The New Jersey Supreme Court has agreed to decide whether violation of the 1984 law that made seat belt wearing mandatory can support a criminal conviction under another statute.

To be reviewed is an appeals court holding that not wearing a seat belt can be a predicate offense for N.J.S.A. 2C:40-18, which criminalizes "knowingly violat[ing] a law intended to protect the public health and safety" through reckless conduct that injures another.

That statute seems to have been invoked sparingly, if at all, since its 1997 enactment. There are no reported cases.

But in State v. Lenihan, A-4667-10, the Appellate Division found the statute’s language gives no indication the Legislature would object to how it is being applied in this case, where the unbelted driver’s passenger was killed.

On Aug. 10, 2007, Kirby Lenihan, then 18, lost control of her car on Route 519 in Hampton Township and crashed into a guardrail. She was seriously injured and her passenger, K.G., 16, was killed. Neither was wearing a seat belt.

Police found cans of aerosol dust remover and carpet deodorizer in the car and suspected Lenihan and K.G. were "huffing" — inhaling the propellants to get high. At the hospital, a sample of Lenihan’s blood contained 1,1-Difluoroethane, a compound contained in the dust remover.

Police issued summonses charging Lenihan with her own, and K.G.’s failure to wear a seat belt, driving while intoxicated and reckless driving.

A grand jury indicted Lenihan with second-degree vehicular homicide and second-degree violation of 2C:40-18.

Sussex County Superior Court Judge N. Peter Conforti denied her motion to dismiss the latter count.

Lenihan and the state then reached a plea agreement downgrading the charges to recklessly causing serious bodily injury and third-degree violation of a public safety law. She was sentenced to three years’ probation and 180 days in jail.

The plea agreement reserved Lenihan’s right to appeal the denial of her dismissal motion.

She argued on appeal, as she had to Conforti, that the 1984 Passenger Automobile Seat Belt Usage Act, N.J.S.A. 39:3-76.2f, was not intended to protect the "public health and safety" within the meaning of 2C:40-18.

But Judges Carmen Messano, John Kennedy and Michael Guadagno found that the seat belt law’s legislative history showed otherwise.

Lenihan’s lawyer, Gary Kraemer of Daggett, Kraemer & Gjelsvik in Sparta, intends to argue that "public health and safety" refers to misconduct impacting a large number of people — such as an architect whose violation of construction codes causes a building collapse with multiple fatalities.

Under the Appellate Division’s interpretation, he says, anyone whose dog runs loose and bites a neighbor, thereby violating a local leash law, might come under criminal prosecution.

The state "grabs an unreasonably wide discretion for the prosecutor to be able to elevate all kinds of what would be very minor offenses into indictable offenses," Kraemer says.

First Assistant Sussex County Prosecutor Gregory Mueller, who prosecuted the case at the trial and appeals levels, says the case is significant for its potential to rein in unsafe behavior.

The Appellate Division ruling is a "real deterrent" for operators who drive recklessly with a minor who is not wearing a seat belt, Mueller says.