A year-old New Jersey law that imposes longer jail sentences for driving with a license suspended or revoked for drunken driving is not ex post facto, a state appeals court says.
The Appellate Division ruled on Thursday that the statute, N.J.S.A. 2C:40-26(b), may be used for any arrest of a driver found in violation after its effective date, Aug. 1, 2011.
“We conclude that a violation of [the statute] comprises a new offense based upon new conduct, and that the statute does not impose retroactive punishment for a previous offense,” the panel wrote in State v. Carrigan, A-3751-11.
The Legislature enacted 2C:40-26(b) after news reports of serious and fatal accidents caused by drivers whose licenses had been suspended for drunken-driving-related offenses.
The statute makes it a fourth-degree crime, punishable by a jail sentence of up to 180 days, for someone found guilty of driving with a license that has been suspended or revoked for drunken driving or refusing to take a breath test.
The previous penalty for driving while suspended had been between 10 and 90 days in prison.
The defendant in this case, Christopher Carrigan, was arrested on Sept. 27, 2011, in Manchester Township for weaving in and out of a lane. He failed field sobriety tests, but refused to submit to a breath test.
He had pleaded guilty in 2010 to drunken driving and his license was still suspended at the time of his arrest. Between 1983 and 2010, Carrigan had racked up 13 DWI convictions, two convictions for refusing to take a breath test and 23 convictions for driving while on the suspended list.
After the 2011 DWI arrest, which is still pending, the Ocean County Prosecutor’s Office charged Carrigan with violating the new statute.
However, Superior Court Judge James Blaney threw out the charge, saying it violated ex post facto principles contained in Art. 1, § 10, cl. 1 of the U.S. Constitution and Art. IV, § 7, ¶ 3 of the New Jersey Constitution. The state appealed.
Appellate Division Judges Jack Sabatino, Douglas Fasciale and Susan Maven held the “plain wording” of the statute says that anyone on the suspended list for a DWI-related offense after the effective date is eligible to receive an enhanced sentence.
“The manifest public policy concerns over drunk driver recidivism and public safety that prompted this tougher measure would be severely thwarted by reading into the law an implied exclusion of drivers whose ongoing suspensions predated August 1, 2011,” Sabatino wrote for the panel.
“The law does not punish acts committed before the effective date,” he said. “Nor does it deprive a driver of a defense that existed at the time the offense was committed.”
The law changes the penalty a person may face for driving while on the suspended list, but it does nothing to increase the length of the suspension or any other penalty, Sabatino said.
“The only thing that is different is that [if] a defendant commits a new offense by getting behind the wheel after August 1, 2011, while still under suspension, he now faces a criminal penalty for that new conduct,” he said. “There is nothing unconstitutional about treating such prior offenses as enhancement factors for wrongful conduct that post-dates the new law.”
Senior Assistant Ocean County Prosecutor Samuel Marzarella says the ruling clarifies who is affected by the statute. “It’s going to affect a lot of cases in the pipeline,” he says.
Marzarella could not estimate how many cases there are pending statewide that are similar to Carrigan’s, but notes that there are at least 40 similar cases pending before one judge alone in Ocean County.
“We anticipate all of these cases will move forward now,” he says.
Carrigan’s lawyer, Assistant Deputy Public Defender James Smith Jr., declines to comment. •