Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Tuesday, April 05, 2016

Conviction for 2c:40-26 reversed State v Diaz

Conviction for 2c:40-26 reversed State v Diaz



DOCKET NO. A-0Submitted March 25, 2015 – Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 14-01-0193.

Reynolds & Scheffler, LLC, attorneys for appellant (Christina M. Workman-Naughton, on the briefs).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Deborah A. Hay, Assistant Prosecutor, of counsel and on the brief).


Defendant Roberto Diaz pleaded guilty to the single count in Atlantic County Indictment No. 14-01-0193, charging him under N.J.S.A. 2C:40-26(a) with the fourth degree offense of driving while his driver's license was suspended based on his second conviction for driving while intoxicated (DWI) as defined in N.J.S.A. 39:4-50. The court sentenced defendant to serve 180 days without parole in the Atlantic County Correctional Facility as mandated under N.J.S.A. 2C:40-26(c).
Defendant pleaded guilty pursuant to a negotiated agreement with the State through which he reserved the right to appeal the trial court's decision denying his motion to dismiss Indictment No. 14-01-0193 as a matter of law. Defendant argued before the trial court, and continues to argue here, that at the time he was charged with violating N.J.S.A. 2C:40-26(a), his driver's license was not suspended or revoked as part of a sentence imposed by a court under N.J.S.A. 39:4-50. Stated differently, defendant argued that at the time he was charged with violating N.J.S.A.2C:40-26(a), his license was suspended under N.J.S.A. 39:3-40, not as part of the suspension imposed by the court for his second DWI conviction under N.J.S.A. 39:4-50.
Relying in part on our decision in State v. Zalta217 N.J. Super. 209, 212-13 (App. Div. 1987), the trial court rejected defendant's argument. The trial court found that at the time defendant was arrested for the offense charged in Indictment No. 14-01-0193, his driving privileges remained suspended due to his prior DWI conviction because he had not taken any action to obtain "a proper restoration with the director of Motor Vehicles[.]" The trial court made this decision on March 7, 2014.
Almost a year later, this court decided State v. Perry439 N.J. Super. 514 (App. Div. 2015), through which we addressed a variation of the same dispositive legal question we confront here, to wit: "whether charges can be brought under [N.J.S.A. 2C:40-26] when the act of driving occurs beyond the determinate sentenced term of suspension, but before reinstatement, while the driver continues on administrative suspension." Id. at 519. After summarizing the facts presented in the seven consolidated appeals decided in Perry, we concluded that N.J.S.A. 2C:40-26 "criminalizes the operation of a motor vehicle only while the operator is serving the court-imposed term of suspension, and not thereafter."  Ibid.
Applying our holding in Perry to the salient facts here, we reverse the decision of the trial court and dismiss with prejudice Indictment No. 14-01-0193 charging defendant with the fourth degree offense under N.J.S.A. 2C:40-26(a) of driving while his driver's license was suspended based on his second conviction for DWI. The following facts are not contested.
On Tuesday August 6, 2013, at approximately 7:00 a.m., defendant was involved in a one-car accident on Duerer Street in Galloway Township when the 2012 Honda Civic he was driving struck bushes located on the south side of Duerer Street's lane of traffic. Defendant was not in or near the car when the Galloway Township Police Officers arrived at the scene. One of the officers first saw defendant walking down the road approximately 100 yards away from the accident scene. Although defendant initially denied being involved in the accident, he admitted he was the driver when members of his family arrived at the scene shortly thereafter. 
The police report indicates defendant had a "very strong odor of an alcoholic beverage coming from his breath." He also failed to successfully complete a number of field sobriety tests administered to him at the scene. He was charged and arrested for DWI and was eventually transported to the Stockton Police Station where he submitted to an Alcotest that indicated his blood alcohol content (BAC) level was .12. This is .4 points higher than the presumptive level of intoxication under N.J.S.A. 39:4-50(a). Defendant was charged with DWI, reckless driving, N.J.S.A.39:4-96, failing to maintain lane, N.J.S.A. 39:4-88, and driving while suspended, N.J.S.A. 39:3-40.
At the time defendant was charged with these Title 39 offenses, his driver abstract indicated his first conviction for DWI occurred on March 27, 2008; his second DWI conviction occurred on April 1, 2009, at which time he was also convicted for driving while suspended. He was convicted for driving while suspended two more times, on January 20, 2011 (relating back to an offense committed on September 27, 2010), and February 6, 2013 (relating back to an offense committed on January 21, 2013). This constitutes a total of three driving while suspended convictions and two DWI convictions. 
To be clear, the record shows that on April 1, 2009, the municipal court of Hamilton Township suspended defendant's driving privileges for two years in connection with his second DWI conviction, and imposed an additional one-year suspension period for driving while suspended. Assuming these suspension periods were intended to run consecutively, defendant's driver's license suspension related to his second DWI ended on April 1, 2012. It is also clear, however, that defendant did not take any steps to restore his driving privileges after April 1, 2012, and was convicted of driving while suspended again on January 21, 2013.
In presenting this case to the Grand Jury on September 10, 2013, the prosecutor made the following statement of law:
All right, ladies and gentlemen this . . . is now a criminal offense. It may sound a little weird to have somebody that's operating a motor vehicle without a - - on a period of suspension be a crime nowadays, but it actually is. It started, I guess, back in I want to say it was April. It might have been April of 2012 though.[1] It wasn't that long ago. It was within a year maybe a little over a year. It is a bit unusual, but these do come up from time to time.

Anyway, the count states on or about the 6th of August 2013 in the Township of Galloway Township [sic] Roberto Diaz did knowingly operate a motor vehicle while his driver's license was suspended or revoked having been previously convicted of [ N.J.S.A.] 39:4-50, which is [DWI], or [ N.J.S.A.] 39:4-50(a), which is refusal. Which then the statute goes on to state driving under the influence or refusal to submit to a Breathalyzer test and has previously been convicted of, again, having a previous [DWI] drivers [sic] license suspension.

So, again so the driving on the current license suspension and their license in the past has been suspended at least one time or more for a [DWI] prior to this current suspension. Okay? So, now it's a criminal offense. So, any questions regarding this case? Seeing none I ask to go off the record.

In denying defendant's motion to dismiss the single-count indictment, the trial judge made the following findings with respect to defendant's status on August 6, 2013, the date he was charged with violating N.J.S.A. 2C:40-26(a):
His [DWI] license suspension was going to expire on April 1, 2011, and even if those convictions were to run consecutive, the license would have been eligible to be restored on October 1, 2011, which is two years prior to his current offense day here.  State v. [Zalta] is cited, but that appears to be distinguishable as the defendant never had the ability or never did seek restoration after the [DWI] suspension due to the fact that he then incurred . . . multiple other [ N.J.S.A.] 39:3-40 suspensions. They happened one after another. He was driving again while suspended [on] August 6th, 2013, and that suspension was a result of driving while suspension conviction in February of 2013 as alleged by the defendant, and not as a result of the 2009 subsequent or second [DWI] suspension. In any event, what happened here, if you go through his abysmal driving record, by the way, he's got a real problem here as far as [DWIs] and driving while suspensions. You have to look at the legislative intent of – of this [ N.J.S.A.] 2C:40-26, which the [c]ourt alluded to in the State v. Carrigan case,[2] which basically gave reasons that when interpreting this statute that it made a fourth degree crime of this driving while suspended for subsequent [DWI].

. . . .

Based on the legislative history and the clear statutory interpretation of that statute, it would be incumbent upon defendants to be able to show by affirmative proof that at some point in time they had their license restored and paid the fee and did everything they had to do for the [DWI] suspension that was the subsequent [DWI] suspension that triggered the [N.J.S.A. 39:3-40].

. . . .

The fact is that the prohibition against driving while suspended continued past the suspension period because he was never legally, properly restored through the Division of Motor Vehicles and he never did what he had to do, because he had a continuous stream of suspensions. And according - - [to] [t]he way I read the statute and the history of it, a reasonable interpretation of . . . that would mean that the suspension would continue until an actual restoration of the license by the Motor Vehicle director. Under [ N.J.S.A.] 2C:40-26 defendant was stopped for the present offense. His license was suspended after having been . . . convicted of two prior [DWI's] in March of '08 and April of '09, followed by then multiple, at least two or three, driving while suspended offenses. His privileges were never restored, so under [Zalta] his license remained suspended at the time of the present offense for the driving while suspended. So it it doesn't appear really that you really even get to a [Zalta] analysis since it would appear based on the facts of this case that the defendant was once again driving under the influence. He was also driving while he was suspended. The prior [DWI] suspension had never been rectified by way of a proper restoration with the director of Motor Vehicles and, therefore . . . you can't make an argument that, well, he . . . was driving while suspended because of [ N.J.S.A.] 39:3-40, not under his second or more [ N.J.S.A.] 39:4-50s. You can't make that argument. So for those reasons the motion to dismiss the indictment is denied.

Defendant now appeals raising the following argument:


A. At the time of Defendant's arrest his license was not suspended in contravention of N.J.S.A.39:4-50.

We agree with defendant and reverse. The record shows, and the trial court found, defendant had long completed his suspension for his second DWI conviction by August 6, 2013, the date identified in Indictment No. 14-01-0193 as the basis for charging him with the fourth degree offense under N.J.S.A. 2C:40-26(a). As noted earlier, the trial judge reached this decision on March 7, 2014, a year before our decision in Perry, in which we held " N.J.S.A. 2C:40-26 punishes those who drive while suspended for violations of the DWI[.]"  Perrysupra, 439 N.J. Super. at 531. The facts of the seven appeals we consolidated in Perry mirrored the facts we confront here.
The facts in McIntyre, one of the seven appeals consolidated in Perry and also from Atlantic County, illustrate the similarities to the core facts of this case:
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).

[Id. at 521.]

After reviewing the legislative history of N.J.S.A. 2C:40-26, we reached the following conclusion:
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 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.

[Id. at 531-32.]

We discern no rational basis not to apply the holding in Perry to the facts of this case. We reverse the trial court's ruling and dismiss with prejudice Indictment No. 14-01-0193, and vacate defendant's conviction for violating N.J.S.A. 2C:40-26(a).


1  This is an incorrect statement of law. The Legislature adopted N.J.S.A. 2C:40-26 with an effective date of August 1, 2011.
2  See State v. Carrigan428 N.J. Super. 609, 613 (App. Div. 2012), certif. denied213 N.J. 539 (2013), in which we reversed the trial court's decision to dismiss a charge under N.J.S.A. 2C:40-26 on ex post facto grounds "because his ongoing license suspensions had been imposed before the statute's effective date." We held the statute "may be constitutionally applied to drivers with suspended licenses, such as defendant, who are caught driving after August 1, 2011, regardless of whether their DWI-based suspensions were imposed before that date."  Ibid.

This archive is a service of Rutgers School of Law.