2C:40-26(b) comprises a new offense based on new conduct

The State appealed the dismissal of a criminal complaint charging defendant Christopher Carrigan with a violation of a relatively new statute, N.J.S.A. 2C:40-26(b).

The statute, which became effective on August 1, 2011, makes it a fourth-degree crime for a motorist to operate a vehicle at a time when his or her driver’s license is suspended or revoked for a second or subsequent conviction for driving while
intoxicated (“DWI”) or refusal to submit to an alcohol breath test.

Defendant was charged with that crime, upon being found driving a car in September 2011 while his license was suspended due to multiple prior DWI offenses. The trial court dismissed the complaint, concluding that the application of N.J.S.A. 2C:40-26(b) to defendant violated ex post factor principles, essentially because his ongoing license suspensions had been imposed before the statute’s effective date.

The New Jersey Appellate Division concluded that a violation of N.J.S.A. 2C:40-26(b) comprises a new offense based upon new conduct, and that the statute does not impose retrospective punishment for a prior offense. Accordingly, the law 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.

Consequently, the panel reversed the trial court’s dismissal order and reinstate the criminal complaint.

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