NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2814-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. November 22, 2019
APPELLATE DIVISION ENOC PIMENTEL, a/k/a ENOCH PIMEANTEL,
Defendant-Appellant. __________________________
Argued November 4, 2019 – Decided November 22, 2019
Before Judges Sabatino, Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 15-06-0517.
Kevin G. Roe argued the cause for appellant.
Valeria Dominguez, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Valeria Dominguez, of counsel and on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
After a motor vehicle stop, the State charged defendant with, among other
things, the fourth-degree criminal offense under N.J.S.A. 2C:40-26, which prohibits driving with a license suspended due to a second or subsequent driving
while intoxicated ("DWI") conviction. The statute prescribes a mandatory
minimum jail sentence of 180 days.
Defendant moved to dismiss the indictment, arguing that N.J.S.A. 2C:40-
26 is invalid under the United States and New Jersey State Constitutions.
Specifically, he argued the statute violates constitutional principles disallowing
cruel and unusual punishment, and also denies him and other similarly-situated
motorists due process and equal protection. He separately argued the statute
was intended to repose discretion in trial judges to withhold imposition of the
180-day jail term. The trial court rejected these constitutional challenges and
defendant's interpretation of the statute.
For the reasons that follow, we concur with the trial court and likewise
conclude that N.J.S.A. 2C:40-26 does not violate the constitutional principles
invoked by defendant. We also reject defendant's interpretation of the statute,
as it is contrary to settled precedent.
I.
The factual background is largely undisputed.
On September 4, 2014, a Clifton police officer pulled over defendant Enoc
Pimentel for driving his car without wearing a seatbelt. Defendant claimed he
was on his way to pick up his child from school. According to representations
2 A-2814-17T2 of his counsel, defendant's significant other ordinarily picks up his child, but
was unavailable to do so that day.
Defendant initially told the officer who pulled him over that his name was
that of another person. He presented the officer with a driver's license bearing
that other person's name and photograph. Defendant eventually admitted the
license he produced was not his, but rather belonged to a friend, and advised the
officer of his correct name. The officer then discovered that defendant's driver's
license was suspended.
Defendant was arrested and issued two motor vehicle summonses for
violations of Title 39: (1) failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f), and
(2) driving with a suspended license, N.J.S.A. 39:3-40.
In June 2015, a Passaic County Grand Jury returned Indictment No. 15-
06-0517, charging defendant with: (1) fourth-degree false reporting, N.J.S.A.
2C:28-4(a); (2) fourth-degree identity theft, N.J.S.A. 2C:21-17(a)(4); and (3)
fourth-degree driving with a suspended license during a period of license
suspension pursuant to a second or subsequent DWI, N.J.S.A. 2C:40-26(b).
Defendant's driving record is woefully non-exemplary. His driver's
abstract reveals two prior DWI offenses. The first violation occurred on
September 1, 2007, and the second violation occurred on May 5, 2008.
Defendant also has two prior Title 39 violations for driving with a suspended
3 A-2814-17T2 license. The first violation occurred on December 6, 2008, and the second
occurred on May 20, 2009. Between 2008 and 2014, defendant's license has
been suspended eight times for various offenses.
Defendant moved to dismiss the suspended license count of the indictment
by challenging the constitutionality of N.J.S.A. 2C:40-26. He did not, however,
challenge the sufficiency of this count on proof grounds.
Defendant made three separate arguments of unconstitutionality. First, he
argued the six-month mandatory minimum sentence imposed by N.J.S.A. 2C:40-
26(c) constitutes cruel and unusual punishment under the Eighth Amendment of
the United States Constitution and Article I, Paragraph 12 of the New Jersey
Constitution. Second, he argued the statute violates equal protection principles
under the Fourteenth Amendment and Article I, Paragraph 1 of the New Jersey
Constitution. Third, he argued the statute violates federal and state
constitutional principles of substantive due process.
As a separate non-constitutional point, defendant asserted the Legislature
intended for courts to have the discretion to employ an alternative sentencing
scheme instead of the mandatory minimum of six months in prison.
Additionally, he argued the Legislature did not intend for the mandatory six-
month confinement period to apply to offenders who were sober at the time of
the driving offense.
4 A-2814-17T2 On December 19, 2016, Judge Adam E. Jacobs issued a written opinion
denying defendant's motion to dismiss. Judge Jacobs rejected defendant's
various arguments, and declined to hold the statute unconstitutional.
First, Judge Jacobs found the mandatory six-month prison sentence does
not amount to cruel and unusual punishment. As the judge reasoned:
The punishment of 180 days in a county jail facility conforms to contemporary standards of decency proportionate to deter the conduct in question and is consistent with the statute's overall penological objective to keep the public safe for a substantial period of time from those who have exercised exceedingly poor judgment vis a vis conduct with potentially lethal consequences. . . .
Further with respect to proportionality, as the Appellate Division noted in [State v.]French, [437 N.J. Super. 333 (App. Div. 2014)], there exist other fourth- degree crimes, such as N.J.S.A. 2C:12-2(b)(2) Reckless Endangerment, that require a mandatory minimum incarceration of six months. French, 437 N.J. Super. at 338. It is also well-settled that incarceration in county jail is not violative of the presumption against incarceration, even for first offenders. State v. Hartye, 105 N.J. 411, 420 (1987).
Judge Jacobs also rejected defendant's due process and equal protection
arguments, observing:
This Court is mindful that the Legislature enacted N.J.S.A. 2C:40-26(b) to combat the increasing number of fatalities caused by intoxicated drivers, and to supplement preexisting measures as a deterrent to those who ignore orders to refrain from driving while their licenses are under suspension. To that end, this Court 5 A-2814-17T2 finds that the statute as it stands is not unreasonably arbitrary and is substantially related to achieving the Legislature's ultimate public policy objective of safeguarding society. This Court, therefore, rejects Pimentel's contention that the statute at issue deprives him of his rights to Due Process and Equal Protection.
Lastly, Judge Jacobs found this court's decisions in French, 437 N.J.
Super. at 336, and State v. Harris, 439 N.J. Super. 150, 160 (App. Div. 2015),
repudiated defendant's argument of legislative intent, and determined the 180 -
day custodial term is clearly mandatory.
Following the denial of his motion to dismiss, defendant conditionally
pled guilty to fourth-degree driving during a period of license suspension due to
a second or subsequent DWI. The false reporting and identity theft counts were
dismissed.
Judge Jacobs sentenced defendant to one year of probation, conditioned
upon six months in Passaic County Jail. In calibrating the non-mandatory facets
of the sentence, the judge found applicable aggravating factors three, N.J.S.A.
2C:44-1(a)(3), six, N.J.S.A. 2C:44-1(a)(6), and nine, N.J.S.A. 2C:44-1(a)(9).
Aggravating factor three applied "based upon just the sheer volume—number of
[defendant's] contacts and adjudications in the Criminal Justice System."
Aggravating factor six was based on "the extent of those contacts." Aggravating
factor nine was based on "the need to deter [defendant] and others from violating
the law." 6 A-2814-17T2 The judge also found mitigating factors seven, N.J.S.A. 2C:44-1(b)(7),
and ten, N.J.S.A. 2C:44-1(b)(10), applied because defendant had shown, "a
substantial period of law-abiding activity . . . [and], the likelihood that
[defendant] will make a good probationer." Although he commented favorably
on defendant's cooperation and "exceptional work history," Judge Jacobs
nonetheless found that "the aggravating factors outweigh[ed] the mitigating
factors justifying [a] sentence in the fourth-degree range."
The judge stayed the sentence until defendant's appeal as to the
constitutionality of N.J.S.A. 2C:40-26 was heard by this court.
This appeal followed. In his brief, defendant makes the following
arguments:
I. N.J.S.A. 2C:40-26 FAILS TO REFLECT THE LEGISLATURE'S INTENT BY REMOVING JUDICIAL DISCRETION, WHICH THEY EXPRESSLY BELIEVED COURTS WOULD RETAIN TO AVOID UNJUST RESULTS.
II. THE MANDATORY SIX-MONTH SENTENCE UNDER N.J.S.A. 2C:40-26 CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT AND THE NEW JERSEY CONSTITUTION.
III. THE MANDATORY SIX-MONTH SENTENCE UNDER N.J.S.A. 2C:40-26 IS BOTH FUNDAMENTALLY UNFAIR AND DISCRIMINATORY IN VIOLATION OF EQUAL PROTECTION AND THE FUNDAMENTAL RIGHT
7 A-2814-17T2 TO LIBERTY ENSHRINED IN THE DUE PROCESS CLAUSE.
A. The Fundamental Right To Liberty Currently Does Not Mandate Heightened Review For Criminal Statutes That Mandate Incarceration, As The Liberty Right Is Deemed Forfeited Upon A Valid Conviction.
B. Strict Scrutiny Should Apply To Statutes That Impose Harsh, Mandatory Sentences That Prohibit The Exercise Of Judicial Discretion At Sentencing.
C. The Six-Month Sentence Violates The Principle Of Fundamental Fairness Encompassed Within The Due Process Clause.
As we explain in this opinion, these contentions all lack merit.
II.
In 2009 the Legislature adopted N.J.S.A. 2C:40-26. As the Supreme Court
recently noted in State v. Rodriguez, 238 N.J. 105, 115 (2019), the law was
"enacted to 'create[] criminal penalties for persons whose driver's licenses are
suspended for certain drunk driving offenses and who, while under suspension
for those offenses, unlawfully operate a motor vehicle.'" (quoting Sponsor's
Statement to S. 2939 2 (L. 2009, c. 333; Sponsor's Statement to A. 4303 2 (L.
2009, c. 333) (identical)).
To effectuate this goal of criminalization, "N.J.S.A. 2C:40-26 makes it a
crime of the fourth-degree to either: (a) operate a motor vehicle, for the second
8 A-2814-17T2 time, during a period of suspension for a DWI; or (b) operate a motor vehicle
with a suspended license for a second or subsequent DWI." Rodriguez, 238 N.J.
at 115.
The focus of the present case is upon the statute's mandatory minimum
custodial sentence. "Consistent with N.J.S.A. 2C:40-26's stated purpose, it
specifically provides that an individual convicted under either N.J.S.A. 2C:40 -
26(a) or (b) shall be sentenced to a 'fixed minimum sentence of not less than 180
days during which the defendant shall not be eligible for parole.'" Ibid.
(alteration in original) (emphasis added) (quoting N.J.S.A. 2C:40-26(c)).
In Rodriguez, the Court concluded the "plain language" of the mandatory
sentencing provision in N.J.S.A. 2C:40-26(c), id. at 115, disallows drivers
convicted under the statute to serve any of their jail time intermittently on nights
or weekends, despite generic language in the Criminal Code at N.J.S.A. 2C:43-
2 allowing intermittent sentencing on a discretionary basis for certain offenses.
As this court previously observed in State v. Carrigan, 428 N.J. Super.
609, 614 (App. Div. 2012), "the strengthened penalty [of N.J.S.A. 2C:40 -26]
was legislatively prompted, at least in part, by reports of fatal or serious
accidents that had been caused by recidivist offenders with multiple prior DWI
violations, who nevertheless were driving with a suspended license." (quoted
with approval in Rodriguez, 238 N.J. at 116).
9 A-2814-17T2 In Carrigan, we rejected a different claim of unconstitutionality than the
ones defendant now advances here – a claim the statute is an invalid ex post
facto law that allegedly punishes past conduct. We explained in Carrigan that
"a violation of N.J.S.A. 2C:40-26(b) comprises a new offense based on new
conduct, and that the statute does not impose retrospective punishment for a
prior offense." Id. at 617. The new proscribed conduct is the defendant's act of
"getting behind the wheel after August 1, 2011 [the effective date of the statute]
while still under [a second or subsequent DWI] suspension." Id. at 622.
The arguments of unconstitutionality raised by defendant concerning
N.J.S.A. 2C:40-26 present questions of first impression. We review those
questions de novo because they concern issues of law. State v. Robinson, 217
N.J. 594, 602 (2014); State v. Galicia, 210 N.J. 364, 381 (2012).
Similarly, we review de novo defendant's separate argument that the
statute should be interpreted to allow judges to have discretion to not impose the
180-day minimum custodial sentence. "Questions related to statutory
interpretations are legal ones." State v. S.B., 230 N.J. 62, 67 (2017). Thus, "[w]e
review such decisions de novo . . . ." Ibid. (quoting State v. Grate, 220 N.J. 317,
329 (2015)).
We address the substance of defendant's arguments in a slightly different
sequence than presented in his brief.
10 A-2814-17T2 A.
We begin with defendant's claim that the 180-day minimum custodial
sentence called for under N.J.S.A. 2C:40-26 unconstitutionally inflicts upon
persons who violate the statute a cruel and unusual punishment. We agree with
the trial judge this claim fails.
The Eighth Amendment of the United States Constitution provides that
"[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted." U.S. Const. amend. VIII. The provision
applies to the States through the Fourteenth Amendment. Roper v. Simmons,
543 U.S. 551, 560 (2005). The Eighth Amendment's prohibition against
punishment "flows from the basic 'precept of justice that punishment for crime
should be graduated and proportioned to the offense.'" Ibid. (quoting Atkins v.
Virginia, 536 U.S. 304, 311 (2002)).
Courts generally "interpret the Eighth Amendment 'according to its text,
by considering history, tradition, and precedent, and with due regard for its
purpose and function in the constitutional design.'" State v. Zuber, 227 N.J. 422,
438 (2017) (quoting Roper, 543 U.S. at 560). The analysis commonly involves
"refer[ence] to 'the evolving standards of decency that mark the progress of a
maturing society.'" Roper, 543 U.S. at 561 (quoting Trop v. Dulles, 356 U.S.
86, 100-01 (1958) (plurality opinion)). Similarly, Article I, Paragraph 12 of the
11 A-2814-17T2 New Jersey Constitution also bars "cruel and unusual punishments." N.J. Const.
art. I, ¶ 12.
Our State Supreme Court has developed a three-part test for determining
whether a criminal penalty imposes an unconstitutional cruel and unusual
punishment. State v. Maldonado, 137 N.J. 536, 556 (1994). "We consider, first,
whether the punishment conforms with contemporary standards of decency;
second, whether the punishment is grossly disproportionate to the offense; and
third, whether the punishment goes beyond what is necessary to accomplish any
legitimate penological objective." State v. Johnson, 166 N.J. 523, 548 (2001)
(citing the three Maldonado factors). In the absence of "a substantial showing
that the statute violates those principles, the judiciary must respect the
legislative will and enforce the punishment." Ibid. (citing State v. Hampton, 61
N.J. 250, 274 (1972)).
Defendant has not established any of the prongs of this three-part test.
1.
First, with respect to "contemporary standards of decency," defendant
argues that a majority of other states do not criminalize the conduct proscribed
by N.J.S.A. 2C:40-26, and the minority of states that do make the conduct a
criminal offense mostly call for less severe or discretionary punishment. This
12 A-2814-17T2 comparison is flawed, and does not prove that our New Jersey law is so punitive
as to go beyond what contemporary standards of decency allow.
Our own research reveals that several other states authorize harsh
penalties, including jail time, that can be imposed upon motorists who drive with
a license that has been suspended due to one or more previous DWIs. Some of
those states authorize jail time, depending on the circumstances and defendant's
offense history, that matches or exceeds the 180-day sentence mandated by
N.J.S.A. 2C:40-26.
For example, West Virginia law mandates that a motorist who commits a
second offense of driving with a license that has been revoked because of a
previous DWI "shall be confined in jail for a period of not less than six months
nor more than one year." W. Va. Code § 17B-4-3(b) (2017). For a third or
subsequent offense, the person is guilty of a felony, and "shall be imp risoned . .
. for not less than one year nor more than three years." Ibid.
Rhode Island comparably imposes a minimum six-month prison sentence
for driving with a suspended license due to a second DWI offense within a five-
year period. 31 R.I. Gen. Laws § 31-11-18.1(c)(2) (1956). The penalty is
increased to a one-year minimum for driving with a suspended license due to a
third DWI within a five-year period. Id. at § 31-11-18.1(c)(3).
13 A-2814-17T2 Connecticut, meanwhile, mandates a thirty-day minimum and one-year
maximum jail sentence for first-time offenders who operate a motor vehicle
during a period of license suspension pursuant to a DWI. Conn. Gen. Stat. § 14-
215(c)(1) (2016). Any person who operates a motor vehicle during such a period
of license suspension due to a second DWI faces a minimum sentence of 120
days in jail, and a maximum sentence of two years. Id. at § 14-215(c)(2). The
120-day minimum "may not be suspended or reduced in any manner . . . in the
absence of any mitigating circumstances as determined by the court." Ibid.
Even more severely, driving with a suspended license pursuant to a third or
subsequent DWI in Connecticut carries a minimum custodial term of one year,
and a maximum term of three years. Id. at § 14-215(c)(3). That minimum
sentence also may not be suspended or reduced, absent any mitigating
circumstances as determined by the court. Ibid.
Pennsylvania imposes a mandatory sixty-day minimum sentence for
driving without a license pursuant to a single DWI. 75 Pa. Cons. Stat. § 1543
(2018). A ninety-day minimum attaches to a second violation of the
Pennsylvania statute, and a third or subsequent driving with a suspended license
for reason of a DWI carries a minimum of six months in prison. Id. at
§1543(b)(1).
14 A-2814-17T2 In South Carolina, a person who drives a motor vehicle on a public
highway of the state when that person's license has been suspended for a third
or subsequent DWI faces a mandatory prison sentence of "not less than six
months nor more than three years." S.C. Code Ann. § 56-1-460(A)(2)(c).
Hawaii likewise imposes mandatory minimum custodial terms for driving
with a suspended license because of a previous DWI. Haw. Rev. Stat. § 291E -
62(c) (2019). A defendant must serve a minimum of three days in prison for a
first offense. Ibid. If a defendant drives with a suspended license when that
license suspension was due to second DWI offense within a five-year period,
the Hawaii statute imposes a minimum sentence of thirty days in prison. Ibid.
For a third offense occurring within a five-year period, there is a mandatory
minimum of one year in prison. Ibid. Any person convicted of violating the
statute "shall be sentenced . . . without possibility of probation or suspension of
[the] sentence." Ibid.1
1 Other states have statutes with mandatory jail provisions, although shorter than 180 days. See, e.g., Colo. Rev. Stat. § 42-2-138 (2017) (imposing minimum sentences of thirty days in prison for a first violation of operating a motor vehicle on a suspended license due to a DWI; and ninety days for a second or subsequent conviction. Such sentences are mandatory and the court does not have the discretion to suspend the sentence unless the defendant can "establish that he or she had to drive the motor vehicle . . . because of an emergency . . . [.]"); Kan. Stat. Ann. § 8-262(a)(4) (imposing a minimum ninety-day jail term for driving with a suspended license due to two or more DWIs, and not allowing for a suspension of the mandatory minimum).
15 A-2814-17T2 Although the laws of these other states are not identical in all respects to
New Jersey's statute, they reflect that courts in those other jurisdictions are
empowered to impose harsh custodial sentences upon motorists who drive with
a license that has been revoked because of one or more previous DWI offenses.
Depending upon the defendant's prior history, the allowable jail time in some of
those states can exceed the 180-day minimum prescribed by N.J.S.A. 2C:40-26.
And, in several of those other states, the penalties are mandatory, or the
sentencing court's discretion is greatly curtailed.
We recognize that more than half of the states do not impose equivalent
or comparable custodial sanctions for this kind of wrongful behavior. Even so,
the approaches of a majority of other states do not comprise a litmus test for
what transgresses "contemporary standards of decency." The laws of New
Jersey, West Virginia, Rhode Island, and the other states we have cited may be
at the harsher end of the penological spectrum, but their stringent approaches
are not unconstitutionally punitive.
Still others have laws that authorize but do not mandate jail time. See Fla. Stat. § 322.34(c) (2019) (prescribing that a defendant can be convicted of a felony in the third degree and sentenced to a maximum of five years in prison upon a third or subsequent conviction of driving with a suspended license, if the current or most recent prior violation of driving with a suspended license resulted from the license being suspended for driving under the influence); Mo. Rev. Stat. §302.321 (2017) (driving while revoked because of a second or subsequent DWI is a "class E felony," and the judge has the discretion to impose the maximum sentence of four years). 16 A-2814-17T2 2.
Defendant also fails to demonstrate the second Maldonado factor of gross
disproportionality. He argues that since the prohibited conduct at issue here is
non-violent, the mandatory six-month minimum is grossly disproportionate.
Because N.J.S.A. 2C:40-26(c) overrides the general presumption against
imprisonment for first time offenders of fourth-degree crimes codified in
N.J.S.A. 2C:44-1, defendant argues that the statute's mandatory 180-day jail
term produces extreme sentencing disparities.
For example, defendant posits that a first-time offender of reckless
aggravated assault, who causes bodily injury to another with a deadly weapon
under N.J.S.A. 2C:12-1(b)(3), conceivably could receive no jail time due to this
presumption, while a defendant who is found guilty of driving with a suspended
license due to multiple previous DWIs must serve a minimum of six months in
prison. Defendant also emphasizes that six months in prison is the same
mandatory sentence reserved for a third or subsequent DWI offense under
N.J.S.A. 39:4-50. He asserts these sentencing inconsistencies demonstrate the
disproportionality of N.J.S.A. 2C:40-26, because what he characterizes as a
"harmless traffic offense" can be punished more harshly than a first or second
drunk driving offense or a violent crime.
17 A-2814-17T2 Defendant also contends disproportionality is shown by the fact that,
absent multiple previous DWIs, the maximum custodial penalty for driving with
a suspended license on the third or subsequent occasion is only ten days.
N.J.S.A. 39:4-40. He argues that N.J.S.A. 2C:40-26, which calls for a minimum
jail sentence that is "eighteen times" that ten-day period, imposes a
disproportionate sanction for what he construes to involve the same conduct.
We reject these claims of disproportionality. For starters, it is well settled
that the Legislature has wide authority to enact mandatory minimum sentences
to deter and punish specified criminal behavior. "The [L]egislature may
constitutionally enact mandatory minimum sentence laws when necessary [to
protect] the public interest." State v. Brown, 227 N.J. Super. 429, 440 (Law.
Div. 1988) (citing State v. Des Marets, 92 N.J. 62, 80-81 (1983)).
In Des Marets, the Supreme Court upheld the constitutionality of the
mandatory three-year minimum required by the Graves Act for someone who
uses or possesses a firearm while "committing, attempting to commit, or fleeing
after the commission of, certain serious offenses specified in that Act." Des
Marets, 92 N.J. at 64. See also State v. Oliver, 162 N.J. 580 (2000) (upholding
as constitutional a life-sentence without the possibility of parole imposed under
the Persistent Offender Accountability Act (otherwise known as the Three
Strikes Law), N.J.S.A. 2C:43-7.1(a)); State v. Hampton, 61 N.J. 250, 274 (1972)
18 A-2814-17T2 (upholding a statute providing for a minimum sentence of [thirty] years and
maximum of life imprisonment for kidnaping does not constitute cruel and
unusual punishment); State v. Fearick, 69 N.J. 32 (1976) (upholding the
constitutionality of a statute imposing a mandatory sentence of forty -five days
imprisonment when a person whose license has been suspended is involved in
an accident resulting in injury).
The selective comparisons drawn by defendant to other New Jersey
criminal statutes do not establish that the minimum 180-day jail sentence
mandated by N.J.S.A. 2C:40-26 is "grossly" disproportionate.
A useful counter-example is the "certain persons" weapons offense set
forth in N.J.S.A. 2C:39-7. That statute increases criminal penalties by a
significant amount, based on the defendant's status, due to prior conduct. The
statute makes it a crime punishable by a minimum term of five years in prison
for "certain persons" previously convicted of an enumerated crime to be in
possession of a weapon. Ibid. The rationale is that the class of people who fall
under the "certain persons" statute pose a greater risk to society, based on their
propensity to commit crimes, and therefore should not possess a weapon. It is
not "grossly disproportionate" to expose such "certain persons" to mandatory
custodial sanctions greater than the lesser punishment they might receive for
violating other weapons-possession laws.
19 A-2814-17T2 Comparable to the "certain persons" statute, N.J.S.A. 2C:40-26 penalizes
a distinctive class of defendants (i.e., drivers who are convicted of driving with
a suspended license due to multiple DWIs) more harshly than it penalizes drivers
who are caught driving with a license suspended for another reason. The
Legislature seeks to keep recidivist drunk drivers off the road because they are
a class of drivers posing a greater danger to other motorists or pedestrians. As
Judge Jacobs aptly stated, such stringent punishment is "consistent with the
statute's overall penological objective to keep the public safe for a substantial
period of time from those who have exercised exceedingly poor judgment vis a
vis conduct with potentially lethal consequences."
Although the 180-day jail term equals the mandatory minimum jail term
for a third DWI offense, that equivalence does not make the coexistence of the
two penalties constitutionally intolerable. The Legislature had the policy
prerogative to treat both forms of wrongdoing with comparable severity. The
sentences are not grossly disproportionate.
3.
As to the third Maldonado factor, we reject defendant's claim that the 180-
day custodial minimum goes beyond "what is necessary to accomplish a
legitimate penological objective."
20 A-2814-17T2 This court has acknowledged the escalating penalties imposed by the
Legislature in an attempt to deter chronic drunk drivers. For instance, in State
v. Rizzitello, 447 N.J. Super. 301, 315 (App. Div. 2016), we observed that,
historically, "the penalties for driving while intoxicated have consistently
increased in severity as a means of deterring 'the senseless carnage on our
highways' caused by those who drive drunk.'" Ibid. (quoting State v.
D'Agostino, 203 N.J. Super. 69, 72 (Law Div. 1984)). "The Legislature's
decision to criminalize the act of driving while one's license is suspended for a
second or subsequent DWI conviction is the latest addition to this arsenal of
deterrence." Ibid.
In Harris, 439 N.J. Super. at 160, we reinforced that point:
The Legislature's purpose in requiring a mandatory period of 'imprisonment' for this offense, with no possibility of parole, is also clear. Alternatives to jail, like the . . . home detention and community service programs at issue here, do not protect the public in the same way as incarceration. This public safety consideration is especially relevant in the case of a defendant who loses his or her driving privileges for [a] DWI, but then continues to drive despite the license suspension.
Given the State's strong policy objective of deterring repeat drunk driving
offenders, and our courts' long-standing acceptance of this legitimate objective,
the six-month minimum jail term prescribed by N.J.S.A. 2C:40-26 does not go
beyond what is necessary to achieve that goal. Although a driver need not be 21 A-2814-17T2 under the influence of alcohol to violate N.J.S.A. 2C:40-26, the predicate
conduct that puts him or her in a position to do so is his or her multiple previous
instances of drunk driving. The stiff penalty imposed serves as a permissible
deterrent.
In sum, defendant fails to establish that the 180-day mandatory custodial
sentence imposed upon him amounts to "cruel and unusual" unconstitutional
punishment.
B.
We next turn to defendant's related arguments that the statute's mandatory
minimum jail term violates constitutional principles of due process and equal
protection. Like the trial judge, we conclude these arguments have no merit.
Defendant argues the mandatory sentence imposed by N.J.S.A. 2C:40-26
violates equal protection and due process principles because increasing
"eighteen-fold" the length of a sentence normally imposed for driving with a
suspended license leads to what defendant contends is an "unconscionable"
outcome and a "capricious" disregard for his fundamental right to liberty. We
disagree.
The Equal Protection Clause of the Fourteenth Amendment commands
that no State shall "deny to any person within its jurisdiction the equal protection
of the laws," meaning that all persons similarly situated should be treated alike.
22 A-2814-17T2 City of Cleburne, Tex. v. Cleburne Living Center, 472 U.S. 432, 439 (1985)
(citing Plyer v. Doe, 457 U.S. 202, 216 (1982)). The general rule is that
legislation is presumed to be valid if the statute's classification is rationally
related to a legitimate state interest. Id. at 440 (citing Schweiker v. Wilson, 450
U.S. 221, 230 (1981)). However, when a statute classifies by race, alienage,
national origin, or imposes upon a fundamental right, the law is subject to strict
scrutiny review, and will be sustained under the Equal Protection Clause only if
it is narrowly tailored to serve a compelling state interest. Ibid. (citing
McLaughlin v. Florida, 379 U.S. 184, 192 (1964)). When a Legislature makes
classifications based on gender, review of the statute also calls for a heightened
standard of review. Ibid. Otherwise, the rational basis standard applies to the
classification.
Defendant also claims a violation of substantive due process under the
Fourteenth Amendment. The doctrine forbids the government from infringing
upon "certain 'fundamental' liberty interests, no matter what process is provided,
unless the infringement is narrowly tailored to serve a compelling state interest."
Reno v. Flores, 507 U.S. 292, 302 (1993). A right is fundamental when it is
"rooted in the traditions and conscience of our people." Id. at 303. However,
where no fundamental right is implicated, it is sufficient that the regulation is
rationally related to the government's legitimate interest. Ibid.
23 A-2814-17T2 In sum, the federal equal protection and due process doctrines both require
heightened scrutiny only where a deprivation of a fundamental right is at stake
or a suspect class is involved. Otherwise, a mere rational basis standard applies.
Defendant acknowledges the fundamental right to liberty is extinguished
by a valid conviction. He nonetheless requests this court adopt a new, more
demanding standard of judicial scrutiny for situations like this, where a
defendant's liberty interest allegedly is at stake. We reject that invitation.
Defendant's brief essentially blends together his due process and equal
protection arguments. To advance his contentions, defendant invokes not only
the United States Constitution but also cognate aspects of the New Jersey
Constitution.
Within the New Jersey Constitution, the principles of both equal
protection and due process derive from the same constitutional language, which
states: "All persons are by nature free and independent, and have certain natural
and unalienable rights, among which are those of enjoying and defending life
and liberty, of acquiring, possessing, and protecting property, and of pursuing
and obtaining safety and happiness." N.J. Const. art. I, ¶ 1.
Article I does not contain the terms "equal protection" or "due process."
However, "it is well settled that the expansive language of that provision is the
source for both of those fundamental [state] constitutional guarantees."
24 A-2814-17T2 Sojourner A. v. N.J. Dep't of Human Servs., 177 N.J. 318, 332 (2003) (quoting
Planned Parenthood of Cent. N.J. v. Farmer, 165 N.J. 609, 629 (2000)).
The analysis of due process and equal protection under the New Jersey
Constitution slightly differs from analysis of those fundamental rights under the
United States Constitution. Greenberg v. Kimmelman, 99 N.J. 552, 567 (1985).
Starting with the New Jersey Supreme Court's decision in Robinson v. Cahill,
62 N.J. 473, 491-92 (1973), the Court began to develop an independent analysis
of state constitutional rights under Article I, Paragraph 1, that "rejected two -
tiered equal protection analysis . . . and employed a balancing test in analyzing
claims under the state constitution." Greenberg, 99 N.J. at 567 (quoting
Taxpayers Ass'n of Weymouth Twp. v. Weymouth Twp., 80 N.J. 6 (1976)). That
balancing test considers "the nature of the affected right, the extent to which the
governmental restriction intrudes upon it, and the public need for the
restriction." Ibid. (citing Right to Choose v. Byrne, 91 N.J. 287, 308-09 (1982)).
In later cases, the Court at times has applied traditional federal tiers of
scrutiny to an equal protection analysis, instead of a balancing test. "Where a
statute does not treat a 'suspect' or 'semi-suspect' class disparately, nor affect a
fundamental right [including a liberty interest], the provision is subject to a
'rational basis' analysis." State v. Lagares, 127 N.J. 20, 34 (citing Dandridge v.
Williams, 397 U.S. 471 (1970)). Under this analysis, the government action
25 A-2814-17T2 only must be "rationally related to the achievement of a legitimate state interest."
Ibid. (citing Byrne, 91 N.J. at 305); see also Lewis v. Harris, 188 N.J. 415, 443
(2006).
Although the terms of the balancing test and the tiered-scrutiny test differ,
the Court in Sojourner, pointed out that "although our mode of analysis [under
the New Jersey Constitution] differs in form from the federal tiered approach,
the tests weigh the same factors and often produce the same result." 177 N.J. at
333 (citing Barone v. Dep't of Human Servs., 107 N.J. 355, 368 (1987)).
Bearing in mind these various doctrinal tests, we are satisfied the 180-day
mandatory minimum jail term prescribed by N.J.S.A. 2C:40-26 does not violate
due process or equal protection principles under either the United States or New
Jersey Constitutions. As defendant concedes, driving on public roadways, while
an important privilege for eligible persons, is not a "fundamental" right. Under
the federal constitution, strict scrutiny review does not apply here. See San
Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).
Nor are persons such as defendant who have had their driving privileges
revoked due to multiple previous DWIs offenses a "suspect" class. Ibid. To the
contrary, their classification by the Legislature as a distinctive group of
wrongdoers is rational and manifestly justified. It is not fundamentally unfair
to treat them differently than other motorists who are caught driving without a
26 A-2814-17T2 valid driver's license. Their recidivist behavior can be punished more severely,
no matter which "tier" of federal scrutiny is applied to the statute. Likewise, we
discern no grounds to afford such motorists greater protection under our State
In sum, we concur with the trial judge in rejecting defendant's due process
and equal protection arguments, under both federal and state law.
C.
Lastly, we briefly consider defendant's claim that the Legislature intended
N.J.S.A. 2C:40-26 to repose judges with discretion to abate the 180-day
minimum jail sentence mandated by the terms of the statute. Defendant cites to
audio portions of the legislative hearings, arguing they reflect a desire on the
part of individual legislators to afford such sentencing discretion.
This argument of statutory interpretation is unavailing. The terms of the
statute are clear on their face, and there is no reason to consult extrinsic sources
to divine their meaning. State v. Harper, 229 N.J. 228, 237-38 (2017).
Further, defendant's claims about the non-discretionary nature of the 180-
day minimum penalty are dispelled by the Court's recent opinion in Rodriguez,
238 N.J. at 105, which strictly enforced the 180-day jail requirement and held
the sentence cannot be served in intermittent stretches. As the Court highlighted
in Rodriguez, the statute calls for a mandatory "fixed" period of incarceration.
27 A-2814-17T2 Id. at 116-17. There is simply no interpretative basis for a sentencing judge to
have the discretion to impose a lesser sanction.
III.
For all of these reasons, defendant's arguments to avoid the mandatory
180-day custodial sentence under N.J.S.A. 2C:40-26 are rejected. The trial
court's sound decision is affirmed.
To the extent we have not mentioned them explicitly, defendant's
remaining contentions lack sufficient merit worthy of discussion. R. 2:11-
3(e)(2).
The stay of defendant's sentence is vacated, effective in twenty days,
during which time counsel and the trial court shall make arrangements for
defendant to begin serving his mandated sentence.
Affirmed.
28 A-2814-17T2