Does Using the E-ZPass Lane to Avoid Paying $1,120 in Tolls Count as Theft? NJ Judge Says it Might

A New Jersey man who used his girlfriend's car to repeatedly avoid paying more than $1,100 in bridge tolls — and $5,600 in fees — must not only face the civil penalties for his behavior but also criminal charges of theft, ruled a judge this week.

According to court documents, an officer with the Delaware River Port Authority, which is responsible for several of the bridges that span the river between Pennsylvania and New Jersey, noticed in 2016 that a 2011 gray Hyundai had made 224 crossings on two different bridges without ever paying the $5 toll. Police determined the driver had used the E-ZPass lane but did not have an E-ZPass device in the car.

In all, this scofflaw had racked up $1,120 in unpaid tolls on these bridges, in fewer than seven months; meaning he had ridden through a toll plaza without paying more than once per day. Violation notices had been sent to the address associated with the license plate on that Hyundai, but none of the tolls had been paid, resulting in $5,600 in fees on top of the tolls.

EZ Pass
Cars pass through E-ZPass lanes at a New York City tollbooth. E-ZPass devices attached to the cars' windshields are read by sensors as they pass through the tollbooth. The toll is automatically deducted from each driver's account, making spare change for road tolls unnecessary. James Leynse/Corbis via Getty Images

When the officer contacted the registered owner of the Hyundai, she said it was her boyfriend, Daniel Marks, who had been the one making these trips to and from Pennsylvania. Marks subsequently surrendered to himself to the police and admitted in a recorded interview that he was the one responsible for all of the bridge crossings and that he was aware of the violation notices but elected to not pay them.

In addition to facing the established civil penalties associated with his actions, Marks was indicted by a grand jury on criminal charges of theft of services.

However, Marks subsequently sought to have that grand jury indictment overturned, with his attorney arguing that the state had failed to demonstrate one of the four criteria needed to indict someone for theft of services — specifically, that the state had not shown that Marks had obtained the allegedly stolen services by "deception or threat, or by false token, slug or other means, including but not limited to mechanical or electrical devices or through fraudulent statements."

Marks' attorney had pointed to a previous case involving a tenant who moved into a new property and received his natural gas service for free because of a clerical error with the utility company. That tenant had originally been convicted of theft of services, but that conviction was later overturned with the court ruling that while the tenant almost certainly knew he should be getting billed for the gas, he did nothing to actively deceive the gas company, nor did he tamper with the meter or any other equipment to avoid paying his bill.

Prosecutors in the Marks case countered by pointing out that in the case involving the free gas service, the utility company was delivering the product to the customer and not charging them because of an error of its own creation. Meanwhile, no one brought the bridges or the tollbooths to Marks. He had to actively choose to repeatedly cross those bridges and to consciously opt to use the E-ZPass lane without a payment device knowing he would not pay the toll.

The judge ultimately sided with the state, saying that this action fulfilled the requirement for Marks perpetrating a deceptive act.

"Driving through the E-ZPass Only lane has no significant difference from placing a false slug or token into an unmanned toll collection receptacle," wrote the judge. "This evidence is sufficient to establish a physical act of deception by defendant. Defendant's purpose to avoid payment can be inferred from those actions."

The judge also rejected the defendant's arguments that Marks should not face a third-degree theft charge and that the matter should ultimately be thrown out because it is only a civil dispute.

On the grading of the alleged offense, the judge pointed out that state law applies grading to all offenses considered theft, so there was no exception here. Additionally, the repeated nature of the alleged offenses and the total dollar value cited in the indictment required that it be a third-degree charge.

Regarding the claim that Marks had only committed a civil offense, the judge noted that civil and criminal matters are not "mutually exclusive." As an example, the ruling pointed out that the state can both seek civil penalties from — and bring criminal charges against — people who commit tax fraud.

"No case has been cited by defendant which precludes the imposition of both civil and criminal penalties as a result of the same conduct," concluded the judge. "The court finds that no prohibition exists which would prevent the State or other governmental agency from seeking both criminal and civil penalties as a result of the same or similar conduct."

See below for the full ruling denying Marks' request to have the indictment thrown out: