                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-1767-13T2
                                                 A-1768-13T2
                                                 A-1769-13T2
                                                 A-1770-13T2
                                                 A-2531-13T2
                                                 A-2533-13T2
                                                 A-2536-13T2
STATE OF NEW JERSEY,

     Plaintiff-Appellant,

v.                                      APPROVED FOR PUBLICATION

                                             March 3, 2015
IDRIS R. PERRY,
                                           APPELLATE DIVISION
     Defendant-Respondent.


STATE OF NEW JERSEY,

     Plaintiff-Appellant,

v.

CARMEN NAY,

     Defendant-Respondent.


STATE OF NEW JERSEY,

     Plaintiff-Appellant,

v.

RAYMOND EVANS,

     Defendant-Respondent.
STATE OF NEW JERSEY,

     Plaintiff-Appellant,

v.

CHERYL PAPP,

     Defendant-Respondent.


STATE OF NEW JERSEY,

     Plaintiff-Appellant,

v.

TAMMY M. MCINTYRE,

     Defendant-Respondent.


STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

BRADLEY BREWER,

     Defendant-Appellant.


STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

RICHARD J. WISSER,

     Defendant-Appellant.




                             2   A-1767-13T2
Argued    (A-1767-13,     A-1768-13,    A-1769-13,
A-1770-13, A-2533-13) and Submitted (A-2531-13,
A-2536-13) October 29, 2014 - Decided March 3, 2015

Before Judges Alvarez, Waugh, and Maven.

On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County, Indictment Nos.
13-01-0163 (A-1767-13); 13-05-0689 (A-1768-13);
13-03-0370 (A-1769-13); 13-06-0788 (A-1770-13).

On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
13-02-0624 (A-2531-13).

On appeal from the Superior Court of New Jersey,
Law Division, Burlington County, Indictment No.
13-08-0889 (A-2533-13).

On appeal from the Superior Court of New Jersey,
Law   Division,  Ocean  County,  Indictment  No.
13-03-0600 (A-2536-13).

Brian D. Gillet, Assistant Prosecutor, argued the
cause for appellant State of New Jersey in
A-1767-13, A-1768-13, A-1769-13, A-1770-13 (Andrew
C. Carey, Middlesex County Prosecutor, attorney;
Mr. Gillet, of counsel and on the briefs).

Anthony Aldorasi, Assistant Deputy Public Defender,
argued the cause for appellant Brewer in A-2533-13
(Joseph A. Krakora, Public Defender, attorney; Mr.
Aldorasi, of counsel and on the brief).

James P. McClain, Atlantic County Prosecutor,
attorney for appellant State of New Jersey in
A-2531-13 (Deborah A. Hay, Assistant Prosecutor,
of counsel and on the brief).

Stephen J. Buividas, attorney for appellant Wisser
in A-2536-13.

Michele E. Friedman, Assistant Deputy Public
Defender, argued the cause for respondents Perry
(A-1767-13), Nay (A-1768-13), Evans (A-1769-13),
and Papp (A-1770-13) (Joseph E. Krakora, Public



                         3                            A-1767-13T2
        Defender, attorney; Ms. Friedman, of counsel and
        on the brief).

        Alexis R. Agre, Assistant Prosecutor, argued the
        cause for respondent State of New Jersey in
        A-2533-13 (Robert D. Bernardi, Burlington County
        Prosecutor, attorney; Ms. Agre, of counsel and on
        the brief).

        Stefankiewicz & Barnes, attorneys for respondent
        McIntyre in A-2531-13 (David A. Stefankiewicz, of
        counsel and on the brief).

        Joseph D. Coronato, Ocean County Prosecutor,
        attorney for respondent State of New Jersey in
        A-2536-13     (Samuel     Marzarella,     Assistant
        Prosecutor, of counsel and on the brief).

      The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

      N.J.S.A. 2C:40-26(a) and (b) make driving while suspended a

fourth-degree criminal offense punishable by a mandatory minimum

jail term of 180 days under certain circumstances stemming from

driving while intoxicated (DWI), N.J.S.A. 39:4-50, or refusal to

submit to chemical testing (refusal), N.J.S.A. 39:4-50.4(a).                    In

these   seven   appeals,       consolidated     for   decision,   we     address

whether charges can be brought under the statute when the act of

driving   occurs      beyond     the   determinate      sentenced       term    of

suspension, but before reinstatement, while the driver continues

on   administrative    suspension.         We   conclude   that   the    statute

criminalizes the operation of a motor vehicle only while the




                                       4                                 A-1767-13T2
operator is serving the court-imposed term of suspension, and

not thereafter.

                                         I

    We   briefly      summarize   the     procedural       history   and   factual

circumstances   surrounding       each       defendant's    charges.       In    each

case, either the State or defendant was granted leave to appeal

or filed a timely appeal as of right.

                                         A.

                                    Perry

    On   May    12,    2011,   Idris     Perry     pled    guilty    to    DWI   and

refusal, and his driving privileges were suspended for a 300-day

period, ending March 7, 2012.                Perry was issued a summons for

driving while suspended, N.J.S.A. 39:3-40, on the day before his

DWI and refusal suspension term would have expired.                    On May 30,

2012, he was again charged with operating a motor vehicle during

a period of suspension, resulting in the indictment on appeal

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

    Judge Douglas K. Wolfson granted Perry's motion to dismiss

his indictment.       The State thereafter moved for reconsideration.

In a written opinion dated October 21, 2013, consolidating his

decisions in the Perry, Carmen Nay, Raymond Evans, and Cheryl

Papp cases, Judge Wolfson denied the State's motion.




                                         5                                 A-1767-13T2
                                        Nay

      On February 19, 2008, Nay pled guilty to DWI, resulting in

the   suspension     of    her    driving       privileges     for    a   seven-month1

period.     Nay was convicted of driving while suspended on April

30, June 12, and September 22, 2010.                    Nay did not restore her

driver's license after the suspension periods expired.                         On March

15, 2013, Nay was charged with driving with a suspended license

in North Brunswick.             She was indicted for operating a motor

vehicle     during     a    period     of       license      suspension,       N.J.S.A.

2C:40-26(a).

      Nay's motion to dismiss the indictment was granted by Judge

Wolfson after oral argument on September 23, 2013.                           Her matter

was included in Judge Wolfson's consolidated written opinion in

the four Middlesex County cases.

                                       Evans

      On July 13, 2011, Evans pled guilty to DWI and refusal.

The   record    does      not    disclose       how   long   the     court    suspended

Evans's license.           Since this was his first DWI, however, his

driving privileges could not have been suspended for more than

one year.      On September 1, 2011, Evans was charged with driving

while suspended, and he pled guilty to that offense on November


1
  The trial judge's opinion from October 21, 2013, mistakenly
states that the suspension was for three months.



                                            6                                  A-1767-13T2
17, 2011.     Evans certified that he did not restore his license

after the suspension period expired due to financial hardships,

which prevented him from paying the restoration fee.                      On January

6, 2013, he was charged with driving while suspended in East

Brunswick.     He was indicted on March 7, 2013, for driving while

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

    Evans's motion to dismiss the indictment was granted after

oral argument on September 23, 2013.                   Judge Wolfson included the

decision in his consolidated opinion.

                                          Papp

    On August 11, 2005, Papp pled guilty to DWI, resulting in a

seven-month     suspension      of    her       driving   privileges.        She    was

convicted of driving while suspended on September 14, 2005, and

again    on   September    9,    2008.          Papp    certified    that,    due    to

financial hardship, she was unable to pay the restoration fees

after the suspension periods expired.                     On April 10, 2013, she

was charged with driving while suspended in the Township of

Woodbridge.     On June 6, Papp was indicted for operating a motor

vehicle   during   a    period       of   suspension       under   N.J.S.A.    2C:40-

26(a).

    Papp's     motion     to    dismiss     the     indictment      was   granted    on

August 23, 2013.        Judge Wolfson denied the State's motion for

reconsideration in his consolidated opinion.




                                            7                                 A-1767-13T2
                                    McIntyre

      Tammy McIntyre pled guilty to a second DWI on May 31, 2008,

and received a two-year license suspension.                    Assuming McIntyre's

suspensions      ran      consecutively,         her     final,     two-year       DWI

suspension      period    ended    on    April     10,    2010.       For     reasons

unrelated to the DWI convictions, she was ineligible to restore

her license on October 10, 2012, when, for the fifth time since

her DWI offenses, she was charged with driving while suspended.

On February 26, 2013, an Atlantic County grand jury indicted her

under N.J.S.A. 2C:20-26(b).

      On   December       19,    2013,     Judge       Kyran     Connor     dismissed

McIntyre's indictment.

                                        Brewer

      On December 10, 2009, Bradley Brewer was convicted of a

second DWI and received a two-year license suspension ending on

December 10, 2011.         Brewer failed to pay the administrative fee

to restore his license.             On March 3, 2013, he was issued a

summons for driving while suspended in Mansfield Township.                           On

August 20, 2013, a Burlington County grand jury indicted Brewer

for   driving    during    a    period    of   license     suspension,      N.J.S.A.

2C:40-26(b).

      On   December      16,    2013,    the   trial     court    denied    Brewer's

motion to dismiss his indictment.




                                          8                                  A-1767-13T2
                                    Wisser

       Richard Wisser pled guilty to DWI on January 9, 1998.                     As

this    was   Wisser's    fourth   DWI      offense,2   a   ten-year      license

suspension    was     imposed.     During     the   suspension,    Wisser      was

convicted     three      times   for     driving    while    suspended,        and

additional periods of suspension were imposed.

       On September 13, 2012, Wisser was arrested for DWI, driving

while suspended, and other unrelated charges.                  On March 14,

2013, an Ocean County grand jury indicted him under N.J.S.A.

2C:40-26(b).

       On September 9, the trial court denied Wisser's motion to

dismiss his indictment, and on December 10, 2013, denied his

motion for reconsideration.

                                       B.

       To summarize, in these appeals, two trial judges rendered

decisions     contrary     to    the     State's    position      and     granted

applications to dismiss the indictments, while two ruled against

the defendants and allowed the indictments to stand.                    We review

de novo a trial court's construction of a statute.                      State v.

Revie, 220 N.J. 126, 132 (2014).             The specific points of error




2
  Wisser had previously been convicted of DWI on January 22,
1981, March 1, 1988, and May 2, 1989.



                                       9                                 A-1767-13T2
raised     by     each   appellant        need     not    be     repeated;       they     are

addressed by the following discussion.

                                            II

     The    genesis      of     N.J.S.A.    2C:40-26       has    been       discussed     in

detail elsewhere.           See State v. Carrigan, 428 N.J. Super. 609,

613-14 (App. Div. 2012), certif. denied, 213 N.J. 539 (2013).

The statute was designed to "create[] criminal penalties for

persons whose driver's licenses are suspended for drunk driving

offenses and who, while under suspension for these offenses,

unlawfully operate a vehicle."                   Assembly Law and Public Safety

Committee, Statement to A. 4303 (Dec. 3, 2009).                     The significantly

enhanced        consequences       to    driving    while      suspended         were     the

legislative response to "reports of fatal or serious accidents

that had been caused by recidivist offenders with multiple prior

DWI violations."         Carrigan, supra, 428 N.J. Super. at 614.                           As

Carrigan    points       out,      the   bill     was    endorsed       by    the    former

Director    of     the   Governor's        Council       on    Alcoholism        and     Drug

Awareness, who also recommended the creation of special-purpose

prison facilities for DWI driving recidivists.                          Ibid.       No such

facilities have been created.

                                            A.

     It     is     well-established          that        the     best    indicator         of

legislative        intent     is    "the    plain        language       chosen      by    the




                                            10                                      A-1767-13T2
Legislature."       State v. Gandhi, 201 N.J. 161, 176 (2010).                   In

interpreting    a    statute,    we    give    the    relevant      language   its

ordinary meaning and construe it "in a common-sense manner."

State in Interest of K.O., 217 N.J. 83, 91 (2014); see also

N.J.S.A.    1:1-1    (stating    that    the       words   of   a   statute    are

customarily    construed   according         to    their   generally    accepted

meaning).     We do not add terms which may have been intentionally

omitted by the Legislature, speculate, or otherwise engage in an

interpretation which would avoid its plain meaning.                    DiProspero

v. Penn, 183 N.J. 477, 492 (2005).                Where plain language "leads

to a clear and unambiguous result, then the interpretive process

should end, without resort to extrinsic sources."                       State v.

D.A., 191 N.J. 158, 164 (2007).

    The     State     contends    that        N.J.S.A.     2C:40-26     must    be

interpreted to mean that an individual can be charged until he

or she pays the requisite license restoration fees, complies

with all administrative requirements, and is reinstated by the

Motor Vehicle Commission.             In support, it cites both to the

statutory language and to State v. Zalta, 217 N.J. Super. 209

(App. Div. 1987).      Defendants distinguish Zalta, responding that

to extend the meaning of "the period of license suspension" as

the State proposes violates the language of N.J.S.A. 2C:40-26

and renders the statute both unworkable and unconstitutional.




                                        11                               A-1767-13T2
      The statute reads:

               a.   It shall be a crime of the fourth
          degree to operate a motor vehicle during the
          period of license suspension in violation of
          R.S. 39:3-40, if the actor's license was
          suspended or revoked for a first violation
          of R.S. 39:4-50 or section 2 of P.L. 1981,
          c. 512 (C. 39:4-50.4a) and the actor had
          previously been convicted of violating R.S.
          39:3-40 while under suspension for that
          first offense.    A person convicted of an
          offense under this subsection shall be
          sentenced by the court to a term of
          imprisonment.

               b.   It shall be a crime of the fourth
          degree to operate a motor vehicle during the
          period of license suspension in violation of
          R.S. 39:3-40, if the actor's license was
          suspended or revoked for a second or
          subsequent violation of R.S. 39:4-50 or
          section   2   of  P.L.  1981,  c.   512  (C.
          39:4-50.4a).     A person convicted of an
          offense under this subsection shall be
          sentenced by the court to a term of
          imprisonment.

          [N.J.S.A. 2C:40-26(a) and (b).]

      Zalta is inapposite because it answered a very different

question, namely, whether the Director of the former Division of

Motor Vehicles had the inherent authority "to keep a license in

suspension beyond the determinate period of suspension imposed

by the municipal court" in the context of N.J.S.A. 39:3-40.

Zalta, supra, 217 N.J. Super. at 213.       That defendant had been

found guilty of driving before restoring his privileges after

the   expiration   of   a   Director-imposed   six-month   term     of




                                 12                         A-1767-13T2
suspension.   Id. at 212.       He contended that his conviction for

driving while suspended should be vacated as he was guilty only

of driving while unlicensed.        Ibid.     In rejecting the argument,

we reasoned that the Director's authority included the power to

keep a license in suspension until a driver took the requisite

administrative steps to have it restored.          Ibid.     We noted that

the   suspension    of    driving   privileges    was   "not    necessarily

punitive in purpose."      Ibid.

      The discussion in Zalta also concerned whether "a person of

ordinary intelligence acting in good faith" would interpret the

phrase,   "during   the    period   of   []   suspension,"     as   found   in

N.J.S.A. 39:3-40, to mean he or she would know his license was

not restored until the Director reinstated it.          This is entirely

different than the question considered here, in the context of a

criminal statute specifying the circumstances under which, if

convicted, a defendant would serve mandatory minimum jail time.

      In N.J.S.A. 2C:40-26, the Legislature narrowed the field of

persons against whom charges could be lodged to target the group

against which it wished to act.          In subsection (a), the offense

occurs if, and only if, the driver has been convicted of DWI or

refusal, and has "previously been convicted of [driving while

suspended] while under suspension for that first offense."                   It

follows that the second or subsequent offense must also occur




                                    13                               A-1767-13T2
while the driver is "under suspension for that first offense[,]"

i.e., either a DWI or a refusal.                            It would be illogical to

conclude that the first driving while suspended offense must

occur    during       the   sentenced     term         of   suspension,     but   not    the

second       or    subsequent      driving        while       suspended    offense      that

subjects the motorist to prosecution.

       Subsection (b) provides that a driver commits the crime if

he drives "during the period of license suspension" while his

"license was suspended or revoked for a second or subsequent

[DWI or refusal] violation."                The Legislature made this section

applicable solely to drivers with a license suspension for a

second or subsequent DWI or refusal violation.

       The        statute   is     silent      as      to     those    driving    without

reinstatement beyond the court-imposed term of suspension.                               Had

the Legislature intended to include those persons, the necessary

language could have been easily included in both sections of the

law.     It was not.        Such language would, obviously, have cast the

far wider net the State proposes.                      The omission is significant,

and for us to interpret the statute as the State suggests would

be to add terms that may well have been intentionally excluded.

       Additionally,          common    sense       requires      this    interpretation

because of the universe of possible combinations giving rise to

prosecutions         beyond      the   scope      of    the    plain     language.      The




                                             14                                   A-1767-13T2
State's reading of the statute                    would include under (a), for

example, persons previously convicted of DWI and driving while

suspended      during    the       determinate      sentenced       term,   who      twenty

years later, drive after restoration but while suspended for

reasons unrelated to any DWI or refusal.                        Under (b), a person

could   be   convicted        if    found    guilty      of   DWI   twice   and,      years

later, after reinstatement on the DWIs, is caught driving while

suspended for an unrelated reason.

    By giving the statute this more literal reading, we are

guided by its plain language, to which we accord a common sense

construction, without adding terms not originally included.                               See

K.O., supra, 217 N.J. at 91.                 The interpretative process should

end here.      See D.A., supra, 191 N.J. at 164.

                                             B.

    Assuming       for     the      sake     of    argument,        however,     that     an

ambiguity      exists    in    the    statute,      we    reach     the   same     result.

Where   "two    interpretations         of    the     language      are   plausible,        a

reviewing court must interpret the statute to effectuate the

legislative      intent,      utilizing       extrinsic       evidence      when     it   is

helpful."       Lozano v. Frank DeLuca Constr., 178 N.J. 513, 522

(2004).      Courts may also resort to extrinsic evidence "if a

plain reading of the statute leads to an absurd result or if the

overall statutory scheme is at odds with the plain language."




                                             15                                    A-1767-13T2
DiProspero, supra, 183 N.J. at 493.                       Extrinsic evidence can

include legislative history, committee reports, contemporaneous

construction,         and   the     policy         considerations         behind     the

legislation.       Johnson v. Scaccetti, 192 N.J. 256, 276 (2007);

Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75 (2004).

"[W]here a statute or ordinance does not expressly address a

specific situation, the court will interpret it 'consonant with

the probable intent of the draftsman "had he anticipated the

matter at hand."'"          Twp. of Pennsauken v. Schad, 160 N.J. 156,

170   (1999)    (quoting     AMN,   Inc.      v.   Twp.    of   S.   Brunswick     Rent

Leveling Bd., 93 N.J. 518, 525 (1983) (citation omitted)).

      Here,     the    legislative      history       is     enlightening.           The

sponsor's      statement    to    the   Assembly      bill      says:      "This   bill

creates criminal penalties for persons whose driver's licenses

are suspended for certain drunk driving offenses and who, while

under suspension for those offenses, unlawfully operate a motor

vehicle."      Sponsor's Statement to A. 4303, at 2 (Nov. 30, 2009)

(emphasis added).           The Statement adds that the provisions of

subsection (a) make it a crime to operate a motor vehicle after

being   convicted      of   driving     while      intoxicated       or   refusing    to

submit to a breath test "while under suspension for that first

offense."      Ibid. (emphasis added).




                                         16                                   A-1767-13T2
    The language is repeated for subsection (b), making it a

crime    to   operate     a   motor      vehicle     after    two     DWI   convictions

"while    under       suspension      for     that    second       offense."         Ibid.

(emphasis added).         Identical language was used in the Assembly

Law and Public Safety Committee, Statement to A. 4303 (Dec. 3,

2009), as well as the Sponsor's Statement to S. 2939 (June 15,

2009),    and    the    Senate     Law      and    Public    Safety    and     Veterans'

Affairs Committee, Statement to S. 2939 (Nov. 23, 2009).

    The phrasing in the Sponsor's Statement thus supports the

notion that the law was intended to apply only when the actor is

"under suspension for those offenses," in other words, while

serving the court-imposed term of suspension.                         The explanatory

statement        is     silent        about        drivers         under     continuing

administrative suspension who did not restore their privileges

after    being    convicted      of    DWI     offenses      and    completing       their

determinate       suspension       terms.            Thus,     reference        to    the

legislative history supports our conclusion.

                                              C.

    Again,       for    the   sake       of    argument,     if     after    resort    to

extrinsic evidence ambiguity remains in a criminal statute, then

the court must be guided by the "rule of lenity," which requires

that the court construe penal statutes strictly and interpret

ambiguous language in favor of a criminal defendant.                                 D.A.,




                                              17                                A-1767-13T2
supra, 191 N.J. at 164-65.               At the heart of this canon is the

requirement of due process.               In re Suspension of DeMarco, 83

N.J. 25, 36 (1980).           "No one shall be punished for a crime

unless both that crime and its punishment are clearly set forth

in   positive     law."      Ibid.        Statutes      "must    give      persons     of

ordinary intelligence fair notice of what conduct is prohibited

and what consequences may follow violation of the law."                            State

v.   Channel    Home     Ctrs.,    199   N.J.    Super.   483,      489    (App.    Div.

1985).      "It    is,    therefore,      inappropriate        to    supply     missing

connections       in   criminal     statutes      that    persons         of   ordinary

intelligence would not discover."               Ibid.

      N.J.S.A. 2C:40-26 is not based on a model statute.                              Ten

other states, however, have implemented similar statutes which

impose     additional,       significant         penalties      on      those      found

operating a motor vehicle during their suspension period for

driving while intoxicated or refusing a chemical test.                           In two

of the states that have interpreted comparable statutes, the

rule of lenity has been found to control.

      In   Connecticut,      for    example,      a   person    who     drives     while

suspended for DWI-related offenses is subject to a fine and

imprisonment of up to one year.                Conn. Gen. Stat. § 14-215(c)(1)

(2014).    The statute, however, does not specify whether a person

can be convicted if the determinate suspension term ended but




                                          18                                    A-1767-13T2
the person did not administratively restore his or her license.

In State v. Cook, a defendant was not subjected to enhanced

penalties      for   driving     while   suspended       after    the       period          of

suspension had expired, but before he had been administratively

reinstated,     because    the     court      interpreted      the    law        to    mean

exposure was limited to those serving the determinate term only.

653 A.2d 829, 831 (Conn. App. Ct. 1995).                       The court observed

that because the consequences were penal, the statute should be

strictly construed in favor of the accused.                 Ibid.

    Oregon      Revised    Statutes      §    811.182(3)    (2013)      makes          it    a

felony    to   drive    "while    suspended      or    revoked    .     .    .    if    the

revocation resulted from a conviction for felony driving while

under the influence of intoxicants."                   Another statute, Oregon

Revised Statutes § 807.010 (2013), makes it a misdemeanor to

drive without driving privileges.                In State v. Hammerton, the

defendants were convicted under a statute specifying that the

license "revocation shall be for a period of one year" and that

driving    privileges     would    not   be    reinstated       until       the    person

complied    with     certain    administrative        requirements.           886      P.2d

1012, 1016 (Or. 1994).            The court determined that when read

together,      the   relevant     statutes      created    a     statutory          scheme

contemplating a finite license revocation period during which

the enhanced penalties could be imposed.                Ibid.     The defendants,




                                         19                                       A-1767-13T2
whose period of revocation had ended but who had not applied for

reinstatement, could therefore only be charged with the lesser

infraction   of   driving    without    driving   privileges,    not    felony

driving while suspended.       Id. at 1017.

      Unlike N.J.S.A. 2C:40-26, Pennsylvania's statute explicitly

states that a person can be convicted of driving while suspended

for a previous intoxication offense "until the person has had

the   operating   privilege     restored."        75   Pa.   Cons.    Stat.     §

1543(b)(2)    (2014).       Therefore   a   Pennsylvania     driver    can    be

convicted even after the determinate period of suspension has

expired.     Commonwealth v. Downs, 739 A.2d 569 (Pa. Super. Ct.

1999).3

      Even if we were to find that the legislative intent was

unclear from the plain language of the statute, which we do not,

the rule of lenity would require us to render an interpretation

favoring these defendants so that none are punished for a crime

not clearly articulated.         State v. Regis, 208 N.J. 439, 451


3
  Although Hawaii, Maine, Minnesota, Oklahoma, and Virginia have
statutes providing for enhanced penalties for driving after
being suspended for alcohol-related offenses, to this date, the
statutes have not been interpreted. See Haw. Rev. Stat. § 291E-
62 (2014), Me. Rev. Stat. tit. 29-A, § 2412-A (2014), Minn.
Stat. § 171.24 (2014), Okla. Stat. tit. 47, § 6-205.1 (2013),
Va. Code Ann. §§ 46.2-301.1; -357 (2014).    Maryland's statutes
provide enhanced penalties for driving while suspended, but do
not include a criminal conviction or jail time.     See Md. Code
Ann., Transp. § 303 (LexisNexis 2014).



                                       20                              A-1767-13T2
(2011).   The rule "is applied only if a statute is ambiguous,

and that ambiguity is not resolved by a review of 'all sources

of legislative intent.'"     Id. at 452 (quoting D.A., supra, 191

N.J. at 165 (quotation omitted)).      Whatever ambiguity exists in

this statute must be construed in favor of the defendants.

                                  D.

    In furtherance of its position, the State claims that the

penalties associated with DWI and refusal, in and of themselves,

support a finding that such suspensions "continue" until the

license   is   administratively   restored.   The   State   draws   our

attention to N.J.S.A. 39:4-50(b):

                A person convicted under this section
           must satisfy the screening, evaluation,
           referral, program and fee requirements of
           the Division of Alcoholism and Drug Abuse's
           Intoxicated Driving Program Unit, and of the
           Intoxicated Driver Resource Centers and a
           program of alcohol and drug education and
           highway safety, as prescribed by the chief
           administrator.   The sentencing court shall
           inform the person convicted that failure to
           satisfy such requirements shall result in a
           mandatory two-day term of imprisonment in a
           county jail and a driver license revocation
           or suspension and continuation of revocation
           or suspension until such requirements are
           satisfied, unless stayed by court order[.]

    N.J.A.C. 10:162-2.2 further describes the consequences when

a driver fails to comply with an N.J.S.A. 39:4-50(b) sentence:




                                  21                          A-1767-13T2
           (a)   Failure on the part of the client to
           appear at an Intoxicated Driver Resource
           Center shall result in a referral to
           Division of Motor Vehicles for appropriate
           action, and, referral to the court of
           conviction for appropriate action.

           (b)   Failure on the part of the client to
           comply with the course of action or fee
           schedule required by the Intoxicated Driving
           Program/Intoxicated Driver Resource Center
           or the course of action at an affiliated
           agency or provider shall result in a report
           of noncompliance to the sentencing court and
           the   Division   of   Motor   Vehicles   for
           appropriate action pursuant to N.J.S.A.
           39:4-50(b).

These statutes and regulations, however, relate to motor vehicle

licensing consequences and offenses.             The requirement that a

convicted person satisfy mandatory programs and the consequence

that    failure   to   do   so   may    result   in   a   two-day   term   of

imprisonment are entirely different matters from a fourth-degree

crime punishable by up to eighteen months of imprisonment carrying

a six-month mandatory minimum sentence.4

       If anything, N.J.S.A. 39:4-50(b) and N.J.A.C. 10:162-2.2

support defendants' position that N.J.S.A. 2C:40-26(a) and (b)

apply during the determinate term of suspension.               Under these


4
   The State cites in further support of its argument an
unpublished case. See R. 1:36-3 ("No unpublished opinion shall
constitute precedent or be binding upon any court.").      Like
Zalta,   the   case  relates   to   motor   vehicle  penalties,
consequences, and license revocation, not prosecution under the
Criminal Code.



                                       22                           A-1767-13T2
provisions, in the event of noncompliance with the completion of

the     Intoxicated       Driver      Program,      as   required      by   N.J.A.C.

39:4-50(a), extension of a DWI suspension is not automatic and

requires further administrative action.

      The State also argues that unless a second-time offender

installs     an      ignition         interlock      device      under      N.J.S.A.

39:4-50(a)(2), his or her license remains suspended "for" DWI.

But the statute clearly provides that a person who has been

twice found guilty of DWI is required to install an ignition

interlock    device,       and     that   no   license      restoration     will    be

approved until compliance occurs.                See also N.J.A.C. 13:19-6.4.

The focus of the provision and the regulation is to clarify the

steps a driver must take to obtain reinstatement.                      They do not

relate to prosecution under the Criminal Code.                   The consequence

of    requiring     the    installation        of   an     interlock     device    is,

therefore, similar to the consequence of requiring payment of an

administrative restoration fee.                  The State's reliance on the

motor     vehicle     code       is   misplaced      and     irrelevant     to     our

construction of N.J.S.A. 2C:40-26.

      N.J.S.A. 2C:40-26 punishes those who drive while suspended

for violations of the DWI and refusal law, by exposing them to a

criminal record and incarceration without parole when they drive

during the court-imposed period of suspension.                      The statute's




                                          23                                A-1767-13T2
grave   consequences         are   no    doubt      also      intended       to    deter    the

behavior.            Criminalizing            driving      during        a        period     of

administrative         suspension       extending          beyond   the           determinate

suspension      term    for    the      DWI    or     refusal     offense          would    not

implement legislative intent.

       The indictments against McIntyre and Wisser demonstrate the

potential harm that results from the State's construction of

N.J.S.A. 2C:40-26.        Both McIntyre and Wisser had completed their

court-imposed        suspensions        for     the     DWI     violations         but     were

ineligible to restore their licenses due to other non-DWI or

non-refusal      violations        of    the       Motor      Vehicle        Code.         They

nonetheless face the prospect of criminal prosecution.                                   Other

drivers who repeatedly drive while suspended are not placed in

that jeopardy.

                                          III

       None     of   these     offenses         occurred       during        the     relevant

court-imposed period of suspension for DWI and/or refusal under

N.J.S.A. 2C:40-26(a) or (b).              We therefore affirm the dismissals

of indictments in the Perry, Nay, Evans, Papp, and McIntyre

appeals.      See State v. Salter, 425 N.J. Super. 504, 514 (App.

Div.    2012)    (indictments        should        be   dismissed        if       "manifestly

deficient or palpably defective.").                     The denials of the motions




                                              24                                     A-1767-13T2
to dismiss the indictments in the Brewer and Wisser appeals are

reversed.   Id.




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