On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Matthews, Ard and Polow. The opinion of the court was delivered by Polow, J.A.D.
[174 NJSuper Page 456] Defendant appeals from the trial court's determination that N.J.S.A. 39:3-40, which mandates a 45-day jail term for a driver on the revoked list who is involved in an accident resulting in personal injury, applies where only the unlicensed driver himself suffers injuries. The underlying facts are not in dispute. On September 11, 1979 defendant was driving a vehicle which left the road and struck a building. Personal injuries were sustained by defendant. As a result he was charged with driving while intoxicated, careless driving, leaving the scene of an accident and driving while his license was revoked. At the municipal court hearing the drunken driving and careless driving charges were dismissed and defendant entered guilty pleas to leaving the scene of the accident and driving while on the revoked list. It was stipulated that only defendant himself received personal injuries.
The municipal court judge reluctantly concluded that N.J.S.A. 39:3-40 mandates a minimum 45-day jail term because defendant was involved in an accident resulting in personal injury as a driver on the revoked list. Hence, the mandatory minimum 45-day jail term was imposed. With consent of the prosecutor, defendant was permitted to serve his sentence on weekends. The conviction and sentence were affirmed on trial de novo in the Law Division.
N.J.S.A. 39:3-40 provides:
No person to whom a driver's license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal, suspension, revocation, or prohibition.
No person whose motor vehicle registration has been revoked shall operate or permit the operation of such motor vehicle during the period of such revocation.
A person violating any provision of this section shall be fined not less than $200.00 nor more than $1,000.00, or be imprisoned in the county jail for not more than 6 months, or both provided, that if while operating a vehicle in violation of this section, such person is involved in an accident resulting in personal injury, the punishment shall include imprisonment for not less than 45 days. [Emphasis supplied]
Defendant argues that the underlined portion of the statute applies only when the violator is involved in an accident which results in personal injury to someone else. In support thereof, he refers to legislative history and interprets the mandatory jail provisions as being part of a bill intended to keep the unsatisfied claim and judgment fund solvent. Since only persons other than the driver could claim under the fund, defendant reasons that the mandatory jail provisions were intended to apply only when the unlicensed driver injured a potential claimant. He also seeks support for his contention in the fact that the Legislature has decriminalized suicide.
We have previously had occasion to construe the statute in question. In State v. Pickens , 124 N.J. Super. 193 (App.Div.1973), certif. den. 63 N.J. 581 (1973), defendant had operated his motor vehicle while his license was revoked and was involved in an accident resulting in injuries to himself and the other driver. As required by N.J.S.A. 39:3-40, the trial court imposed a 45-day jail term. On appeal defendant argued that the statute was
unconstitutional because it imposed criminal penalties for a civil wrong and denied due process because it was vague. In rejecting both arguments we gave consideration to the legislative intent and concluded that the purpose of the statute was punishment and deterrence to the end that the public be protected; that the gravamen of the offense is driving on the revoked list and that the "fact that an accident occurs and injury results is an aggravating circumstance clearly recognized by the Legislature and correspondingly providing for a harsher punishment." Id. at 195-196. However, we specifically declined to consider whether the mandatory penalty applied when the driver was not at fault or when he alone sustained injury, because those particular facts were not involved in the case. Id. at 196.
In State v. Fearick , 132 N.J. Super. 165 (App.Div.1975), aff'd 69 N.J. 32 (1976), defendant, whose license had been suspended, was not responsible for the accident. The County Court judges did not impose a jail term but we held that the statute mandated incarceration and reversed. Defendant's argument that the Legislature did not intend ...