The New Jersey Division of Motor Vehicles schedules the suspension of drivers who commit motor vehicle offenses while they are on probation. The authority for doing so comes from N.J.S.A. 39:5-30 and 39:5-30.10. Drivers whose licenses are restored after a suspension under N.J.A.C. 13:19-10.2, who are officially warned after an administrative hearing, and persons who successfully complete a Commission Driver Improvement Program or Probationary Driver are subject to suspension if within one year they commit any motor vehicle violations.
The suspension periods are set forth in N.J.A.C. 19:10-6 as follows:
1.If the violation occurs within six months of the date of the restoration, official warning or warning following completion of a Driver Improvement or Probationary Driver Program – 90 days;
2. If the violation occurs more than six months but less than nine months after the restoration, official warning following completion of a Driver Improvement or Probationary Driver Program – 60 days;
3. If the violation occurs more than nine months but less than one year after the restoration, official warning or warning following completion of a Driver Improvement or Probationary Driver Program – 45 days.
The suspension periods are increased for a second violation of the motor vehicle laws during the probationary period. The Administrative Code does provide that these suspension periods can be reduced or eliminated upon a showing of good cause.
In a recent case, a client retained us to challenge a scheduled 90 day suspension that he received from the DMV. We immediately wrote a letter to DMV formally requesting a hearing on the proposed suspension which was for receiving a cell phone violation during the probation period. We provided a legal basis arguing that while the client had pled guilty to the violation (we were not representing him at that time), he was using his cell phone as a GPS, and when he was pulled over he was activating the GPS, a function of the phone, which is not a violation of the statute. N.J.S.A. 97.3 allows for “the use of either hand to activate, deactivate, or initiate a function of the telephone.” As per, State v. Malone, 2011 WL 2582730 (App. Div. 2011), the Appellate Division held that while an individual can use one hand to activate, deactivate, or initiate a function of the phone, any conversation must be done hands-free. We wrote that our client had entered an uncounseled guilty plea to the cell phone ticket, a no point violation, because he did not have a full understanding of the law and did not understand that to do so would be a violation of his driving probation. We further explained to DMV that our client had a job that required a driver’s license and a loss would result in the loss of his job. We further explained that his parents had medical issues that required him to drive them to doctor’s appointments.
We appeared in Trenton for the Motor Vehicle Hearing and were able to get the suspension lowered to 40 days from the original 90. What was of great interest, however, was that we learned that DMV has revised its internal rules on what it considered a motor vehicle violation for the purposes of a probationary driver suspension. Previously, any moving violation involving points triggered the suspension. Now, the interpretation has been broadened to include any motor vehicle violation that could result in points. The difference is subtle, but important. For example, a first or second offense cell phone ticket does not receive any points. A third offense cell phone ticket does result in points. Therefore, if the driver receives a first offense cell phone ticket under 39:4-97.3, DMV will trigger a suspension for a driver in his/her probation period because it is potentially a point offense. Likewise, a first or second violation of 39:4-97.2 Unsafe Operation, does not result in any points. However, because a third offense would result in 4 points, even the first offense violation will result in the triggering of a probationary period suspension.
Motor Vehicle Violations that never result in points such as Obstruction of Traffic under 39:4-67, Delaying Traffic under 39:4-56, or Failing to Obey the Directions of a Police Officer or Directional Signals under 39:4-215 will not trigger a scheduled suspension. Of course it should be noted that this is DMV’s current policy and it is always subject to change without any notice. It is extremely important for any driver on probation to obtain good legal representation and to try to negotiate any tickets received down to one of the violations that will not result in a suspension. Pleading guilty, even to some no point violations, will trigger the suspension from DMV.
In the case we were talking about above, we filed an appeal to the Office of Administrative Law in order to delay the imposition of the suspension. We have filed a motion to vacate the uncounselled guilty plea to the cell phone ticket in the Municipal Court in which it was received. We are hopeful that we can either obtain a not-guilty finding on the ticket or get it amended to a no point ticket that will not trigger a suspension under the current DMV policy. If we are able to do so, we should be able to get the client no suspension at the OAL Hearing. As you can see, this area of law is quite complex and requires significant expertise to navigate through the DMV Hearing, OAL Hearing, and Motions for Post-Conviction Relief in the Municipal Court. If you are in a similar situation, the Attorneys at the Law Offices of Randolph H. Wolf are ready and willing to assist you.