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Failure to wear a seat belt may leave you injured - it can also leave you facing criminal prosecution.

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.




Joseph M. Ghabour
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