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The Law Offices of Proetta & Oliver

Hudson County

Criminal Defense Lawyer

"We have successfully defended our clients against thousands of Criminal, DWI, and Municipal Court charges throughout Hudson County and New Jersey."

- William A. Proetta, Esq.

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2C:40-26 Driving While Suspended for DWI

New Jersey recently made the offense of driving while suspended during a DUI suspension an indictable crime of the fourth degree under 2C:40-26. In the past these offenses were just considered motor vehicle violations under 39:3-40 driving while suspended with a minimum term of county jail. However, now each conviction carries an 18 month state prison term, of which, 6 months must be served day for day before even being eligible for parole.

To make matters worse – these cases are often pretty cut and dry meaning that all the prosecutor has to show is that you were convicted of a DWI and then operated a car or attempted to operate a car while suspended for your DWI suspension in order for them to secure a conviction and then the judge has no choice but to sentence you to at least 6 months in state prison. In some circumstances a defendant will be caught driving while suspended after the actual suspension period has ended but they are still suspended because they never paid their restoration fee. Under certain case law, this can lead to a possible defense. For example, if the judge convicts you of a first offense DWI and then suspends you for 7 months and then after that you never pay your restoration fee and get pulled over 8 months after your conviction you still technically suspended for DWI and could be arrested for such. An experienced attorney may be able to argue that even though you are still suspended since the actual suspension period that the judge ordered has ended you should not be convicted of 2C:40-26 and subject to mandatory jail. However, the best way to avoid these types of offenses is to not get convicted of a DWI charge in the first place.

For your reading convenience we have provided the applicable statute that applies

2C:40-26 Operating motor vehicle during period of license suspension, fourth degree crime.

1. 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 actors 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 actors 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.

c. Notwithstanding the term of imprisonment provided under N.J.S.2C:43-6 and the provisions of subsection e. of N.J.S.2C:44-1, if a person is convicted of a crime under this section the sentence imposed shall include a fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole.