SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4933-94T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NANCY J. DAVID,
Defendant-Appellant.
_________________________________________________________________
Argued January 24, 1996 - Decided February 20, 1996
Before Judges Stern and Newman.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County.
Santiago D. Orozco argued the cause for
appellant (Flores & Sternick, attorneys;
Mr. Orozco, on the letter brief and reply
letter brief).
Barbara Petersen, Special Deputy Attorney
General, argued the cause for respondent
(Charles R. Buckley, Deputy Attorney General -
In Charge and Acting Bergen County Prosecutor,
attorney; Susan W. Sciacca, Special Deputy
Attorney General, of counsel and on the
letter brief).
The opinion of the court was delivered by
STERN, J.A.D.
Defendant was charged in the Bergen County Special Civil Part with driving an uninsured motor vehicle, N.J.S.A. 39:6B-2, driving an unregistered vehicle, N.J.S.A. 39:3-4, and using fictitious license plates, N.J.S.A. 39:3-35. Defendant pled
guilty to the license plate violation and was found guilty on the
other two charges. Fines and fees were imposed, and defendant's
driver's license was suspended for one year for driving an
uninsured motor vehicle. Defendant appeals directly to us. No
issue is raised concerning the direct appeal.
At about 2 o'clock in the afternoon of July 30, 1993 Officer
Orem of the Bergen County Police Department responded to the
scene of a motor vehicle accident on Route 46 in South
Hackensack. The car defendant was driving, a two-door 1980
Chevrolet, with license plates FNG 30V, was involved in the
accident. After inquiring if anyone at the scene was hurt,
Officer Orem asked defendant for her driving credentials.
Defendant produced a valid driver's license but was unable to
produce the registration and insurance card. Officer Orem
testified that defendant said "[s]he did not have insurance."
Officer Orem ran a "check" on the license plate and found that
"the license plates themselves were expired as of 2/91, the
second month of 1991, and the plates belonged on a different
vehicle." Orem also testified that he found that the car that
defendant was driving "was not registered."
Defendant testified on her own behalf. She indicated that
the car was insured and registered at the time of the accident.
She said that her son, Jimmy Carrero, owned the car and that they
discussed the question of the license and registration the night
before the accident. She further testified that Jimmy told her
he was obtaining insurance on the morning of the accident.
Defendant acknowledged that she did not have an insurance card or
registration in her possession at the time of the accident but
produced them at the trial.
The insurance card issued for the vehicle involved in the
accident named James J. Carrero as the insured. The card
indicated an effective date of "7-30-93," the date of the
accident. Defendant also produced a vehicle registration for the
automobile. The registration indicated that it was "GOOD THRU:
07/94."
Defendant also presented the declaration page of an
insurance policy bearing the policy number noted on the insurance
identification card. It indicated that Jimmy Carrero had two
covered vehicles, not including the one in the accident, "from
06/07/93 to 12/07/93." Although not produced in the form of
testimony, counsel advised the court of the following:
To assist the Court, my client's testimony
would be that his--her son had two other
vehicles that were -- were no longer in
operation. He obtained a third vehicle. He
was -- and he -- he added it to the existing
policy. The policy numbers match up.
Defendant further testified that at the time of the accident
she was en route to her son's place of employment, a Burger King
restaurant, to get the papers for the vehicle that she thought he
had there for the vehicle she was driving. She subsequently
learned that the papers were at home "in the drawer, locked with
a key."
On redirect, defendant testified that the car was insured
and registered when she left home on the morning of July 30,
1993. She indicated on recross that she knew that because of the
conversation she had with her son the night before and because
"when I got up in the morning to go to work [on July 30] he was
gone."
The "insurance identification card" for the vehicle (D1),
the "vehicle registration" (D2), and the policy declaration face
sheet (D3) were admitted into evidence. There was no testimony
as to when D1 and D2 were actually issued.
The trial judge found defendant guilty of the two charges
tried before him. His entire opinion read:
All right. I -- I find that the State
has proven beyond a reasonable doubt that the
defendant is guilty of both offenses, and her
-- her testimony is totally incredible. It
doesn't make sense.
On this appeal defendant argues:
POINT I THE TRIAL COURT ERRED IN ITS APPLICATION
OF THE LAW TO THE FACTS AND EVIDENCE IN
THIS CASE, A CORRECT APPLICATION CAN ONLY
PRODUCE AN ACQUITTAL OF BOTH CHARGES.
A. The vehicle owned by Jimmy J. Carrero
and operated by Nancy A. David was insured
on July 30, 1993, effective 12:01 a.m.
B. Applicant was not the owner of the vehicle
in question and therefore, cannot be
convicted of a violation under N.J.S.A.
39:3-4, for failure to register it.
The State argues that defendant's response to the inquiries of Patrolman Orem at the scene, to the effect that she had no insurance and registration, together with the fact that license plates from another vehicle were on the car and that the car was
not registered according to DMV records at the time, provide
sufficient inferences that there was no insurance when the
accident occurred. The State contends that, even though the
insurance identification card reflects a "7-30-93" effective
date, its production does not indicate that the insurance was
actually obtained prior to the time of the accident that day.
While the number on the insurance policy is the same as that
noted on the identification card, the 1980 Chevrolet was not
listed on the declaration page as one of the vehicles covered
under the policy. Hence, the State also argues that there is no
evidence that the car involved in the accident was insured prior
to the time of the accident on July 30, 1993.
N.J.S.A. 39:6B-2 provides in part that:
Failure to provide at the time of trial an
insurance identification card or an insurance
policy which was in force for the time of
operation for which the offense is charged,
creates a rebuttable presumption that the
person was uninsured when charged with a
violation of this section.
An insurance identification card must be possessed by the operator of the motor vehicle while it is being operated. N.J.S.A. 39:3-29. See Gatto v. New Jersey Full Insurance Underwriting Ass'n, 284 N.J. Super. 665, 672 (App. Div. 1995). N.J.S.A. 39:6B-2 permits the operator to defend against the charges by showing that the vehicle was, in fact, insured at the time it was alleged to the contrary.See footnote 1 Otherwise, the operator
of the motor vehicle, whether or not the owner, is guilty of
driving the uninsured motor vehicle. See State v. Hochman,
188 N.J. Super. 382, 387 (App. Div. 1982); State v. Schumm,
146 N.J.
Super. 30 (App. Div. 1977), aff'd o.b.,
75 N.J. 199 (1978).
As Judge Michels has said in a case dealing with the
prosecution under N.J.S.A. 39:6B-2 of the owner of the vehicle:
This statute creates two classes of
persons who are subject to its provisions:
owners/registrants of motor vehicles and
operators of motor vehicles. The statute
imposes strict liability upon an owner/
registrant for operating or causing to be
operated his motor vehicle without the
liability insurance coverage required by
N.J.S.A. 39:6B-1. An operator, however, is
liable only if he knows or should know from
the attendant circumstances that the motor
vehicle he is operating is not covered by the
required liability insurance policy.
[State v. Hochman, supra, 188 N.J. Super. at
387.]
N.J.S.A. 39:6B-2 is designed to assure the safety of our
citizens by making it a motor vehicle offense for driving an
uninsured motor vehicle. But where the driver produces evidence
of coverage at the alleged time of no coverage, the purpose
embodied in the statute is satisfied. Here, the "insurance
identification card" was produced at trial and states an
"effective date" of "7-30-93," the date of the accident. Given
the production of the "insurance identification card," the policy
declaration page face sheet noting that the policy on the card
was effective before the accident, and defendant's testimony that
she understood that her son had registered the car and obtained
insurance on the morning of July 30, the State did not sustain
its burden of proving that defendant knew or should have known
"from the attendant circumstances that the motor vehicle [s]he
was operating [was] not covered by the required liability
insurance policy." State v. Hochman, supra at 387.
As previously noted, N.J.S.A. 39:3-29 requires the "driver or operator" of a motor vehicle to "be in the possession of" the "registration certificate" as well as the insurance identification card and a driver's license. N.J.S.A. 39:3-4 makes it a violation to drive an unregistered motor vehicle just as N.J.S.A. 39:6B-2 makes it a violation to operate a motor vehicle without insurance. See also N.J.S.A. 39:3-10 (driving without a license).
In State v. Hochman, supra, we noted that ownership is not a
required element to sustain a conviction for driving an uninsured
motor vehicle. We now so hold with respect to driving an
unregistered motor vehicle. While much of N.J.S.A. 39:3-4
relates to the owner's obligations to register the vehicle, a
paragraph thereof also provides that "[n]o person owning or
having control over any unregistered vehicle shall permit the
same to be parked or to stand on a public highway." (Emphasis
added.)See footnote 2 This paragraph, together with a provision permitting
police officers to remove unregistered vehicles from the
highways, became a part of N.J.S.A. 39:3-4 in 1954. See L. 1954,
c. 172, § 1. We do not believe the Legislature would have made
it a motor vehicle offense for an operator to park or let stand
on a public highway an unregistered vehicle if it did not intend
the first paragraph to apply to operators as well as owners of
such vehicles. This interpretation also flows from N.J.S.A.
39:3-29 requiring the operator of a motor vehicle to possess the
registration when driving it. By requiring the possession of a
registration certificate, the driver is obligated to ascertain if
the car is, in fact, registered. Cf. Gatto v. New Jersey Full
Insurance Underwriting Ass'n, supra, 284 N.J. Super. at 672-73
(insurance).
As with N.J.S.A. 39:6B-2 respecting insurance, a non-owner
should be liable for operating an unregistered vehicle "only if
he [or she] knows or should know from the attendant circumstances
that the motor vehicle he [or she] is operating is not"
registered. State v. Hochman, supra, 188 N.J. Super. at 387.
Failure to possess the registration certificate constitutes part
of "the attendant circumstances."
Patrolman Orem testified that when he responded to the
accident he did a record check and learned that the motor vehicle
was not listed on the computer as of that time, and defendant did
not possess the registration. There was no objection to this
testimony, and no evidence was adduced as to the time it takes to
place registration information on the computer. However,
defendant introduced the vehicle registration which indicates
that the registration was "GOOD THRU: 07/94" (meaning that it was
issued in July 1993, see N.J.S.A. 39:3-4); the parties agree
that a motor vehicle cannot be registered without evidence of
coverage (see N.J.S.A. 39:3-4), and defendant produced evidence
of coverage effective July 30. Moreover, the accident occurred
at 2 p.m. on Friday, July 30, 1993, and July 31, 1993 was a
Saturday. Thus, even giving the State the benefit of all
favorable inferences, we are satisfied that the State did not
sustain its burden under these circumstances of proving the
violation of N.J.S.A. 39:3-4 by a non-owner of the vehicle.
In essence, while we reject defendant's contention that a
non-owner of an automobile cannot be convicted of driving an
unregistered vehicle, we hold that the State did not sustain its
burden of proof in this case.
The convictions of defendant for driving an uninsured motor vehicle and for driving an unregistered vehicle are reversed.
Footnote: 1The last paragraph of N.J.S.A. 39:3-29 (which deals with the failure to possess the documents) also permits dismissal of a
complaint filed under that section "[i]f a person charged with a
violation of this section can exhibit his driver's license,
insurance identification card and registration certificate which
were valid on the day he was charged."
Footnote: 2That paragraph referred to a "motor vehicle" at the time of
the accident involved in this case, but the word "motor" was
deleted by L. 1995, c. 112, §27. The amendment has no impact on
the issues before us.