Judge can't order 60 days SLAP on 2nd offense dwi State v Dent
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ROGER M. DENT,
Defendant-Respondent. NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
—————————————————————————————————
October 7, 2014
Submitted September 30, 2014 – Decided
Before Judges Fasciale and Hoffman.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 07-13.
Warren W. Faulk, Camden County Prosecutor, attorney for appellant (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
Joseph C. Corbi, attorney for respondent.
PER CURIAM
Following a trial de novo in the Law Division finding defendant guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, the State appeals from that part of the September 13, 2013 order which sentenced defendant, "as a second-time offender for the purpose of incarceration, to sixty days imprisonment, which [d]efendant may serve in the County Supplemental Labor Service Program." The County Supplemental Labor Service Program (CSLSP) is a noncustodial community service program that does not hold participants overnight. N.J.S.A. 39:4 50(a)(2) and (3) clearly and unambiguously require a sentence of at least forty-eight consecutive hours of confinement in a county jail, a workhouse, or an inpatient treatment facility. Accordingly, we vacate the sentence and remand to the Law Division for resentencing.
I.
Prior to this incident, defendant had been convicted of DWI on three occasions: June 13, 1984; August 15, 1991; and June 9, 1999. However, the 1984 conviction was uncounseled, without waiver of the right to counsel, and a July 18, 2012, municipal court order states that the 1984 conviction "shall not be used to enhance the custodial aspect of any future conviction for [DWI]."
On July 28, 2011, defendant struck two cars stopped at a red light in Pennsauken Township. Defendant was intoxicated, had open beer containers in his car, and could not produce identification. Although no one was seriously injured, defendant struck his head on the windshield, indicating that he was not wearing a seatbelt when the accident occurred. Police arrested defendant and charged him with DWI, N.J.S.A. 39:4-50, careless driving, N.J.S.A. 39:4-97, improper documentation, N.J.S.A. 39:3-29, possession of an open container of alcohol, N.J.S.A. 39:4-51b, and failure to wear a seatbelt, N.J.S.A. 39:3-76.2f.
On March 5, 2013, after testimony and argument, the Pennsauken Township Municipal Court found defendant guilty on all counts, and sentenced him as a third-time offender to a jail term of 180 days, 10 years suspension of driver's license, and various fines, penalties, and court costs. Defendant appealed, and on September 12, 2013, after briefing and argument, the Law Division affirmed the conviction for DWI. However, the court found defendant had been inappropriately sentenced as a third-time offender for custodial sentencing purposes, and resentenced defendant, as a second-time offender, to sixty days in the CSLSP.
This appeal followed. The parties agree that under State v. Laurick, 120 N.J. 1, 4 (1990), and N.J.S.A. 39:4 50(a), defendant should be considered a second-time DWI offender for custodial sentencing purposes.
II.
We review Law Division sentencing for clear abuse of discretion. State v. Roth, 95 N.J. 334, 363 (1984). The sentence must "be based upon findings of fact that are grounded in competent, reasonably credible evidence[,]" and "apply correct legal principles in exercising its discretion." Ibid. "[P]enal statutes must be strictly construed and, . . . ambiguous language must be construed against the State." State v. Jones, 347 N.J. Super. 150, 153 (App. Div.) (citing State v. Galloway, 133 N.J. 631, 658-59 (1993)) certif. denied,172 N.J. 181 (2002).
N.J.S.A. 39:4-50(a) provides that:
(2) For a second [DWI] violation, a person . . . shall be ordered by the court to perform community service for a period of [thirty] days, . . . and shall be sentenced to imprisonment for a term of not less than [forty-eight] consecutive hours, which shall not be suspended or served on probation, nor more than [ninety] days . . . .
. . . .
(3) . . . A court that imposes a term of imprisonment for a first or second [DWI] offense . . . may sentence the person so convicted to the county jail, to the workhouse of the county wherein the offense was committed, to an inpatient rehabilitation program or to an Intoxicated Driver Resource Center or other facility approved by the chief of the Intoxicated Driving Program Unit in the Department of Health and Senior Services.
CSLSP is not a "facility approved by the chief of the Intoxicated Driving Program Unit in the Department of Health and Senior Services." Ibid.
Where the Legislature's mandate is clear, we need not look to extrinsic evidence to discern legislative intent. State v. Luthe,383 N.J. Super. 512 (App. Div. 2006). "The primary purpose behind New Jersey's drunk-driving statutes is to curb the senseless havoc and destruction caused by intoxicated drivers." State v. Tischio, 107 N.J. 504, 512 (1987), appeal dismissed, 484 U.S. 1038,108 S.Ct. 768, 98 L.Ed.2d 855 (1988). In particular, N.J.S.A. 39:4-50(a) discourages recidivism in DWI offenses by imposing escalating levels of deterrence on repeat offenders.
"[O]n the face of and in the light of the legislative history of N.J.S.A. 39:4-50, imprisonment was intended to be mandatory on conviction for the second [DWI offense] and all subsequent violations thereof." State v. Johnson, 42 N.J. 146, 174 (1964). AlthoughJohnson addressed a previous version of N.J.S.A. 39:4 50, the language of that law is substantially similar to the statute's present incarnation. See L. 1952, c. 137, § 1 ("For a subsequent [DWI] violation, [defendant] shall be imprisoned for a term of three months . . . . A magistrate who imposes a term of imprisonment under this section may sentence the person so convicted either to the county jail or to the workhouse . . . .").
In Luthe, supra, 383 N.J. Super. at 515, we held that " N.J.S.A. 39:4-50(a)(3) does not authorize noncustodial alternatives to the mandatory 180 day confinement" of third-time DWI offenders. N.J.S.A. 39:4-50(a)(3) provides that, "[f]or a third or subsequent [DWI] violation, a person . . . shall be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse[.]"
The language of N.J.S.A. 39:4-50(a)(2) and (3) relevant to second-time DWI offenders is similarly clear. The statute requires forty-eight hours of consecutive confinement, either in a jail, a workhouse, or an inpatient facility. Ibid. It does not allow for noncustodial alternatives. Here, the Law Division sentenced defendant to sixty days in a noncustodial community service program. The sentence violated the clear and unambiguous language of N.J.S.A. 39:4-50(a). Therefore, we vacate the sentence and remand to the Law Division for resentencing.
Defendant argues that he satisfied N.J.S.A. 39:4-50(a) by spending forty-eight consecutive hours in an Intoxicated Driver's Resource Center (IDRC). First, the record does not clearly indicate forty-eight consecutive hours of confinement. Second, the Law Division did not sentence defendant to forty-eight consecutive hours of confinement in an IDRC. Therefore, defendant's argument lacks merit. On remand, defendant can present evidence of time already served, and the Law Division shall address the amount of credit defendant should receive against his new sentence.
We vacate defendant's sentence and remand to the Law Division for resentencing consistent with this opinion. We do not retain jurisdiction.
