State of New Jersey v. Idris R. Perry

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1767-13T2
A-1768-13T2
A-1769-13T2
A-1770-13T2
A-2531-13T2
A-2533-13T2
A-2536-13T2
STATE OF NEW JERSEY,

Plaintiff-Appellant,

v. APPROVED FOR PUBLICATION

March 3, 2015
IDRIS R. PERRY,
APPELLATE DIVISION
Defendant-Respondent.

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CARMEN NAY,

Defendant-Respondent.

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RAYMOND EVANS,

Defendant-Respondent.
STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CHERYL PAPP,

Defendant-Respondent.

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

TAMMY M. MCINTYRE,

Defendant-Respondent.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRADLEY BREWER,

Defendant-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD J. WISSER,

Defendant-Appellant.

2 A-1767-13T2
Argued (A-1767-13, A-1768-13, A-1769-13,
A-1770-13, A-2533-13) and Submitted (A-2531-13,
A-2536-13) October 29, 2014 - Decided March 3, 2015

Before Judges Alvarez, Waugh, and Maven.

On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County, Indictment Nos.
13-01-0163 (A-1767-13); 13-05-0689 (A-1768-13);
13-03-0370 (A-1769-13); 13-06-0788 (A-1770-13).

On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
13-02-0624 (A-2531-13).

On appeal from the Superior Court of New Jersey,
Law Division, Burlington County, Indictment No.
13-08-0889 (A-2533-13).

On appeal from the Superior Court of New Jersey,
Law Division, Ocean County, Indictment No.
13-03-0600 (A-2536-13).

Brian D. Gillet, Assistant Prosecutor, argued the
cause for appellant State of New Jersey in
A-1767-13, A-1768-13, A-1769-13, A-1770-13 (Andrew
C. Carey, Middlesex County Prosecutor, attorney;
Mr. Gillet, of counsel and on the briefs).

Anthony Aldorasi, Assistant Deputy Public Defender,
argued the cause for appellant Brewer in A-2533-13
(Joseph A. Krakora, Public Defender, attorney; Mr.
Aldorasi, of counsel and on the brief).

James P. McClain, Atlantic County Prosecutor,
attorney for appellant State of New Jersey in
A-2531-13 (Deborah A. Hay, Assistant Prosecutor,
of counsel and on the brief).

Stephen J. Buividas, attorney for appellant Wisser
in A-2536-13.

Michele E. Friedman, Assistant Deputy Public
Defender, argued the cause for respondents Perry
(A-1767-13), Nay (A-1768-13), Evans (A-1769-13),
and Papp (A-1770-13) (Joseph E. Krakora, Public

3 A-1767-13T2
 Defender, attorney; Ms. Friedman, of counsel and
on the brief).

Alexis R. Agre, Assistant Prosecutor, argued the
cause for respondent State of New Jersey in
A-2533-13 (Robert D. Bernardi, Burlington County
Prosecutor, attorney; Ms. Agre, of counsel and on
the brief).

Stefankiewicz & Barnes, attorneys for respondent
McIntyre in A-2531-13 (David A. Stefankiewicz, of
counsel and on the brief).

Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent State of New Jersey in
A-2536-13 (Samuel Marzarella, Assistant
Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

N.J.S.A. 2C:40-26(a) and (b) make driving while suspended a

fourth-degree criminal offense punishable by a mandatory minimum

jail term of 180 days under certain circumstances stemming from

driving while intoxicated (DWI), N.J.S.A. 39:4-50, or refusal to

submit to chemical testing (refusal), N.J.S.A. 39:4-50.4(a). In

these seven appeals, consolidated for decision, we address

whether charges can be brought under the statute when the act of

driving occurs beyond the determinate sentenced term of

suspension, but before reinstatement, while the driver continues

on administrative suspension. We conclude that the statute

criminalizes the operation of a motor vehicle only while the

4 A-1767-13T2
operator is serving the court-imposed term of suspension, and

not thereafter.

I

We briefly summarize the procedural history and factual

circumstances surrounding each defendant's charges. In each

case, either the State or defendant was granted leave to appeal

or filed a timely appeal as of right.

A.

Perry

On May 12, 2011, Idris Perry pled guilty to DWI and

refusal, and his driving privileges were suspended for a 300-day

period, ending March 7, 2012. Perry was issued a summons for

driving while suspended, N.J.S.A. 39:3-40, on the day before his

DWI and refusal suspension term would have expired. On May 30,

2012, he was again charged with operating a motor vehicle during

a period of suspension, resulting in the indictment on appeal

under N.J.S.A. 2C:40-26(a).

Judge Douglas K. Wolfson granted Perry's motion to dismiss

his indictment. The State thereafter moved for reconsideration.

In a written opinion dated October 21, 2013, consolidating his

decisions in the Perry, Carmen Nay, Raymond Evans, and Cheryl

Papp cases, Judge Wolfson denied the State's motion.

5 A-1767-13T2
 Nay

On February 19, 2008, Nay pled guilty to DWI, resulting in

the suspension of her driving privileges for a seven-month1

period. Nay was convicted of driving while suspended on April

30, June 12, and September 22, 2010. Nay did not restore her

driver's license after the suspension periods expired. On March

15, 2013, Nay was charged with driving with a suspended license

in North Brunswick. She was indicted for operating a motor

vehicle during a period of license suspension, N.J.S.A.

2C:40-26(a).

Nay's motion to dismiss the indictment was granted by Judge

Wolfson after oral argument on September 23, 2013. Her matter

was included in Judge Wolfson's consolidated written opinion in

the four Middlesex County cases.

Evans

On July 13, 2011, Evans pled guilty to DWI and refusal.

The record does not disclose how long the court suspended

Evans's license. Since this was his first DWI, however, his

driving privileges could not have been suspended for more than

one year. On September 1, 2011, Evans was charged with driving

while suspended, and he pled guilty to that offense on November

1
The trial judge's opinion from October 21, 2013, mistakenly
states that the suspension was for three months.

6 A-1767-13T2
17, 2011. Evans certified that he did not restore his license

after the suspension period expired due to financial hardships,

which prevented him from paying the restoration fee. On January

6, 2013, he was charged with driving while suspended in East

Brunswick. He was indicted on March 7, 2013, for driving while

suspended, N.J.S.A. 2C:40-26(a).

Evans's motion to dismiss the indictment was granted after

oral argument on September 23, 2013. Judge Wolfson included the

decision in his consolidated opinion.

Papp

On August 11, 2005, Papp pled guilty to DWI, resulting in a

seven-month suspension of her driving privileges. She was

convicted of driving while suspended on September 14, 2005, and

again on September 9, 2008. Papp certified that, due to

financial hardship, she was unable to pay the restoration fees

after the suspension periods expired. On April 10, 2013, she

was charged with driving while suspended in the Township of

Woodbridge. On June 6, Papp was indicted for operating a motor

vehicle during a period of suspension under N.J.S.A. 2C:40-

26(a).

Papp's motion to dismiss the indictment was granted on

August 23, 2013. Judge Wolfson denied the State's motion for

reconsideration in his consolidated opinion.

7 A-1767-13T2
 McIntyre

Tammy McIntyre pled guilty to a second DWI on May 31, 2008,

and received a two-year license suspension. Assuming McIntyre's

suspensions ran consecutively, her final, two-year DWI

suspension period ended on April 10, 2010. For reasons

unrelated to the DWI convictions, she was ineligible to restore

her license on October 10, 2012, when, for the fifth time since

her DWI offenses, she was charged with driving while suspended.

On February 26, 2013, an Atlantic County grand jury indicted her

under N.J.S.A. 2C:20-26(b).

On December 19, 2013, Judge Kyran Connor dismissed

McIntyre's indictment.

Brewer

On December 10, 2009, Bradley Brewer was convicted of a

second DWI and received a two-year license suspension ending on

December 10, 2011. Brewer failed to pay the administrative fee

to restore his license. On March 3, 2013, he was issued a

summons for driving while suspended in Mansfield Township. On

August 20, 2013, a Burlington County grand jury indicted Brewer

for driving during a period of license suspension, N.J.S.A.

2C:40-26(b).

On December 16, 2013, the trial court denied Brewer's

motion to dismiss his indictment.

8 A-1767-13T2
 Wisser

Richard Wisser pled guilty to DWI on January 9, 1998. As

this was Wisser's fourth DWI offense,2 a ten-year license

suspension was imposed. During the suspension, Wisser was

convicted three times for driving while suspended, and

additional periods of suspension were imposed.

On September 13, 2012, Wisser was arrested for DWI, driving

while suspended, and other unrelated charges. On March 14,

2013, an Ocean County grand jury indicted him under N.J.S.A.

2C:40-26(b).

On September 9, the trial court denied Wisser's motion to

dismiss his indictment, and on December 10, 2013, denied his

motion for reconsideration.

B.

To summarize, in these appeals, two trial judges rendered

decisions contrary to the State's position and granted

applications to dismiss the indictments, while two ruled against

the defendants and allowed the indictments to stand. We review

de novo a trial court's construction of a statute. State v.

Revie, 220 N.J. 126, 132 (2014). The specific points of error

2
Wisser had previously been convicted of DWI on January 22,
1981, March 1, 1988, and May 2, 1989.

9 A-1767-13T2
raised by each appellant need not be repeated; they are

addressed by the following discussion.

II

The genesis of N.J.S.A. 2C:40-26 has been discussed in

detail elsewhere. See State v. Carrigan, 428 N.J. Super. 609,

613-14 (App. Div. 2012), certif. denied, 213 N.J. 539 (2013).

The statute was designed to "create[] criminal penalties for

persons whose driver's licenses are suspended for drunk driving

offenses and who, while under suspension for these offenses,

unlawfully operate a vehicle." Assembly Law and Public Safety

Committee, Statement to A. 4303 (Dec. 3, 2009). The significantly

enhanced consequences to driving while suspended were the

legislative response to "reports of fatal or serious accidents

that had been caused by recidivist offenders with multiple prior

DWI violations." Carrigan, supra, 428 N.J. Super. at 614. As

Carrigan points out, the bill was endorsed by the former

Director of the Governor's Council on Alcoholism and Drug

Awareness, who also recommended the creation of special-purpose

prison facilities for DWI driving recidivists. Ibid. No such

facilities have been created.

A.

It is well-established that the best indicator of

legislative intent is "the plain language chosen by the

10 A-1767-13T2
Legislature." State v. Gandhi, 201 N.J. 161, 176 (2010). In

interpreting a statute, we give the relevant language its

ordinary meaning and construe it "in a common-sense manner."

State in Interest of K.O., 217 N.J. 83, 91 (2014); see also

N.J.S.A. 1:1-1 (stating that the words of a statute are

customarily construed according to their generally accepted

meaning). We do not add terms which may have been intentionally

omitted by the Legislature, speculate, or otherwise engage in an

interpretation which would avoid its plain meaning. DiProspero

v. Penn, 183 N.J. 477, 492 (2005). Where plain language "leads

to a clear and unambiguous result, then the interpretive process

should end, without resort to extrinsic sources." State v.

D.A., 191 N.J. 158, 164 (2007).

The State contends that N.J.S.A. 2C:40-26 must be

interpreted to mean that an individual can be charged until he

or she pays the requisite license restoration fees, complies

with all administrative requirements, and is reinstated by the

Motor Vehicle Commission. In support, it cites both to the

statutory language and to State v. Zalta, 217 N.J. Super. 209

(App. Div. 1987). Defendants distinguish Zalta, responding that

to extend the meaning of "the period of license suspension" as

the State proposes violates the language of N.J.S.A. 2C:40-26

and renders the statute both unworkable and unconstitutional.

11 A-1767-13T2
 The statute reads:

a. 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 first violation
of R.S. 39:4-50 or section 2 of P.L. 1981,
c. 512 (C. 39:4-50.4a) and the actor had
previously been convicted of violating R.S.
39:3-40 while under suspension for that
first offense. A person convicted of an
offense under this subsection shall be
sentenced by the court to a term of
imprisonment.

b. 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(a) and (b).]

Zalta is inapposite because it answered a very different

question, namely, whether the Director of the former Division of

Motor Vehicles had the inherent authority "to keep a license in

suspension beyond the determinate period of suspension imposed

by the municipal court" in the context of N.J.S.A. 39:3-40.

Zalta, supra, 217 N.J. Super. at 213. That defendant had been

found guilty of driving before restoring his privileges after

the expiration of a Director-imposed six-month term of

12 A-1767-13T2
suspension. Id. at 212. He contended that his conviction for

driving while suspended should be vacated as he was guilty only

of driving while unlicensed. Ibid. In rejecting the argument,

we reasoned that the Director's authority included the power to

keep a license in suspension until a driver took the requisite

administrative steps to have it restored. Ibid. We noted that

the suspension of driving privileges was "not necessarily

punitive in purpose." Ibid.

The discussion in Zalta also concerned whether "a person of

ordinary intelligence acting in good faith" would interpret the

phrase, "during the period of [] suspension," as found in

N.J.S.A. 39:3-40, to mean he or she would know his license was

not restored until the Director reinstated it. This is entirely

different than the question considered here, in the context of a

criminal statute specifying the circumstances under which, if

convicted, a defendant would serve mandatory minimum jail time.

In N.J.S.A. 2C:40-26, the Legislature narrowed the field of

persons against whom charges could be lodged to target the group

against which it wished to act. In subsection (a), the offense

occurs if, and only if, the driver has been convicted of DWI or

refusal, and has "previously been convicted of [driving while

suspended] while under suspension for that first offense." It

follows that the second or subsequent offense must also occur

13 A-1767-13T2
while the driver is "under suspension for that first offense[,]"

i.e., either a DWI or a refusal. It would be illogical to

conclude that the first driving while suspended offense must

occur during the sentenced term of suspension, but not the

second or subsequent driving while suspended offense that

subjects the motorist to prosecution.

Subsection (b) provides that a driver commits the crime if

he drives "during the period of license suspension" while his

"license was suspended or revoked for a second or subsequent

[DWI or refusal] violation." The Legislature made this section

applicable solely to drivers with a license suspension for a

second or subsequent DWI or refusal violation.

The statute is silent as to those driving without

reinstatement beyond the court-imposed term of suspension. Had

the Legislature intended to include those persons, the necessary

language could have been easily included in both sections of the

law. It was not. Such language would, obviously, have cast the

far wider net the State proposes. The omission is significant,

and for us to interpret the statute as the State suggests would

be to add terms that may well have been intentionally excluded.

Additionally, common sense requires this interpretation

because of the universe of possible combinations giving rise to

prosecutions beyond the scope of the plain language. The

14 A-1767-13T2
State's reading of the statute would include under (a), for

example, persons previously convicted of DWI and driving while

suspended during the determinate sentenced term, who twenty

years later, drive after restoration but while suspended for

reasons unrelated to any DWI or refusal. Under (b), a person

could be convicted if found guilty of DWI twice and, years

later, after reinstatement on the DWIs, is caught driving while

suspended for an unrelated reason.

By giving the statute this more literal reading, we are

guided by its plain language, to which we accord a common sense

construction, without adding terms not originally included. See

K.O., supra, 217 N.J. at 91. The interpretative process should

end here. See D.A., supra, 191 N.J. at 164.

B.

Assuming for the sake of argument, however, that an

ambiguity exists in the statute, we reach the same result.

Where "two interpretations of the language are plausible, a

reviewing court must interpret the statute to effectuate the

legislative intent, utilizing extrinsic evidence when it is

helpful." Lozano v. Frank DeLuca Constr., 178 N.J. 513, 522

(2004). Courts may also resort to extrinsic evidence "if a

plain reading of the statute leads to an absurd result or if the

overall statutory scheme is at odds with the plain language."

15 A-1767-13T2
DiProspero, supra, 183 N.J. at 493. Extrinsic evidence can

include legislative history, committee reports, contemporaneous

construction, and the policy considerations behind the

legislation. Johnson v. Scaccetti, 192 N.J. 256, 276 (2007);

Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75 (2004).

"[W]here a statute or ordinance does not expressly address a

specific situation, the court will interpret it 'consonant with

the probable intent of the draftsman "had he anticipated the

matter at hand."'" Twp. of Pennsauken v. Schad, 160 N.J. 156,

170 (1999) (quoting AMN, Inc. v. Twp. of S. Brunswick Rent

Leveling Bd., 93 N.J. 518, 525 (1983) (citation omitted)).

Here, the legislative history is enlightening. The

sponsor's statement to the Assembly bill says: "This bill

creates criminal penalties for persons whose driver's licenses

are suspended for certain drunk driving offenses and who, while

under suspension for those offenses, unlawfully operate a motor

vehicle." Sponsor's Statement to A. 4303, at 2 (Nov. 30, 2009)

(emphasis added). The Statement adds that the provisions of

subsection (a) make it a crime to operate a motor vehicle after

being convicted of driving while intoxicated or refusing to

submit to a breath test "while under suspension for that first

offense." Ibid. (emphasis added).

16 A-1767-13T2
 The language is repeated for subsection (b), making it a

crime to operate a motor vehicle after two DWI convictions

"while under suspension for that second offense." Ibid.

(emphasis added). Identical language was used in the Assembly

Law and Public Safety Committee, Statement to A. 4303 (Dec. 3,

2009), as well as the Sponsor's Statement to S. 2939 (June 15,

2009), and the Senate Law and Public Safety and Veterans'

Affairs Committee, Statement to S. 2939 (Nov. 23, 2009).

The phrasing in the Sponsor's Statement thus supports the

notion that the law was intended to apply only when the actor is

"under suspension for those offenses," in other words, while

serving the court-imposed term of suspension. The explanatory

statement is silent about drivers under continuing

administrative suspension who did not restore their privileges

after being convicted of DWI offenses and completing their

determinate suspension terms. Thus, reference to the

legislative history supports our conclusion.

C.

Again, for the sake of argument, if after resort to

extrinsic evidence ambiguity remains in a criminal statute, then

the court must be guided by the "rule of lenity," which requires

that the court construe penal statutes strictly and interpret

ambiguous language in favor of a criminal defendant. D.A.,

17 A-1767-13T2
supra, 191 N.J. at 164-65. At the heart of this canon is the

requirement of due process. In re Suspension of DeMarco, 83

N.J. 25, 36 (1980). "No one shall be punished for a crime

unless both that crime and its punishment are clearly set forth

in positive law." Ibid. Statutes "must give persons of

ordinary intelligence fair notice of what conduct is prohibited

and what consequences may follow violation of the law." State

v. Channel Home Ctrs., 199 N.J. Super. 483, 489 (App. Div.

1985). "It is, therefore, inappropriate to supply missing

connections in criminal statutes that persons of ordinary

intelligence would not discover." Ibid.

N.J.S.A. 2C:40-26 is not based on a model statute. Ten

other states, however, have implemented similar statutes which

impose additional, significant penalties on those found

operating a motor vehicle during their suspension period for

driving while intoxicated or refusing a chemical test. In two

of the states that have interpreted comparable statutes, the

rule of lenity has been found to control.

In Connecticut, for example, a person who drives while

suspended for DWI-related offenses is subject to a fine and

imprisonment of up to one year. Conn. Gen. Stat. § 14-215(c)(1)

(2014). The statute, however, does not specify whether a person

can be convicted if the determinate suspension term ended but

18 A-1767-13T2
the person did not administratively restore his or her license.

In State v. Cook, a defendant was not subjected to enhanced

penalties for driving while suspended after the period of

suspension had expired, but before he had been administratively

reinstated, because the court interpreted the law to mean

exposure was limited to those serving the determinate term only.

653 A.2d 829, 831 (Conn. App. Ct. 1995). The court observed

that because the consequences were penal, the statute should be

strictly construed in favor of the accused. Ibid.

Oregon Revised Statutes § 811.182(3) (2013) makes it a

felony to drive "while suspended or revoked . . . if the

revocation resulted from a conviction for felony driving while

under the influence of intoxicants." Another statute, Oregon

Revised Statutes § 807.010 (2013), makes it a misdemeanor to

drive without driving privileges. In State v. Hammerton, the

defendants were convicted under a statute specifying that the

license "revocation shall be for a period of one year" and that

driving privileges would not be reinstated until the person

complied with certain administrative requirements. 886 P.2d

1012, 1016 (Or. 1994). The court determined that when read

together, the relevant statutes created a statutory scheme

contemplating a finite license revocation period during which

the enhanced penalties could be imposed. Ibid. The defendants,

19 A-1767-13T2
whose period of revocation had ended but who had not applied for

reinstatement, could therefore only be charged with the lesser

infraction of driving without driving privileges, not felony

driving while suspended. Id. at 1017.

Unlike N.J.S.A. 2C:40-26, Pennsylvania's statute explicitly

states that a person can be convicted of driving while suspended

for a previous intoxication offense "until the person has had

the operating privilege restored." 75 Pa. Cons. Stat. §

1543(b)(2) (2014). Therefore a Pennsylvania driver can be

convicted even after the determinate period of suspension has

expired. Commonwealth v. Downs, 739 A.2d 569 (Pa. Super. Ct.

1999).3

Even if we were to find that the legislative intent was

unclear from the plain language of the statute, which we do not,

the rule of lenity would require us to render an interpretation

favoring these defendants so that none are punished for a crime

not clearly articulated. State v. Regis, 208 N.J. 439, 451

3
Although Hawaii, Maine, Minnesota, Oklahoma, and Virginia have
statutes providing for enhanced penalties for driving after
being suspended for alcohol-related offenses, to this date, the
statutes have not been interpreted. See Haw. Rev. Stat. § 291E-
62 (2014), Me. Rev. Stat. tit. 29-A, § 2412-A (2014), Minn.
Stat. § 171.24 (2014), Okla. Stat. tit. 47, § 6-205.1 (2013),
Va. Code Ann. §§ 46.2-301.1; -357 (2014). Maryland's statutes
provide enhanced penalties for driving while suspended, but do
not include a criminal conviction or jail time. See Md. Code
Ann., Transp. § 303 (LexisNexis 2014).

20 A-1767-13T2
(2011). The rule "is applied only if a statute is ambiguous,

and that ambiguity is not resolved by a review of 'all sources

of legislative intent.'" Id. at 452 (quoting D.A., supra, 191

N.J. at 165 (quotation omitted)). Whatever ambiguity exists in

this statute must be construed in favor of the defendants.

D.

In furtherance of its position, the State claims that the

penalties associated with DWI and refusal, in and of themselves,

support a finding that such suspensions "continue" until the

license is administratively restored. The State draws our

attention to N.J.S.A. 39:4-50(b):

A person convicted under this section
must satisfy the screening, evaluation,
referral, program and fee requirements of
the Division of Alcoholism and Drug Abuse's
Intoxicated Driving Program Unit, and of the
Intoxicated Driver Resource Centers and a
program of alcohol and drug education and
highway safety, as prescribed by the chief
administrator. The sentencing court shall
inform the person convicted that failure to
satisfy such requirements shall result in a
mandatory two-day term of imprisonment in a
county jail and a driver license revocation
or suspension and continuation of revocation
or suspension until such requirements are
satisfied, unless stayed by court order[.]

N.J.A.C. 10:162-2.2 further describes the consequences when

a driver fails to comply with an N.J.S.A. 39:4-50(b) sentence:

21 A-1767-13T2
 (a) Failure on the part of the client to
appear at an Intoxicated Driver Resource
Center shall result in a referral to
Division of Motor Vehicles for appropriate
action, and, referral to the court of
conviction for appropriate action.

(b) Failure on the part of the client to
comply with the course of action or fee
schedule required by the Intoxicated Driving
Program/Intoxicated Driver Resource Center
or the course of action at an affiliated
agency or provider shall result in a report
of noncompliance to the sentencing court and
the Division of Motor Vehicles for
appropriate action pursuant to N.J.S.A.
39:4-50(b).

These statutes and regulations, however, relate to motor vehicle

licensing consequences and offenses. The requirement that a

convicted person satisfy mandatory programs and the consequence

that failure to do so may result in a two-day term of

imprisonment are entirely different matters from a fourth-degree

crime punishable by up to eighteen months of imprisonment carrying

a six-month mandatory minimum sentence.4

If anything, N.J.S.A. 39:4-50(b) and N.J.A.C. 10:162-2.2

support defendants' position that N.J.S.A. 2C:40-26(a) and (b)

apply during the determinate term of suspension. Under these

4
The State cites in further support of its argument an
unpublished case. See R. 1:36-3 ("No unpublished opinion shall
constitute precedent or be binding upon any court."). Like
Zalta, the case relates to motor vehicle penalties,
consequences, and license revocation, not prosecution under the
Criminal Code.

22 A-1767-13T2
provisions, in the event of noncompliance with the completion of

the Intoxicated Driver Program, as required by N.J.A.C.

39:4-50(a), extension of a DWI suspension is not automatic and

requires further administrative action.

The State also argues that unless a second-time offender

installs an ignition interlock device under N.J.S.A.

39:4-50(a)(2), his or her license remains suspended "for" DWI.

But the statute clearly provides that a person who has been

twice found guilty of DWI is required to install an ignition

interlock device, and that no license restoration will be

approved until compliance occurs. See also N.J.A.C. 13:19-6.4.

The focus of the provision and the regulation is to clarify the

steps a driver must take to obtain reinstatement. They do not

relate to prosecution under the Criminal Code. The consequence

of requiring the installation of an interlock device is,

therefore, similar to the consequence of requiring payment of an

administrative restoration fee. The State's reliance on the

motor vehicle code is misplaced and irrelevant to our

construction of N.J.S.A. 2C:40-26.

N.J.S.A. 2C:40-26 punishes those who drive while suspended

for violations of the DWI and refusal law, by exposing them to a

criminal record and incarceration without parole when they drive

during the court-imposed period of suspension. The statute's

23 A-1767-13T2
grave consequences are no doubt also intended to deter the

behavior. Criminalizing driving during a period of

administrative suspension extending beyond the determinate

suspension term for the DWI or refusal offense would not

implement legislative intent.

The indictments against McIntyre and Wisser demonstrate the

potential harm that results from the State's construction of

N.J.S.A. 2C:40-26. Both McIntyre and Wisser had completed their

court-imposed suspensions for the DWI violations but were

ineligible to restore their licenses due to other non-DWI or

non-refusal violations of the Motor Vehicle Code. They

nonetheless face the prospect of criminal prosecution. Other

drivers who repeatedly drive while suspended are not placed in

that jeopardy.

III

None of these offenses occurred during the relevant

court-imposed period of suspension for DWI and/or refusal under

N.J.S.A. 2C:40-26(a) or (b). We therefore affirm the dismissals

of indictments in the Perry, Nay, Evans, Papp, and McIntyre

appeals. See State v. Salter, 425 N.J. Super. 504, 514 (App.

Div. 2012) (indictments should be dismissed if "manifestly

deficient or palpably defective."). The denials of the motions

24 A-1767-13T2
to dismiss the indictments in the Brewer and Wisser appeals are

reversed. Id.

25 A-1767-13T2