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State of New Jersey v. Christopher Carrigan

November 15, 2012


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. W2011-451-1518.

The opinion of the court was delivered by: Sabatino, J.A.D.



Argued October 22, 2012

Before Judges Sabatino, Fasciale and Maven.

The opinion of the court was delivered by SABATINO, J.A.D.

The State appeals from 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 facto principles, essentially because his ongoing license suspensions had been imposed before the statute's effective date.

We conclude 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. Hence, 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, we reverse the trial court's dismissal order and reinstate the criminal complaint.



On January 18, 2010, the Legislature enacted the provision at issue, N.J.S.A. 2C:40-26(b), which provides that:

It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of [N.J.S.A. 39:3-40], if the actor's license was suspended or revoked for a second or subsequent violation of [N.J.S.A. 39:4-50, DWI,] or section 2 of [N.J.S.A. 39:4-50.4a, refusing to submit to an alcohol breath test]. A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.

In making such conduct a fourth-degree crime, the Legislature stiffened the sanction for driving with a license suspended or revoked due to multiple prior DWI or refusal convictions. Before the enactment of N.J.S.A. 2C:40-26(b), such an offender only faced the sanctions that are set forth outside of the Criminal Code in N.J.S.A. 39:3-40(f)(2), a provision that authorizes a jail term of between ten and ninety days. By contrast, fourth-degree crimes are generally punishable by a custodial term of up to eighteen months, N.J.S.A. 2C:43-6(a)(4), and, moreover, N.J.S.A. 2C:40-26(b) expressly carries a mandatory minimum penalty of 180 days in prison.

As indicated in its legislative history, the new statute "creates a fourth[-]degree criminal penalty for persons whose driver's licenses are suspended for drunk driving offenses and who, while under suspension for those offenses, unlawfully operate a vehicle." Assemb. Comm. Report to A.4303 (Jan. 11, 2010). The strengthened penalty was legislatively prompted, at least in part, by reports of fatal or serious accidents that had been caused by recidivist offenders with multiple prior DWI violations, who nevertheless were driving with a suspended license. Ibid. The former Director of the Governor's Council on Alcoholism and Drug Awareness endorsed the bill creating this new fourth-degree crime, further recommending that the State establish "prison facilities specifically for the rehabilitation of offenders with multiple D[W]I offenses." Ibid.

Of particular significance to the present appeal, the Legislature declared N.J.S.A. 2C:40-26(b) effective as of August 1, 2011, although the statute was enacted on January 18, 2010. See L. 2009, c. 333, §§ 1-2. Hence, there was a lengthy transitional period of more than eighteen months between the statute's passage and its effective date. The Legislature further authorized the Motor Vehicle Commission to "take any anticipatory administrative action prior to the effective date necessary for its timely implementation." Assemb. Comm. Report, supra.


About seven weeks after N.J.S.A. 2C:40-26(b) became effective, a Manchester Township patrolman arrested defendant on September 27, 2011 after observing his car swerve. The patrolman noted that defendant smelled of alcohol and had bloodshot eyes, and that there was an open beer can in the back of the car. After defendant failed several field sobriety tests, he was arrested and taken to the police headquarters, where he refused to provide a breath sample. The patrolman issued defendant summonses for DWI, N.J.S.A. 39:4-50; driving with a suspended license, N.J.S.A. ...

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