1. OVERVIEW OF THE LAW
This charge is codified under N.J.S.A. 39:3-40. DWI and driving while revoked go together like New Jersey and traffic tickets. In many cases, the DWI driver will also be suspended as a result of a prior conviction for a DWI. More often the DWI driver will be on the revoked list because he failed to pay drunk driving surcharges to the MVC. A driving on the revoked list can only make a DWI case much more complicated, and thus more difficult to resolve.
There are literally thousands of driving while suspended violations issued annually. Each and every year, the laws of New Jersey recognize new grounds to suspend or revoke a person’s driver’s license. A driver can be suspended or revoked for many grounds. The major grounds for suspension are as follows:
Nonetheless, most drivers still drive even if their driver’s license is revoked or suspended. New Jersey does not have any temporary, provisional or “work” license which would permit the driver to lawfully operate a motor vehicle during certain hours of the day, or for the purpose of traveling to work. Many other states have temporary driver’s license, even if the driver is suspended for DWI. However, New Jersey does not issue temporary or conditional driver’s licenses, and in my opinion it never will.
A suspended driver cannot drive at all for any reason. A suspended driver can’t drive to and from work or school. A suspended driver can’t drive to the supermarket to purchase food for the family. e can’t drive to obtain medical care. Even in a remote area where there is no public transportation, a suspended driver may not even lawfully drive, even if he is faced with a life-threatening emergency.
In my opinion, most Municipal Courts are fairly reasonable in dealing with persons charged with driving while suspended. However, if a person is driving while suspended because of DWI charge, then this is a special case, and the courts will want to “roast” the defendant.
2. VIOLATION OF THE DRIVING WHILE REVOKED STATUTE
In order to prove that a driver is guilty of driving on the revoked list, the prosecutor must prove two elements. First, the prosecutor must prove that the driver actually operated the vehicle. Second, the prosecutor must prove that the driver operated the vehicle when their driving privileges were suspended. N.J.S.A. 39:3-40
In my experience, many times the prosecutor is overwhelmed, and he often does not have the necessary proofs to convict the defendant. The prosecutor has to obtain the suspension papers, and the proof of mailings from the MVC. Many times, the prosecutor will fail to obtain these crucial proofs. If this scenario occurs, then this is a perfect opportunity to pursue a downgrade of the charge to an unlicensed driver offense. The prosecutor may object, and then ask for an adjournment. However, stand your ground, and inform that judge that you want a speedy trial. This type of objection and pressure in some courts may convince the prosecutor to give you the unlicensed driver charge.
Sometimes a driver can also contest the “operation” prong of the driving while revoked statute. In many cases the police officer fails to appear for court. If the police officer fails to appear not show up for court, then the prosecutor can’t prove that the driver operated the vehicle. Thus, the case will be dismissed. In summary, the more a driver understands and protects their rights, then this will only increase their chances of getting a better deal at Municipal Court.
A driver can also try to contest the second prong of the driving while revoked statute as well. The best avenue for a driver to argue is that their underlying suspension is invalid. A driver can also argue to the Municipal Court that he never received any type of notice or never receive a hearing for his license suspension.
The most common practice is for a driver to adjourn their case, and then make any all efforts to restore his driving privileges. In most case, the driver can go to the MVC and pay his back surcharges. In other cases, a driver can pay any outstanding traffic tickets or parking tickets. The driver must obtain “paper proof” that he has satisfied any outstanding traffic tickets, parking violations or surcharges.
At court, the driver must give these items to the prosecutor. In most cases the prosecutor will then downgrade the case to an unlicensed driver charge if he is a first time violator. In summary, the key objective in any driving while revoked or suspended case is to address the suspension, and pay any outstanding charges to restore the license.
3. (A) SENTENCE FOR DRIVING WHILE SUSPENDED – FIRST OFFENSE
In the field of Municipal Court practice it is not uncommon at all for clients to have multiple “prior” convictions for driving while revoked. Once a driver obtains three convictions, then there is mandatory jail time or slap time. I have had one client who has been convicted of 23 driving while suspended charges.
A first offender is subject to a punishment that includes both fines, and a loss of their driving privileges. There is a fine of $500. A driver can also lose his license for up to six months. However, in most cases the court does not suspend any license for a first time offender
(B) SENTENCE FOR DRIVING WHILE SUSPENDED – SECOND OFFENSE
A second offender is subject to increased punishment. A second offender must pay a fine of $750. Moreover, a defendant is also subject to an additional license suspension of as long as six months. Most judges impose a 30 days driving suspension for a second offense.
In addition to the heavy fines a jail term must be part of the sentence imposed on a second offense. The length of the jail term must between one and five days. In most cases, the judges allow the drivers serve their “time” by coming to the court, to waste their day(s) by sitting there. A driver will obtain a day of jail credit for every court session that they appear at, and sit in at. In my experience some of the drivers still fail to serve their time by going to the court to sit there. Many drivers are just too irresponsible.
Most judges hate to put drivers in jail for driving while suspended charges. However, if the driver is a chronic violator, then the court will have no choice. Moreover, most counties have some type of SLAP program that will permit the driver to perform some type of community service. However, this certainly is a major inconvenience. Moreover, most counties now charge the drivers a daily fee for costs to supervise their slap program. Therefore, the driver is basically paying the county to supervise them while they perform their community service. In my opinion this is an outrage. Nonetheless, the New Jersey government is doing everything in their power to squeeze every dollar out of their bad drivers.
(C) SENTENCE FOR DRIVING WHILE SUSPENDED – THIRD OFFENSE.
A third or a subsequent offender is subject to a very harsh punishment. A third time offender must pay a fine of $1,000. The defendant is also subject to license suspension for as long as six months. Although there is no minimum period of suspension for this level offender, in most cases a third or more times offender will receive a substantial period of suspension.
The minimum fine is $1,005. A jail term must be part of the sentence on a third time offender. The typical length of the sentence is 10 days. In most cases, the driver can perform their sentence by enrolling in the county SLAP program. Enrolling in a SLAP program is betting than serving time in jail. However, the bad driver still must miss work. SLAP ruins all of your weekends. Moreover, it is embarrassing. Many times, a SLAP program will make you pick up garbage in your local town, while you are wear a bright orange vest. This can be very embarrassing if your friends and co-workers should happen to see you.
4. DRIVING WHILE SUSPENDED DUE TO A NON-PAYMENT OF A PARKING TICKET
A driver who is charged with driving on the revoked list, and who is on the revoked list for the nonpayment of a parking ticket pursuant to N.J.S.A. 39:4-139.10, can present proof to the prosecutor or to the court that he or she has paid the old tickets.
If the driver can provide such proof, then the fines are only a max of $102. Basically, the driver can plead guilty to a driving while suspended charge because of the unpaid parking tickets. The prosecutor will try to sell this to the drivers. However, a driver still will get surcharges of $250 per year for three years. Moreover, the driver will be assessed 9 insurance points. The best approach, would be to try to get the charge dropped to an unlicensed driver, to avoid the insurance surcharges, and the insurance points.
5. SENTENCING ENHANCEMENTS
(A) MOTOR VEHICLE ACCIDENT INVOLVING A PERSONAL INJURY TO ANOTHER TERM OF INCARCERATION
The driving on the revoked list statute provides a mandatory term of jail for those defendants whose driving has resulted in an accident involving a personal injury to another person. Such a defendant must be sentenced to a minimum jail sentence of 45 days.
The triggering event for this sentencing enhancement, is that there must be a personal injury to another person in a motor vehicle accident. It does not even matter if the other driver was at fault in the accident. If a person is driving on the suspended list, and if they are in an accident, then they must serve a 45-day jail term.
In this type of situation, a person must find a very experienced municipal court lawyer to assist him. There are many ways to circumvent the “draconian” nature of this penalty. A 45-day jail term can really ruin a person’s life, and cause them to lose their job. The bottom line is to not drive while suspended. New laws are being enacted each and every year to combat these drivers. If you are in an accident, and if you are suspended, then you must retain my office, or a competent traffic court lawyer. If you “wing it,”you may soon find yourself watching a real lot of TV in the County Jail, and drinking a bunch of disgusting “bug juice” to wash down your prison meals.
(B) INCREASED SENTENCE FOR DRIVING WHILE SUSPENDED BECAUSE OF A DWI
A defendant who drives while on the revoked list will be subject to an increased sentence if the suspension is for a DWI charge. The driver will lose their driving license for a period of an additional period of one to two years. This additional suspension will start once the DWI suspension is finished. Finally, a defendant under this sentencing enhancement must be sent to jail. The jail term ranges from a 10 to 90 days in jail.
(C) INCREASED JAIL TIME FOR MULTIPLE OFFENDERS
Many drivers routinely drive even while they are on the suspended list. Many police officers have advised me that one out of four of the drivers that they pull over on routine traffic stops are on the revoked list. The numbers are even higher in some of the more disadvantaged areas of New Jersey. The privilege of driving is very expensive and many people just can’t afford it. These drivers hope that they can beat the system. Some drivers are just desperate, and on they must get to work no matter what the risk are. However, big brother is getting better all the time at busting drivers who are driving while on the suspended list. In some of the poorer areas of New Jersey, one out of every four drivers is on the suspended list. Therefore, it is really a number’s game. The more drivers that the police can stop, then the greater the odds that they will arrest drivers for driving while suspended, registration charges, or for no-insurance violations. Unfortunately, many drivers get caught in the point trap or the insurance surcharge trap, and they are in a perpetual state of “driving while suspended.” Unfortunately driving while suspended really becomes a way of life for many of our fellow New Jersey citizens.
In my many years of practice, my record is representing a driver who had 23 driving while suspended charges. However, there are drivers out there who have had more.
The State has enacted a new law that increases the jail term for a driving while suspended term by ten days for every violation after the third. Basically, a driver will only go to jail for a third time violation of driving while suspended. A driver who is convicted or enters a plea for a third time driving while suspended must receive a mandatory ten day jail term.
The Legislature has provided additional sanctions for persons who repeatedly operate a motor vehicle while their driving privileges are suspended or revoked. In the event a driver is convicted of driving on the revoked list for a second or subsequent offense on or after June 24, 2002, the municipal court must increase the length of the term of mandatory incarceration under certain circumstances. N.J.S.A. 39:3-40(j).
The enhanced sentence is only triggered when the driver is also found guilty of a moving violation that was committed while he or she was driving on the revoked list. For purposes of this sentence enhancement, a moving violation means any violation of the State’s motor vehicle laws for which points are assessed by the MVC. Accordingly, if a companion moving violation can be dismissed as part of a plea agreement or downgraded to a non-point violation then no additional jail term can be imposed.
In summary, the sentences for repeated and serial driving while suspended cases are getting tougher. There are ways around these harsh sentences. However, if you are a serial violator, then you better get yourself a good lawyer. N.J.S.A. 39:3-40(j) gives the court the discretion to add ten additional days of prison for every violation after the third. Moreover, the statute is written in a mandatory fashion. Therefore, the court is not given wide discretion in their sentencing authority.
(D) INCREASED SENTENCE FOR DRIVING WHILE SUSPENDED FOR FAILING TO PAY SURCHARGES
A driver can also face a nasty trap if he is busted for driving while suspended for failing to pay his MVS. surcharges. The MVS is authorized to impose surcharges on a driver for bad driving. If a driver fails to pay his surcharges, or if he fails to comply with an installment plan or defaults in making any payments, then the MVC is authorized to suspend indefinitely a person’s driver’s license. A driver who operates his motor vehicle when their license is suspended by the MVC for failing to pay surcharges, is also subject to an increased punishment as per N.J.S.A. 39:3-40(g).
The basic theme of this penalty is that there is an additional “MEGA” surcharge of $3,000 imposed if a driver is busted for driving while suspended, for not paying their surcharges. The local Municipal Court plays no role in imposing this additional $3,000 surcharge.
The good news is that in most of the cases, this additional penalty can be avoided. In most cases, the courts will adjourn the case, and give the driver time to pay up their back surcharges. Moreover, the driver can make a payment plan with the MVC to pay their back surcharges. If the driver gets paper proof that they have addressed the back surcharges, then in most cases, the courts will downgrade the case to an unlicensed driver charge. Therefore, this will enable the driver to avoid the nuclear bomb $3,000 surcharge.
6. COLLATERAL CONSEQUENCES OF DRIVING WHILE SUSPENDED
Every person who is convicted of driving while suspended, will also be subject to harsh collateral consequences. These consequences will continue to affect the defendant and his or her ability to lawfully drive for years to come. They will also dramatically affect the price he or she will have to pay for liability insurance coverage.
(A) ADDITIONAL SURCHARGES
If a driver is convicted of driving while suspended, then he will be assessed a surcharge of $250 per year for three years. The surcharge bill will usually be sent to the driver within a few weeks of the conviction, and it must be paid, even if the person’s driving privileges remain suspended.
(B) INSURANCE ELIGIBILITY POINTS
The insurance companies doing business in New Jersey are entitled to assess insurance eligibility points based on incidents of driving misconduct against the records of their clients in order to rate their policies. An accumulation of nine points or more will usually disqualify the insurance from purchasing auto insurance. A conviction for operating a motor vehicle while on the revoked list carries with an assessment of nine insurance eligibly points. These points remain on the defendant’s insurance record for three years.
(C) RESTORATION FEE
At the conclusion of the defendant’s period of superior, he or she will be required to pay a restoration fee to the Director of the Division of Motor Vehicles in order to become re-licensed. The fee is $100 and it will be billed to the defendant within a few weeks after the conviction.
(D) PERMANENT RECORD OF CONVICTION
The entry of a conviction for driving while suspended will permanently remain on the defendant’s driving abstract and driving record as a permanent entry, on the defendant’s driving record as maintained by MVC. This can be disastrous for drivers who have C.D.L. licenses, or who are truckers. Many truckers simply will not be able to obtain employment if they have a prior driving while suspended conviction on their record. There is no method to expunge a prior conviction for driving while suspended either.
(E) ADMINISTRATIVE SANCTIONS BY THE MVC
Finally, the act of driving while on the revoked list will be punished on an administrative basis by the MVC when there is evidence when the driver drove while he or she was suspended. The MVC computer is programmed in such a way as to check the driving status of each licensed driver every time a transaction is recorded on the driver’s record. Thus, if the MVC received a transmittal from a Municipal Court that a licensed driver was convicted of speeding, careless driving or any other moving violation, then the MVC computer will check to ascertain if the defendant’s driving privileges were suspended or revoked on that date.
Thereafter, once the driver is busted, then the MVC will send another notice to him or her advising them of new additional driving while revoked charges. The notice issued by the MVC will include a proposed suspension of the defendant’s driving license for 180 days. The MVC will also impose a surcharge on the driver for $250 for three years. A driver who is faced with this charge, can fight the case by requesting a MVC hearing.
*The entry of conviction will permanently remain on the defendants driving abstract and driving record as maintained by the MVS.
7. New Sentencing Enhancements
There are always new sentences that are constantly being imposed for driving while suspended. N.J.S.A. 39:3-40 provides an increasing range of penalties for people who have been convicted for driving while suspended. Beyond the basic penalties, the law also provided for extra, additional penalties, depending upon the reason for the suspension. Typically, if the reason the defendant defendant has been placed on the revoked list is from a DWI or a refusal suspension, a suspension for driving without liability insurance or not paying surcharges to the MVC, then the sentencing judge must impose a serious of additional sanctions over and above the basic penalties. Thus, a defendant receives double punishment: one set of penalties based upon the reason for the underlying license suspension.
A. Enhancement for Suspension Due to Driving Without Liability Insurance
A defendant who drives while on the revoked list will be subject to sentencing enhancements if the reason for the underlying suspension is for driving without insurance. First- time offenders are subject to a one-year suspension. Second- time offenders will lose their license for a two-year period. The sentencing enhancements for such a defendant are in addition to the basic penalties for driving on the revoked list. Thu,s in addition to the required basic penalties, a defendant will also receive a second fine of $500, $33 court costs, and a $6 surcharge. The defendant could also lose his license for a period ranging from one to two years. Finally, the defendant could also be sentenced to jail for as along as 90 days.
B. Enhancement for Suspension Due to Drunk Driving
A defendant who drives while on the revoked list will be subject to sentencing enhancements if the reason for the underlying suspension is for either drunk driving or for refusal. The enhancement will apply regardless of whether the defendant’s drunk driving conviction occurred in New Jersey or another state. The same enhancements are also required for a defendant who personally operates a motor vehicle after having been suspended by the MVC for being a habitual offender. If a defendant personally operates a motor vehicle during these suspension periods, he or she will be subject to an enhanced punishment under N.J.S.A. 39:3-40(f)(2).
The sentencing enhancements for such a defendant are in addition to the basic penalties for driving on the revoked list. Thus, in addition to the required basic penalties, such a defendant will receive a second fine of $500, $33, and a $6 surcharge. Beyond the basic driver’s license loss required under the basic penalties, the defendant will also be subject to an additional loss of driving privileges that will range from one to two years. This cumulative suspension will commence after the termination of any period of license loss the defendant is serving at the time of the sentence. Finally, a defendant under this sentencing enhancement must be incarcerated for an additional term beyond the basic penalties for a term ranging from 10 to 90 days. Finally, please note that if the defendant operates his motor vehicle within a school zone while under suspension for DWI, he will be subject to a third set of additional penalties.
C. Enhanced Sanctions for School Zone Violations
A defendant who has been convicted of a school zone violation will be subject to triple punishment. Such a defendant must receive the basic penalties under N.J.S.A. 39:3-40 as well as the additional enhancements under N.J.S.A. 39:3-40 and N.J.S.A. 39:3-40(f)(3). Technically, the only limitation on these sanctions will be in the jail term which may not exceed 180 days in the absence of the offer of a jury trial.