Kathleen Hopkins

Asbury Park Press

Most people probably think the worst legal consequence they face for not wearing a seat belt is a traffic ticket costing $20.

But be warned: Under a recent New Jersey Supreme Court decision, failure to wear a seat belt, or to require minor passengers to wear them, could expose you to criminal charges and a prison term under certain circumstances.

The state’s highest court issued that opinion Sept. 18 in a Sussex County case.

In essence, the Supreme Court said that an infraction of the state’s seat-belt law, usually a $20 ticket, can be used as one of the elements in a criminal law that could expose an offender to a prison term up to 10 years.

The criminal law in question makes it a crime for a person to knowingly violate any law that is intended to protect public health and safety or to knowingly fail to perform a duty imposed by law to protect public health and safety, if that action or failure to act involves some recklessness and results in injury or death.

In the case recently decided by the Supreme Court, the attorney for the defendant, Kirby Lenihan, argued that the state’s seat belt law did not fall into the category of violations that could be used as an element to proceed with such a criminal prosecution. Attorney Gregory A. Kraemer argued that the criminal law only intended to include violations of fire and building codes, pollution controls or other laws designed to protect the community at large from harm.

The Supreme Court unanimously disagreed and held that the state’s seat belt law is “clearly intended to protect the public health and safety,” and a violation of it can be used to support a criminal conviction under the other law.

“It means you have to wear your seat belt,” said Patrick Sheehan, an assistant Ocean County prosecutor who oversees the prosecutor’s fatal accident team.

“This case now indicates that what would normally be considered a minor offense may now be elevated to a very serious crime,” said Point Pleasant attorney John Menzel, one of the area’s foremost drunken-driving defense attorneys and past chairman of the New Jersey Bar Association’s municipal court practice section.

But that would require certain circumstances to exist — recklessness on the part of the person who is ignoring the law and a resulting death or injury — both elements that were present in the case recently decided by the Supreme Court.

In that Sussex County case, Lenihan was driving her car on a rainy day on Aug. 10, 2007, in Hampton Township. Lenihan, 18 at the time, had a 16-year-old passenger. At one point in the early morning hours, she veered onto the shoulder of the road, struck a guardrail and hit a sign post on the side of the road. Neither Lenihan or her passenger were wearing seat belts and both were seriously injured.

Both were taken to Morristown Memorial Hospital where the passenger died the following day, according to court documents.

Police found two aerosol cans, a dust remover and a carpet deodorizer, both containing the chemical difluoroethane, in Lenihan’s car. The carpet deodorizer was missing its cap and nozzle, which led an investigating officer to conclude that the cans were being used to get high in a process known as “huffing,” the court papers said.

Blood drawn from Lenihan at the hospital confirmed the officer’s suspicion of the presence of difluoroethane, according to the court papers.

Lenihan was charged with vehicular homicide and with recklessly causing a death while violating the seat belt law, both second-degree offenses carrying prison terms of five to 10 years.

The seat-belt offense was downgraded in a plea bargain to a third-degree offense, carrying a maximum prison term of five years, to which Lenihan pleaded guilty. The vehicular homicide charge was dismissed. She was sentenced to three years on probation conditioned upon serving 180 days in jail. However, she filed an appeal that was a basis for the Supreme Court decision.

Generally a conviction under that law and the vehicular homicide or reckless manslaughter statutes would likely only result in one prison term because they stem from one act, attorneys agree.

Sheehan surmised that in the recent Supreme Court case, prosecutors may not have had a solid enough case for a vehicular homicide conviction, so they charged the defendant under the other law, as well.

“Probably under the facts of the case, they may have had difficulty finding a medical opinion that the level of the chemical in the girl’s blood could sustain a reckless manslaughter case, so they used this other statute,” Sheehan said.

Sheehan said now that the Supreme Court has ruled on the statute, he foresees using it to press charges in accident cases where someone is hurt or killed and there is “a divergence of medical opinion on whether there’s enough (drugs or alcohol) in the system to be driving under the influence.’’ He added, though, that it would also be his burden to prove the driver was reckless.

Menzel said now that the law has been clarified, he could see it extending to other violations of laws meant to promote public safety, such as driving without headlights or taillights, riding a motorcycle without a helmet or with a passenger who isn’t wearing one, or using a cell phone while driving.

“It gives the state an alternate theory to criminalize conduct,’’ Menzel said.

The Supreme Court decision sends this clear message: “Wear your seat belt and make sure your passengers wear their seat belts,’’ Menzel said.

“I’m a libertarian at heart, but I would still never drive a car without wearing my seat belt,’’ he said.

“From a law-enforcement standpoint, we want everyone to wear seat belts because it’s the smart thing to do and it’s the law,’’ Sheehan said.

Reach Kathleen Hopkins at Khopkins@app.com