State v. Kirby Lenihan (071497)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Kirby Lenihan (A-45-12) (071497)

Argued November 4, 2013 -- Decided September 18, 2014

RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

The issue in this appeal is whether N.J.S.A. 39:3-76.2f, the Mandatory Seat Belt Usage Law, can be
deemed “a law intended to protect the public health and safety,” or a predicate offense within the meaning of
N.J.S.A. 2C:40-18b.

On Friday, August 10, 2007, just after midnight, eighteen-year-old defendant Kirby Lenihan was driving
her 1999 Hyundai Accent on Route 519 in Hampton Township. The speed limit on the road was forty-five miles per
hour. K.G., who was sixteen years old, was in the passenger seat. It was raining heavily and visibility was poor.
At approximately 12:39 a.m., defendant veered to the right, drove through the shoulder, collided head-on with the
guardrail, and hit a yellow roadway sign about five feet off the side of the road. Defendant and K.G. suffered
serious head injuries as a result of the crash. K.G. also sustained serious bodily injuries. Neither defendant nor K.G.
were wearing seat belts, and both airbags deployed. Defendant admitted that she was “driving too fast” given the
road and weather conditions and her inexperience as a driver. Two aerosol cans, a dust remover and a carpet
deodorizer, which contain difluoroethane, were discovered in defendant’s car during the police investigation of the
accident. The carpet deodorizer was missing its cap and nozzle. Based on his “training and experience,” an
investigating officer concluded that “cans such as these and in such condition are used to get high. The process is
known as ‘huffing.’” Defendant and K.G. were transported to Morristown Memorial Hospital. As a result of the
evidence of suspected inhalation, blood was drawn from defendant at the hospital about forty-five minutes after the
accident, and difluoroethane was found in her blood. K.G. died the following morning at 5:26 a.m. as a result of her
injuries.

A Sussex County Grand Jury returned an indictment charging defendant in count one with a violation of
N.J.S.A. 2C:40-18a, a second-degree offense, based on the Seat Belt Law and recklessly causing the death of K.G.
The indictment also charged defendant with second-degree vehicular homicide, N.J.S.A. 2C:11-5a (count two); and
first-degree vehicular homicide within 1000 feet of school property, N.J.S.A. 2C:11-5b(3) (count three). The latter
charge was subsequently dismissed on defendant’s motion. Defendant also moved to dismiss count one on the
grounds that the Seat Belt Law was not intended to “protect the public health and safety” within the meaning of
N.J.S.A. 2C:40-18. That motion was denied by the trial court. As a result of plea negotiations, count one was
amended to charge a third-degree crime, N.J.S.A. 2C:40-18b. The State agreed to recommend dismissal or merger
of the vehicular homicide charge and to dismiss various summonses, including reckless driving, N.J.S.A. 39:4-96.
Defendant retained the right to appeal the denial of her motion to dismiss count one. The judge imposed a three-
year term of supervised probation conditioned upon serving 180 days in the Sussex County jail.

Defendant appealed. In a published opinion, the Appellate Division affirmed. State v. Lenihan, 427 N.J.
Super. 499 (App. Div. 2012). The Appellate Division held that the Seat Belt Law is a “law intended to protect the
public health and safety” as stated in N.J.S.A. 2C:40-18. Moreover, the panel held that the statutory language of
N.J.S.A. 2C:40-18 is not unconstitutionally vague as applied. Id. at 511, 514-15. The Supreme Court granted
defendant’s petition for certification. 213 N.J. 386 (2013).

HELD: Under the circumstances presented in this case, a violation of the Seat Belt Law, clearly “intended to
protect the public health and safety,” is a predicate offense that can support a conviction under N.J.S.A. 2C:40-18b.

1
1. Defendant argues that N.J.S.A. 2C:40-18b does not apply to this case because the Legislature intended to limit
the types of predicate offenses contemplated by the statute to offenses such as “violations of fire and building codes,
pollution controls, or other laws whose violations risk harm to the community at large.” Defendant argues that a
violation of the Seat Belt Law, therefore, does not qualify as a predicate offense for N.J.S.A. 2C:40-18b. The Court
finds nothing in N.J.S.A. 2C:40-18b that would limit the phrase, “law intended to protect the public health and
safety,” in the manner suggested by defendant. Without a clear indication from the Legislature that it intended the
phrase to have a special limiting definition, the Court must presume that the language used carries its ordinary and
well-understood meaning. State v. Bunch, 180 N.J. 534, 543 (2004). Even if the Court was to accept the
distinction urged by defendant, however, the Seat Belt Law does protect the community at large and not merely
discrete individuals. The Seat Belt Law’s legislative history reinforces that notion and speaks to the law’s broad
scope. The Court thus finds that the language included in N.J.S.A. 2C:40-18 -- making it an offense “to knowingly
violate[] a law intended to protect the public health and safety” -- encompasses the Seat Belt Law. (pp. 10-15)

2. Defendant also challenges the constitutionality of N.J.S.A. 2C:40-18b. She contends the law is vague as applied
to her. A presumption of validity attaches to every statute. That presumption is “particularly daunting when a
statute attempts to protect the public health, safety, or welfare.” In re C.V.S. Pharmacy Wayne, 116 N.J. 490, 497
(1989), cert. denied, 493 U.S. 1045 (1990). In short, public health and safety legislation has been consistently
sustained if it “‘is not arbitrary, capricious, or unreasonable, and the means selected bear a rational relationship to
the legislative objective.’” Ibid. (quoting Brown v. City of Newark, 113 N.J. 565, 572 (1989)). A statute “is void if
it is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its
application.” Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 279-80 (1998) (citation and internal quotation
marks omitted). Penal laws “are subjected to sharper scrutiny and given more exacting and critical assessment
under the vagueness doctrine than civil enactments.” State v. Cameron, 100 N.J. 586, 591 (1985). Nonetheless,
“vagueness may be mitigated by a scienter requirement, especially when a court examines a challenge claiming that
the law failed to provide adequate notice of the proscribed conduct.” State v. Saunders, 302 N.J. Super. 509, 517
(App. Div.), certif. denied, 151 N.J. 470 (1997). (pp. 16-19)

3. The Court rejects the argument that N.J.S.A. 2C:40-18b is unconstitutionally vague. Defendant concedes that
N.J.S.A. 2C:40-18 is not facially unconstitutional, but she argues that she was not given prior notice that a violation
of the Seat Belt Law would subject her to prosecution under N.J.S.A. 2C:40-18. However, defendant admitted that
her passenger, K.G., was not wearing her seat belt, in violation of the Seat Belt Law. Thus, defendant knowingly
violated that statute. The Seat Belt Law is clearly a “law intended to protect the public health and safety” within the
meaning of N.J.S.A. 2C:40-18. A person “of common intelligence” should understand that a knowing violation of
the Seat Belt Law would fall within the statute’s scope. Thus, defendant had reasonable notice that a knowing
violation of the Seat Belt Law, causing serious bodily injuries, could subject her to prosecution under N.J.S.A.
2C:40-18b. A statute that attempts to protect the public health, safety, or welfare, is entitled to a significant
presumption of validity. Defendant has not overcome that presumption or satisfied her burden of establishing that
N.J.S.A. 2C:40-18 is unconstitutionally vague as applied. (pp. 19-21)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion.

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 SUPREME COURT OF NEW JERSEY
A-45 September Term 2012
071497

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIRBY LENIHAN,

Defendant-Appellant.

Argued November 4, 2013 – Decided September 18, 2014

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 427 N.J. Super. 499 (2012).

Gary A. Kraemer argued the cause for
appellant (Daggett, Kraemer, Kovach &
Gjelsvik, attorneys).

Gregory R. Mueller, First Assistant
Prosecutor, argued the cause for respondent
(David J. Weaver, Sussex County Prosecutor,
attorney).

Kenneth A. Burden, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).

JUDGE RODRÍGUEZ (temporarily assigned) delivered the

opinion of the court.

Pursuant to N.J.S.A. 2C:40-18b, it is a third-degree crime

when a person “knowingly violates a law intended to protect the

public health and safety or knowingly fails to perform a duty

1
imposed by a law intended to protect the public health and

safety and recklessly causes serious bodily injury.” The issue

in this case is whether N.J.S.A. 39:3-76.2f, the Mandatory Seat

Belt Usage Law, can be deemed “a law intended to protect the

public health and safety,” or a predicate offense within the

meaning of N.J.S.A. 2C:40-18b. We hold that under the

circumstances presented in this case, a Seat Belt Law violation

is a predicate offense that can support a conviction under

N.J.S.A. 2C:40-18b.

I.

On Friday, August 10, 2007, just after midnight, eighteen-

year-old defendant Kirby Lenihan was driving her 1999 Hyundai

Accent on Route 519 in Hampton Township. The speed limit on the

road was forty-five miles per hour. K.G., who was sixteen years

old, was in the passenger seat. It was raining heavily and

visibility was poor.

At approximately 12:39 a.m., defendant veered to the right,

drove through the shoulder, collided head-on with the guardrail,

and hit a yellow roadway sign about five feet off the side of

the road. Defendant and K.G. suffered serious head injuries as

a result of the crash. K.G. also sustained serious bodily

injuries. Neither defendant nor K.G. were wearing seat belts.

Both airbags deployed. Defendant admitted that she was “driving

2
too fast” given the road and weather conditions and her

inexperience as a driver.

Two aerosol cans, “Clean Safe Aerosol Dust Remover” and

“Arm and Hammer Carpet Deodorizer,” which contain

difluoroethane, were discovered in defendant’s car during the

police investigation of the accident. The carpet deodorizer was

missing its cap and nozzle. Based on his “training and

experience,” an investigating officer concluded that “cans such

as these and in such condition are used to get high. The

process is known as ‘huffing.’”

Defendant and K.G. were transported to Morristown Memorial

Hospital. As a result of the evidence of suspected inhalation,

blood was drawn from defendant at the hospital about forty-five

minutes after the accident, and difluoroethane was found in her

blood. The following morning, K.G. died at 5:26 a.m., as a

result of her injuries. Defendant asserted that due to the

injuries suffered in the accident, she had no specific

recollection of the accident or the events leading up to it.

II.

A Sussex County Grand Jury returned an indictment charging

defendant in count one with a violation of N.J.S.A. 2C:40-18a, a

second-degree offense, based on the Seat Belt Law and recklessly

causing the death of K.G. The indictment also charged defendant

with second-degree vehicular homicide, N.J.S.A. 2C:11-5a (count

3
two); and first-degree vehicular homicide within 1000 feet of

school property, N.J.S.A. 2C:11-5b(3) (count three). The latter

charge was subsequently dismissed on defendant’s motion.

Defendant moved to dismiss the indictment in its entirety

on the grounds of “bias and preconceived attitude by a grand

juror,” and “prejudicially improper instructions to the grand

jury by the State.” Defendant also moved to dismiss count one

on the grounds that the Seat Belt Law was not intended to

“protect the public health and safety” within the meaning of

N.J.S.A. 2C:40-18. That motion was denied by the trial court.

As a result of plea negotiations, count one was amended to

charge a third-degree crime. The State agreed to recommend

dismissal or merger of the vehicular homicide charge and to

dismiss various summonses for: failure to wear a seat belt and

to ensure that K.G. buckled her seat belt, N.J.S.A. 39:3-

76.2f(b); driving under the influence, N.J.S.A. 39:4-50(g); and

reckless driving, N.J.S.A. 39:4-96. Defendant retained the

right to appeal the denial of her motion to dismiss count one.

The judge imposed a three-year term of supervised probation

conditioned upon serving 180 days in the Sussex County jail.

Defendant moved for a stay of the custodial term pending

appeal. The Appellate Division granted the application. In a

published opinion, the Appellate Division affirmed. State v.

Lenihan, 427 N.J. Super. 499 (App. Div. 2012). The Appellate

4
Division held that the Seat Belt Law is a “law intended to

protect the public health and safety” as stated in N.J.S.A.

2C:40-18. Moreover, the panel held that the statutory language

of N.J.S.A. 2C:40-18 is not unconstitutionally vague as applied.

Id. at 511, 514-15.

We granted defendant’s petition for certification. 213

N.J. 386 (2013).

III.

A.

Defendant challenges on two grounds the denial of her

motion to dismiss count one. First, defendant argues that

pursuant to principles and canons of statutory interpretation,

N.J.S.A. 2C:40-18b does not apply to her case. Defendant

contends that her “minor traffic” violation of the Seat Belt Law

-- failing to ensure that her passenger, K.G., had buckled her

seat belt while riding in the vehicle -- cannot serve as a

predicate offense to support a conviction pursuant to N.J.S.A.

2C:40-18b. She argues that someone who violates the Seat Belt

Law “does not threaten ‘the public health and safety’ of people

at large, but rather the health and safety of” a discrete

individual -- the unbuckled passenger riding in the driver’s

car. Defendant argues to the contrary that, according to the

legislative history of N.J.S.A. 2C:40-18, the type of offenses

that should serve as predicate offenses pursuant to the statute

5
are “violations of fire and building codes, pollution controls,

or other laws whose violation risks harm to the community at

large.”

Second, defendant argues that N.J.S.A. 2C:40-18b as applied

here is void because it is unconstitutionally vague. Defendant

contends that the phrase “law intended to protect the public

health and safety” as stated in N.J.S.A. 2C:40-18, is facially

vague, ambiguous, and overbroad. Moreover, defendant argues

that the statute is unconstitutionally vague as applied.

Defendant contends that, as a violator of a mere traffic

offense, she was not given prior notice that a violation of the

Seat Belt Law would subject her to prosecution of a third-degree

crime pursuant to N.J.S.A. 2C:40-18. Defendant’s argument is

that the Legislature made a violation of the Seat Belt Law “a

ticketable offense” under Title 39. Therefore, “the general

public is entitled to fair notice of such serious consequences.”

(citing State v. Lisa, 391 N.J. Super. 556, 579-80 (App. Div.

2007), aff’d, 194 N.J. 409 (2008)). Thus, defendant argues that

her due process rights were violated as well.

Defendant further argues that the ambiguity of N.J.S.A.

2C:40-18 “places in the prosecutor’s arsenal an unconstitutional

ability to overreach into the legislative domain and raise

virtually any” regulatory or local ordinance violation “to the

serious level of an indictable crime.” As an example, defendant

6
directs the Court’s attention to a municipality’s “leash law”

requiring dog owners to restrain their pets. Defendant notes

that such a law clearly protects public health and safety.

Defendant suggests, therefore, that “an owner of a dog which

runs across the street and bites the mailman could be criminally

prosecuted” under N.J.S.A. 2C:40-18.

Defendant contends that the Appellate Division “ignored the

strictures against overly broad, undefinable criminal law” as

discussed in State v. Riley, 412 N.J. Super. 162 (Law Div.

2009). Thus, defendant argues, “[r]easonable limits must be

established for the phrase ‘law intended to protect the public

health and safety’ . . . in order to save the validity of an

otherwise unconstitutionally vague and overbroad statute.”

B.

The State argues that the Seat Belt Law “is directed at

every driver and passenger in a motor vehicle in the State of

New Jersey,” and thus, the “law is directed to the public as a

whole.” The State notes that “[h]ad the Legislature intended to

limit the statute’s reach to those offenders risking widespread

injury or damage, they could have easily made that statement.”

For example, as the State explains, N.J.S.A. 2C:17-2

specifically prohibits “widespread injury or damage.”

The State relies on Waterson v. General Motors Corp., 111

N.J. 238, 268 (1998), for the proposition that the Seat Belt Law

7
is clearly “intended to protect the public health and safety.”

In Waterson, this Court explained that seat belts “may be the

most significant source of automobile crash protection for

automobile occupants.” Id. at 269-70.

The State also argues that “the legislative history appears

to support the conclusion that the Legislature did not intend

[a] narrow interpretation” of N.J.S.A. 2C:40-18. Citing

N.J.S.A. 2C:2-1, which was amended in the same bill that created

N.J.S.A. 2C:40-18, the State notes that the amendment contained

similar language imposing liability on those who violate “any

other law intended to protect the public safety.”

Furthermore, the State argues that N.J.S.A. 2C:40-18 does

not merely require a seat belt violation, “but also the

infliction of serious bodily injury or death” as a result of a

defendant’s reckless conduct. The State submits that under the

circumstances of this case -- defendant’s inexperience as a

driver, the bad road and weather conditions, and the evidence of

“huffing” -- her conduct was indeed reckless and “prosecution

under N.J.S.A. 2C:40-18 was not trivial.”

Finally, the State argues that N.J.S.A. 2C:40-18,

specifically the phrase “a law intended to protect the public

health and safety,” is not unconstitutionally vague. The State

explains that a violation of the Seat Belt Law “falls squarely

within the definition of” N.J.S.A. 2C:40-18.

8
 C.

Amicus curiae Attorney General of New Jersey (Attorney

General) argues that the Seat Belt Law is a “law intended to

protect the public health and safety” as understood by N.J.S.A.

2C:40-18. The Attorney General contends that the statute’s

language is not ambiguous. If the Legislature intended to

restrict N.J.S.A. 2C:40-18 to only those public health and

safety laws “affecting the ‘general public at large,’” as

defendant maintains, then the Legislature would have done so.

Thus, the Attorney General submits, the Court should presume

that the phrase at issue “carries its ordinary and well-

understood meaning.”

After surveying the development of the seat belt laws on

the federal and state level, the Attorney General argues that

“[i]t is beyond question that the purpose of the [Seat Belt Law]

is to protect the public safety of all automobile passengers in

New Jersey.” Moreover, the Attorney General notes that this

Court in Waterson, supra, took judicial notice of the

effectiveness and usefulness of seat belts. 111 N.J. at 269.

The Attorney General also notes that at least ten of our

sister states have explicitly interpreted seat belt laws as laws

“enacted to serve the public safety and welfare.”

The Attorney General argues that the Legislature enacted

the Seat Belt Law to protect the general public, not merely a

9
discrete individual. The Attorney General notes that the Iowa

and Illinois Supreme Courts have specifically resolved this

issue consistent with the State’s position. (citing State v.

Hartog, 440 N.W. 2d 852, 858 (Iowa 1989); People v. Kohrig, 498

N.E. 2d 1158, 1164-65 (Ill. 1986) (holding that “unbelted

drivers and passengers endanger the safety of others”)). The

Attorney General emphasizes that in Kohrig, supra, the Illinois

Supreme Court explained that “an unrestrained occupant of a

vehicle may injure others inside or out of the vehicle during an

accident.” 498 N.E. 2d at 1164.

The Attorney General contends that N.J.S.A. 2C:40-18 is not

unconstitutionally vague as applied to defendant. The Attorney

General argues that the phrase “knowingly violates a law

intended to protect the public health and safety,” in N.J.S.A.

2C:40-18, “fairly apprised defendant that she faced criminal

liability for failing to ensure her minor passenger was wearing

a seat belt in her car.” The Attorney General further opines

that defendant’s unsupported assertions “that the floodgates

will open to unbridled prosecutorial overreach” are meritless.

IV.

A.

We first address defendant’s claim that N.J.S.A. 2C:40-18b

does not encompass violations of the Seat Belt Law. Defendant’s

argument rests on the proper interpretation of N.J.S.A. 2C:40-

10
18b. We therefore begin with certain familiar principles of

statutory interpretation.

The primary goal of statutory interpretation “is to

determine as best we can the intent of the Legislature, and to

give effect to that intent.” State v. Hudson, 209 N.J. 513, 529

(2012); accord State v. Shelley, 205 N.J. 320, 323 (2011).

“[T]he best indicator of that intent is the plain language

chosen by the Legislature.” State v. Gandhi, 201 N.J. 161, 176

(2010). The intent of the Legislature “begins with the language

of the statute, and the words chosen by the Legislature should

be accorded their ordinary and accustomed meaning.” Hudson,

supra, 209 N.J. at 529. “When the Legislature’s chosen words

lead to one clear and unambiguous result, the interpretive

process comes to a close, without the need to consider extrinsic

aids.” Shelley, supra, 205 N.J. at 323.

This court must construe and apply a statute as enacted.

In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980).

We will not “rewrite a plainly-written enactment of the

Legislature nor presume that the Legislature intended something

other than that expressed by way of the plain language.”

O’Connell v. State, 171 N.J. 484, 488 (2002). For that reason,

courts “are not free to superimpose on the ordinary meaning” of

statutory language limitations or extensions of the sweep of the

enactment. State v. Froland, 193 N.J. 186, 196 (2007). Absent

11
a clear indication from the Legislature that it intended

statutory language to have a special limiting definition, we

must presume that the language used carries its ordinary and

well-understood meaning. State v. Bunch, 180 N.J. 534, 543

(2004); State v. Afanador, 134 N.J. 162, 171 (1993).

B.

Defendant argues that N.J.S.A. 2C:40-18b does not apply to

this case because the Legislature intended to limit the types of

predicate offenses contemplated by the statute to offenses such

as “violations of fire and building codes, pollution controls,

or other laws whose violations risk harm to the community at

large.” Defendant argues that a violation of the Seat Belt Law,

therefore, does not qualify as a predicate offense for N.J.S.A.

2C:40-18b. We disagree.

Our review of the meaning of a statute or the common law is

de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). We

find nothing in N.J.S.A. 2C:40-18b that would limit the phrase,

“law intended to protect the public health and safety,” in the

manner suggested by defendant. Without a clear indication from

the Legislature that it intended the phrase to have a special

limiting definition, we must presume that the language used

carries its ordinary and well-understood meaning. Bunch, supra,

180 N.J. at 543; Afanador, supra, 134 N.J. at 171. And, as the

Attorney General points out, if the Legislature had intended to

12
restrict N.J.S.A. 2C:40-18 to laws that affect the public at

large, it would have done so.

Even if we were to accept the distinction urged by

defendant, however, the Seat Belt Law does protect the community

at large and not merely discrete individuals. Following an

initial impact, several scenarios can occur if a passenger is

unrestrained. The unrestrained passenger could be: (a) thrown

against the driver affecting the defendant’s ability to control

the vehicle and avoid other vehicles or persons in the vicinity;

(b) thrown against other passengers in the vehicle; (c) ejected

from the vehicle in the initial collision injuring others

nearby; or (d) ejected onto the roadway, causing other accidents

as other drivers react with evasive maneuvers. See Kohrig,

supra, 498 N.E.2d at 1164-65; People v. Weber, 494 N.Y.S.2d 960,

963 (Justice Ct. 1985). In all of those situations, the impact

of a driver’s or passenger’s failure to wear a seat belt goes

beyond the individual.

The Seat Belt Law’s legislative history reinforces that

notion and speaks to the law’s broad scope. In 1984, New Jersey

enacted the “Passenger Automobile Seat Belt Usage Law.”

N.J.S.A. 39:3-76.2e to -76.2k. The purpose of the law is

clearly reflected in the bill’s sponsor statement: “to require

that the driver and passenger in the front seat of an operating

passenger automobile wear the safety seat belt system provided

13
as original equipment in virtually all passenger automobiles

operating on New Jersey streets and highways.” Assemb., 2304

(Sponsor’s Statement), 201st Leg., 1st Sess. (N.J. June 28,

1984). New Jersey Governor Thomas H. Kean noted at the time of

signing the bill into law that traffic statistics “have already

proven rather conclusively that safety belts are instrumental in

preventing injury and death in motor vehicle accidents.”

Governor’s Statement on Signing Assembly Bill No. 2304 (Nov. 8,

1984).

In a committee statement that accompanied the 1984 law, the

Legislature noted the following:

1. There has been a “dramatic decrease in
fatalities and serious injuries in countries
and provinces having enacted Seat Belt Law.
. . .”

2. “It is estimated that easily one-half of
all fatalities and serious injuries can be
eliminated by simply requiring people to use
equipment already installed in their
vehicles. . . .”

3. Mandating such use would “greatly reduce
lost work time, insurance cost and health
benefit cost to both individuals, private
companies, and the State of New Jersey.”

4. Lastly, “[w]hile insurance rates in the
State of New Jersey are among the highest in
the country, the increased use of safety
seat belt systems will cause subsequent
reductions in accidents, deaths, injuries,
and lost work time. This could lead to
reduced cost to business and industry, and
local and state governments thereby
eventually leading to cost containment and

14
 other incentives in automotive insurance
rates and premiums.”

[Waterson, supra, 111 N.J. at 261 (citing
Assembly Law, Public Safety and Defense
Committee Statement to Assembly, No. 2304,
p.3 (1984)).]

In Waterson, supra, this Court explained that “‘seat belts

may be the most significant source of automobile crash

protection for automobile occupants.’” 111 N.J. at 269-70

(quoting Dunn v. Durso, 219 N.J. Super. 383, 394 n.8 (Law Div.

1986)). The Court also took “judicial notice of the efficacy of

seat belts.” Id. at 269. Similarly, in a constitutional

challenge to a New Jersey statute requiring motorcyclists to

wear helmets, the Appellate Division held that such a law “bears

a real and substantial relationship to highway safety

generally.” State v. Krammes, 105 N.J. Super. 345, 346 (App.

Div.), certif. denied, 54 N.J. 257 (1969). Like the Appellate

Division, we also note that other States have declared that seat

belt laws protect the community at large. Lenihan, supra, 427

N.J. Super. at 511 (citing cases).

For those reasons, we find that the language included in

N.J.S.A. 2C:40-18 -- making it an offense “to knowingly

violate[] a law intended to protect the public health and

safety” -- encompasses the Seat Belt Law.

V.

A.

15
 Defendant also challenges the constitutionality of N.J.S.A.

2C:40-18b. She contends the law is vague as applied to her.

The issue was first raised in defendant’s reply brief in the

Appellate Division. “To raise [an] issue initially in a reply

brief is improper.” Twp. of Warren v. Suffness, 225 N.J. Super.

399, 412 (App. Div.) (citing State v. Smith, 55 N.J. 476, 488),

certif. denied, 113 N.J. 640 (1988). Nonetheless, for the sake

of completeness in disposing of all issues, we address this

argument on the merits. As the party challenging the

constitutionality of a statute, defendant bears the burden of

establishing its unconstitutionality. State v. One 1990 Honda

Accord, 154 N.J. 373, 377 (1998); State v. Jones, 346 N.J.

Super. 391, 406 (App. Div.), certif. denied, 172 N.J. 181

(2002).

A presumption of validity attaches to every statute. State

v. Muhammad, 145 N.J. 23, 41 (1996); In re C.V.S. Pharmacy

Wayne, 116 N.J. 490, 497 (1989), cert. denied, 493 U.S. 1045,

110 S. Ct. 841, 107 L. Ed. 2d 836 (1990). That presumption is

“particularly daunting when a statute attempts to protect the

public health, safety, or welfare.” In re C.V.S. Pharmacy

Wayne, supra, 116 N.J. at 497. In short, public health and

safety legislation has been consistently sustained if it “‘is

not arbitrary, capricious, or unreasonable, and the means

selected bear a rational relationship to the legislative

16
objective.’” Ibid. (quoting Brown v. City of Newark, 113 N.J.

565, 572 (1989)); see also Williamson v. Lee Optical of Okla.,

Inc., 348 U.S. 483, 487-88, 75 S. Ct. 461, 464, 99 L. Ed. 2d

563, 571-72 (1955) (holding that statute that does not implicate

fundamental constitutional right or liberty interest will be

upheld if it bears rational relationship to legitimate

legislative purpose and is neither arbitrary nor

discriminatory). As long as there is a conceivable basis for

finding a rational relationship, the law will be upheld.

McGowan v. Maryland, 366 U.S. 420, 426, 81 S. Ct. 1101, 1105, 6

L. Ed. 2d 393, 399 (1961).

This Court has held that “any act of the Legislature will

not be ruled void unless its repugnancy to the Constitution is

clear beyond a reasonable doubt.” Muhammad, supra, 145 N.J. at

41. Even where a statute’s constitutionality is “fairly

debatable, courts will uphold” the law. Newark Superior

Officers Ass’n v. City of Newark, 98 N.J. 212, 227 (1985).

However, courts “are obligated to construe a challenged statute

to avoid constitutional defects if the statute is reasonably

susceptible of such construction.” Cnty. of Warren v. State,

409 N.J. Super. 495, 506 (App. Div. 2009) (citation and internal

quotation marks omitted), certif. denied, 201 N.J. 153 (2010),

cert. denied, 130 S. Ct. 3508, 177 L. Ed. 2d 1092 (2010).

17
 A statute “is void if it is so vague that persons ‘of

common intelligence must necessarily guess at its meaning and

differ as to its application.’” Hamilton Amusement Ctr. v.

Verniero, 156 N.J. 254, 279-80 (1998) (citation and internal

quotation marks omitted), cert. denied, 527 U.S. 1021, 119 S.

Ct. 2365, 144 L. Ed. 2d 770 (1999). Vagueness may create a

denial of due process due to a failure to provide adequate and

fair notice or warning. Karins v. Atlantic City, 152 N.J. 532,

544 (1998).

“A statute may be challenged as being either facially vague

or vague ‘as-applied.’” State v. Maldonado, 137 N.J. 536, 563

(1994) (quoting State v. Cameron, 100 N.J. 586, 593 (1985)). A

law is facially vague if it is vague in all applications. Ibid.

A statute that “is challenged as vague as applied must lack

sufficient clarity respecting the conduct against which it is

sought to be enforced.” Visiting Homemaker Serv. of Hudson

Cnty. v. Bd. of Chosen Freeholders of Cnty. of Hudson, 380 N.J.

Super. 596, 612 (App. Div. 2005) (citing Maldonado, supra, 137

N.J. at 563).

“[I]f a statute is vague as applied to [the] conduct [at

issue], it will not be enforced even though the law might be

validly imposed against others not similarly situated.”

Cameron, supra, 100 N.J. at 593. “Conversely, if a statute is

18
not vague as applied to a particular party, it may be enforced

even though it might be too vague as applied to others.” Ibid.

Courts have recognized that the constitutional standard for

vagueness must not be mechanically applied. Cameron, supra, 100

N.J. at 591. Penal laws “are subjected to sharper scrutiny and

given more exacting and critical assessment under the vagueness

doctrine than civil enactments.” Ibid. Nonetheless, “vagueness

may be mitigated by a scienter requirement, especially when a

court examines a challenge claiming that the law failed to

provide adequate notice of the proscribed conduct.” State v.

Saunders, 302 N.J. Super. 509, 517 (App. Div.), certif. denied,

151 N.J. 470 (1997).

B.

We reject the argument that N.J.S.A. 2C:40-18b is

unconstitutionally vague.

Defendant concedes that N.J.S.A. 2C:40-18 is not facially

unconstitutional. She notes that violations of fire codes,

building codes, and pollution controls may serve as predicate

offenses under the statute. Rather, defendant argues that she

was not given prior notice that a violation of the Seat Belt Law

would subject her to prosecution under N.J.S.A. 2C:40-18.

Here, defendant, in the factual statement supporting her

plea allocution, admitted that her passenger, K.G., was not

wearing a seat belt, in violation of the Seat Belt Law. Thus,

19
defendant knowingly violated that statute. As the Attorney

General noted, one would be “hard-pressed to locate a more

publicized law.” As previously explained, the Seat Belt Law is

clearly a “law intended to protect the public health and safety”

within the meaning of N.J.S.A. 2C:40-18. A person “of common

intelligence” should understand that a knowing violation of the

Seat Belt Law would fall within the statute’s scope. See

Hamilton Amusement Ctr., supra, 156 N.J. at 279-80. Thus,

defendant had reasonable notice that a knowing violation of the

Seat Belt Law, causing serious bodily injuries, could subject

her to prosecution under N.J.S.A. 2C:40-18b. See Karins, supra,

152 N.J. at 544.

The trial court found that defendant’s actions were

reckless under the circumstances, and defendant acknowledged

that her actions caused the victim to sustain serious bodily

injuries. Although penal laws “are subject[] to sharper

scrutiny” and a more “critical assessment under the vagueness

doctrine than civil enactments,” Cameron, supra, 100 N.J. at

592, the scienter requirement in N.J.S.A. 2C:40-18 -- knowingly

-- militates against a vagueness challenge. See Saunders,

supra, 302 N.J. Super. at 517. The statute also requires that

the defendant “recklessly cause[] serious bodily injury,” which

further restricts the scope of the law.

20
 As noted above, a statute that attempts to protect the

public health, safety, or welfare, is entitled to a significant

presumption of validity. In re C.V.S. Pharmacy Wayne, supra,

116 N.J. at 497. Defendant has not overcome that presumption or

satisfied her burden of establishing that N.J.S.A. 2C:40-18 is

unconstitutionally vague as applied. See One 1990 Honda Accord,

supra, 154 N.J. at 377; Muhammad, supra, 145 N.J. at 41; In re

C.V.S. Pharmacy Wayne, supra, 116 N.J. at 497.

Moreover, because “[a] party may test a law for vagueness

as applied only with respect to his or her particular conduct,”

defendant’s multiple hypotheticals about the law’s potential

vagueness are irrelevant. See Cameron, supra, 100 N.J. at 593;

Tobacconist v. Kimmelman, 94 N.J. 85 (1983) (“[W]e know of no

doctrine that requires a court to consider and determine the

validity of every hypothetical application of legislation when a

pre-enforcement vagueness attack is involved.”). Our holding is

based on the facts of this case.

VI.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, and
PATTERSON, and JUDGE CUFF (temporarily assigned) join in JUDGE
RODRÍGUEZ’s opinion.

21
 SUPREME COURT OF NEW JERSEY

NO. A-45 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIRBY LENIHAN,

Defendant-Appellant.

DECIDED September 18, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Rodríguez
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6

1