On November 29, 2017, a three-judge Appellate Division panel decided the Essex County case of State v. Leon Faison. The principle issue was whether a defendant could be convicted of fourth-degree driving while his license was suspended for a second or subsequent DWI conviction when, after indictment for this offense, one of two of the previous DWI convictions was dismissed by the municipal court.
The Court held in relevant part: The sole issue on appeal is the trial court’s interpretation of the applicable provisions of N.J.S.A. 2C:40-26, which state:
b. It shall be a crime of the fourth-degree to operate a motor vehicle during the period of license suspension in violation of N.J.S.A. 39:3-40, if the actor’s license was suspended or revoked for a second or subsequent violation of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4(a). 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.A. 2C:43-6 and the provisions of subsection e. of N.J.S.A. 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.
The Law Division judge relied on State v. Sylvester in finding defendant guilty of driving while his license was suspended for a second or subsequent DWI conviction. However, we hold the case under review distinguishable from Sylvester. We therefore reverse and remand for further proceedings.
In Sylvester, the defendant had three prior DWI convictions. Upon her third DWI conviction in 2011, the court suspended the defendant’s license for two years. In 2012, while the defendant’s license remained suspended, she operated a motor vehicle and was indicted for violating N.J.S.A. 2C:40-26(b). The defendant then successfully filed for PCR regarding her 2011 DWI conviction, and the court vacated that conviction. However, before the defendant went to trial on the N.J.S.A. 2C:40-26(b) charge, she again plead guilty to the 2011 DWI charge, and the court once again suspended her license for two years.