"Driving While Suspended; N.J.S.A. 39:3-40"

Driving while suspended, N.J.S.A. 39:3-40 is a harsh charge to face in a New Jersey Municipal Court, especially if it is a subsequent offense for those who previously plead guilty to driving on the revoked list.


A driving while suspended charge in Woodbridge, New Jersey, for instance, triggers two questions.

First, was the license suspended by a Judge - Judicial suspension - or by the State - Administrative/Motor Vehicle Commission suspension such as exceeding 11 motor vehicle points within a two year period or exceeding 14 points in more than a two year period.

A suspension imposed by the State - Motor Vehicle Commission - does not count as a prior suspension for purposes of sentencing in court on a 3-40 - driving while suspended - charge.

This is important because Judges must incarcerate a defendant who has a prior Judicial suspension.

Hence, NJ Traffic Lawyer representing a defendant with a prior suspension imposed by the State - Motor Vehicle Commission - argues against incarceration.

Second, if the license was suspended by a court - Judicial Suspension - then why did the court impose the suspension?

This is important because "enhanced" penalties apply to drivers who drive while their license is suspended following a DWI conviction, a refusal conviction, a conviction for driving without insurance or driving after having been determined to be a habitual offender.

Enhanced penalties subject drivers to loss of license between 1 to 2 years, imprisonment of up to 90 days and thousands of dollars in fines.

Enhanced penalties also apply to a defendant involved in an accident that caused personal injuries to another person while his or her license was suspended.

In such an event "enhanced" penalties include a mandatory minimum 45 day jail sentence, although the court has the discretion to impose up to six months in jail.

Assuming enhanced penalties do not apply then a first conviction includes a $500 fine and up to an additional six months loss of license.

For a second Judicial 3-40 - driving while suspended - conviction, defendants face up to five days in jail, $750 fine and up to an additional six months loss of license.

For third or subsequent offense defendants face at least 10 but may get as much as 6 months in jail and $1000 fine plus up to an additional six months loss of license.

State Must Prove

To secure a conviction for driving while suspended the State must produce the following:

1. Certified Abstract;

2. Notice of proposed suspension;

3. Order of suspension;

4. Mailing list or notice that suspension was court ordered.

The State must also prove the following:

1. There was either an administrative suspension - imposed by the Motor Vehicle Commission - or Court ordered suspension - imposed by a Judge;

2. personal operation of the vehicle by the defendant.


Failure to provide notice of the suspension is a defense so long as there is no lapse in logic in the argument.

For example, lack of notice is not a good argument to make if the license was suspended as a result of a DUI conviction because the notice was clearly made when the license was surrendered to the court at the time of sentencing.


If the prosecutor refuses to dismiss the charge then an individual who had his or her license restored before coming to court or who had a restoreable license at the time of the offense but just never paid the restoration fee to motor vehicle may have the charges downgraded.

Defendants whose driving privileges are revoked because of failure to pay a parking ticket are subject to a $100 fine only so long as the ticket in question has been paid in full.

It is important to bring the necessary proofs to court to avail oneself of the minimum penalties of driving while suspended for failure to pay a parking ticket.

Statute of Limitations

Statute of limitation on charges to be brought for driving while suspended is 90 days from the date of the alleged offense.

Did You Know

A driver whose license is suspended in another state, but whose New Jersey privilege has not been suspended may still be charged with driving on the revoked list in the state of New Jersey.

Until a restoration fee is paid, a driver license is still considered to be suspended even though the period of suspension has passed.

Regardless of whether the driver was at fault for the accident or not courts will still impose enhanced penalties upon drivers convicted of driving while suspended while being involved in an accident that caused personal injuries to another person.

Failure to pay surcharge bill from the State of New Jersey Motor Vehicle Commission will result in automatic license suspension without further notice.

Enhanced penalties also apply to drivers convicted of drunk driving out of state.

If you have any further questions regarding a driving while suspended charge, click here to contact a New Jersey Traffic Lawyer.