Can New Jersey Courts Court Prior Cell Phone Violations Against You?

In July of 2013, New Jersey’s cell phone statute, N.J.S.A. 39:7-97.3, was revised to provide for increased penalties, including a fine of between $200.00 and $400.00 for a first offense, a fine of between $400.00 and $600.00 for a second offense, and a fine of between $600.00 and $800.00 for a third offense. In addition, for a third or subsequent offense, the court can assess three motor vehicle points and suspend your license for up to 90 days.

The cell phone statute does contain a “step down” provision. Pursuant to the statute, if a second cell phone offense occurs more than ten years after a first cell phone violation, for sentencing purposes, the court must treat the second conviction as a first offense. Likewise, if a third violation occurs more than ten years after a second violation, the court must treat the third conviction as a second offense.

Often times, clients ask whether cell phone violations that they either plead guilty to or were found guilty of prior to July of 2013 will be counted against them. Based on our experiences, the answer is yes: Municipal Courts in New Jersey are counting these violations against drivers. It is unclear, however, whether the cell phone statute actually permits this “retroactive” application. Moreover, to date, there have been no court decisions that have addressed this issue.

In fact, there is very little case law in New Jersey addressing the cell phone statute, period, other than State v. Malone, 2011 WL 2582730 (App. Div. 2011). In Malone, a police officer observed the defendant, with a cell phone in his hand, “pushing buttons.” Accordingly, the officer pulled him over and issued him a ticket in violation of the cell phone law. The court, however, held that the officer’s observation of the defendant “pushing buttons” was simply not enough to prove a violation of the cell phone statute. (Click here to read our prior post on the decision in State v. Malone).

In short, other than State v. Malone and the text of the cell phone statute itself, there is little guidance at this time addressing issues such as whether the court is permitted to court prior cell phone violations against defendants, or whether certain conduct constitutes a violation of the cell phone statute. We will continue, however, to keep you updated as decisions challenging the cell phone statute are released.

As mentioned above, if you are facing your first or second cell phone violation, the court will only impose a fine. No points or suspension time will be imposed. If, on the other hand, you are facing a third or subsequent cell phone violation, or if you determine that a cell phone ticket would effect your employment, contact Randolph H. Wolf today.