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Driver Is Not Subject To Criminal Driving While Suspended If DWI Suspension Period Expired Prior To Driving


Date: March 11, 2015

Attorney James Abate comments on an article in www.NJSBA.com about drivers not being subject to criminal driving while suspended if DWI suspension period expired prior to driving.

This is a question that we have been litigating since 2C:40-26 criminalized driving on the DWI revoked list. To summarize, the situation occurs where a DWI defendant goes through their DWI suspension and then is not restored due to DMV or driver oversight. Given the penalties-mandatory jail time and 1 ½ years in State prison, this is an area that is of utmost concern to our clients.

Under State v. Perry, the court held that after the DWI suspension has passed, the driver is under an administrative suspension. An administrative suspension is not eligible for treatment under the criminal statute. These are cases that should not have been brought by the prosecutor’s office. But prosecutors will push to expand the law and can only be stopped by skilled criminal defense counsel. Make no mistake, many attorneys would plead their clients to a case like this. Dedicated and relentless counsel challenge the state and push back for all citizens.

There is another situation that this does not address. That is where a defendant is suspended for DWI under 39:4-50 and cannot begin the suspension on the day of sentencing because of a prior suspension. Currently, the DWI suspension under 39:3-40 would not start until the prior suspension is served. This is confusing for defendants and the best advise we can give is to avoid driving untilt eh MVC hands you a license and sends you a letter saying you can drive. These statutes are complicated and you should consult with your lawyer to make sure that the suspension is served and your privileges to drive are restored.

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About the Author

Attorney James A. Abate practices Criminal Defense, DWI Defense, Business Litigation, Real Estate & Personal injury cases in Union County, New Jersey.