Theft of Electronic Vehicle Identification Transponders in New Jersey

In 2010, New Jersey enacted a law specifically targeting the theft of electronic vehicle identification system transponders (E-ZPass transponders). This law, Section 2C:20-38 of the New Jersey Code of Criminal Justice, imposes harsher penalties on thieves who steal E-ZPass transponders compared to other types of theft. But why did New Jersey feel the need to pass such a targeted law? And what implications does this law have for defendants charged with transponder theft? Let’s take a closer look.

What are E-ZPass Transponders and How Do They Work?

For background, E-ZPass transponders are small radio frequency identification (RFID) devices installed in vehicles to enable cashless, automated toll payments on toll roads, bridges, and tunnels. Over 30+ states use E-ZPass or compatible transponder systems. When a vehicle goes through an E-ZPass toll booth, an overhead scanner reads the unique ID code transmitted by the transponder and automatically deducts the toll amount from the linked E-ZPass account[1].

Without an E-ZPass transponder, drivers would have to stop at toll booths and pay cash tolls – which is inconvenient and causes traffic backups. E-ZPass and other electronic toll collection systems help transportation networks operate more efficiently.

The Rise of E-ZPass Transponder Theft

In the 2000s, states with electronic toll collection systems began reporting an uptick in transponder thefts from vehicles[2]. Thieves would target parked cars and steal the small E-ZPass transponders, which were typically mounted on the inside of windshields.

Unlike cash or other visible valuables, E-ZPass transponders hold no inherent value to thieves. However, stolen transponders could be reprogrammed and used to generate fraudulent toll charges on the victim’s E-ZPass account. Or thieves could simply use the stolen transponders to pass through tolls for free under someone else’s account.

By the late 2000s, E-ZPass theft had apparently become enough of a problem in New Jersey to spur legislative action.

New Jersey Code 2C:20-38 – What Does the Law Actually Do?

In 2010, the New Jersey legislature unanimously passed a bill to amend Section 2C:20-2 of the New Jersey Code of Criminal Justice and establish new penalties specifically for E-ZPass transponder theft[3]. This legislation was signed into law as Section 2C:20-38.

On its face, 2C:20-38 seems simple:

“Notwithstanding the provisions of Title 2C of the New Jersey Statutes to the contrary, any person who knowingly obtains or possesses a stolen electronic vehicle identification system transponder is guilty of an offense.”

Essentially, this law makes clear that stealing E-ZPass transponders is illegal. But wasn’t that already illegal under general theft statutes?

The key impact of 2C:20-38 is in the penalties section:

“Any person who violates the provisions of N.J.S.2C:20-2 [theft statutes] in order to unlawfully obtain or possess a stolen electronic vehicle identification system transponder shall, in lieu of the fine prescribed for that offense, be subject to a fine of not less than $500 nor more than $10,000 upon conviction.”

So while stealing an E-ZPass is considered theft under 2C:20-2 same as stealing anything else, if the stolen item is specifically an E-ZPass, the penalties jump significantly. Instead of a maximum $1,000 fine for petty theft, E-ZPass thieves now face fines up to $10,000. That’s a 10x increase!

Potential Implications and Issues

1. Disproportionate impact on low-income defendants – Stealing an E-ZPass transponder is now punished as harshly as many indictable theft offenses in New Jersey. This means someone who steals a $25 E-ZPass device faces the same fines as someone who steals a car stereo or other item worth hundreds or thousands of dollars. Does the punishment truly fit the crime?

Critics argue Section 2C:20-38 unfairly targets petty theft by low-income defendants. A maximum $10,000 fine for stealing what amounts to a piece of plastic is an excessive penalty that many defendants simply can’t pay. This leads to clogged courts and overcrowded jails as judges feel compelled to impose jail time for failure to pay fines.

2. Potential for prosecutorial abuse – Giving prosecutors discretion to charge E-ZPass theft under regular theft statutes or under the harsher Section 2C:20-38 penalties opens the door to uneven and potentially discriminatory application of justice. Defendants accused of stealing the same device may face wildly different outcomes based on the prosecutor’s charging decisions.

3. Questionable deterrent effect – There is little evidence that imposing strict penalties for minor thefts is an effective deterrent to criminals. In fact, some research shows that perceived punishment severity does not correlate with deterrence of many property crimes like shoplifting and petty theft.

If the goal of Section 2C:20-38 was to curb E-ZPass theft through harsh penalties, early data suggests the law has not been especially effective. E-ZPass agencies continue to report transponder thefts over a decade later[4]. And New Jersey courts continue to prosecute defendants – often low income – under 2C:20-38’s enhanced penalty provisions[5].

Defenses to E-ZPass Transponder Theft Charges

For anyone charged with theft under 2C:20-38, possible defenses to explore with your attorney include:

• Lack of criminal intent – If you ended up with someone else’s E-ZPass by mistake or absentmindedness rather than intentionally stealing it, this could negate the necessary mental state required for a theft conviction.
• Unconstitutional vagueness – Arguing that the language of 2C:20-38 is unconstitutionally vague and fails to provide adequate notice of prohibited conduct.
• Disproportionate penalty – As discussed above, the enhanced penalties under 2C:20-38 may violate constitutional protections against excessive fines and cruel/unusual punishment given the minor nature of the offense.
• Selective enforcement – If you can show that prosecutors apply Section 2C:20-38 penalties inconsistently or in a discriminatory manner against certain defendants, this may support a dismissal based on unconstitutional selective enforcement.

The Bottom Line

Over a decade later, the debate continues around whether Section 2C:20-38’s strict penalties for E-ZPass transponder theft are reasonable, equitable, and aligned with principles of fair justice.

If you face charges under this statute in New Jersey, be sure to consult with an experienced criminal defense attorney to protect your rights. Carefully examine the evidence and charging documents to identify potential issues, such as lack of proof you knew the transponder was stolen. An attorney can also advise on defenses and, if applicable, negotiate with the prosecution for charges under standard theft provisions rather than the harsher 2C:20-38 penalties.

With potential fines in the thousands of dollars, these cases certainly warrant aggressive defense. Don’t hesitate to reach out for legal help if you or a loved one are accused of E-ZPass transponder theft.