1

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 threeyear 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. 
2

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.
1

 

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 
2

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, eighteenyear-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 
3

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 
4

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 
5

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 
6

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 
7

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
8

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.
9

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 wellunderstood 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 
10

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-
11

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 
12

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 
13

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 
14

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 
15

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.
16

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 
17

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).
18

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 
19

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, 
20

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. 
21

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.
1

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