DRIVING WHILE (DRIVERS LICENSE) IS SUSPENDED OR REVOKED—ENHANCEMENTS—N.J.S.A. 39:3-40 and 39:3-40(f)
NEW ADDITIONAL CRIMINAL EXPOSURE—N.J.S.A. 2C:40-26

You are operating your automobile on a public highway and suddenly a police officer signals you to pull over. The police officer collects your drivers license, registration and insurance identification card, and walks back to his patrol car. A few moments later he reappears at your window and hands you a couple of tickets—one of which is for violation of N.J.S.A. 39:3-40, e.g., driving while suspended or while on the revoked list.
Have you just committed a serious offense?

A general overview of the Statute starts with the proposition that operating a motor vehicle on the public roads of New Jersey is not a right, but a privilege, that can be revoked by the Motor Vehicle Commission (MVC) formerly called the Division of Motor Vehicles. When they place your drivers license on the revoked list and deem your privilege to drive suspended, that means it is now unlawful for you to operate a motor vehicle in the State of New Jersey prior to getting your privileges officially restored with MVC. There are penalties upon conviction (developed infra). However there are many reasons your license might be suspended and they would be divided into two (2) broad categories of basis for suspension, e.g., “administrative suspension” versus “disciplinary suspension”, the latter usually involving “enhancements” or the imposition of penalties in addition to suspension or revocation of driving privileges, such as increased fines, and jail time.

If the underlying reason your license was suspended was for failure to pay a traffic ticket, failure to pay MVC surcharges, or some other fine, your suspension is an “administrative suspension”. The penalties for an administrative suspension form the foundation of N.J.S.A. 39:3-40 and are as follows. Upon conviction for a first offense the court must impose a minimum mandatory fine of $500.00, drivers license suspension not to exceed 6 months, no jail time and court costs of $33.00; Upon conviction for a second offense the court must impose a minimum mandatory fine of $750.00, drivers suspension not to exceed 6 months, jail time for not less than one (1) day nor more than five (5) days and court costs of $33.00; Upon conviction for a third or subsequent offense, the court must impose a mandatory minimum fine of $1,000.00, drivers license suspension not to exceed 6 months, jail time of a mandatory ten (10) days and $33.00 court costs. Under 3:40(g) if your suspension was for failure to pay MVC surcharges you must in addition to the foregoing fines and penalties, pay $3,000.00 in additional MVC surcharges.

However, if your drivers license was suspended or revoked because you were convicted of violation of driving while intoxicated (DWI), or for driving without automobile liability insurance, or you are a “habitual offender”, you must in addition to the foregoing penalties, be subject to “enhancements” or “enhanced penalties” which is essentially an additional layer of penalties consisting of increased fines, increased suspension period and jail time. This is so partly because you already knew you were no longer allowed to operate a motor vehicle on the roads of New Jersey and partly because there was good reason to revoke your privileges for the general protection of others on the roads. The penalties are as follows.
Under N.J.S.A. 39:3-40(f)(1), if your privileges were previously suspended for violation of N.J.S.A. 39:6B-2, driving without liability insurance on the automobile, and you are convicted of driving after your conviction but before you actually get your license restored with MVC, upon conviction for a first offense the court must impose a minimum mandatory fine of $1,000.00, an additional license suspension of not less than twelve (12) months nor more than thirty (30) months and may impose jail time from zero (0) days not to exceed ninety (90) days; Upon conviction for a second offense the court must impose a $1,250.00 fine, an additional license suspension of not less than twelve (12) months nor more than thirty (30) months, may impose jail time from zero (0) days not to exceed ninety (90) days, and if second offense occurs within five (5) years of any other previous conviction for violation of 39:3-40, then possible revocation of registration certificate as well. Upon conviction for a third offense the court must impose the mandatory minimum fine of $1,500.00, an additional license suspension of not less than twelve (12) months nor more than thirty (30) months, jail time of not less than ten (10) days nor more than ninety (90) days and possible revocation of registration certificate as well.

Under N.J.S.A. 39:3-40(f)(2) if your privileges were previously suspended for DWI (N.J.S.A. 39:4-50), refusal to submit to a breath test (N.J.S.A. 39:4-50.4a) or you are a “habitual offender” (N.J.S.A. 39:5-30a—30e), and you are convicted of driving after your conviction, but before you actually got your license restored with MVC, the fines and penalties follow the same general statutory scheme as 3-40(f)(1) (above) with the exception of increased jail time and now new statute N.J.S.A. 2C:40-26. Upon conviction for a first offense the court must impose a minimum mandatory fine of $1,000.00, impose an additional license suspension of not less than twelve (12) months nor more than thirty (30) months, jail time of not less than ten (10) days nor more than ninety (90) days. Upon conviction for a second offense new statute enacted on August 11, 2011 now makes a second offense a fourth (4th) degree crime and requires a minimum jail sentence of 180 days before eligible for parole in addition to imposition of $1,250.00 fine and license suspension from 12 months to 30 months and possible registration certificate revocation.

Under N.J.S.A. 2C:40-26(a) it is now a criminal offense, e.g., fourth (4th) degree crime, to be convicted of driving while suspended (a second time) during the time within which your drivers license is suspended for DWI or refusal. If convicted the court must impose a mandatory minimum jail sentence of six (6) months and may impose maximum jail time of up to eighteen (18) months.

Under N.J.S.A. 2C:40-26(b) it is now a criminal offense, e.g., fourth (4th) degree crime, to be convicted of driving while suspended (a first time) if you have been convicted for two (2) prior DWIs or refusals, during the time within which your drivers license is suspended for (the second) DWI or refusal. If convicted, the court must impose the mandatory minimum jail sentence of six (6) months and may impose maximum
Jail time of up to eighteen (18) months.

Under N.J.S.A. 39:3-40(f)(3) if your driving privileges were previously suspended for DWI (violation of N.J.S.A. 39:4-50) or refusal (N.J.S.A. 39:4-50(a), and you are convicted of driving after your conviction, but before you actually got your license restored with MVC, while driving in a school zone or driving through a school crossing, upon a first conviction the court must impose a mandatory minimum fine of $1,000.00, drivers license suspension of not less than twelve (12) months nor more than thirty (30) months, and jail time of not less than sixty (60) days nor more than ninety (90) days. Upon a second conviction, a court must impose a minimum mandatory fine of $1,250.00, drivers license suspension for not less than twelve (12) months nor more than thirty (30) months, jail time of not less than one hundred and twenty (120) days nor more than one hundred and fifty (150) days and possible registration certificate revocation. Upon a third conviction, the court must impose a minimum mandatory fine of $1,500.00, drivers license suspension of not less than twelve months nor more than thirty (30) months, jail time of one hundred and eighty (180 days and possible registration certificate revocation.

There is important case law authority for the proposition that the fines imposed if convicted under section f (on an enhancement) are in addition to fines imposed in sections a through e of the statute. State v. Wrotney, 221 N.J. Super 226, 228-230 (App. Div. 1987) Though 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) hold just the opposite, e.g., that the fines imposed under section f of the statute are a substitute for the fines imposed under sections a through e. Most municipal courts follow Walsh and Rought.

So the answer to the question is YES—you might have committed a very serious violation—which might even result in criminal exposure—in addition to hefty fines, loss of driving privilege, and so forth. This is nothing to fool around with. The best practice if charged is to contact counsel immediately to save your livelihood and your liberty.

STEPHEN A. GRAVATT, ESQ.
(732)-337-7922

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