N.J. Practice Guide: Sentencing Issues

In its ongoing effort to curb drunk driving in New Jersey, the Legislature has authorized a sentencing option for municipal court judges that will permit them to order a defendant to participate in a supervised visitation program. Although it is available for all convicted drunk drivers, the use of the visitation program is intended to be used in those cases involving defendants who were under the age of 21 at the time of their offenses.1
If the court determines that the defendant is physically, emotionally and mentally suitable for a visitation program as part of a sentence, the defendant must participate as a term of probation or as a substitute for community service. The visitation program must be supervised and may take place at any one of the following facilities.
  • 1. A trauma center or other hospital facility dedicated to giving acute or critical care on an emergency basis to the victims of drunk drivers;
  • 2. A facility that cares for advanced alcoholics or drug abusers;
  • 3. The office of the county medical examiner or a public morgue to observe the appropriate victims of accidents involving drunk drivers.
After the visitation program has been completed, the court may meet with the defendant in the company of his or her parents and attorney, to discuss the impact of the visit on the defendant’s future conduct. The court, as an alternative, may also require the defendant to submit a written report to the court.
Restoration Fee
Soon after the Motor Vehicle Commission has received an official report of the defendant’s conviction, the Chief Administrator will forward an invoice to the defendant that constitutes his or her restoration fee. The fee totals $200 and is comprised of two parts. First, there is a statutory $100 fee that is required to restore the driving privileges of all operators after a suspension period has been served.2 For convicted drunk-drivers, there is also an additional $100 fee that is used to fund alcohol education programs.3 The entire restoration fee must be paid before the defendant’s driving privileges will be restored by the Motor Vehicle Commission .. Of course, even though the restoration fee may be paid, the defendant will still have to serve the balance of his or her license suspension and satisfy all the requirements of sentence, including paying all monetary sanctions and completing mandatory alcohol education courses.
Plea with a Civil Reservation
The Rules of Court permit a defendant to resolve his or her case with a plea of guilty taken with a civil reservation.4 The use of this procedure is especially helpful in drunken driving cases where the defendant has caused extensive property damage or personal injury as a result of his intoxicated driving conduct. By sealing the guilty plea with a civil reservation, the fact of the plea cannot be used as evidence in a subsequent civil proceeding against the defendant. In the municipal court context, the application to enter a plea of guilty with a civil reservation is granted as a matter of routine and the objecting party has the burden of showing good cause as to why the plea should not be sealed.5 In the Superior Court, however, the burden is on the defendant to establish good cause for the court to accept the plea with a civil reservation.6
Non-applicability of Criminal Code Sentencing Provisions to DWI Cases
The case law is now well settled that the New Jersey Code of Criminal Justice does not apply to motor vehicle offenses.7 In that regard, there is no necessity as there is with criminal offense for an aggravating/mitigating analysis by the Court prior to imposing sentence. As noted in State v. Walsh,8 the reference in the former Rule 7:4-6(c) (now Rule 7:9-1(b)) to the provisions of the former Rule 3:21-4(e) (now Rule 3:21-4(g)) is not to be read as requiring any aggravating/mitigating analysis by the Court. Thus, the Court should not consider Criminal Code sentencing criteria when determining the appropriate sentence in a drunk driving case.
Non-applicability of Rules of Evidence in DWI Sentencing
The Rules of Evidence do not apply at a drunk driving sentencing proceeding.9 The court may utilize any relevant and otherwise reliable information in making a determination as to an appropriate sentence.
One of the most important documents for the court to consider in sentencing is a report of defendant’s prior driving history. It is always essential that the court check on the status of the defendant’s previous DWI offenses prior to imposing sentence. Frequently, individuals awaiting sentencing on drunk driving convictions will have committed other offenses that may not be apparent from a review of a dated Certified Abstract of the defendant’s driving history. However, with the implementation of the ATS computer system10 throughout the municipal courts in our State, municipal court judges are well-advised to request from the Court’s ATS computer a driver’s history immediately prior to imposing sentence in order to ascertain whether any prior offenses exist which have not been reported on the Certified Abstract. Such motor vehicle printouts can be considered for sentencing purposes notwithstanding the fact that they are uncertified.11
Previous Offenses for Sentencing Purposes—Generally
N.J.S.A. 39:4-50(a)(2) and N.J.S.A. 39:4-50(a)(3) mandate enhanced penalties for second, third, and subsequent violations. Although the statute does not include a definition as to what a second, third, or subsequent violation is, the case law over the years has tended to take an expansive interpretation of the Legislature’s mandate.
Clearly, the statute involves previous convictions under New Jersey law for violations of N.J.S.A. 39:4-50. This appears to be the case regardless of which version of the predecessor drunk driving statutes the defendant was convicted.12 It is also well-settled now that offenses, which are lesser-included offenses to drunk driving, will also serve to enhance future convictions. For example, the drunk driving statute formerly included a lesser offense of driving while impaired. Although that section has been repealed by the Legislature, prior convictions for driving while impaired will serve to enhance penalties.13
Finally, the law is clear that a prior conviction for a refusal to submit to a breath test will not serve to enhance a future conviction of drunk driving.14 On the other hand, a prior drunk driving conviction will enhance a future violation of the refusal statute.15
Previous Offenses for Sentencing Purposes—Out-of-State Convictions
A conviction for a violation of a drunk driving law of a substantially similar nature to the New Jersey statute in another jurisdiction will count as a prior offense for enhanced sentencing purposes.16 This is so, regardless of whether the other jurisdiction is a signatory to the Interstate Driver License Compact.17 The prior case law on this topic has been modified by the Legislature.18
A defendant can avoid enhanced sentence treatment for an out-of-state conviction. If the prior out-of-state conviction occurred prior to January 20, 2004 and the defendant can prove by proving by clear and convincing evidence that the conviction was based exclusively upon a blood alcohol level of less than 0.10%, the prior offense will not be counted. For out-of-state offenses occurring on or after January 20, 2004, the defendant must prove that the conviction was based exclusively upon evidence of a BAC of less than 0.08%.
Previous Offenses for Sentencing Purposes—Controlling Date of Prior Offense
N.J.S.A. 39:4-50 speaks in terms of second violation and third or subsequent violation. There is no definition in the statute as to whether the “violation” refers to the date of offense or the date of conviction. This issue was decided by the Appellate Division in State v. Bischoff.19 Simply put, the relevant date for the court’s consideration is the offense date as opposed to the date of conviction. The court found that to interpret the statute otherwise could lead to unfair results. For example, a defendant with a prior conviction who has his subsequent drunk driving charge tried expeditiously may pay a price by being sentenced as a second offender, whereas a different defendant who would seek to delay his trial and conviction could be rewarded with lesser offender status merely by virtue of the passage of time. The court found that such a result would frustrate the Legislative will. Accordingly, counting of time goes from date of offense to date of offense for determining the date of prior offenses.
Previous Offenses for Sentencing Purposes—Order of Offenses
A line of published cases has established that the sequence of convictions is unimportant in assessing whether or not an individual should be subject to enhanced penalties for subsequent convictions. In this line of cases, a typical fact pattern emerges. A defendant is charged with a first drunk driving on day one. He is charged with a second drunk driving on day two. Typically, he enters a plea of guilty to the second offense first. He then goes back to the Court where he received his first ticket and claims he is titled to first offender treatment because at the time that he received his first offense, he had no previous violations. This argument was first rejected in the Law Division in State v. Deckert.20 A county court came to the same conclusion in State v. Cain.21 Ultimately, the Deckert decision was approved by the Appellate Division in State v. Guiendon.22 In Guiendon, the Appellate Division relied upon the wording of the statute “ … for a subsequent violation” to distinguish drunk driving sentencing from other types of sentencing. Accordingly, the Appellate Division held that a defendant could be sentenced as a second offender under the New Jersey Drunken Driving Statute even though the second violation occurred before sentence was imposed for a first violation.
Previous Offenses for Sentencing Purposes—Summary
The case law has taken an expansive view as to what constitutes a prior offense. At this stage, all offenses occurring under prior New Jersey law could conceivably be counted as prior offenses including driving while impaired. It is clear that drunk driving offenses which occur in other jurisdictions may also count against the defendant for enhanced sentencing purposes under the revised provisions of N.J.S.A. 39:4-50(a)(3). Additionally, for sentence enhancement purposes, the date of offense controls, as opposed to the date of conviction. Offenses occurring under any previous version of the drunk driving statute may be counted against the defendant, and finally, the defendant may be subject to enhanced penalties event thought the entry of convictions is not exactly in the same sequence as the date of offenses.
Subsequent Offenses—The 10-Year Rule
N.J.S.A. 39:4-50(a)(3) provides a certain measure of relief to multiple offenders who go more than 10 years between offenses.23 If a second offense occurs more than 10 years after a first offense, the sentencing court is required to treat the second conviction as a first offense for sentencing purposes. If a defendant commits a third offense more than ten years after the second offense, the court is required to treat the third offense as a second offense for sentencing purposes. The relevant date for all of these sentencing decisions is the date of offense as opposed to the date of conviction.24
The mandatory 10-year sentencing break can cause some unusual results. For example, a defendant may have a first offense occurring in 1980 and a second offense occurring in 1991. Under the circumstances, the defendant would be entitled to first offender treatment on his 1991 conviction because it occurred more than 10 years after his first offense. However, if the defendant is then arrested for a third time in 1993, would he be entitled to second offender treatment or third offender treatment? The Appellate Division was confronted with a similar set of facts in State v. Burroughs25 and held that such a defendant must be sentenced as a third offender.
Another interesting anomaly from this statute occurs when the subsequent offense is coupled with a refusal to take a breathalyzer test. Let us take, for example, a defendant who has a 1980 conviction for driving under the influence of alcohol. The subsequent offense occurs in 1991 and is companion to a refusal to take a breathalyzer test. Under the statute, the defendant would be entitled to be sentenced as a first offender on the drunk driving conviction in 1991. However, he might be subjected to a two-year loss of driving privileges on the refusal charge in the event of the conviction. This is because the refusal to submit to a breathalyzer is in connection with a subsequent offense.26 The drunk driving statute does not provide the same 10-year break for individuals who refuse to take the breathalyzer test as it does for those who are convicted of driving while intoxicated.27 On the other hand, a prior violation of the statute that prohibits refusal to take a breathalyzer test would not serve to enhance a future conviction for driving under the influence of alcohol.28 Simply put, a prior DWI conviction will enhance a future refusal conviction but a previous refusal conviction will not enhance a future DWI conviction.
Stay of License Suspension Pending Appeal
Defendants will occasionally ask for a stay of all aspects of their sentence, including loss of driving privileges pending appeal after conviction. This is especially likely in the event there has been a conviction after trial, or the defendant has entered his plea conditionally after an adverse finding in a motion to suppress proceeding under Rule 7:5-2.29 The court hearing an application to stay imposition of penalties must be aware of two points of law. N.J.S.A. 39:5-22 provides that whenever a license has been revoked for violation of N.J.S.A. 39:4-50, and an appeal has been taken from the judgment of conviction, the appeal shall not operate to restore the license while the appeal is pending. The statute allows either the trial court or the court of appellate jurisdiction to have discretion to restore the license pending appeal. The same statutory authority is expanded by the Rules of Court. Under Rule 7:13-2, either the trial court or the court of appellate jurisdiction may stay a sentence or a portion of a sentence upon any terms as the court deems appropriate.
Accordingly, the determination to stay aspects of the sentence pending appeal, especially the suspension of driving privileges, remains within the sound discretion of either the trial court or the court of appellate authority. The mere filing of an appeal does not operate in any way to stay sentence imposed by the municipal court.
Re-sentencing to Correct Errors
The law is somewhat skewed on the issue of re-sentencing on drunk driving and related matters to correct sentencing errors. The key distinction seems to be whose fault the error was.
If the reason for a mistaken sentence occurs as a result of a misrepresentation by the defendant or counsel, the court is free to go back and re-impose the appropriate sentence or to reconsider the otherwise legal sentence that was first imposed.30
A second situation arises when there is a good faith mistake made by the court in sentencing the defendant. Subject to considerations of fundamental fairness, the law in New Jersey is that an illegal sentence may be corrected at any time.31 The fundamental fairness issue is grounded in the argument that due process of law mandates that a sentence once imposed and served may not be added to or enhanced at a later date.32 Of course, these issues would only arise in a situation where a custodial jail sentence was imposed on the previous or current drunken driving case.
A third common situation arises when the mistake in sentencing the defendant occurred on the previous offense. In State v. Nicolai,33 the defendant on his third offense was improperly sentenced as a first offender. Later, he was arrested for a fourth offense and claimed that he was entitled to second offender treatment since this was his legitimate expectation after having been sentenced as a first offender on what was factually his third offense. The Appellate Division disagreed, holding that a defendant can not avoid a statutorily required minimum because a municipal court imposed an illegal penalty on an earlier conviction.34
Limitation on Custodial Terms
The law is well settled in New Jersey that driving while intoxicated, even for a third offense, constitutes a petty offense and does not entitle the defendant to trial by jury.35 The maximum permissible custodial term for a third or subsequent offense drunk driving is 180 days.36
Frequently, individuals who are charged with third offense drunken driving matters will also simultaneously be charged with other serious motor vehicle offenses which require the imposition of jail sentences. It is not unusual for a defendant who is operating a motor vehicle while intoxicated as a third offender also to be on the revoked list,37 or to be operating a motor vehicle without the benefit of liability insurance.38 Each of these latter offenses requires the imposition of a jail sentence for convictions beyond a first offense. In addition, disorderly persons charges may also be pending against the defendant which are companion to his or her drunk driving case. All the jail sentences involved for these types of offenses, whether mandatory or discretionary, will have the potential for exposing the defendant to more than 180 days incarceration. The Supreme Court discussed how to handle these situations in State v. Owens.39 There the Court held:
We doubt that the Constitution requires trial by jury merely because several charges are tried together, rather than successively. Nonetheless, and apart from possible constitutional compulsion, it would accord with the realities of the situation to say that trial by jury is relevant where, as here, the several petty offenses are factually related and arise out of a single event. In said circumstances, the prosecutor (or the municipal court, if there is no prosecutor) should offer the defendant a jury trial, and if such offer is not made, then the sentences may not total more than the maximum authorized for a petty offense.40
Accordingly, a cap of 180 days appears to be the case for sentences imposed on drunk driving and related matters arising out of a single incident, in the absence of an offer of a jury trial.
Use of Uncounselled Prior Convictions
It is now well settled that there is a Sixth Amendment right to counsel in felony cases.41 In petty offenses, such as driving under the influence of alcohol, there is a federal constitutional right to counsel only if the conviction results in imprisonment.42 In Rodriguez v. Rosenblatt,43 our Supreme Court did not find any constitutional compulsion to assign counsel without costs to individuals charged in municipal court with disorderly or other petty offenses. However, the Court—under considerations of fairness—dictated that as a matter of simple justice, no indigent defendant in New Jersey should be subject to conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.
Obviously, defendants charged with driving under the influence of alcohol are free to waive their right to counsel and proceed without an attorney. However, if a defendant proceeds without counsel, in the absence of an affirmative waiver can the conviction be used at a later proceeding to enhance penalties? This question was answered by the Supreme Court in State v. Laurick.44 In Laurick, the Supreme Court held that it is constitutionally permissible for a prior uncounselled DWI conviction to be considered for purposes of the enhanced penalty provisions of the DWI laws of the State of New Jersey. The only constitutional limit is that a defendant may not suffer an increased period of incarceration as a result of an improper previous uncounselled DWI conviction. Thus, in New Jersey, at least, an uncounselled conviction without waiver of right to counsel is invalid for the purpose of increasing a defendant’s loss of liberty.45 In the context of repeat DWI offenses, this means that the enhanced administrative penalties, license suspension and fines may constitutionally be imposed, but in the case of repeat DWI convictions based on uncounselled prior convictions, the actual period of incarceration imposed may not exceed that for any uncounselled DWI convictions. For example, a third offender with one prior uncounselled conviction could not be sentenced to more than 90 days imprisonment, the maximum permitted for a second offense.
Procedurally, the Supreme Court in Laurick approved the approach that was set forth in State v. Carey.46 The defendant has the burden of going forward with the evidence on the issue of the uncounselled prior conviction. There is no presumption that every defendant appearing in municipal court has been given proper advice as to his right to assignment of counsel or his right to retain private counsel. Rather, a defendant in a second or subsequent DWI proceeding has the right to establish that such notice was not given in his earlier case, and that if the defendant is indigent, the DWI conviction was the product of an absence of notice of the right to the assignment of counsel, and the non-assignment of such counsel was without waiver. A non-indigent defendant should have the right to establish such lack of notice, as well as the absence of knowledge of the right to be represented by private counsel and to prove that the absence of such counsel had an impact on the guilt or innocence of the accused. The State, of course, is to be entitled to an opportunity to come forward with proofs in opposition to those presented by the defendant.
In terms of venue, the Supreme Court held in Laurick that the proceedings to challenge the collateral effect of a prior conviction should properly be in the municipal court in which the original conviction was entered. The philosophy behind this is that it is much easier in the original court to arrange a thorough and complete review of the dockets of the proceedings as opposed to the court where the subsequent proceeding is being held.
Accordingly, if the defendant is successful in his post-conviction relief application in the court that imposed the original sentence, the fact that the prior conviction was uncounselled may not be used to increase the jail sentence aspect of sentencing on a subsequent conviction. These proceedings may be brought in the municipal court pursuant to Rule 7:10-2.
Occupational Driving Privileges
A license suspension for drunk driving or a related offense can leave the defendant in a panic. Without valid driving privileges, many defendants are unable to get to work, to shop or otherwise provide for themselves and their families. A common plea among such defendants is for a temporary or limited license that will permit them to lawfully operate a motor vehicle for the purpose of driving to work or school. Although there is no statute that specifically authorizes such a license, the authority to grant such a license has been implicitly granted to the Chief Administrator of the Motor Vehicle Commission.47 Indeed, there is some precedent for this. In Fosgate v. Strelecki,48 the Director imposed a one year administrative suspension of the license of a police officer whom the Division had found to be a careless driver. The court modified the suspension, allowing Fosgate to drive police vehicles in the performance of his duties during the period of suspension.
Despite the holding in the Fosgate case, the Division of Motor Vehicles has adopted a strict administrative policy of not granting occupational licenses in drunk driving or refusal cases. This policy is grounded in the belief that such occupational licenses would run counter to the Legislature’s on-going crusade to protect the public by removing convicted drunk drivers from the highways. Thus, although the Director maintains the theoretical authority to grant an occupational driver’s license, these types of licenses will never be granted until such time as a program providing for them has been enacted into law by the Legislature.

Footnotes

Rule 7:6-2(a)(1) for municipal court matters and Rule 3:9-2 in Superior Court.
Rule 3:9-2. Defendant’s prior out-of-state convictions for driving under the influence of alcohol (DUI) could not be considered, at sentencing for aggravated manslaughter and driving while intoxicated (DWI), in support of aggravating factor relating to extent of defendant’s prior criminal record and the seriousness of the offenses of which he had been convicted, as DUI was not a “crime” or an “offense” as defined by New Jersey statutes. State v. Lawless, 423 N.J. Super. 293, 32 A.3d 562 (App. Div. 2011), appeal granted, 209 N.J. 230, 36 A.3d 1062 (2012).
However, a defendant’s prior conviction for operating a vessel while intoxicated could not be used to enhance punishment for DWI as third offender. State v. Solarski, 374 N.J. Super. 176, 863 A.2d 1095 (App. Div. 2005).
State v. DiSomma, 262 N.J. Super. 375, 621 A.2d 55 (App. Div. 1993) was abrogated by State v. Ciancaglini, 411 N.J. Super. 280, 986 A.2d 1 (App. Div. 2010), which held that a prior conviction for refusal to take an alcohol breath test was a valid predicate conviction for purposes of enhancing a subsequent DWI offense.
The current state of the law is expressed in the dissenting opinion in Matter of Bergwall, 173 N.J.Super. 431, 414 A.2d 584 (App.Div.1980), rev’d on dissent, 85 N.J. 382, 427 A.2d 65 (1981) and superseded by statute as stated in State v. DiSomma, 262 N.J.Super. 375, 621 A.2d 55 (App.Div.1993).
But see State v. Lucci, 310 N.J.Super. 58, 707 A.2d 1370 (App.Div.1998) which implies that the 10-year gap between offenses may also include the refusal charge.
State v. Disomma, 262 N.J. Super. 375, 621 A.2d 55 (App. Div. 1993) was abrogated by State v. Ciancaglini, 411 N.J. Super. 280, 986 A.2d 1 (App. Div. 2010), which held that a prior conviction for refusal to take an alcohol breath test was a valid predicate conviction for purposes of enhancing a subsequent DWI offense.

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