NJ Courts Review New Drunk Driving Penalty for Repeat Offenders

Repeat DWI Offenders Now Charged with 4th Degree Crime if Caught Violating License Suspension

Reports of fatal and serious accidents caused by repeat DWI offenders driving with a suspended license were influential in the New Jersey Legislature’s January 18, 2010 decision to change the penalty for the act.  Effective August 1, 2011, it became a fourth-degree crime for a driver to operate a motor vehicle while his driver’s license is suspended or revoked as a result of multiple DWI or refusal convictions.

“It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of R.S.39:3-40, if the actor’s license was suspended or revoked for a second or subsequent violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a).  A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.”  N.J.S.A. 2C:40-26(b).

Complaint Reinstated for Drunk Driver Caught Driving with Suspended License

In State v. Carrigan, Docket No. A-3751-11T1 (November 15, 2012), the Appellate Division was faced with a challenge to the new statute.  In Carrigan, the defendant was most recently convicted for DWI based on a September 27, 2011 arrest.  At his sentencing, Carrigan’s license was revoked for the mandatory ten (10) years under N.J.S.A. 39:4-50(a)(3) based on his thirteen (13) prior DWI convictions.  When defendant was rearrested in September 2011 for another DWI, approximately nine (9) years still remained of his license suspension period.

At the trial court level, Carrigan fought to have his charge under N.J.S.A. 2C:40-26(b) dismissed on the grounds of legal insufficiency, arguing that its application would be retroactive punishment, altering the terms of his license suspension imposed prior to the enactment of the new statute.  On February 23, 2012, the Superior Court of New Jersey, Law Division, Ocean County agreed and dismissed the State’s complaint against Carrigan.  The State then appealed the dismissal of the complaint.

On appeal, the Appellate Division reversed the trial court’s dismissal order and reinstated the criminal complaint, holding that “a violation of N.J.S.A. 2C:40-26(b) comprises an offense based upon new conduct, and that the statute does not impose retrospective punishment for a prior offense.”  The new law covers drivers whose licenses are suspended or revoked because of DWI or refusal convictions that preceded the August 1, 2011 effective date, so long as it is punishing post-August 1, 2011 wrongful conduct (here, driving with a suspended or revoked license).

Increased Penalty for Driving While Intoxicated on Suspended License

Prior to the new law effective last year, a person found guilty of operating a motor vehicle during a period of license suspension only faced a jail term of between ten (10) and ninety (90) days.  Now with the stiffened sanctions, the violation carries with it a mandatory minimum penalty of 180 days in prison, but could reach up to eighteen (18) months.

Facing Another Drunk Driving Charge?  Call the DWI Attorneys at Villani & DeLuca!

If you have been charged with a DWI or DUI, call the experienced New Jersey criminal defense attorneys at Villani & DeLuca, P.C. to protect your rights.  Partner Carmine R. Villani, Esq. has a wealth of experience in New Jersey criminal defense having served as municipal prosecutor and municipal public defender in numerous municipalities in Ocean County and Monmouth County throughout his 20+ year legal career.  Call 732-965-3350 to schedule a free consultation.