On November 1, 2024, a three-judge appellate panel decided the Cape May County case of State v. Steven Italiano. The principal issue under N.J.S.A. 2C:40-26 concerned the appropriate charge for driving while suspended for a non-DWI, but subject to a court-ordered future DWI suspension.
Judge Marczyk wrote for the panel in relevant part: We conclude operation “during the period of license suspension” under N.J.S.A. 2C:40-26(b) includes driving after an imposed suspension of driving privileges for a second or subsequent DWI, which has not commenced because of stacked or yet-to-be-served prior suspensions. The language of the statute does not require defendant to be serving a suspension associated with a particular DWI offense at the time he was operating his vehicle. Rather, the statute makes it a crime to operate “during the period of license suspension . . . if the actor’s license was suspended . . . for a second or subsequent” DWI offense.
Here, it is undisputed defendant’s driving privileges were, in fact, suspended for a second or subsequent DWI violation–along with several other suspensions–despite his serving a suspension for a prior criminal offense when he was arrested. Because defendant operated his vehicle while his license was suspended for a “second or subsequent” DWI, which had not yet been served, he was properly charged with violating N.J.S.A. 2C:40-26(b).
Moreover, defendant’s interpretation of N.J.S.A. 2C:40-26(b) is inconsistent with the Legislature’s goal in enacting the statute, which was designed to punish recidivist drunk drivers. Defendant’s interpretation would defeat the legislative objective of the statute and allow defendant to avoid the penalties set forth in the statute based solely on the fact he had multiple other suspensions.
A point that supports the Court’s analysis is that defendants should not be rewarded or insulated from penalties because they are serving multiple driving suspensions. But for his multiple suspensions, he would be subject to the plain language of the criminal statute.
