State v. Kirby Lenihan (071497) , 219 N.J. 251 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Kirby Lenihan (A-45-12) (071497)
Argued November 4, 2013 -- Decided September 18, 2014
RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
The issue in this appeal is whether N.J.S.A. 39:3-76.2f, the Mandatory Seat Belt Usage Law, can be
deemed “a law intended to protect the public health and safety,” or a predicate offense within the meaning of
N.J.S.A. 2C:40-18b.
On Friday, August 10, 2007, just after midnight, eighteen-year-old defendant Kirby Lenihan was driving
her 1999 Hyundai Accent on Route 519 in Hampton Township. The speed limit on the road was forty-five miles per
hour. K.G., who was sixteen years old, was in the passenger seat. It was raining heavily and visibility was poor.
At approximately 12:39 a.m., defendant veered to the right, drove through the shoulder, collided head-on with the
guardrail, and hit a yellow roadway sign about five feet off the side of the road. Defendant and K.G. suffered
serious head injuries as a result of the crash. K.G. also sustained serious bodily injuries. Neither defendant nor K.G.
were wearing seat belts, and both airbags deployed. Defendant admitted that she was “driving too fast” given the
road and weather conditions and her inexperience as a driver. Two aerosol cans, a dust remover and a carpet
deodorizer, which contain difluoroethane, were discovered in defendant’s car during the police investigation of the
accident. The carpet deodorizer was missing its cap and nozzle. Based on his “training and experience,” an
investigating officer concluded that “cans such as these and in such condition are used to get high. The process is
known as ‘huffing.’” Defendant and K.G. were transported to Morristown Memorial Hospital. As a result of the
evidence of suspected inhalation, blood was drawn from defendant at the hospital about forty-five minutes after the
accident, and difluoroethane was found in her blood. K.G. died the following morning at 5:26 a.m. as a result of her
injuries.
A Sussex County Grand Jury returned an indictment charging defendant in count one with a violation of
N.J.S.A. 2C:40-18a, a second-degree offense, based on the Seat Belt Law and recklessly causing the death of K.G.
The indictment also charged defendant with second-degree vehicular homicide, N.J.S.A. 2C:11-5a (count two); and
first-degree vehicular homicide within 1000 feet of school property, N.J.S.A. 2C:11-5b(3) (count three). The latter
charge was subsequently dismissed on defendant’s motion. Defendant also moved to dismiss count one on the
grounds that the Seat Belt Law was not intended to “protect the public health and safety” within the meaning of
N.J.S.A. 2C:40-18. That motion was denied by the trial court. As a result of plea negotiations, count one was
amended to charge a third-degree crime, N.J.S.A. 2C:40-18b. The State agreed to recommend dismissal or merger
of the vehicular homicide charge and to dismiss various summonses, including reckless driving, N.J.S.A. 39:4-96.
Defendant retained the right to appeal the denial of her motion to dismiss count one. The judge imposed a three-
year term of supervised probation conditioned upon serving 180 days in the Sussex County jail.
Defendant appealed. In a published opinion, the Appellate Division affirmed. State v. Lenihan, 427 N.J.
Super. 499 (App. Div. 2012). The Appellate Division held that the Seat Belt Law is a “law intended to protect the
public health and safety” as stated in N.J.S.A. 2C:40-18. Moreover, the panel held that the statutory language of
N.J.S.A. 2C:40-18 is not unconstitutionally vague as applied. Id. at 511, 514-15. The Supreme Court granted
defendant’s petition for certification. 213 N.J. 386 (2013).
HELD: Under the circumstances presented in this case, a violation of the Seat Belt Law, clearly “intended to
protect the public health and safety,” is a predicate offense that can support a conviction under N.J.S.A. 2C:40-18b.
1
1. Defendant argues that N.J.S.A. 2C:40-18b does not apply to this case because the Legislature intended to limit
the types of predicate offenses contemplated by the statute to offenses such as “violations of fire and building codes,
pollution controls, or other laws whose violations risk harm to the community at large.” Defendant argues that a
violation of the Seat Belt Law, therefore, does not qualify as a predicate offense for N.J.S.A. 2C:40-18b. The Court
finds nothing in N.J.S.A. 2C:40-18b that would limit the phrase, “law intended to protect the public health and
safety,” in the manner suggested by defendant. Without a clear indication from the Legislature that it intended the
phrase to have a special limiting definition, the Court must presume that the language used carries its ordinary and
well-understood meaning. State v. Bunch, 180 N.J. 534, 543 (2004). Even if the Court was to accept the
distinction urged by defendant, however, the Seat Belt Law does protect the community at large and not merely
discrete individuals. The Seat Belt Law’s legislative history reinforces that notion and speaks to the law’s broad
scope. The Court thus finds that the language included in N.J.S.A. 2C:40-18 -- making it an offense “to knowingly
violate[] a law intended to protect the public health and safety” -- encompasses the Seat Belt Law. (pp. 10-15)
2. Defendant also challenges the constitutionality of N.J.S.A. 2C:40-18b. She contends the law is vague as applied
to her. A presumption of validity attaches to every statute. That presumption is “particularly daunting when a
statute attempts to protect the public health, safety, or welfare.” In re C.V.S. Pharmacy Wayne, 116 N.J. 490, 497
(1989), cert. denied, 493 U.S. 1045 (1990). In short, public health and safety legislation has been consistently
sustained if it “‘is not arbitrary, capricious, or unreasonable, and the means selected bear a rational relationship to
the legislative objective.’” Ibid. (quoting Brown v. City of Newark, 113 N.J. 565, 572 (1989)). A statute “is void if
it is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its
application.” Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 279-80 (1998) (citation and internal quotation
marks omitted). Penal laws “are subjected to sharper scrutiny and given more exacting and critical assessment
under the vagueness doctrine than civil enactments.” State v. Cameron, 100 N.J. 586, 591 (1985). Nonetheless,
“vagueness may be mitigated by a scienter requirement, especially when a court examines a challenge claiming that
the law failed to provide adequate notice of the proscribed conduct.” State v. Saunders, 302 N.J. Super. 509, 517
(App. Div.), certif. denied, 151 N.J. 470 (1997). (pp. 16-19)
3. The Court rejects the argument that N.J.S.A. 2C:40-18b is unconstitutionally vague. Defendant concedes that
N.J.S.A. 2C:40-18 is not facially unconstitutional, but she argues that she was not given prior notice that a violation
of the Seat Belt Law would subject her to prosecution under N.J.S.A. 2C:40-18. However, defendant admitted that
her passenger, K.G., was not wearing her seat belt, in violation of the Seat Belt Law. Thus, defendant knowingly
violated that statute. The Seat Belt Law is clearly a “law intended to protect the public health and safety” within the
meaning of N.J.S.A. 2C:40-18. A person “of common intelligence” should understand that a knowing violation of
the Seat Belt Law would fall within the statute’s scope. Thus, defendant had reasonable notice that a knowing
violation of the Seat Belt Law, causing serious bodily injuries, could subject her to prosecution under N.J.S.A.
2C:40-18b. A statute that attempts to protect the public health, safety, or welfare, is entitled to a significant
presumption of validity. Defendant has not overcome that presumption or satisfied her burden of establishing that
N.J.S.A. 2C:40-18 is unconstitutionally vague as applied. (pp. 19-21)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-45 September Term 2012
071497
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KIRBY LENIHAN,
Defendant-Appellant.
Argued November 4, 2013 – Decided September 18, 2014
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 427 N.J. Super. 499 (2012).
Gary A. Kraemer argued the cause for
appellant (Daggett, Kraemer, Kovach &
Gjelsvik, attorneys).
Gregory R. Mueller, First Assistant
Prosecutor, argued the cause for respondent
(David J. Weaver, Sussex County Prosecutor,
attorney).
Kenneth A. Burden, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).
JUDGE RODRÍGUEZ (temporarily assigned) delivered the
opinion of the court.
Pursuant to N.J.S.A. 2C:40-18b, it is a third-degree crime
when a person “knowingly violates a law intended to protect the
public health and safety or knowingly fails to perform a duty
1
imposed by a law intended to protect the public health and
safety and recklessly causes serious bodily injury.” The issue
in this case is whether N.J.S.A. 39:3-76.2f, the Mandatory Seat
Belt Usage Law, can be deemed “a law intended to protect the
public health and safety,” or a predicate offense within the
meaning of N.J.S.A. 2C:40-18b. We hold that under the
circumstances presented in this case, a Seat Belt Law violation
is a predicate offense that can support a conviction under
N.J.S.A. 2C:40-18b.
I.
On Friday, August 10, 2007, just after midnight, eighteen-
year-old defendant Kirby Lenihan was driving her 1999 Hyundai
Accent on Route 519 in Hampton Township. The speed limit on the
road was forty-five miles per hour. K.G., who was sixteen years
old, was in the passenger seat. It was raining heavily and
visibility was poor.
At approximately 12:39 a.m., defendant veered to the right,
drove through the shoulder, collided head-on with the guardrail,
and hit a yellow roadway sign about five feet off the side of
the road. Defendant and K.G. suffered serious head injuries as
a result of the crash. K.G. also sustained serious bodily
injuries. Neither defendant nor K.G. were wearing seat belts.
Both airbags deployed. Defendant admitted that she was “driving
2
too fast” given the road and weather conditions and her
inexperience as a driver.
Two aerosol cans, “Clean Safe Aerosol Dust Remover” and
“Arm and Hammer Carpet Deodorizer,” which contain
difluoroethane, were discovered in defendant’s car during the
police investigation of the accident. The carpet deodorizer was
missing its cap and nozzle. Based on his “training and
experience,” an investigating officer concluded that “cans such
as these and in such condition are used to get high. The
process is known as ‘huffing.’”
Defendant and K.G. were transported to Morristown Memorial
Hospital. As a result of the evidence of suspected inhalation,
blood was drawn from defendant at the hospital about forty-five
minutes after the accident, and difluoroethane was found in her
blood. The following morning, K.G. died at 5:26 a.m., as a
result of her injuries. Defendant asserted that due to the
injuries suffered in the accident, she had no specific
recollection of the accident or the events leading up to it.
II.
A Sussex County Grand Jury returned an indictment charging
defendant in count one with a violation of N.J.S.A. 2C:40-18a, a
second-degree offense, based on the Seat Belt Law and recklessly
causing the death of K.G. The indictment also charged defendant
with second-degree vehicular homicide, N.J.S.A. 2C:11-5a (count
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two); and first-degree vehicular homicide within 1000 feet of
school property, N.J.S.A. 2C:11-5b(3) (count three). The latter
charge was subsequently dismissed on defendant’s motion.
Defendant moved to dismiss the indictment in its entirety
on the grounds of “bias and preconceived attitude by a grand
juror,” and “prejudicially improper instructions to the grand
jury by the State.” Defendant also moved to dismiss count one
on the grounds that the Seat Belt Law was not intended to
“protect the public health and safety” within the meaning of
N.J.S.A. 2C:40-18. That motion was denied by the trial court.
As a result of plea negotiations, count one was amended to
charge a third-degree crime. The State agreed to recommend
dismissal or merger of the vehicular homicide charge and to
dismiss various summonses for: failure to wear a seat belt and
to ensure that K.G. buckled her seat belt, N.J.S.A. 39:3-
76.2f(b); driving under the influence, N.J.S.A. 39:4-50(g); and
reckless driving, N.J.S.A. 39:4-96. Defendant retained the
right to appeal the denial of her motion to dismiss count one.
The judge imposed a three-year term of supervised probation
conditioned upon serving 180 days in the Sussex County jail.
Defendant moved for a stay of the custodial term pending
appeal. The Appellate Division granted the application. In a
published opinion, the Appellate Division affirmed. State v.
Lenihan, 427 N.J. Super. 499 (App. Div. 2012). The Appellate
4
Division held that the Seat Belt Law is a “law intended to
protect the public health and safety” as stated in N.J.S.A.
2C:40-18. Moreover, the panel held that the statutory language
of N.J.S.A. 2C:40-18 is not unconstitutionally vague as applied.
Id. at 511, 514-15.
We granted defendant’s petition for certification. 213
N.J. 386 (2013).
III.
A.
Defendant challenges on two grounds the denial of her
motion to dismiss count one. First, defendant argues that
pursuant to principles and canons of statutory interpretation,
N.J.S.A. 2C:40-18b does not apply to her case. Defendant
contends that her “minor traffic” violation of the Seat Belt Law
-- failing to ensure that her passenger, K.G., had buckled her
seat belt while riding in the vehicle -- cannot serve as a
predicate offense to support a conviction pursuant to N.J.S.A.
2C:40-18b. She argues that someone who violates the Seat Belt
Law “does not threaten ‘the public health and safety’ of people
at large, but rather the health and safety of” a discrete
individual -- the unbuckled passenger riding in the driver’s
car. Defendant argues to the contrary that, according to the
legislative history of N.J.S.A. 2C:40-18, the type of offenses
that should serve as predicate offenses pursuant to the statute
5
are “violations of fire and building codes, pollution controls,
or other laws whose violation risks harm to the community at
large.”
Second, defendant argues that N.J.S.A. 2C:40-18b as applied
here is void because it is unconstitutionally vague. Defendant
contends that the phrase “law intended to protect the public
health and safety” as stated in N.J.S.A. 2C:40-18, is facially
vague, ambiguous, and overbroad. Moreover, defendant argues
that the statute is unconstitutionally vague as applied.
Defendant contends that, as a violator of a mere traffic
offense, she was not given prior notice that a violation of the
Seat Belt Law would subject her to prosecution of a third-degree
crime pursuant to N.J.S.A. 2C:40-18. Defendant’s argument is
that the Legislature made a violation of the Seat Belt Law “a
ticketable offense” under Title 39. Therefore, “the general
public is entitled to fair notice of such serious consequences.”
(citing State v. Lisa, 391 N.J. Super. 556, 579-80 (App. Div.
2007), aff’d, 194 N.J. 409 (2008)). Thus, defendant argues that
her due process rights were violated as well.
Defendant further argues that the ambiguity of N.J.S.A.
2C:40-18 “places in the prosecutor’s arsenal an unconstitutional
ability to overreach into the legislative domain and raise
virtually any” regulatory or local ordinance violation “to the
serious level of an indictable crime.” As an example, defendant
6
directs the Court’s attention to a municipality’s “leash law”
requiring dog owners to restrain their pets. Defendant notes
that such a law clearly protects public health and safety.
Defendant suggests, therefore, that “an owner of a dog which
runs across the street and bites the mailman could be criminally
prosecuted” under N.J.S.A. 2C:40-18.
Defendant contends that the Appellate Division “ignored the
strictures against overly broad, undefinable criminal law” as
discussed in State v. Riley, 412 N.J. Super. 162 (Law Div.
2009). Thus, defendant argues, “[r]easonable limits must be
established for the phrase ‘law intended to protect the public
health and safety’ . . . in order to save the validity of an
otherwise unconstitutionally vague and overbroad statute.”
B.
The State argues that the Seat Belt Law “is directed at
every driver and passenger in a motor vehicle in the State of
New Jersey,” and thus, the “law is directed to the public as a
whole.” The State notes that “[h]ad the Legislature intended to
limit the statute’s reach to those offenders risking widespread
injury or damage, they could have easily made that statement.”
For example, as the State explains, N.J.S.A. 2C:17-2
specifically prohibits “widespread injury or damage.”
The State relies on Waterson v. General Motors Corp., 111
N.J. 238, 268 (1998), for the proposition that the Seat Belt Law
7
is clearly “intended to protect the public health and safety.”
In Waterson, this Court explained that seat belts “may be the
most significant source of automobile crash protection for
automobile occupants.” Id. at 269-70.
The State also argues that “the legislative history appears
to support the conclusion that the Legislature did not intend
[a] narrow interpretation” of N.J.S.A. 2C:40-18. Citing
N.J.S.A. 2C:2-1, which was amended in the same bill that created
N.J.S.A. 2C:40-18, the State notes that the amendment contained
similar language imposing liability on those who violate “any
other law intended to protect the public safety.”
Furthermore, the State argues that N.J.S.A. 2C:40-18 does
not merely require a seat belt violation, “but also the
infliction of serious bodily injury or death” as a result of a
defendant’s reckless conduct. The State submits that under the
circumstances of this case -- defendant’s inexperience as a
driver, the bad road and weather conditions, and the evidence of
“huffing” -- her conduct was indeed reckless and “prosecution
under N.J.S.A. 2C:40-18 was not trivial.”
Finally, the State argues that N.J.S.A. 2C:40-18,
specifically the phrase “a law intended to protect the public
health and safety,” is not unconstitutionally vague. The State
explains that a violation of the Seat Belt Law “falls squarely
within the definition of” N.J.S.A. 2C:40-18.
8
C.
Amicus curiae Attorney General of New Jersey (Attorney
General) argues that the Seat Belt Law is a “law intended to
protect the public health and safety” as understood by N.J.S.A.
2C:40-18. The Attorney General contends that the statute’s
language is not ambiguous. If the Legislature intended to
restrict N.J.S.A. 2C:40-18 to only those public health and
safety laws “affecting the ‘general public at large,’” as
defendant maintains, then the Legislature would have done so.
Thus, the Attorney General submits, the Court should presume
that the phrase at issue “carries its ordinary and well-
understood meaning.”
After surveying the development of the seat belt laws on
the federal and state level, the Attorney General argues that
“[i]t is beyond question that the purpose of the [Seat Belt Law]
is to protect the public safety of all automobile passengers in
New Jersey.” Moreover, the Attorney General notes that this
Court in Waterson, supra, took judicial notice of the
effectiveness and usefulness of seat belts. 111 N.J. at 269.
The Attorney General also notes that at least ten of our
sister states have explicitly interpreted seat belt laws as laws
“enacted to serve the public safety and welfare.”
The Attorney General argues that the Legislature enacted
the Seat Belt Law to protect the general public, not merely a
9
discrete individual. The Attorney General notes that the Iowa
and Illinois Supreme Courts have specifically resolved this
issue consistent with the State’s position. (citing State v.
Hartog, 440 N.W.2d 852, 858 (Iowa 1989); People v. Kohrig, 498
N.E.2d 1158, 1164-65 (Ill. 1986) (holding that “unbelted
drivers and passengers endanger the safety of others”)). The
Attorney General emphasizes that in Kohrig, supra, the Illinois
Supreme Court explained that “an unrestrained occupant of a
vehicle may injure others inside or out of the vehicle during an
accident.” 498 N.E.2d at 1164.
The Attorney General contends that N.J.S.A. 2C:40-18 is not
unconstitutionally vague as applied to defendant. The Attorney
General argues that the phrase “knowingly violates a law
intended to protect the public health and safety,” in N.J.S.A.
2C:40-18, “fairly apprised defendant that she faced criminal
liability for failing to ensure her minor passenger was wearing
a seat belt in her car.” The Attorney General further opines
that defendant’s unsupported assertions “that the floodgates
will open to unbridled prosecutorial overreach” are meritless.
IV.
A.
We first address defendant’s claim that N.J.S.A. 2C:40-18b
does not encompass violations of the Seat Belt Law. Defendant’s
argument rests on the proper interpretation of N.J.S.A. 2C:40-
10
18b. We therefore begin with certain familiar principles of
statutory interpretation.
The primary goal of statutory interpretation “is to
determine as best we can the intent of the Legislature, and to
give effect to that intent.” State v. Hudson, 209 N.J. 513, 529
(2012); accord State v. Shelley, 205 N.J. 320, 323 (2011).
“[T]he best indicator of that intent is the plain language
chosen by the Legislature.” State v. Gandhi, 201 N.J. 161, 176
(2010). The intent of the Legislature “begins with the language
of the statute, and the words chosen by the Legislature should
be accorded their ordinary and accustomed meaning.” Hudson,
supra, 209 N.J. at 529. “When the Legislature’s chosen words
lead to one clear and unambiguous result, the interpretive
process comes to a close, without the need to consider extrinsic
aids.” Shelley, supra, 205 N.J. at 323.
This court must construe and apply a statute as enacted.
In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980).
We will not “rewrite a plainly-written enactment of the
Legislature nor presume that the Legislature intended something
other than that expressed by way of the plain language.”
O’Connell v. State, 171 N.J. 484, 488 (2002). For that reason,
courts “are not free to superimpose on the ordinary meaning” of
statutory language limitations or extensions of the sweep of the
enactment. State v. Froland, 193 N.J. 186, 196 (2007). Absent
11
a clear indication from the Legislature that it intended
statutory language to have a special limiting definition, we
must presume that the language used carries its ordinary and
well-understood meaning. State v. Bunch, 180 N.J. 534, 543
(2004); State v. Afanador, 134 N.J. 162, 171 (1993).
B.
Defendant argues that N.J.S.A. 2C:40-18b does not apply to
this case because the Legislature intended to limit the types of
predicate offenses contemplated by the statute to offenses such
as “violations of fire and building codes, pollution controls,
or other laws whose violations risk harm to the community at
large.” Defendant argues that a violation of the Seat Belt Law,
therefore, does not qualify as a predicate offense for N.J.S.A.
2C:40-18b. We disagree.
Our review of the meaning of a statute or the common law is
de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). We
find nothing in N.J.S.A. 2C:40-18b that would limit the phrase,
“law intended to protect the public health and safety,” in the
manner suggested by defendant. Without a clear indication from
the Legislature that it intended the phrase to have a special
limiting definition, we must presume that the language used
carries its ordinary and well-understood meaning. Bunch, supra,
180 N.J. at 543; Afanador, supra, 134 N.J. at 171. And, as the
Attorney General points out, if the Legislature had intended to
12
restrict N.J.S.A. 2C:40-18 to laws that affect the public at
large, it would have done so.
Even if we were to accept the distinction urged by
defendant, however, the Seat Belt Law does protect the community
at large and not merely discrete individuals. Following an
initial impact, several scenarios can occur if a passenger is
unrestrained. The unrestrained passenger could be: (a) thrown
against the driver affecting the defendant’s ability to control
the vehicle and avoid other vehicles or persons in the vicinity;
(b) thrown against other passengers in the vehicle; (c) ejected
from the vehicle in the initial collision injuring others
nearby; or (d) ejected onto the roadway, causing other accidents
as other drivers react with evasive maneuvers. See Kohrig,
supra, 498 N.E.2d at 1164-65; People v. Weber, 494 N.Y.S.2d 960,
963 (Justice Ct. 1985). In all of those situations, the impact
of a driver’s or passenger’s failure to wear a seat belt goes
beyond the individual.
The Seat Belt Law’s legislative history reinforces that
notion and speaks to the law’s broad scope. In 1984, New Jersey
enacted the “Passenger Automobile Seat Belt Usage Law.”
N.J.S.A. 39:3-76.2e to -76.2k. The purpose of the law is
clearly reflected in the bill’s sponsor statement: “to require
that the driver and passenger in the front seat of an operating
passenger automobile wear the safety seat belt system provided
13
as original equipment in virtually all passenger automobiles
operating on New Jersey streets and highways.” Assemb., 2304
(Sponsor’s Statement), 201st Leg., 1st Sess. (N.J. June 28,
1984). New Jersey Governor Thomas H. Kean noted at the time of
signing the bill into law that traffic statistics “have already
proven rather conclusively that safety belts are instrumental in
preventing injury and death in motor vehicle accidents.”
Governor’s Statement on Signing Assembly Bill No. 2304 (Nov. 8,
1984).
In a committee statement that accompanied the 1984 law, the
Legislature noted the following:
1. There has been a “dramatic decrease in
fatalities and serious injuries in countries
and provinces having enacted Seat Belt Law.
. . .”
2. “It is estimated that easily one-half of
all fatalities and serious injuries can be
eliminated by simply requiring people to use
equipment already installed in their
vehicles. . . .”
3. Mandating such use would “greatly reduce
lost work time, insurance cost and health
benefit cost to both individuals, private
companies, and the State of New Jersey.”
4. Lastly, “[w]hile insurance rates in the
State of New Jersey are among the highest in
the country, the increased use of safety
seat belt systems will cause subsequent
reductions in accidents, deaths, injuries,
and lost work time. This could lead to
reduced cost to business and industry, and
local and state governments thereby
eventually leading to cost containment and
14
other incentives in automotive insurance
rates and premiums.”
[Waterson, supra, 111 N.J. at 261 (citing
Assembly Law, Public Safety and Defense
Committee Statement to Assembly, No. 2304,
p.3 (1984)).]
In Waterson, supra, this Court explained that “‘seat belts
may be the most significant source of automobile crash
protection for automobile occupants.’” 111 N.J. at 269-70
(quoting Dunn v. Durso, 219 N.J. Super. 383, 394 n.8 (Law Div.
1986)). The Court also took “judicial notice of the efficacy of
seat belts.” Id. at 269. Similarly, in a constitutional
challenge to a New Jersey statute requiring motorcyclists to
wear helmets, the Appellate Division held that such a law “bears
a real and substantial relationship to highway safety
generally.” State v. Krammes, 105 N.J. Super. 345, 346 (App.
Div.), certif. denied, 54 N.J. 257 (1969). Like the Appellate
Division, we also note that other States have declared that seat
belt laws protect the community at large. Lenihan, supra, 427
N.J. Super. at 511 (citing cases).
For those reasons, we find that the language included in
N.J.S.A. 2C:40-18 -- making it an offense “to knowingly
violate[] a law intended to protect the public health and
safety” -- encompasses the Seat Belt Law.
V.
A.
15
Defendant also challenges the constitutionality of N.J.S.A.
2C:40-18b. She contends the law is vague as applied to her.
The issue was first raised in defendant’s reply brief in the
Appellate Division. “To raise [an] issue initially in a reply
brief is improper.” Twp. of Warren v. Suffness, 225 N.J. Super.
399, 412 (App. Div.) (citing State v. Smith, 55 N.J. 476, 488),
certif. denied, 113 N.J. 640 (1988). Nonetheless, for the sake
of completeness in disposing of all issues, we address this
argument on the merits. As the party challenging the
constitutionality of a statute, defendant bears the burden of
establishing its unconstitutionality. State v. One 1990 Honda
Accord, 154 N.J. 373, 377 (1998); State v. Jones, 346 N.J.
Super. 391, 406 (App. Div.), certif. denied, 172 N.J. 181
(2002).
A presumption of validity attaches to every statute. State
v. Muhammad, 145 N.J. 23, 41 (1996); In re C.V.S. Pharmacy
Wayne, 116 N.J. 490, 497 (1989), cert. denied, 493 U.S. 1045,
110 S. Ct. 841, 107 L. Ed. 2d 836 (1990). That presumption is
“particularly daunting when a statute attempts to protect the
public health, safety, or welfare.” In re C.V.S. Pharmacy
Wayne, supra, 116 N.J. at 497. In short, public health and
safety legislation has been consistently sustained if it “‘is
not arbitrary, capricious, or unreasonable, and the means
selected bear a rational relationship to the legislative
16
objective.’” Ibid. (quoting Brown v. City of Newark, 113 N.J.
565, 572 (1989)); see also Williamson v. Lee Optical of Okla.,
Inc., 348 U.S. 483, 487-88, 75 S. Ct. 461, 464, 99 L. Ed. 2d
563, 571-72 (1955) (holding that statute that does not implicate
fundamental constitutional right or liberty interest will be
upheld if it bears rational relationship to legitimate
legislative purpose and is neither arbitrary nor
discriminatory). As long as there is a conceivable basis for
finding a rational relationship, the law will be upheld.
McGowan v. Maryland, 366 U.S. 420, 426, 81 S. Ct. 1101, 1105, 6
L. Ed. 2d 393, 399 (1961).
This Court has held that “any act of the Legislature will
not be ruled void unless its repugnancy to the Constitution is
clear beyond a reasonable doubt.” Muhammad, supra, 145 N.J. at
41. Even where a statute’s constitutionality is “fairly
debatable, courts will uphold” the law. Newark Superior
Officers Ass’n v. City of Newark, 98 N.J. 212, 227 (1985).
However, courts “are obligated to construe a challenged statute
to avoid constitutional defects if the statute is reasonably
susceptible of such construction.” Cnty. of Warren v. State,
409 N.J. Super. 495, 506 (App. Div. 2009) (citation and internal
quotation marks omitted), certif. denied, 201 N.J. 153 (2010),
cert. denied, 130 S. Ct. 3508, 177 L. Ed. 2d 1092 (2010).
17
A statute “is void if it is so vague that persons ‘of
common intelligence must necessarily guess at its meaning and
differ as to its application.’” Hamilton Amusement Ctr. v.
Verniero, 156 N.J. 254, 279-80 (1998) (citation and internal
quotation marks omitted), cert. denied, 527 U.S. 1021, 119 S.
Ct. 2365, 144 L. Ed. 2d 770 (1999). Vagueness may create a
denial of due process due to a failure to provide adequate and
fair notice or warning. Karins v. Atlantic City, 152 N.J. 532,
544 (1998).
“A statute may be challenged as being either facially vague
or vague ‘as-applied.’” State v. Maldonado, 137 N.J. 536, 563
(1994) (quoting State v. Cameron, 100 N.J. 586, 593 (1985)). A
law is facially vague if it is vague in all applications. Ibid.
A statute that “is challenged as vague as applied must lack
sufficient clarity respecting the conduct against which it is
sought to be enforced.” Visiting Homemaker Serv. of Hudson
Cnty. v. Bd. of Chosen Freeholders of Cnty. of Hudson, 380 N.J.
Super. 596, 612 (App. Div. 2005) (citing Maldonado, supra, 137
N.J. at 563).
“[I]f a statute is vague as applied to [the] conduct [at
issue], it will not be enforced even though the law might be
validly imposed against others not similarly situated.”
Cameron, supra, 100 N.J. at 593. “Conversely, if a statute is
18
not vague as applied to a particular party, it may be enforced
even though it might be too vague as applied to others.” Ibid.
Courts have recognized that the constitutional standard for
vagueness must not be mechanically applied. Cameron, supra, 100
N.J. at 591. Penal laws “are subjected to sharper scrutiny and
given more exacting and critical assessment under the vagueness
doctrine than civil enactments.” Ibid. Nonetheless, “vagueness
may be mitigated by a scienter requirement, especially when a
court examines a challenge claiming that the law failed to
provide adequate notice of the proscribed conduct.” State v.
Saunders, 302 N.J. Super. 509, 517 (App. Div.), certif. denied,
151 N.J. 470 (1997).
B.
We reject the argument that N.J.S.A. 2C:40-18b is
unconstitutionally vague.
Defendant concedes that N.J.S.A. 2C:40-18 is not facially
unconstitutional. She notes that violations of fire codes,
building codes, and pollution controls may serve as predicate
offenses under the statute. Rather, defendant argues that she
was not given prior notice that a violation of the Seat Belt Law
would subject her to prosecution under N.J.S.A. 2C:40-18.
Here, defendant, in the factual statement supporting her
plea allocution, admitted that her passenger, K.G., was not
wearing a seat belt, in violation of the Seat Belt Law. Thus,
19
defendant knowingly violated that statute. As the Attorney
General noted, one would be “hard-pressed to locate a more
publicized law.” As previously explained, the Seat Belt Law is
clearly a “law intended to protect the public health and safety”
within the meaning of N.J.S.A. 2C:40-18. A person “of common
intelligence” should understand that a knowing violation of the
Seat Belt Law would fall within the statute’s scope. See
Hamilton Amusement Ctr., supra, 156 N.J. at 279-80. Thus,
defendant had reasonable notice that a knowing violation of the
Seat Belt Law, causing serious bodily injuries, could subject
her to prosecution under N.J.S.A. 2C:40-18b. See Karins, supra,
152 N.J. at 544.
The trial court found that defendant’s actions were
reckless under the circumstances, and defendant acknowledged
that her actions caused the victim to sustain serious bodily
injuries. Although penal laws “are subject[] to sharper
scrutiny” and a more “critical assessment under the vagueness
doctrine than civil enactments,” Cameron, supra, 100 N.J. at
592, the scienter requirement in N.J.S.A. 2C:40-18 -- knowingly
-- militates against a vagueness challenge. See Saunders,
supra, 302 N.J. Super. at 517. The statute also requires that
the defendant “recklessly cause[] serious bodily injury,” which
further restricts the scope of the law.
20
As noted above, a statute that attempts to protect the
public health, safety, or welfare, is entitled to a significant
presumption of validity. In re C.V.S. Pharmacy Wayne, supra,
116 N.J. at 497. Defendant has not overcome that presumption or
satisfied her burden of establishing that N.J.S.A. 2C:40-18 is
unconstitutionally vague as applied. See One 1990 Honda Accord,
supra, 154 N.J. at 377; Muhammad, supra, 145 N.J. at 41; In re
C.V.S. Pharmacy Wayne, supra, 116 N.J. at 497.
Moreover, because “[a] party may test a law for vagueness
as applied only with respect to his or her particular conduct,”
defendant’s multiple hypotheticals about the law’s potential
vagueness are irrelevant. See Cameron, supra, 100 N.J. at 593;
Tobacconist v. Kimmelman, 94 N.J. 85 (1983) (“[W]e know of no
doctrine that requires a court to consider and determine the
validity of every hypothetical application of legislation when a
pre-enforcement vagueness attack is involved.”). Our holding is
based on the facts of this case.
VI.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, and
PATTERSON, and JUDGE CUFF (temporarily assigned) join in JUDGE
RODRÍGUEZ’s opinion.
21
SUPREME COURT OF NEW JERSEY
NO. A-45 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KIRBY LENIHAN,
Defendant-Appellant.
DECIDED September 18, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Rodríguez
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6
1