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.

Information Only

The information on this website is for general information purposes only. No information on the website should be considered legal advice for any individual case or situation. The information on this website or communications from the website do not constitute an attorney-client relationship. Please contact a New Jersey Lawyer for case specific questions as every case is different and different New Jersey Lawyers may have different opinions.
  • obtund