State v. David L. Smith (085635) (Mercer County & Statewide)

SYLLABUS

This syllabus is not part of the Court’s opinion. 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 Court and may not summarize all portions of the opinion.

State v. David L. Smith (A-4-21) (085635)

Argued April 26, 2022 -- Decided June 28, 2022

SOLOMON, J., writing for a unanimous Court.

N.J.S.A. 39:3-74 prohibits operation of a vehicle with any “non-transparent
material” on the front windshield or front side windows. Although the statute
predates automotive window tinting, it commonly serves as the statutory basis for
tinted window citations. In this appeal, the Court considers whether a purported
violation of N.J.S.A. 39:3-74 based on tinted windows justified an investigatory stop
of a motor vehicle.

In November 2018, at approximately 10:20 p.m., Trenton detectives stopped
defendant David Smith’s motor vehicle for a purported tinted windows violation
after the detectives observed dark tinting on defendant’s rear windshield. Despite
the rear windshield’s tint, detectives were able to see that defendant was alone in the
car and was making a furtive “shoving” motion, raising suspicions that he was trying
to conceal a weapon. When the detectives searched the vehicle, they found a
firearm. The detectives cited defendant for a tinted windows violation and charged
him with various weapons offenses.

The trial court denied defendant’s motion to suppress the firearm, concluding
that the car stop was supported by a reasonable suspicion of a tinted windows
violation pursuant to adjacent statute N.J.S.A. 39:3-75. Defendant subsequently
pled guilty to second-degree unlawful possession of a handgun. The Appellate
Division affirmed the denial of defendant’s motion to suppress.

The Court granted certification, limited to whether the State established a
reasonable and articulable suspicion for the car stop. 248 N.J. 386 (2021). The
Court later granted the State’s motion for a limited remand to the trial court to vacate
defendant’s convictions and dismiss the charges against him. Despite the stipulation
of dismissal, the Court considers the issues presented by this appeal because they are
of sufficient public importance and likely to surface again.

HELD: The stop was not supported by a reasonable and articulable suspicion of a
motor vehicle violation. N.J.S.A. 39:3-75, which governs automotive safety glass,
1
does not apply to window tint violations. Consistent with the plain language of
N.J.S.A. 39:3-74, reasonable and articulable suspicion of a tinted windows violation
arises only when a vehicle’s front windshield or front side windows are so darkly
tinted that police cannot clearly see people or articles within the car.

1. A motor vehicle stop by a police officer is a seizure of persons under both the
Federal and State Constitutions. To justify such a seizure, a police officer must have
a reasonable and articulable suspicion that the driver of a vehicle, or its occupants, is
committing a motor-vehicle violation or a criminal or disorderly persons offense.
Defendant was cited for a tinted windows violation pursuant to N.J.S.A. 39:3-74,
which provides in pertinent part that “[n]o person shall drive any motor vehicle with
any . . . non-transparent material upon the front windshield, . . . or front side
windows of such vehicle.” (emphases added). Here, the arresting officers observed
window tint only on the rear windshield of defendant’s vehicle. Under the statute’s
plain language, the tint on defendant’s rear windshield could not constitute a
violation of N.J.S.A. 39:3-74. It did not give rise to the reasonable and articulable
suspicion necessary to justify this motor vehicle stop. (pp. 10-14)

2. The Court considers the other authorities and principles on which the State and
the trial and appellate courts relied. N.J.S.A. 39:3-75 prohibits the use of “safety
glazing material which causes undue or unsafe distortion of visibility or . . . unduly
fractured, discolored or deteriorated safety glazing material” on any of a vehicle’s
windows. The plain language of section 75 indicates that it is concerned solely with
the quality and maintenance of safety glazing material, not aftermarket tinted
window film. N.J.S.A. 39:3-75.1 provides an exception to window tinting
restrictions for medical reasons not claimed here. N.J.S.A. 39:3-75.2 authorizes the
promulgation of rules and regulations specifying standards for permissible window
tint but does not itself establish such specifications. In short, no statute supports the
stop at issue. (pp. 14-16)

3. Related regulations are equally inapposite. In State v. Cohen, the Appellate
Division construed N.J.S.A. 39:3-74 as prohibiting tinted windows that do not meet
N.J.A.C. 13:20-33.7’s delineated window tint specifications. 347 N.J. Super. 375,
380 (App. Div. 2002). Through 2013, all motor vehicles had to comply with
N.J.A.C. 13:20-33.7’s safety requirements to pass biannual inspection. N.J.A.C.
13:20-33.7 contains two paragraphs -- (d) and (g) -- that set forth standards for tinted
windows, but neither justifies the stop here. N.J.A.C. 13:20-33.7(d) prohibits the
addition of any tint to areas not relevant here. N.J.A.C. 13:20-33.7(g) addresses rear
windows and windshields -- but the statute authorizes the application of tint to those
surfaces so long as the car has an exterior wing mirror on each side and vision
through the windows and windshields is only partially obscured. Even if N.J.A.C.
13:20-33.7 did prohibit the tint observed on defendant’s rear windshield, the
regulation no longer applies to non-commercial vehicles. The Court departs from
2
Cohen to the extent that it ties violations of N.J.S.A. 39:3-74 to the standards set
forth in N.J.A.C. 13:20-33.7. N.J.A.C. 13:20-1.2(a) is likewise inapplicable because
its light transmittance standard applies only to a vehicle’s front windshield where a
Medical Exemption Certificate has been issued. (pp. 16-17)

4. The facts of this case do not support application of the community caretaking
function, which may be implicated where police observe “something abnormal . . .
concerning the operation of a motor vehicle.” Cohen, 347 N.J. Super. at 378.
Unlike the darkly tinted front driver- and passenger-side windows that prompted the
investigatory stop in Cohen, defendant’s tinted rear windshield could not be
considered a “significant obstruction” of the driver ’s vision or “a hazardous
vehicular condition that deviates from the norm,” see id. at 381, because, whether or
not defendant’s car was equipped with exterior side mirrors, New Jersey law allows
for rear window tinting on passenger vehicles. Furthermore, detectives were able to
see through the rear windshield that there was “just the driver” making furtive
motions inside the car. The initial stop of defendant’s vehicle was thus
unconstitutional because no statutory or regulatory provision forms the basis for a
reasonable and articulable suspicion that defendant committed a tinted windows
violation. (pp. 17-18)

5. For completeness and future guidance, the Court considers whether N.J.S.A.
39:3-74 is unconstitutionally vague. A statute is unconstitutionally vague, in
violation of due process, if persons of common intelligence must necessarily guess
at its meaning and differ as to its application. The term “non-transparent” used in
N.J.S.A. 39:3-74 is not impermissibly vague and means that reasonable suspicion of
a tinted windows violation arises when a vehicle’s front windshield or front side
windows are so darkly tinted that police cannot clearly see people or articles within
the car. Here, despite the tinting on defendant’s rear windshield, detectives were
able to see with just the police SUV’s headlights and street lighting that there was
only one person in the vehicle and that the person was making movements. Such a
degree of window tint is not “non-transparent” within the meaning of the statute. In
order to establish a reasonable suspicion of a tinted windows violation under
N.J.S.A. 39:3-74, the State will therefore need to present evidence that tinting on the
front windshield or front side windows inhibited officers’ ability to clearly see the
vehicle’s occupants or articles inside. (pp. 18-22)

REVERSED.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and PIERRE-
LOUIS; and JUDGE FUENTES (temporarily assigned) join in JUSTICE
SOLOMON’s opinion.

3
 SUPREME COURT OF NEW JERSEY
A-4 September Term 2021
085635

State of New Jersey,

Plaintiff-Respondent,

v.

David L. Smith, a/k/a Mont,

Defendant-Appellant.

On certification to the Superior Court,
Appellate Division .

Argued Decided
April 26, 2022 June 28, 2022

Margaret McLane, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Margaret McLane, of counsel and on
the briefs).

William P. Cooper-Daub, Deputy Attorney General,
argued the cause for respondent (Matthew J. Platkin,
Acting Attorney General, attorney; William P. Cooper-
Daub, of counsel and on the briefs, and Randolph E.
Mershon, III, Assistant Mercer County Prosecutor, on the
briefs).

Karen Thompson argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American
Civil Liberties Union of New Jersey Foundation,
attorneys; Karen Thompson, Alexander Shalom, and
Jeanne LoCicero, on the brief).

1
 Jonathan Romberg submitted a brief on behalf of amicus
curiae Seton Hall University School of Law Center for
Social Justice (Seton Hall University School of Law
Center for Social Justice, attorneys; Jonathan Romberg,
of counsel and on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

N.J.S.A. 39:3-74 prohibits operation of a vehicle with any “non-

transparent material” on the front windshield or front side windows. Although

the statute predates automotive window tinting, it commonly serves as the

statutory basis for tinted window citations. See State v. Cohen, 347 N.J.

Super. 375, 379-81 (App. Div. 2002). In this appeal, the Court considers

whether a purported violation of N.J.S.A. 39:3-74 based on tinted windows

justified an investigatory stop of a motor vehicle.

Trenton detectives stopped defendant David Smith’s motor vehicle for a

purported tinted windows violation after the detectives observed dark tinting

on defendant’s rear windshield. Despite the rear windshield’s tint, the

detectives were able to see that defendant was alone in the car and was making

a furtive “shoving” motion, raising suspicions that he was trying to conceal a

weapon. When the detectives searched the vehicle, they found a firearm. The

detectives cited defendant for a tinted windows violation and charged him with

various weapons offenses. Defendant moved to suppress the firearm, arguing

2
that the motor vehicle stop was unlawful because the detectives could not have

had a reasonable and articulable suspicion that the tinting on defendant’s rear

windshield violated N.J.S.A. 39:3-74.

The trial court denied defendant’s motion, concluding that the car stop

was supported by a reasonable suspicion of a tinted windows violation

pursuant to adjacent statute N.J.S.A. 39:3-75. Defendant subsequently pled

guilty to second-degree unlawful possession of a handgun pursuant to a plea

agreement with the State and was sentenced in accordance with the State’s

recommendation. The Appellate Division later affirmed the denial of

defendant’s motion to suppress.

We now reverse the Appellate Division’s judgment. We hold that the

stop was not supported by a reasonable and articulable suspicion of a motor

vehicle violation. 1 We further hold that N.J.S.A. 39:3-75, which governs

automotive safety glass, does not apply to window tint violations. Finally,

consistent with the plain language of N.J.S.A. 39:3-74, we hold that reasonable

and articulable suspicion of a tinted windows violation arises only when a

1
This issue is now moot because, following this Court’s grant of certification,
the State moved for a limited remand to vacate defendant’s convictions and
dismiss the charges against him. Despite the stipulation of dismissal, we
decided to maintain the appeal because the issue presented is “of sufficient
public importance, likely to surface again, to warrant our deciding it, even in
the absence of an actual controversy between the litigants.” State v. Kovack,
91 N.J. 476, 486 (1982).
3
vehicle’s front windshield or front side windows are so darkly tinted that

police cannot clearly see people or articles within the car.

I.

A.

The record before the motion judge reveals that in November 2018, at

approximately 10:20 p.m., four detectives were patrolling in a marked Trenton

Police SUV. All four detectives were assigned to the Street Crimes Unit,

which Detective Brieer Doggett described as being focused on “more proactive

policing” aimed at “apprehend[ing] individuals . . . in regards to narcotic,

weapons, and other related offenses.” Doggett, who was riding in the front

passenger seat, later characterized their location as a “high drug area” and a

“high weapons-related offenses area.”

As the detectives approached an intersection with a red traffic light, they

pulled up behind a Ford Taurus with its left turn signal activated. The Taurus

was “[d]irectly in front of” them, and Doggett observed that “the windows

were tinted on the vehicle.” When the light turned green, the Taurus

proceeded slowly, turning left at the intersection. The detectives then

“activated [their] emergency lights and sirens . . . [b]ecause the vehicle had

tinted windows.” Detective Doggett later testified that he was close enough to

see that the vehicle’s rear windshield was tinted. Notwithstanding the tinted

4
windows, with the police SUV’s headlights and the lighting on the street

Doggett was able to see that there was “just the driver” inside the car.

The driver of the Taurus initially kept proceeding slowly before pulling

over. When Doggett started to exit the police car, the driver began to pull

away again but then stopped. Two detectives approached the Taurus on the

driver’s side, while Detective Doggett and another detective approached the

passenger side.

Illuminating the car’s interior with his flashlight, Detective Doggett

“[saw] a lot of motion still going on through the rear window.” As he got

closer, he looked through the rear-passenger window and “[saw] the defendant

shoving an object in between the driver’s seat and the center console.”

Doggett could not see what the object was but could see what defendant was

doing by “the way he was moving his right arm.”

Upon observing defendant’s motions, Detective Doggett grew concerned

that defendant was trying to conceal a firearm or other type of weapon.

Doggett drew his gun and ordered defendant to roll down his windows.

Defendant continued his shoving motion between the seat and the console, and

Detective Doggett ordered him to roll down the windows twice more before

defendant complied. After removing defendant from the Taurus, the detectives

searched between the seat and the console and found a .38 caliber revolver

5
loaded with hollow-point bullets. The detectives then arrested defendant and

towed the Taurus to headquarters.

A grand jury indicted defendant for second-degree unlawful possession

of a handgun, third-degree theft by receiving stolen property, fourth-degree

possession of hollow-point bullets, and second-degree certain person not to

possess a firearm. In addition to the criminal charges, defendant was given a

motor vehicle summons for a tinted windows violation.

B.

Defendant moved to suppress the seized firearm, arguing that the State

failed to justify the stop of his vehicle. Detective Doggett was the sole witness

at the suppression hearing and testified to having observed tint only on the rear

windshield, which is permitted under N.J.S.A. 39:3-74. Doggett further

testified that he was able to see clearly enough through the rear windshield to

observe defendant moving his hand between the seat and the console.

Defendant contended that, because Doggett had “clear vision,” the State did

not establish a reasonable and articulable suspicion of a tinted windows

violation.

At the conclusion of the hearing, the trial court denied defendant’s

motion. The court deemed credible Detective Doggett’s testimony and

concluded that the motor-vehicle stop was lawful because “defendant’s vehicle

6
appeared to have tinted windows in violation of [N.J.S.A.] 39:3-75.”2 The

court did not find which of the car’s windows were tinted or discuss the degree

of window tinting.

Following the denial of his motion to suppress, defendant entered into a

plea agreement with the State, pursuant to which he pled guilty to second-

degree unlawful possession of a handgun and was sentenced to the

recommended five years in prison with a three-and-one-half year period of

parole ineligibility.

C.

Defendant appealed the trial court’s denial of his motion to suppress ,

arguing that the State failed to justify the car stop because Detective Doggett

did not testify to specific facts supporting his belief that the window tint on

defendant’s vehicle violated the motor vehicle code.

In an unpublished decision, the Appellate Division affirmed. Relying on

Cohen, 347 N.J. Super. at 380, the court reasoned that an actual violation of

N.J.S.A. 39:3-74 is not necessary to support the initial stop so long as the

officer had a reasonable articulable suspicion of a motor vehicle violation.

2
N.J.S.A. 39:3-75 also governs a motor vehicle’s windows and windshields.
Entitled “Safety glass,” that provision prohibits operation of “any motor
vehicle equipped with safety glazing material which causes undue or unsafe
distortion of visibility or equipped with unduly fractured, discolored or
deteriorated safety glazing material.”
7
The court further noted that the “companion statute” N.J.S.A. 39:3-75

provided an additional basis for the stop because the “unsafe distortion of

visibility under this statute is not apparently limited to only the windshield and

front windows, as it is in N.J.S.A. 39:3-74.” The court found, based on

Detective Doggett’s “unrefuted testimony,” that the totality of the

circumstances supported a reasonable suspicion of a tinted windows violation.

D.

This Court granted defendant’s petition for certification, limited to the

question of whether the State established a reasonable and articulable

suspicion for the car stop. 248 N.J. 386 (2021). We subsequently granted

leave to participate as amici curiae to the American Civil Liberties Union of

New Jersey (ACLU) and the Seton Hall School of Law Center for Social

Justice (CSJ).

Following this Court’s grant of certification, the State moved for a

limited remand to the trial court to vacate defendant’s convictions and dismiss

the charges against him. We granted that motion, reserving the right to

proceed with the appeal regardless of the outcome of the remand proceedings.

Although the parties agree there was no reasonable suspicion for the car

stop in this case, the issue presented is “of sufficient public importance, likely

to surface again, to warrant our deciding it, even in the absence of an actual

8
controversy between the litigants.” State v. Kovack, 91 N.J. 476, 486 (1982).

Thus, we consider the issues presented by this appeal notwithstanding the

stipulation of dismissal presented to and accepted by the trial court.

II.

Defendant contends that the plain language of N.J.S.A. 39:3-74 is clear

and proscribes only tinting on a car’s front windshield or front side windows

that is “so dark as to be non-transparent or unduly interfere with the driver’s

vision.” Defendant submits that N.J.S.A. 39:3-75 is inapplicable because its

plain language “has nothing to do with aftermarket or added window tint ” but

instead pertains to “safety glass” and “safety glazing material.” Defendant

argues that because New Jersey law allows for some window tinting, in order

to establish reasonable suspicion of a statutory violation, police officers must

provide sufficient details to explain their belief that windows were illegally

tinted. Defendant contends that, absent such factual support, N.J.S.A. 39:3-74

is unconstitutionally vague and would lead to arbitrary and discriminatory

enforcement.

Amici the ACLU and CSJ support defendant’s position and largely

reiterate defendant’s arguments regarding statutory interpretation,

unconstitutional vagueness, and pretextual stops. Rather than the fact-specific

standard proposed by defendant, however, the CSJ urges this Court to adopt a

9
bright-line rule that officers have a reasonable suspicion only when they are

unable to see through window tint to observe a car’s occupants.

The State concedes that N.J.S.A. 39:3-74, not -75, governs here. It

submits, however, that the law is well-settled and clear, and asks this Court to

uphold the Appellate Division’s conclusion in Cohen, 347 N.J. Super. at 380,

that N.J.A.C. 13:20-33.7 provides the metric for determining whether window

tint is lawful under N.J.S.A. 39:3-74. The State maintains that N.J.A.C. 13:20-

33.7’s window-tint standard is straightforward -- “drivers may add virtually

any level of tint to rear windows and windshields, but, unless narrow

exceptions are met, may not add any tint to front windows or windshields.”

Finally, the State argues that, because the record contains nothing to suggest

defendant’s initial stop was pretextual, this Court should reject defendant’s and

amici’s proposals to alter the factual proofs required to establish reasonable

suspicion of a tinted windows violation.

III.

A.

The Fourth Amendment of the United States Constitution and Article I,

Paragraph 7 of the New Jersey Constitution guarantee “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” A motor vehicle stop by a police officer,

10
no matter how brief or limited, is a “‘seizure’ of ‘persons’” under both the

Federal and State Constitutions. State v. Scriven, 226 N.J. 20, 33 (2016)

(quoting State v. Dickey, 152 N.J. 468, 475 (1998)). To justify such a seizure,

“a police officer must have a reasonable and articulable suspicion that the

driver of a vehicle, or its occupants, is committing a motor-vehicle violation or

a criminal or disorderly persons offense.” Id. at 33-34. “The suspicion

necessary to justify a stop must not only be reasonable, but also

particularized.” Id. at 37. An investigative stop “may not be based on

arbitrary police practices, the officer’s subjective good faith, or a mere hunch.”

State v. Chisum, 236 N.J. 530, 546 (2019) (quoting State v. Coles, 218 N.J.

322, 343 (2014)).

To determine whether reasonable and articulable suspicion exists, a

court must evaluate the totality of the circumstances and “assess whether ‘the

facts available to the officer at the moment of the seizure . . . warrant[ed] a

[person] of reasonable caution in the belief that the action taken was

appropriate.’” State v. Alessi, 240 N.J. 501, 518 (2020) (alterations and

omission in original) (quoting State v. Mann, 203 N.J. 328, 338 (2010)). A

motor vehicle stop that is not based on a “reasonable and articulable suspicion

is an ‘unlawful seizure,’ and evidence discovered during the course of an

11
unconstitutional detention is subject to the exclusionary rule.” Chisum, 236

N.J. at 546 (quoting State v. Elders, 192 N.J. 224, 247 (2007)).

Because the reasonableness of a motor vehicle stop for tinted windows

hinges on the standards set forth in our motor vehicle code, we begin with an

interpretive analysis of the statute at issue in this appeal -- N.J.S.A. 39:3-74.

As always, the goal of statutory interpretation is to give effect to the

Legislature’s intent, and “the best indicator of that intent” is the statute’s plain

language. DiProspero v. Penn, 183 N.J. 477, 492 (2005). If the plain language

is clear and unambiguous, “then our interpretative process is over.” State v.

Rodriguez, 238 N.J. 105, 113 (2019) (quoting Johnson v. Roselle EZ Quick

LLC, 226 N.J. 370, 386 (2016)). If the statutory language is ambiguous, or if a

plain reading of the statute would lead to an absurd result, we may consider

extrinsic aids, including legislative history. Ibid. We also note that “[t]he

Legislature, presumably, writes motor-vehicle laws in language that can be

easily grasped by the public so that every motorist can obey the rules of the

road.” Scriven, 226 N.J. at 34.

B.

Defendant was cited for a tinted windows violation pursuant to N.J.S.A.

39:3-74, entitled “Windshields must be unobstructed and equipped with

cleaners.” The statute provides in pertinent part that

12
 [n]o person shall drive any motor vehicle with any sign,
poster, sticker or other non-transparent material upon
the front windshield, wings, deflectors, side shields,
corner lights adjoining windshield or front side
windows of such vehicle other than a certificate or other
article required to be so displayed by statute or by
regulations of the commissioner.

No person shall drive any vehicle so constructed,
equipped or loaded as to unduly interfere with the
driver’s vision to the front and to the sides.

[N.J.S.A. 39:3-74.]

Enacted in 1921 and last amended in 1937, N.J.S.A. 39:3-74 pre-dates

automotive window tinting. Cohen, 347 N.J. Super. at 379. However, the

provision has been consistently cited as the statutory basis for tinted w indow

stops. See, e.g., id. at 380; Saint-Jean v. County of Bergen, 509 F. Supp. 3d

87, 105 n.13 (D.N.J. 2020) (noting that section 74 is the statute most

“frequently cited in the sparse case law regarding tinted windows”).

In Cohen, the Appellate Division upheld a trial court’s finding of

reasonable suspicion based on an officer’s observation that the front driver and

passenger side windows “were so darkly tinted as to obstruct vision.” 347 N.J.

Super. at 380. Relying on State v. Oberlton, 262 N.J. Super. 204 (Law Div.

1992), the court held that “N.J.S.A. 39:3-74 prohibits the use of tinted

windows which fail to meet the applicable standard now set forth in N.J.A.C.

13:20-33.7,” which, at the time, established inspection requirements for
13
passenger vehicles. Ibid. However, the court reasoned that it did not matter

“whether the equipment used violate[d] N.J.S.A. 39:3-74, because the fact that

a defendant is later found not guilty does not denigrate the propriety of the

initial stop so long as it is based on a reasonable articulable suspicion that a

motor vehicle violation has occurred.” Ibid. The Appellate Division further

cited “the community caretaking function” as an independent basis for the

stop, because “the officer’s belief that the darkly tinted windows represented a

significant obstruction” justified “inspection of what appear[ed] to be a

hazardous vehicular condition that deviate[d] from the norm.” Id. at 381.

As noted, N.J.S.A. 39:3-74 provides that: “No person shall drive any

motor vehicle with any . . . non-transparent material upon the front windshield,

. . . or front side windows of such vehicle . . . .” (emphases added). Here,

Detective Doggett’s testimony establishes only that the arresting officers

observed window tint on the rear windshield of defendant’s vehicle. Under the

statute’s plain language, the tint on defendant’s rear windshield could not

constitute a violation of N.J.S.A. 39:3-74. It did not give rise to the reasonable

and articulable suspicion necessary to justify this motor vehicle stop.

We therefore consider the other authorities and principles on which the

State and the trial and appellate courts relied.

14
 C.

In this case, both the motion judge and the Appellate Division cited

N.J.S.A. 39:3-75 as an additional statutory basis for the stop of defendant’s

vehicle. Entitled “Safety glass,” N.J.S.A. 39:3-75 prohibits the use of “safety

glazing material which causes undue or unsafe distortion of visibility or . . .

unduly fractured, discolored or deteriorated safety glazing material” on ---
any of

a vehicle’s windows. The provision expressly refers to “safety glazing

material,” which is defined as (1) “glass so treated or combined with other

materials as to reduce . . . the likelihood of injury to persons by objects from

exterior sources or by glass when the glass is cracked or broken,” or (2) “other

glazing materials, such as plastics, produced for the purpose of safety in

glazing; or a combination of safety glass and other safety glazing material.”

N.J.S.A. 39:3-75. The plain language of section 75 indicates that it is

concerned solely with the quality and maintenance of such safety glazing

material, not aftermarket tinted window film. As the State now concedes, that

provision has no bearing here.

Other statutory provisions addressing motor vehicle window tinting are

equally inapplicable to the present circumstances. N.J.S.A. 39:3-75.1 provides

an exception to window tinting restrictions, permitting the application of

certain tinting materials on car windows and windshields for medical reasons

15
not claimed here. N.J.S.A. 39:3-75.2 authorizes the promulgation of rules and

regulations specifying standards for permissible window tint, including

allowable percentages of light transmittance, but does not itself establish such

specifications. In short, no statute supports the stop at issue.

Related regulations are equally inapposite. N.J.A.C. 13:20-33.7

delineates additional window tint specifications, and the Appellate Division

has construed N.J.S.A. 39:3-74 as prohibiting tinted windows that do not meet

that regulation’s requirements. Cohen, 347 N.J. Super. at 380. Through 2013,

all motor vehicles had to comply with N.J.A.C. 13:20-33.7’s safety

requirements to pass biannual inspection.

N.J.A.C. 13:20-33.7 contains two paragraphs -- (d) and (g) -- that set

forth standards for tinted windows, but neither justifies the stop here. N.J.A.C.

13:20-33.7(d) prohibits the addition of any tint only to front windows, front

windshields, and other areas not relevant here. N.J.A.C. 13:20-33.7(g),

meanwhile, addresses rear windows and windshields -- but the statute

authorizes the application of tint to those surfaces so long as the car has an

exterior wing mirror on each side and vision through the windows and

windshields is only partially obscured.

Even if N.J.A.C. 13:20-33.7 did prohibit the tint observed on

defendant’s rear windshield, moreover, the regulation no longer applies to non-

16
commercial vehicles. In 2013 the Motor Vehicle Commission amended the

title of N.J.A.C. 13:20-33.7 and many adjacent sections, adding the precursor

“Commercial vehicle inspection” in recognition of a 2010 bill that narrowed

the biannual inspection requirement for private cars to “emissions and

emissions-related items.” See 46 N.J.R. 103(c); L. 2010, c. 29 (emphasis

added). Accordingly, since the 2013 amendment, N.J.A.C. 13:20-33.7’s safety

requirements have not applied to passenger vehicles like defendant’s.

We therefore depart from Cohen to the extent that it ties violations of

N.J.S.A. 39:3-74 to the standards set forth in N.J.A.C. 13:20-33.7. We further

note that N.J.A.C. 13:20-1.2(a) is likewise inapplicable here because its light

transmittance standard applies only to a vehicle’s front windshield where a

Medical Exemption Certificate has been issued.

Finally, the facts of this case do not support application of the

community caretaking function, which may be implicated where police

observe “something abnormal . . . concerning the operation of a motor

vehicle.” Cohen, 347 N.J. Super. at 378. Unlike the darkly tinted front driver-

and passenger-side windows that prompted the investigatory stop in Cohen,

defendant’s tinted rear windshield could not be considered a “significant

obstruction” of the driver’s vision or “a hazardous vehicular condition that

deviates from the norm,” see id. at 381, because, whether or not defendant’s

17
car was equipped with exterior side mirrors, New Jersey law allows for rear

window tinting on passenger vehicles. Furthermore, Detective Doggett

testified that he was able to see through the rear windshield that there was “just

the driver” making furtive motions inside the car.

We thus hold that the initial stop of defendant’s vehicle was

unconstitutional because no statutory or regulatory provision forms the basis

for a reasonable and articulable suspicion that defendant committed a tinted

windows violation.

D.

For completeness and future guidance, we consider defendant’s

contention that N.J.S.A. 39:3-74 is unconstitutionally vague unless officers are

required to provide sufficient factual details regarding which windows were

tinted and the degree of window tint. Without such specificity, defendant

argues, the statute would allow police to stop anyone with any degree of

window tint on any car window, thereby setting the stage for arbitrary and

discriminatory enforcement.

Every statute enacted by our Legislature carries a strong presumption of

validity, “particularly . . . when a statute attempts to protect the public health,

safety, or welfare.” State v. Lenihan, 219 N.J. 251, 266 (2014) (quoting In re

C.V.S. Pharmacy Wayne, 116 N.J. 490, 497 (1989)). “[A]ny act of the

18
Legislature will not be ruled void unless its repugnancy to the Constitution is

clear beyond a reasonable doubt,” and our courts will construe a challenged

statute to sustain its constitutionality when possible. Ibid. (quoting State v.

Muhammad, 145 N.J. 23, 41 (1996)).

A statute is unconstitutionally vague, in violation of due process, if

“persons ‘of common intelligence must necessarily guess at its meaning and

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

Verniero, 156 N.J. 254, 279-80 (1998)). Put differently, a statute must “give

fair notice of conduct that is forbidden. A defendant should not be obliged to

guess whether his conduct is criminal. Nor should the statute provide so little

guidance to the police that law enforcement is so uncertain as to become

arbitrary.” Brown v. Newark, 113 N.J. 565, 577 (1989) (citations omitted)

(quoting State v. Lee, 96 N.J. 156, 166 (1984)). That principle holds true for

motor vehicle laws like N.J.S.A. 39:3-74, which, again, we presume to be

written “in language that can be easily grasped by the public so that every

motorist can obey the rules of the road.” Scriven, 226 N.J. at 34.

As already discussed, reasonable suspicion was lacking in this case

because the arresting officer testified only to observing tint on defendant’s rear

windshield, through which the officer could see defendant motioning within

the car. However, the parties remain divided over the degree of window tint

19
needed to justify a stop for a tinted windows violation with respect to a car’s

front windshield and front side windows.

Again, N.J.S.A. 39:3-74 provides in relevant part that “[n]o person shall

drive any motor vehicle with any . . . non-transparent material upon the front

windshield, . . . or front side windows of such vehicle.” (emphasis added).

The statute does not expressly define the term “non-transparent.” Defendant

interprets “non-transparent” as proscribing window tint that is so dark it is “no

longer able to be seen through.” The State, however, asserts that the statute

prohibits the addition of any tint to front windows or front windshields unless

one of N.J.A.C. 13:20-33.7’s exceptions is satisfied, as evidenced by the 2003

amendment to the Consumer Fraud Act requiring sellers and installers of

automotive window tint to notify customers “that the application of [tinting]

materials or film to the windshield or the front windows to the left and r ight of

the driver of any motor vehicle registered in the State is a violation of State

law and regulation.” N.J.S.A. 56:8-117(a). The statute also prohibits tint

sellers from installing or applying “any such material or film on or to the

windshield or the windows to the left and right of the driver of any motor

vehicle registered in the State unless” the driver presents proof of a medical

exemption. Id. at (b).

20
 Notwithstanding the provisions of N.J.S.A. 56:8-117, which do not

establish a violation of the motor vehicle laws, we may not disregard the plain

language of N.J.S.A. 39:3-74. “It is not the function of this Court to ‘rewrite a

plainly written enactment of the Legislature [ ]or presume that the Legislature

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

DiProspero, 183 N.J. at 492 (alteration in original) (quoting O’Connell v.

State, 171 N.J. 484, 488 (2002)).

The dictionary definition of “non-transparent” refers to the definition of

“transparent,” which is defined, in pertinent part, as “fine or sheer enough to

be seen through”3 -- essentially, “able to be seen through.” See N.J.S.A. 1:1-1

(“In the construction of the laws and statutes of this state, both civil and

criminal, words and phrases . . . shall, unless inconsistent with the manifest

intent of the legislature or unless another or different meaning is expressly

indicated, be given their generally accepted meaning, according to the

approved usage of the language.”).

We hold that the term “non-transparent” used in N.J.S.A. 39:3-74 is not

impermissibly vague and means that reasonable suspicion of a tinted windows

3
Nontransparent, Merriam-Webster, https://www.merriam-
webster.com/dictionary/nontransparent (last visited May 31, 2022);
Transparent, Merriam-Webster, https://www.merriam-
webster.com/dictionary/transparent (last visited May 31, 2022).

21
violation arises when a vehicle’s front windshield or front side windows are so

darkly tinted that police cannot clearly see people or articles within the car.

We believe that this construction “can be easily grasped by the public.”

Scriven, 226 N.J. at 34.

The facts of this case provide an illustrative example of window tint that

does not meet the definition of the statutory term “non-transparent.” Detective

Doggett testified that, despite the tinting on defendant’s rear windshield, he

was able to see with just the police SUV’s headlights and street lighting that

there was only one person in the vehicle and that the person was making

movements. Such a degree of window tint -- which allows the officer to see

both the number of people in the vehicle and their movements -- is not “non-

transparent” within the meaning of the statute. In order to establish a

reasonable suspicion of a tinted windows violation under N.J.S.A. 39:3-74, the

State will therefore need to present evidence that tinting on the front

windshield or front side windows inhibited officers’ ability to clearly see the

vehicle’s occupants or articles inside.

Our task in this appeal has been to interpret the language of a statute

enacted a century ago. The Legislature may, of course, modify the statute’s

text.

22
 IV.

For the reasons expressed, we reverse the judgment of the Appellate

Division.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and
PIERRE-LOUIS; and JUDGE FUENTES (temporarily assigned) join in
JUSTICE SOLOMON’s opinion.

23