14-2-9522 State v. Jivani,
Submitted by New Jersey DWI Lawyer, Jeffrey Hark
What do I do if I am convicted of a DWI and drive a car and then pulled over in New Jersey with and charged with driving while suspended under the traffic code and the criminal code!
Also, what should I do if I am convicted of a DWI? Should I drive in New Jersey! Short answer NO! Next Step, do everything you need to do administratively to get your license restored once the “court Ordered” period of suspension is over! Otherwise, if you are stopped you will be charged by the local police who will only see your abstract and ‘status’ of your license being suspended on their mobile computer. It will say suspended, and they will only look to see that it is from the DWI. Then they will charge you with this criminal violation.
What next? Call us because we will get this charge dismissed in any and all courts in this state. We will need to know the date and time of the your court ordered DWI suspension and a copy of your driver’s abstract from the MVC.
In these two cases there is a pivotal analysis of the most recent criminalization of driving while suspended during a period of a DWI conviction. Pursuant to N.J.S.A. 2C: 40–20 6B the New Jersey legislature requires persons who are driving on suspended during a period of a DWI conviction, 3 to 7 months, seven months, two years, or 10 years, pursuant to N.J.S.A. 2C: 39 4–50, to be charged with and indicted with a 4th° offense of operating a motor vehicle during a second license suspension. The statute also make clear there shall be no period of house arrest, slap, county jail parole, but only a straight six months served in the county jail.
The key in both of these cases is the fact that the period of “court ordered” DWI suspension has long since passed. However, the defendants never took the appropriate steps to have their license reinstated through the New Jersey administrative agency, the Division of Motor Vehicles also known as the Motor Vehicle Commission. The courts turn to the recent decision in State v. Perry which empowers the Superior Court only to convict and impose a period of jail time if the person is operating his or her motor vehicle during the actual period of court ordered suspension. In other words, once the actual period of court ordered suspension expires under the 1st, 2nd, or 3rd offense suspension period, regardless of whether you have obtained or renew you license or completed all of the administrative responsibilities under the DWI statute such as going to the IDRC paying the fines, completing community service, finishing any alcohol treatment, you can not be charged and or found guilty of violating this statute.
In State v. Jivani the defendant was convicted of operating a motor vehicle during a period of license suspension in violation of N.J.S.A. 2C:40-26(b), which made it a fourth-degree offense to operate a motor vehicle during a period of driver’s license suspension or revocation resulting from a second or subsequent conviction for driving while intoxicated. The panel reversed, finding that the trial judge had not had the benefit of State v. Perry, which was dispositive. Perry concluded that N.J.S.A. 2C:40-26 criminalized the operation of a motor vehicle only while the operator was serving the court-imposed term of suspension, and not thereafter. Since defendant’s license had been suspended in 2008 for two years, at the time he was stopped by police in 2013, his license was no longer suspended for DWI, notwithstanding that it had not been administratively restored. The court remanded for entry of an order vacating defendant’s judgment of conviction.
Ironically, in State v. Kiefer , a different defendant appealed from an identical conviction for fourth-degree operating a motor vehicle during a second license suspension following convictions for driving while intoxicated, N.J.S.A. 2C:40-26(b). The panel found that defendant’s license had been suspended in 2003 for two years. He never took the requisite action to be reinstated. In 2012, he was stopped by police while operating a motor vehicle. In light of his prior DWI convictions, he was indicted for fourth-degree operating a motor vehicle during a second license suspension. After his motion to dismiss the charge was denied, he pleaded guilty. His sentence was stayed to permit an appeal. The panel reversed, finding that the judge erred by denying his motion to dismiss the indictment, because N.J.S.A. 2C:40-26(b) did not criminalize operating a motor vehicle beyond the court-imposed term of suspension even though actual administrative reinstatement was not sought.