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Tuesday, April 05, 2016

no 2c:40-26 if dwi suspension period is complete State v Kiefer





March 22, 2016


DOCKET NO. A-5203-13T2
Before Judges Fasciale, Nugent and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 13-02-0183.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).


Defendant appeals from his conviction for fourth-degree operating a motor vehicle during a second license suspension following convictions for driving while intoxicated, N.J.S.A. 2C:40-26(b). Defendant argues the judge erred by denying his motion to dismiss the indictment because the State failed to present a prima facie case in support of the charged offense. That is, defendant contends N.J.S.A. 2C:40-26(b) does not criminalize operating a motor vehicle beyond the court-imposed term of suspension even though actual administrative reinstatement was not sought. We agree. We reverse and vacate the judgment of conviction. 
We briefly recite the undisputed facts. Defendant was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, in 1999, 2000, and 2003. After the 2003 conviction, defendant's license was suspended for a period of two years. After this punitive suspension expired, defendant never took the requisite action to be reinstated.
On September 30, 2012, defendant was stopped by police while operating a motor vehicle. In light of his prior DWI convictions, a grand jury indicted and charged defendant with fourth-degree operating a motor vehicle during a second license suspension, N.J.S.A. 2C:40-26(b). 
In October 2013, defendant filed a motion to dismiss the indictment, arguing the State failed to present a prima facie case because defendant was arrested during a period of administrative suspension, long after the court-imposed suspension term expired. On December 5, 2013, the judge rendered an oral opinion denying the motion. 
On April 17, 2014, defendant pled guilty to the sole count under the indictment. On June 13, 2014, the judge sentenced defendant in accordance with the negotiated plea agreement to 180 days in jail without parole and imposed appropriate fines and penalties. Consistent with the plea agreement, the judge stayed the sentence to permit defendant to appeal. 
On appeal, defendant argues:


The issue presented is one of statutory construction. We review "[a] trial court's interpretation of the law and the legal consequences that flow from established facts" de novo.  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan140 N.J. 366, 378 (1995); State v. Revie220 N.J. 126, 132 (2014) (explaining that "[a]ppellate courts review a trial court's construction of a statute de novo"). 
N.J.S.A. 2C:40-26 was designed to "create[] criminal penalties  for persons whose driver's licenses are suspended for certain 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) (emphasis added); see also State v. Perry439 N.J. Super. 514, 527 (App. Div.), certif. denied222 N.J. 306(2015). The statute provides, in pertinent part:
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(b).]

In denying defendant's motion to dismiss the indictment, the judge noted there was no binding precedent addressing whether the statute criminalized operating a vehicle beyond the court-imposed suspension term. Although the judge acknowledged the case addressed a motor vehicle violation under N.J.S.A. 39:3-40, the judge relied in part on our decision in State v. Zalta, 217 N.J. Super. 209, 212-13 (App. Div. 1987), which concluded a license may be considered suspended beyond the imposed term, until reinstatement.
Over one year later, we directly addressed the issue raised here — "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."  State v. Perry, 439 N.J. Super. 514, 519 (App. Div.), certif. denied222 N.J. 306-07 (2015). We concluded the plain language of the statute defeated the State's argument — raised again here — that N.J.S.A. 2C:40-26 must be interpreted to apply to an individual, even after the court-imposed term of suspension expires, until he or she is reinstated by the Motor Vehicle Commission.  Id. at 523-30. Indeed, subsection (b) clearly requires the driver to have driven "'during the period of license suspension' while his [or her] 'license was suspended or revoked for a second or subsequent [DWI] violation.'" Id. at 525 (quoting N.J.S.A. 2C:40-26(b)). The statute makes no mention of driving without reinstatement beyond the court-imposed term of suspension, and we may not add qualifications into the statute to avoid its plain meaning.  Ibid.see also DiProspero v. Penn, 183 N.J. 477, 492 (2005) (explaining a court's role in interpreting a statute's meaning). Thus, we held "the statute criminalizes the operation of a motor vehicle only while the operator is serving the court-imposed term of suspension, and not thereafter."  Id. at 519. 
We conclude our holding in Perry compels reversal. Defendant was charged under N.J.S.A. 2C:40-26(b) years after the court-imposed term of suspension expired. The State's reliance on Zaltasupra, 217 N.J. Super. 209, is misplaced. In Perry, we distinguished Zalta as inapposite to the issue before us now — whether N.J.S.A. 2C:40-26(b) applies beyond the court-imposed period of suspension. Perrysupra, 439 N.J. Super. at 523-25. 
The judge's denial of defendant's motion to dismiss the indictment is reversed; the plea is set aside; and the judgment of conviction is vacated. We direct the court to enter a corresponding order. We do not retain jurisdiction.