Skip to Content
Free Consultation 201-574-7919

DWI Offenders Who Drive with Suspended Licenses Under NJSA 2C: 40-26


You or someone you know has been convicted of drunk driving. What a pain! License gone, insurance costs though the roof, fines, attorney fees--a huge hassle. Plus, it's hard to get to work. Forget going out very often--you have to rely on other people to take you where you want to go. How humiliating is that!?

And there sits your car.

So, one fine day you have an errand. It'll be a quick trip and no one will be the wiser. You're not drunk after all, just tired of asking for rides.

Or, your friend calls you because she's stranded and sick and needs help. Hey, it's an emergency, right?

Or, your boss calls and wants you at work right now.

So, you drive.

Big mistake. Maybe the police stop you because they recognize you and know that your license is suspended. Maybe another motorist hits your car. Maybe you're so nervous you go through a stop sign. Whatever the reason, the siren sounds and there you are, pulled over with a suspended license.

Driving While Suspended May Now Carry a Mandatory 180 Day Sentence Under New Jersey's New Driving While Suspended Law

New Jersey has a nasty surprise for you. Effective August 1, 2011, under N.J.S.A. 2C: 40-26, if your license has been suspended for either a first DWI (or a refusal to take the breathalyzer), AND you are caught driving without a license for the second time, a new statute applies. Same thing if you have two or more DWIs and/or refusals. Then you only have to be caught driving without a license ONCE.

What's the surprise? The new statute, N.J.S.A. 2C:40-26, expands the penalties for conviction for driving without a license when the suspension is for a prior DWI or breathalyzer refusal. The penalty is 180 days in jail without parole. That's six actual months of time behind bars.

It doesn't matter if the driver was totally sober when he was driving. It also doesn't matter if he drove safely, didn't speed, and broke no other traffic laws. The point is that he was caught driving after having his license suspended for drunk driving.

The law now works like this:

Prior Conviction Present Conviction Sentence
DWI or refusal
First offense
Driving while suspended
First offense
at least 10 days, but up to 90 days
DWI or refusal
First offense
Driving while suspended
Second offense
180 days
DWI or refusal
Second or subsequent First offense
Driving while suspended
First offense
180 days

Driving while suspended is normally a motor vehicle offense handled in municipal court, but not if a person fits within the new statute. In that case, a grand jury will hear the charges because the new law makes this category of driving while suspended a crime of the fourth degree. That also means that for the first time, a driving while suspended charge will be heard before a judge and jury in Superior Court.

Normally, a fourth degree conviction would carry a presumption of non-imprisonment. Not for this crime. Once there is a conviction, the sentence of six months is mandatory.

How Could Things Get Worse?

You could be driving while intoxicated. Then, in addition to the penalties for driving while suspended, you will face the additional charge. N.J.S.A. 39:4-50.

You could be involved in an accident that causes injury to another person. In such cases, regardless of why your license was suspended, the court must impose a period of imprisonment for not less than 45 days or more than 180 days. N.J.S.A. 39:3-40e.

You could be apprehended within 1000 feet of a school or in a school crossing zone while under suspension for DWI or refusal. In such cases, the sentence is 60 to 90 days for a first offense, 120 to 150 days for a second offense, and 180 days for a third or subsequent offense. N.J.S.A. 39:3-40f (3).

What Can a Criminal Defense Attorney Do for You?

A defense attorney can start out by negotiating with the Prosecutor's Office to see if it is possible to have the charges downgraded to municipal court. Perhaps there were circumstances that might convince the prosecutor to show leniency. If so, you will need an advocate to make your case for you.

If no downgrade is offered, your lawyer could seek to have you admitted into the Pre-trial Intervention Program. This is a brand new statute and courts have yet to deal with this issue. A persuasive attorney might convince a court to set this precedent.

Your attorney will analyze whether you can challenge the basis for stopping your vehicle, by making a motion and arguing that the stop violated the Fourth Amendment.

If the case goes to trial before a jury, you need counsel that knows his way around a Superior Court courtroom. Do you know whether or not the jury can learn of your prior driving record?

In the event you are convicted, your attorney can argue that the sentence should be served on work release, given that this alternative is available for drunk driving. N.J.S.A. 39:4-51.

An attorney will also sort out your driving record, argue that sentences can be run concurrently, and perhaps convince the court that the suspension was not due to a DWI.

Remember, this is not an offense to take lightly. You need the assistance of counsel. Do not seek to handle it yourself just because you think that a motor vehicle charge is no big deal. This one is.

Confused yet? Bewildered? Unsure of the law? That is exactly why you need to consult an experienced defense lawyer. If you have been charged with driving while suspended the experienced criminal defense attorneys at Law Offices of Joseph R. Donahue, LLC would welcome your inquiries. We have helped many people through the criminal justice system and if you contact us immediately, an experienced criminal defense lawyer from our office will do their best to ensure that your case is handled properly and promptly. To contact a criminal defense attorney at Law Offices of Joseph R. Donahue, LLC, call (201) 488-7707 or send us an email.

Share To: