DRIVING WITHOUT INSURANCE UNDER 39:6B-2 WHEN DRIVER OF CAR IS NOT THE OWNER AND DOES NOT KNOW THE CAR IS UNINSURED, PROPER REQUIREMENTS TO CANCEL AUTO INSURANCE POLICY IN NEW JERSEY, AND DEFENDING CHARGE OF 39:3-40 DRIVING WITH SUSPENDED REGISTRATION
We recently appeared in the Colts Neck Municipal Court representing a young man charged with driving without insurance under 39:6B-2 and driving a car with a suspended registration under 39:3-40. These are both serious violations. The uninsured ticket carries with it a fine of between $300 and $1000, community service, and a one year license suspension. The driving with a suspended registration carries with it a fine of $500 and a 6 month suspension of license.
The young man in question was innocently driving his father’s car at the time. The car had in it a insurance card and registration card that were valid on their face. He had no way of knowing that the insurance had lapsed for non-payment and resulted in the registration being suspended. We were able to get the driving without insurance charge dismissed. We argued firstly that the statute refers to, “an operator who operates or causes a motor vehicle to be operated and who knows or should know from the attendant circumstances that the motor vehicle is without motor vehicle liability insurance.” The young man, even if he had checked the insurance card, would not have had any reason to know that the insurance had been cancelled and the vehicle was uninsured.
Secondly, we addressed the issue of proper cancellation of automobile insurance.
In State v. Hochman, 188 N.J. Super. 382, 457 A. 2d 1156 (App. Div. 1982), the Court stated:
Under this latter statute [N.J.S.A. 17:29C-10], cancellation was effective whether or not the insured actually received notice of cancellation because proof of mailing, not proof of receipt, was the determinative factor. See Weathers v. Hartford Ins. Group, 77 N.J. 228, 234 (1978). Proof of mailing of the notice, however, is not conclusive on the issue. The insured may still offer proof that he never received the notice “for the purpose of refuting the hypothesis of mailing.” Id. at 235.
The relevant statute re service of notice of cancellation is:
17:29C-10. Written notice of cancellation or intention not to renew; effectiveness
No written notice of cancellation or of intention not to renew sent by an insurer to an insured in accordance with the provisions of an automobile insurance policy shall be effective unless a. (1) it is sent by certified mail or (2) at the time of the mailing of said notice, by regular mail, the insurer has obtained from the Post Office Department a date stamped proof of mailing showing the name and address of the insured and b. the insurer has retained a duplicate copy of the mailed notice which is certified to be a true copy.
L.1968, c. 158, s. 5, eff. Sept. 1, 1968. Amended by L.1980, c. 165, s. 2.
Of course, in most instances the defendant’s denial of receipt will have little to back it up and so will be disregarded on the facts. The main reason that didn’t happen in Hockman, and the Appellate Division reversed the conviction, was because the notice was clearly mailed to the wrong address.
It is interesting to note that some insurance carriers have been sending their Notices of Cancellation by email. This is clearly not effective cancellation under the statute. The notice must either be sent by Certified Mail and the carrier be able to produce the signed receipt, or by regular mail with the carrier being able to produce a signed certification prepared at the time by the individual who put the notice into the mail. We generally write to the insurance carrier at the time we are retained on one of these cases to demand the appropriate proofs of mailing. Unfortunately, most carriers do not respond before the case comes up for court. Generally, the Prosecutor will then request and adjournment in order to subpoena the appropriate documents from the insurance carrier. We use that as an opportunity to try to either get the case dismissed or have the charges reduced to failure to produce an insurance card. In this case, the Prosecutor simply agreed to dismiss the 39:6B-2 charge.
The young man was also charged with driving a vehicle whose registration had been suspended. This charge carries with it the same penalties and driving with a suspended license. We argued to the Prosecutor that the charge was really not applicable to an operator who did not own the vehicle. 39:3-40 in its relevant part states,
“No person whose motor vehicle registration has been revoked shall operate or permit the operation of a motor vehicle during the period of such revocation.”
Based upon this argument the Prosecutor agreed to drop the charge down to 39:3-4, unregistered vehicle with a $56 fine.