain language. The
14 A-1767-13T2
State's reading of the statute would include under (a), for
example, persons previously convicted of DWI and driving while
suspended during the determinate sentenced term, who twenty
years later, drive after restoration but while suspended for
reasons unrelated to any DWI or refusal. Under (b), a person
could be convicted if found guilty of DWI twice and, years
later, after reinstatement on the DWIs, is caught driving while
suspended for an unrelated reason.
By giving the statute this more literal reading, we are
guided by its plain language, to which we accord a common sense
construction, without adding terms not originally included. See
K.O., supra, 217 N.J. at 91. The interpretative process should
end here. See D.A., supra, 191 N.J. at 164.
B.
Assuming for the sake of argument, however, that an
ambiguity exists in the statute, we reach the same result.
Where "two interpretations of the language are plausible, a
reviewing court must interpret the statute to effectuate the
legislative intent, utilizing extrinsic evidence when it is
helpful." Lozano v. Frank DeLuca Constr., 178 N.J. 513, 522
(2004). Courts may also resort to extrinsic evidence "if a
plain reading of the statute leads to an absurd result or if the
overall statutory scheme is at odds with the plain language."
15 A-1767-13T2
DiProspero, supra, 183 N.J. at 493. Extrinsic evidence can
include legislative history, committee reports, contemporaneous
construction, and the policy considerations behind the
legislation. Johnson v. Scaccetti, 192 N.J. 256, 276 (2007);
Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75 (2004).
"[W]here a statute or ordinance does not expressly address a
specific situation, the court will interpret it 'consonant with
the probable intent of the draftsman "had he anticipated the
matter at hand."'" Twp. of Pennsauken v. Schad, 160 N.J. 156,
170 (1999) (quoting AMN, Inc. v. Twp. of S. Brunswick Rent
Leveling Bd., 93 N.J. 518, 525 (1983) (citation omitted)).
Here, the legislative history is enlightening. The
sponsor's statement to the Assembly bill says: "This bill
creates criminal penalties for persons whose driver's licenses
are suspended for certain drunk driving offenses and who, while
under suspension for those offenses, unlawfully operate a motor
vehicle." Sponsor's Statement to A. 4303, at 2 (Nov. 30, 2009)
(emphasis added). The Statement adds that the provisions of
subsection (a) make it a crime to operate a motor vehicle after
being convicted of driving while intoxicated or refusing to
submit to a breath test "while under suspension for that first
offense." Ibid. (emphasis added).
16 A-1767-13T2
The language is repeated for subsection (b), making it a
crime to operate a motor vehicle after two DWI convictions
"while under suspension for that second offense." Ibid.
(emphasis added). Identical language was used in the Assembly
Law and Public Safety Committee, Statement to A. 4303 (Dec. 3,
2009), as well as the Sponsor's Statement to S. 2939 (June 15,
2009), and the Senate Law and Public Safety and Veterans'
Affairs Committee, Statement to S. 2939 (Nov. 23, 2009).
The phrasing in the Sponsor's Statement thus supports the
notion that the law was intended to apply only when the actor is
"under suspension for those offenses," in other words, while
serving the court-imposed term of suspension. The explanatory
statement is silent about drivers under continuing
administrative suspension who did not restore their privileges
after being convicted of DWI offenses and completing their
determinate suspension terms. Thus, reference to the
legislative history supports our conclusion.
C.
Again, for the sake of argument, if after resort to
extrinsic evidence ambiguity remains in a criminal statute, then
the court must be guided by the "rule of lenity," which requires
that the court construe penal statutes strictly and interpret
ambiguous language in favor of a criminal defendant. D.A.,
17 A-1767-13T2
supra, 191 N.J. at 164-65. At the heart of this canon is the
requirement of due process. In re Suspension of DeMarco, 83
N.J. 25, 36 (1980). "No one shall be punished for a crime
unless both that crime and its punishment are clearly set forth
in positive law." Ibid. Statutes "must give persons of
ordinary intelligence fair notice of what conduct is prohibited
and what consequences may follow violation of the law." State
v. Channel Home Ctrs., 199 N.J. Super. 483, 489 (App. Div.
1985). "It is, therefore, inappropriate to supply missing
connections in criminal statutes that persons of ordinary
intelligence would not discover." Ibid.
N.J.S.A. 2C:40-26 is not based on a model statute. Ten
other states, however, have implemented similar statutes which
impose additional, significant penalties on those found
operating a motor vehicle during their suspension period for
driving while intoxicated or refusing a chemical test. In two
of the states that have interpreted comparable statutes, the
rule of lenity has been found to control.
In Connecticut, for example, a person who drives while
suspended for DWI-related offenses is subject to a fine and
imprisonment of up to one year. Conn. Gen. Stat. § 14-215(c)(1)
(2014). The statute, however, does not specify whether a person
can be convicted if the determinate suspension term ended but
18 A-1767-13T2
the person did not administratively restore his or her license.
In State v. Cook, a defendant was not subjected to enhanced
penalties for driving while suspended after the period of
suspension had expired, but before he had been administratively
reinstated, because the court interpreted the law to mean
exposure was limited to those serving the determinate term only.
653 A.2d 829, 831 (Conn. App. Ct. 1995). The court observed
that because the consequences were penal, the statute should be
strictly construed in favor of the accused. Ibid.
Oregon Revised Statutes § 811.182(3) (2013) makes it a
felony to drive "while suspended or revoked . . . if the
revocation resulted from a conviction for felony driving while
under the influence of intoxicants." Another statute, Oregon
Revised Statutes § 807.010 (2013), makes it a misdemeanor to
drive without driving privileges. In State v. Hammerton, the
defendants were convicted under a statute specifying that the
license "revocation shall be for a period of one year" and that
driving privileges would not be reinstated until the person
complied with certain administrative requirements. 886 P.2d
1012, 1016 (Or. 1994). The court determined that when read
together, the relevant statutes created a statutory scheme
contemplating a finite license revocation period during which
the enhanced penalties could be imposed. Ibid. The defendants,
19 A-1767-13T2
whose period of revocation had ended but who had not applied for
reinstatement, could therefore only be charged with the lesser
infraction of driving without driving privileges, not felony
driving while suspended. Id. at 1017.
Unlike N.J.S.A. 2C:40-26, Pennsylvania's statute explicitly
states that a person can be convicted of driving while suspended
for a previous intoxication offense "until the person has had
the operating privilege restored." 75 Pa. Cons. Stat. §
1543(b)(2) (2014). Therefore a Pennsylvania driver can be
convicted even after the determinate period of suspension has
expired. Commonwealth v. Downs, 739 A.2d 569 (Pa. Super. Ct.
1999).3
Even if we were to find that the legislative intent was
unclear from the plain language of the statute, which we do not,
the rule of lenity would require us to render an interpretation
favoring these defendants so that none are punished for a crime
not clearly articulated. State v. Regis, 208 N.J. 439, 451
3
Although Hawaii, Maine, Minnesota, Oklahoma, and Virginia have
statutes providing for enhanced penalties for driving after
being suspended for alcohol-related offenses, to this date, the
statutes have not been interpreted. See Haw. Rev. Stat. § 291E-
62 (2014), Me. Rev. Stat. tit. 29-A, § 2412-A (2014), Minn.
Stat. § 171.24 (2014), Okla. Stat. tit. 47, § 6-205.1 (2013),
Va. Code Ann. §§ 46.2-301.1; -357 (2014). Maryland's statutes
provide enhanced penalties for driving while suspended, but do
not include a criminal conviction or jail time. See Md. Code
Ann., Transp. § 303 (LexisNexis 2014).
20 A-1767-13T2
(2011). The rule "is applied only if a statute is ambiguous,
and that ambiguity is not resolved by a review of 'all sources
of legislative intent.'" Id. at 452 (quoting D.A., supra, 191
N.J. at 165 (quotation omitted)). Whatever ambiguity exists in
this statute must be construed in favor of the defendants.
D.
In furtherance of its position, the State claims that the
penalties associated with DWI and refusal, in and of themselves,
support a finding that such suspensions "continue" until the
license is administratively restored. The State draws our
attention to N.J.S.A. 39:4-50(b):
A person convicted under this section
must satisfy the screening, evaluation,
referral, program and fee requirements of
the Division of Alcoholism and Drug Abuse's
Intoxicated Driving Program Unit, and of the
Intoxicated Driver Resource Centers and a
program of alcohol and drug education and
highway safety, as prescribed by the chief
administrator. The sentencing court shall
inform the person convicted that failure to
satisfy such requirements shall result in a
mandatory two-day term of imprisonment in a
county jail and a driver license revocation
or suspension and continuation of revocation
or suspension until such requirements are
satisfied, unless stayed by court order[.]
N.J.A.C. 10:162-2.2 further describes the consequences when
a driver fails to comply with an N.J.S.A. 39:4-50(b) sentence:
21 A-1767-13T2
(a) Failure on the part of the client to
appear at an Intoxicated Driver Resource
Center shall result in a referral to
Division of Motor Vehicles for appropriate
action, and, referral to the court of
conviction for appropriate action.
(b) Failure on the part of the client to
comply with the course of action or fee
schedule required by the Intoxicated Driving
Program/Intoxicated Driver Resource Center
or the course of action at an affiliated
agency or provider shall result in a report
of noncompliance to the sentencing court and
the Division of Motor Vehicles for
appropriate action pursuant to N.J.S.A.
39:4-50(b).
These statutes and regulations, however, relate to motor vehicle
licensing consequences and offenses. The requirement that a
convicted person satisfy mandatory programs and the consequence
that failure to do so may result in a two-day term of
imprisonment are entirely different matters from a fourth-degree
crime punishable by up to eighteen months of imprisonment carrying
a six-month mandatory minimum sentence.4
If anything, N.J.S.A. 39:4-50(b) and N.J.A.C. 10:162-2.2
support defendants' position that N.J.S.A. 2C:40-26(a) and (b)
apply during the determinate term of suspension. Under these
4
The State cites in further support of its argument an
unpublished case. See R. 1:36-3 ("No unpublished opinion shall
constitute precedent or be binding upon any court."). Like
Zalta, the case relates to motor vehicle penalties,
consequences, and license revocation, not prosecution under the
Criminal Code.
22 A-1767-13T2
provisions, in the event of noncompliance with the completion of
the Intoxicated Driver Program, as required by N.J.A.C.
39:4-50(a), extension of a DWI suspension is not automatic and
requires further administrative action.
The State also argues that unless a second-time offender
installs an ignition interlock device under N.J.S.A.
39:4-50(a)(2), his or her license remains suspended "for" DWI.
But the statute clearly provides that a person who has been
twice found guilty of DWI is required to install an ignition
interlock device, and that no license restoration will be
approved until compliance occurs. See also N.J.A.C. 13:19-6.4.
The focus of the provision and the regulation is to clarify the
steps a driver must take to obtain reinstatement. They do not
relate to prosecution under the Criminal Code. The consequence
of requiring the installation of an interlock device is,
therefore, similar to the consequence of requiring payment of an
administrative restoration fee. The State's reliance on the
motor vehicle code is misplaced and irrelevant to our
construction of N.J.S.A. 2C:40-26.
N.J.S.A. 2C:40-26 punishes those who drive while suspended
for violations of the DWI and refusal law, by exposing them to a
criminal record and incarceration without parole when they drive
during the court-imposed period of suspension. The statute's
23 A-1767-13T2
grave consequences are no doubt also intended to deter the
behavior. Criminalizing driving during a period of
administrative suspension extending beyond the determinate
suspension term for the DWI or refusal offense would not
implement legislative intent.
The indictments against McIntyre and Wisser demonstrate the
potential harm that results from the State's construction of
N.J.S.A. 2C:40-26. Both McIntyre and Wisser had completed their
court-imposed suspensions for the DWI violations but were
ineligible to restore their licenses due to other non-DWI or
non-refusal violations of the Motor Vehicle Code. They
nonetheless face the prospect of criminal prosecution. Other
drivers who repeatedly drive while suspended are not placed in
that jeopardy.
III
None of these offenses occurred during the relevant
court-imposed period of suspension for DWI and/or refusal under
N.J.S.A. 2C:40-26(a) or (b). We therefore affirm the dismissals
of indictments in the Perry, Nay, Evans, Papp, and McIntyre
appeals. See State v. Salter, 425 N.J. Super. 504, 514 (App.
Div. 2012) (indictments should be dismissed if "manifestly
deficient or palpably defective."). The denials of the motions
24 A-1767-13T2
to dismiss the indictments in the Brewer and Wisser appeals are
reversed. Id.
25 A-1767-13T2