New Jersey Criminal Statute Guide
N.J.S.A. 2C:40-26: Driving during certain DWI or refusal suspensions
Not every suspended-driving event violates 2C:40-26. The State must connect operation to one of the statute's specific DWI or refusal suspension paths.
Plain English
What 2C:40-26 actually prohibits
Subsection (a) covers operation during suspension for a first DWI or refusal after a prior 39:3-40 conviction during that first suspension. Subsection (b) covers operation during suspension for a second or later DWI or refusal.
The State must prove operation and the qualifying conviction sequence. Under State v. Italiano, a qualifying DWI/refusal suspension already imposed by the court can remain the operative suspension while it waits behind consecutive suspension terms. By contrast, State v. Perry excludes a completed suspension followed only by administrative nonrestoration. This fourth-degree crime is separate from ordinary 39:3-40 suspended driving and requires 180 days of parole-ineligible jail.
What the State must prove
- Knowing operation of a motor vehicle and knowledge that the license was suspended. Operation may mean actual driving, or intent to drive plus some action to place the vehicle in motion when motion was possible; actual movement is unnecessary.
- A suspension imposed for DWI under 39:4-50 or refusal under 39:4-50.4a.
- Either a prior 39:3-40 conviction during a first such suspension under subsection (a), or a second-or-subsequent DWI/refusal suspension under subsection (b).
Degree and Exposure
The grading rules matter
The offense is fourth degree. Sentence must include a fixed minimum of at least 180 days in jail without parole eligibility; the ordinary fourth-degree range and presumption of nonimprisonment do not authorize a lesser term.
| Level | Ordinary imprisonment range | Maximum ordinary fine | Usual court |
|---|---|---|---|
| Fourth-degree crime | At least 180 days without parole; up to 18 months | $10,000 | Superior Court |
These are statutory maximums and ordinary degree ranges, not a prediction of sentence. Restitution, assessments, probation conditions, merger, consecutive-sentence rules, prior record, and offense-specific provisions can change the practical result.
Proof Problems
The evidence is charge-specific
Certified conviction record
Judgments, driving abstracts, suspension orders, and restoration records must establish the exact DWI/refusal history and operative dates.
Operation
Officer observation, video, vehicle movement, control of the vehicle, admissions, and the 2025 revised model-charge definition are central.
Identity and notice context
Identifiers, addresses, mailed notices, court attendance, and prior stops may bear on record linkage and any genuinely raised mistake issue.
Defense Analysis
Issues counsel should test
Wrong suspension period
A completed qualifying term followed only by administrative nonrestoration, or a suspension imposed solely for a nonqualifying reason, does not satisfy the statute. But an already-imposed qualifying term queued behind consecutive suspensions can qualify under State v. Italiano.
Predicate missing or vacated
The prosecution must prove the subsection-specific prior convictions; vacatur or a mismatched sequence can defeat that element.
No operation
Without actual driving, the State must prove intent to drive, some action to place the vehicle in motion, and a possibility that it could move. Entering or sitting in the vehicle with a purpose to drive, without the required action and possibility of motion, is insufficient.
A possible issue is not an automatic dismissal. Its value depends on the admissible record, the exact subsection charged, and what the State can prove beyond a reasonable doubt.
Charge Boundaries
Related, but not interchangeable
Driving while suspended, 39:3-40: That motor-vehicle offense remains distinct and may be charged from the same event.
DWI and refusal: The reason and sequence of the underlying suspension determine whether subsection (a) or (b) applies.
Post-conviction relief: Challenges to predicate convictions are procedurally separate, but a vacated predicate can affect the State's ability to prove this charge.
Indictable crimes are ordinarily handled in Superior Court. A disorderly persons or petty disorderly persons charge is ordinarily heard in municipal court unless it travels with indictable counts or is otherwise transferred. The complaint and later charging documents control.
Practice and court resources
Common Questions
Questions about 2C:40-26
Does any suspended-license stop qualify?
No. The suspension and predicate history must fit subsection (a) or (b), and operation must occur during the active period.
Can the 180 days be served on probation?
The court may impose probation conditioned on service of the required 180-day parole-ineligible jail term, as State v. Chavarria explains. It may not replace that jail term with a noncustodial disposition.
What did the 2025 model-charge update change?
The revised instruction requires intent to drive, some action to place the vehicle in motion, and a possibility of motion when the State relies on attempted operation; actual movement is unnecessary. The charge also requires knowing operation and knowledge of the suspension.
Primary Sources
Read the law and current court instructions
- New Jersey Legislature lookup for N.J.S.A. 2C:40-26 (section text and amendment history).
- New Jersey Legislature bulk statutes archive.
- New Jersey Courts, current Model Criminal Jury Charges. Search the exact citation; not every offense or subsection has a model charge.
- N.J.S.A. 2C:43-3 fines and restitution and N.J.S.A. 2C:43-6 ordinary prison terms.
- August 18, 2025 Judiciary model-charge revision notice.
- State v. Pimentel mandatory-minimum decision.
- State v. Italiano — consecutive suspension periods.
- State v. Chavarria — probation with mandatory 180-day jail.
Source verification: section language and amendment history checked against the Legislature bulk text through L.2025, c.405 on September 5, 2026. Sentencing ranges were checked against N.J.S.A. 2C:43-3 and 2C:43-6 in the same snapshot. The Judiciary’s live model-charge index was checked September 5, 2026; because model charges are revised separately, its current entry should be used at the time of a case.
The citation is only the starting point.
Bring the complaint, charging language, and any release or no-contact conditions. We can discuss what this particular allegation requires and where the proof may be contested.
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Source verification completed September 5, 2026 against the New Jersey Legislature bulk statutes through P.L.2025, c.405, the exact Title 2C section, applicable sentencing statutes, and the New Jersey Judiciary’s current model-charge index. Primary sources: Legislature statute archive and Judiciary model charges and August 18, 2025 Judiciary model-charge revision notice and State v. Pimentel mandatory-minimum decision and State v. Italiano — consecutive suspension periods and State v. Chavarria — probation with mandatory 180-day jail. This is source verification, not a representation of attorney review. Laws change; nothing here is legal advice for your specific case.