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Model jury charge for 2c:40-26

Revised 10/30/14

DRIVING WHILE LICENSE IS SUSPENDED OR REVOKED FOR

DWI OR REFUSAL TO SUBMIT TO A CHEMICAL BREATH TEST1

1 If the defendant is charged with other offenses, such as eluding or assault by auto or vessel, consider bifurcation if such evidence is not otherwise admissible under N.J.R.E. 404(b). See State v. Ragland, 105 N.J. 189, 193-94 (1986). (The charge of Certain Persons Previously Convicted of a Crime Not to Possess a Weapon, N.J.S.A. 2C:39-7, to be bifurcated from any substantive weapons possessions charge).

2 N.J.S.A. 2C:40-26a.

3 N.J.S.A. 39:4-50.

4 N.J.S.A. 39:4-50.4a.

5 N.J.S.A. 2C:40-26b.

(N.J.S.A. 2C:40-26)

Count ____ of the indictment charges the defendant with:

(Read indictment)

The statute upon which this charge is based provides:

It shall be a crime to operate a motor vehicle during a period of license suspension if the actors license was:

(a) suspended or revoked for a first2 violation of [driving while intoxicated]3 or [refusal to submit to a chemical breath test]4 and the actor had previously been convicted of operating a motor vehicle during the period of license suspension while under suspension for that first offense; OR

(b) suspended or revoked for a second5 or subsequent violation of [driving while intoxicated] or [refusal to submit to a chemical breath test].

In order for defendant to be convicted of this offense, the State must prove the following elements beyond a reasonable doubt:

1. That the defendant knowingly operated a motor vehicle;

2. That the defendants license was suspended or revoked for

his/her

(a) first violation of [driving while intoxicated] or [refusal to submit to a chemical breath test] and the actor had previously been convicted of operating a motor vehicle during the period of license suspension while under suspension for that first offense; OR

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DRIVING WHILE LICENSE IS SUSPENDED OR REVOKED FOR DWI OR REFUSAL TO SUBMIT TO A CHEMICAL BREATH TEST (N.J.S.A. 2C:40-26)

(b) second or subsequent violation of [driving while intoxicated] or [refusal to submit to a chemical breath test]; and

3. That the defendant knew that his/her license was suspended

or revoked.

The first element the State must prove beyond a reasonable doubt is that the defendant knowingly operated a motor vehicle. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that his/her conduct is of that nature or that such circumstances exist or if he/she is aware of a high probability of their existence. Knowledge is a condition of the mind that cannot be seen and that can often be determined only from inferences from conduct, words, or acts. A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she engaged in a particular act. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of the defendants acts and conduct, from all that he/she said and did at the particular time and place, and from all surrounding circumstances.6

6 Though the statute does not specifically say so, knowingly is the required mental state. See N.J.S.A. 2C:2-2c(3). If attempted operation of a motor vehicle is at issue in your case, the jury must be instructed, consistent with the Model Criminal Jury Charge on Attempt, see N.J.S.A. 2C:5-1, that the mental state is purposeful.

7 N.J.S.A. 39:1-1.

A motor vehicle is defined as any vehicle propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks and motorized bicycles.7

The second element that the State must prove beyond a reasonable doubt is that the defendants license was suspended or revoked for a:

(a) first violation of [driving while intoxicated] or [refusal to submit to a chemical breath test] and the actor had previously been convicted of operating a motor vehicle during the period of license suspension while under suspension for that first offense; OR

(b) second or subsequent violation of [driving while intoxicated] or [refusal to submit to a chemical breath test].

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DRIVING WHILE LICENSE IS SUSPENDED OR REVOKED FOR DWI OR REFUSAL TO SUBMIT TO A CHEMICAL BREATH TEST (N.J.S.A. 2C:40-26)

A drivers license is suspended or revoked from the day that the Motor Vehicle Commission, or a court, suspends or revokes that license, until the day that the Motor Vehicle Commission restores it.

Normally, evidence of a defendants prior motor vehicle violations is not permitted under our rules of evidence. This is because our rules specifically exclude evidence that a defendant has committed prior motor vehicle violations when it is offered only to show that he/she has a disposition or tendency to do wrong and therefore must be guilty of the present offense. However, our rules do permit such evidence when the evidence is used for some other purpose.

In this case, the evidence has been introduced for the specific purpose of establishing an element of the present offense. You may not use this evidence to decide that defendant has a tendency to commit crimes, or that he/she is a bad person. That is, you may not decide that, just because the defendant has committed prior motor vehicle violations, he/she must be guilty of the present crime. The evidence produced by the State concerning prior motor vehicle convictions for [driving while intoxicated] or [refusal to submit to a chemical breath test] is to be considered only in determining whether the State has established its burden of proof beyond a reasonable doubt of the present offense.

The third element that the State must prove beyond a reasonable doubt is that the defendant knew that his/her license was suspended or revoked. I have already defined knowing for you.

If you find that the State has proven each of these elements beyond a reasonable doubt, then you must find the defendant guilty. If, however, the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant not guilty.

[Charge if appropriate]

As I have previously mentioned, you have also heard testimony that [a] [several] motor vehicle summons[es] [was] [were] issued in this case. Whether the defendant is guilty or not guilty of those offenses will be determined by the Court after you return your verdict. In other words, it is not your job to decide whether the defendant is guilty or not guilty of these motor vehicle offenses.

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Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year
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Kenneth Vercammens Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.

Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutors Association.

Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Dont give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.

When your job or drivers license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.

Our website www.NJLaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.

Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
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Ken Vercammen articles

Ken Vercammens Resume Directions to Ken Vercammen and Associates



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