EZ Pass and Theft of Services (Part 5)

Judge Polanksy concluded with the following in relevant part: The ability of the State to seek both civil penalties and criminal liability as a result of the same or similar conduct is not limited to securities violations. The statutory scheme for the enforcement of tax laws likewise permits both civil and criminal penalties. N.J.S.A. 54A:9-6 provides for civil penalties as a result of a failure to file a tax return or the filing of a fraudulent tax return. At the same time, where there is an intent to defraud the state or to evade or avoid the payment of taxes, criminal penalties may also be imposed pursuant to N.J.S.A. 54:52-8 and N.J.S.A. 54:52-9.

No case has been cited by defendant which precludes the imposition of both civil and criminal penalties as a result of the same conduct. The court finds that no prohibition exists which would prevent the State or other governmental agency from seeking both criminal and civil penalties as a result of the same or similar conduct. Rather, the only limitation to the right of the State to seek such penalties is the potential that where the civil penalties are deemed to be assessed primarily to serve the punishment goals of retribution and deterrence, an analysis would be required to determine whether double jeopardy attaches.

Here, a demand for civil penalties has been made but no formal court proceedings commenced to collect those civil penalties. Further, the civil penalties assessed here also serve a remedial purpose and serve to compensate the toll collecting authority for the costs associated with collection of unpaid tolls. Additionally, the court notes that the civil penalties are imposed regardless of whether the toll violation is inadvertent or intentional. N.J.S.A. 27:23-34.2(a).

For these reasons, the court concludes that the attempt to collect a civil penalty as a result of defendant’s failure to pay the required toll on multiple occasions does not preclude indictment or conviction for this conduct. Accordingly, the motion to dismiss the indictment will be denied.

When toll booths were erected in New Jersey, they were done so with the promise that they would only remain so long as necessary to fund the initial construction of the parkway. Making light of that lie could be helpful towards a jury nullification defense.