NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0952-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL J. REILLY,
Defendant-Appellant. _______________________
Argued November 16, 2020 – Decided March 3, 2021
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 08-19.
Thomas Cannavo argued the cause for appellant (The Hernandez Law Firm, PC, attorneys; Thomas Cannavo, of counsel and on the brief).
Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (Scott A. Coffina, Burlington County Prosecutor, attorney; Alexis R. Agre, of counsel and on the brief).
PER CURIAM Defendant appeals from the Law Division's order entered after a de novo
trial on the record. The Law Division found defendant guilty of driving while
intoxicated (DWI), N.J.S.A. 39:4-50, DWI with a minor in the motor vehicle,
N.J.S.A. 39:4-50.15; possessing an open container of an alcoholic beverage in a
motor vehicle, N.J.S.A. 39:4-51b; and delaying traffic, N.J.S.A. 39:4-56. We
affirm.
We derive our facts from the testimony elicited at trial. On November 22,
2017, at approximately 10:37 p.m., Medford Township police officer John
Sabados was on duty as a patrolman when he received a call reporting a car
parked in an intersection "for a long period of time with loud music." Sabados
responded to the scene and saw an SUV parked in an intersection, approximately
ten feet past a stop sign. The engine was running, its lights were on, and there
was loud music coming from the vehicle. Sabados could see the driver, later
identified as defendant, "looking down or slouched down."
Sabados parked his police car behind the SUV and activated the
emergency lights on his vehicle. 1 The officer got out of his car and approached
the driver's side of defendant's car. As he stood at the driver's side window,
1 This also activated the Motor Vehicle Recording (MVR) in Sabados's car. The MVR was part of the record reviewed by this court. A-0952-19 2 Sabados observed defendant looking down at his cell phone in his lap. Sabados
knocked on the window several times before defendant noticed him. The officer
described defendant as "shocked" and then he lowered his window a few inches.
Sabados saw a "small child" in a car seat in the backseat of defendant's
car, and a "half empty" "pint-size, 750 milliliter" bottle of Fireball whisky was
in the front center console. Sabados stated he "detected the odor of alcoholic
beverage emanating from the vehicle." Defendant said the whisky belonged to
his fiancée, who he had recently dropped off at their home after an argument .
Afterwards, defendant stated he went for a drive with his daughter to cool off.
When Sabados asked defendant for certain documents, defendant
"fumbled" to remove his license, taking a period of time to produce it. He
eventually gave the officer the registration for a different vehicle and an expired
insurance card. Defendant told Sabados he had gone to dinner with his fiancée
earlier in the evening where he consumed two or three drinks. Sabados noted
defendant's slurred speech and bloodshot eyes.
Sabados then asked defendant to exit his car and walk to the front of the
police car to perform standardized field sobriety tests. To perform a horizontal
gaze nystagmus test, Sabados instructed defendant to follow a pen using only
his eyes and not to move his head. Sabados said defendant moved his head to
A-0952-19 3 follow the pen several times. Sabados also detected the odor of alcohol
emanating from defendant's mouth as he stood next to him.
Before conducting a walk-and-turn test, Sabados asked defendant if he
had any issues with his legs which would affect his ability to walk or stand in a
straight line. Defendant responded that he had no cartilage in his right leg,
which affected his ability to both bend and walk.
The officer instructed defendant to put his left foot in front of his right
foot with his hands down at his sides, demonstrating the position for him. He
also asked defendant to take nine heel-to-toe steps forwards and nine steps
backwards along an imaginary line. Defendant failed to keep his hands down at
his side, failed to walk heel-to-toe, failed to properly turn, and stepped off the
imaginary line multiple times. 2
Prior to conducting the one-leg stand test, Sabados again inquired whether
defendant had any injuries that would affect his ability to stand on one leg.
When defendant indicated he had a bad leg, Sabados asked whether standing on
the other leg would help defendant and defendant replied "yes". Sabados then
instructed defendant to stand with his feet together with his arms down at his
2 A review of the MVR shows defendant unable to maintain his balance while performing this test. A-0952-19 4 sides. Sabados told defendant to lift the leg of his choice, directly in front of
him, six inches above the ground, and, while staring at his raised foot, to count
out loud until the officer instructed him to stop. Sabados again demonstrated
the proper position.
Defendant attempted to perform the test by lifting his right leg. In doing
so, he swayed, put his foot down several times, failed to keep his arms at his
sides, failed to look at his raised foot, and slurred his speech while counting. At
one point, defendant stated he had a bad knee. In light of his observations and
defendant's inability to perform the field sobriety tests, Sabados concluded
defendant was unfit to operate a motor vehicle and arrested him for DWI.
Once defendant was seated in the back of the police car, Sabados noted
the strong odor of alcohol. He also detected the odor of alcohol emanating from
defendant's mouth once he was brought to the police station.
Defendant was tried on the DWI and other related charges in municipal
court on two days in January and March 2019. The Alcotest results were ruled
inadmissible because of a break in the officers' direct observation of defendant
prior to the administration of the test. The State presented Sabados as its
witness.
A-0952-19 5 Kevin Flanagan, a former State Trooper, was qualified as an expert in the
administration of field sobriety tests. Flanagan opined that Sabados did not
instruct defendant properly regarding the tests. He also stated that defendant's
orthopedic condition with his knee would cause him pain and his obesity might
cause him difficulty in performing the tests. On cross-examination, Flanagan
conceded that defendant failed the tests and it was only possible that his physical
condition affected his performance.
Defendant also introduced testimony from Dr. Lawrence Guzzardi, M.D.,
qualified as an expert in the areas of emergency medicine, medical toxicology,
and orthopedic trauma. Dr. Guzzardi testified that he reviewed a medical record
that indicated defendant had sustained a metatarsal fracture in his right foot in
2011. In addition, Dr. Guzzardi stated he reviewed chiropractic records from
March 2014 in which defendant complained of back pain and stiffness, and hip
and rib cage discomfort. An MRI of the lower spine in 2014 revealed bulging
discs.
Dr. Guzzardi also testified regarding his review of additional records in
2014 in which defendant was diagnosed with a degenerative condition – a
meniscal tear in his right knee. Although the meniscus was repaired, Dr.
Guzzardi stated defendant continued to have recurring pain and swelling in the
A-0952-19 6 knee. Dr. Guzzardi opined that defendant's orthopedic issues and obesity
adversely impacted his ability to complete the field tests.
Dr. Guzzardi also stated that the video footage of defendant's arrest did
not conclusively establish defendant's intoxication. He opined that defendant's
initial slurring was not due to intoxication because defendant's speech returned
to normal at a rate faster than alcohol dissipates. Guzzardi expressed his belief
that defendant's slurred speech was due to being suddenly awakened by Sabados.
On cross-examination, Dr. Guzzardi admitted he did not examine
defendant at any time. He also conceded he did not know the condition of
defendant's knee or back at the time of defendant's arrest. Although the doctor
agreed defendant exhibited signs of impairment on the MVR, he found there
were other explanations for his demeanor and behavior other than alcohol
intoxication.
On May 1, 2019, the municipal court judge issued an oral decision. He
initially advised that he found all of the witnesses to be credible. Having
reviewed the videotape, the judge noted that when Sabados arrived at the scene,
defendant's car was parked in the middle of an intersection. There was very loud
music coming from the interior of the car and defendant did not respond to the
police car's overhead lights or the initial knocks on the window.
A-0952-19 7 The judge found defendant was unable to maintain his balance and had
"significant slurring" of his speech. Although the judge noted defendant told
Sabados he had orthopedic issues with his right knee, he nevertheless had
trouble performing the field sobriety tests that appeared unrelated to any
problems with his knee. The judge concluded that "given the totality of the
circumstances, [and] all of the observations," defendant was guilty of DWI, DWI
with a minor in the car, possessing an open container of alcohol in the car, and
delaying traffic.
The court sentenced defendant as a third DWI offender3 to 180 days in the
county jail, ten years' loss of driver's license with eleven years of ignition
interlock to run concurrently, forty-eight hours at the Intoxicated Driver
Resource Center, as well as a $1006 fine, and various fines and surcharges. For
the DWI with a minor in the car conviction, the judge imposed an additional six
months' loss of driving privileges to run consecutively with the suspension for
defendant's DWI conviction, as well as an additional fine and court costs. The
court stayed the jail sentence pending the outcome of the appeal.
3 This was defendant's fourth DWI offense. Defendant was convicted of two DWIs in the 1990s and when he was convicted a third time more than ten years later, he was given the benefit of the "step down" provision in N.J.S.A. 39:4- 50(a)(3). A-0952-19 8 Defendant appealed to the Law Division where the court conducted a trial
de novo on the record. On October 9, 2019, the Law Division judge issued an
oral decision, finding defendant guilty of the four charges. The judge stated:
[A]fter fully reviewing . . . several times all of the evidence, I find the State has met the burden of proof and I find beyond a reasonable doubt, and I am firmly convinced that on November 22nd at 10:37 and thereafter, [defendant] was operating a motor vehicle while under the influence of alcohol. I find from the totality of the evidence and circumstances that I am firmly convinced that [defendant] had a substantial deterioration of his physical capabilities from alcohol. And as a result, it was improper and illegal for him to operate a motor vehicle.
The Law Division judge explained his reasoning based on the officer's
observations and his own review of the MVR:
The motor vehicle, where it was and how it was stopped at the -- the amount of time[] it was stopped at an intersection, very strange. Bloodshot eyes, yes, not proof maybe, but they were noted. The odor of alcohol was clear, there was an opened container of alcohol in the motor vehicle, which [] defendant was operating.
There was slurred speech, there was some problems retrieving correct documents. There was the result of the field sobriety test, there was the video and what could be observed in that. There was a child in the car after an argument with the other member of the family. There was blaring music. . . . And [] defendant apparently was either somewhat asleep and nodding out there when awakened by the officer or he was, in fact, operating a cell phone down by his legs while seated.
A-0952-19 9 In addressing the charge for delaying traffic, the judge found:
As far as delaying traffic, I mean, it's all part of the [c]ourt's decision as to DUI and, I mean, I didn't see any traffic delay, frankly, as a fact in here, but he had the capability of doing it. But certainly, there were cars that passed by that I saw and although the [c]ourt below found him guilty of that, I find it's really part and parcel to driving under the influence.
The court imposed a similar sentence as the municipal court with three
exceptions. First, on defendant's DWI conviction, the judge offered defendant
the right to apply for a ninety-day inpatient rehabilitation program in lieu of
ninety days of incarceration. The judge also ran the six-month license
suspension for the conviction of DWI with a minor in the car concurrent, rather
than consecutive, with the ten-year license suspension under the third DWI
conviction. Finally, the judge merged defendant's delaying traffic conviction
into his DWI conviction for sentencing purposes.
Defendant argued he should be sentenced under the recently amended, but
not yet effective, DWI law. 4 In denying the application, the judge stated:
4 On August 23, 2019, N.J.S.A. 39:4-50 was amended to expand the use of ignition interlock devices and reduce the duration of license forfeitures. See DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS—IGNITION INTERLOCK DEVICES (L. 2019, c. 248); see also Administrative Directive #25-19, "Implementation of New DWI Law (L. 2019, c. 248) – Includes Expanded Use of Ignition Interlock Devices for First-Time Offenders" (Dec. 4,
A-0952-19 10 With all due respect to the various arguments, I would just say that I happen to agree that this law that is being asked to be applied is not even in effect. This is a case that goes back for two years as to the date of the allegations of the violation. I can't agree that he should be sentenced under a new law that is not in effect yet ....
The Law Division judge stayed defendant's jail sentence pending appeal to this
court.
Defendant presents the following issues on appeal:
I. THE LAW DIVISION ERRED IN FINDING DEFENDANT GUILTY OF THE OBSERVATIONAL PRONG OF THE DWI OFFENSE
II. ONCE ACQUITTED OF DWI, THEN THE N.J.S.[A.] 39:4-50.15 CONVICTION MUST ALSO RESULT IN AN ACQUITTAL
III. THERE IS INSUFFICIENT EVIDENCE IN THE RECORD OF DELAYING TRAFFIC. THUS, THE LAW DIVISION ERRED IN FINDING DEFENDANT GUILTY OF N.J.S.[A.] 39:4-56 AND DEFENDANT SHOULD THEREFOR[E] BE ACQUITTED OF THIS OFFENSE
2019). Relevant to this appeal is the reduction of license forfeiture for third DWI offenders from ten to eight years. These amendments became effective and "shall apply to any offense occurring on or after" December 1, 2019, approximately four months after enactment so that "[t]he Chief Administrator of the New Jersey Motor Vehicle Commission may take any anticipatory administrative action in advance of that date as shall be necessary to implement the provisions of this act." L. 2019, c. 248. A-0952-19 11 IV. THE LAW DIVISION ERRED IN FAILING TO SENTENCE DEFENDANT PURSUANT TO LAWS OF 2019, C. 248 AS A THIRD DWI OFFENDER SENTENCED DE NOVO AFTER THE PASSAGE OF THE ACT. THUS, IF NOT ACQUITTED OF DWI, [] DEFENDANT'S SENTENCE SHOULD BE CORRECTED TO AN EIGHT-YEAR LICENSE FORFEITURE INSTEAD OF A TEN-YEAR LICENSE SUSPENSION
A. FAILURE TO APPLY THE NEW DWI SENTENCING LAW TO THIS DEFENDANT AND ANY THIRD OFFENDER SENTENCED AFTER ITS AUGUST 23, 2019 PASSAGE[] VIOLATES DEFENDANT'S CONSTITUTIONAL EQUAL PROTECTION RIGHTS
B. EVEN IF THE EFFECTIVE DATE PROVISION OF THE NEW DWI SENTENCING LAW IS UPHELD AS CONSTITUTIONAL, AS A MATTER OF FUNDAMENTAL FAIRNESS AND INHERENT AUTHORITY OF OUR COURTS TO RETROACTIVELY SENTENCE TO AMELIORATIVE TERMS, THIS DEFENDANT AND ALL THIRD DWI AND REFUSAL OFFENDERS SENTENCED AFTER AUGUST 23, 2019 SHOULD BE SO SENTENCED UNDER THE PROVISIONS OF LAWS OF 2019, C. 248.
Defendant contends the Law Division erred in finding him guilty of DWI
because there was insufficient evidence to satisfy the required observational
prong under N.J.S.A. 39:4-50. We disagree.
Our review is "limited to determining whether the Law Division's de novo
findings 'could reasonably have been reached on sufficient credible evidence
A-0952-19 12 present in the record.'" State v. Palma, 426 N.J. Super. 510, 514 (App. Div.
2012) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
[We] defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. [T]he rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.
[State v. Locurto, 157 N.J. 463, 474 (1999) (citations omitted).]
In reviewing a trial judge's conclusions in a non-jury case, substantial
deference is given to the trial court's findings of fact. Cesare v. Cesare, 154 N.J.
394, 411-12 (1998) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474,
483-84 (1974)). These findings should only be disturbed when there is no doubt
that they are inconsistent with the relevant, credible evidence presented below,
such that a manifest denial of justice would result from their preservation. Id.
at 412. We owe no deference to the trial judge's legal conclusions. Manalapan
Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995).
N.J.S.A. 39-4:50 prohibits the operation of a motor vehicle while under
the influence of intoxicating liquor or drugs. This offense may be proven in
A-0952-19 13 either of two alternative methods: (1) proof of a defendant's blood alcohol level;
or (2) proof of a defendant's physical condition. State v. Kashi, 360 N.J. Super.
538, 545 (App. Div. 2003). "The statute does not require as a prerequisite to
conviction that the accused be absolutely 'drunk' in the sense of being sodden
with alcohol. It is sufficient if the presumed offender has imbibed to the extent
that his physical coordination or mental faculties are deleteriously affected."
State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988) (citing State v.
Emery, 27 N.J. 348, 355 (1958)).
In State v. Morris, 262 N.J. Super. 413, 416, 421 (App. Div. 1993), this
court upheld a DWI conviction, finding that slurred speech, disheveled
appearance, bloodshot eyes, alcoholic odor on breath, and abrasive demeanor
were evidence of the defendant's intoxication. See also State v. Buglione, 233
N.J. Super. 110, 112 (App. Div. 1989) (upholding DWI conviction based on the
defendant's conduct in driving his car, demeanor, bloodshot eyes, swaying, and
odor of alcohol).
Here, in his de novo review, the Law Division judge found Sabados's
testimony credible. The judge noted the officer's observations of defendant's
bloodshot eyes, the odor of alcohol in the vehicle and on defendant's breath,
defendant's slurred speech and his difficulty in retrieving documents, the blaring
A-0952-19 14 music and defendant's failure to notice the police car's overhead lights or the
officer's knocking on the window.
Moreover, the judge viewed the MVR himself and corroborated
defendant's slurred speech, difficulty retrieving his documents and his i nability
to perform the field sobriety tests. In addition, there was an open container of
alcohol in the vehicle. And, the car was stopped in an intersection for a long
period of time.
We discern no basis to disturb the Law Division judge's decision. His
findings are supported by the substantial credible evidence. He determined
under all of the circumstances that defendant was under the influence of alcohol
while driving his vehicle. Therefore, we affirm the convictions under N.J.S.A.
39:4-50 and 39:4-50.15.
Defendant also contends the Law Division erred in finding him guilty of
N.J.S.A. 39:4-56, delaying traffic. We are unconvinced.
The statute provides: "No person shall drive or conduct a vehicle in such
condition . . . as to be likely to cause delay in traffic . . . ." N.J.S.A. 39:4-56. A
reading of the plain language clearly indicates that the State need not establish
defendant's operation of his vehicle caused an actual delay in traffic, rather, only
that such operation was likely to cause a delay. See Marino v. Marino, 200 N.J.
A-0952-19 15 315, 329 (2009) (alteration in original) (quoting O'Connell v. State, 171 N.J.
484, 488 (2002)) (noting "[Courts] will not 'rewrite a plainly-written enactment
of the Legislature [or] presume that the Legislature intended something other
than that expressed by way of the plain language.'").
Here, the Law Division judge convicted defendant under the statute
because the way he operated his car "had the capability of [delaying traffic]."
The judge's conclusion was supported by the evidence in the record showing
defendant's car was parked, with the lights on and engine running, in an
intersection approximately ten feet beyond a stop sign. The MVR also shows
several cars driving through the intersection and around defendant's car. We are
satisfied there is sufficient and credible evidence in the record to support the
judge's finding that defendant's conduct was likely to delay traffic.
In challenging his sentence, defendant contends the Law Division judge
erred by not sentencing him under the amended DWI law. Again, we disagree.
On August 23, 2019, the Legislature amended N.J.S.A. 39:4-50 to expand
the use of ignition interlock devices and reduce the duration of license
forfeitures. Applicable to defendant, the amendment reduced the period of
license forfeiture for third DWI offenders from ten years to eight years.
A-0952-19 16 However, the law did not become effective until December 1, 2019 so that
"[t]he Chief Administrator of the New Jersey Motor Vehicle Commission
m[ight] take any anticipatory administrative action in advance of that date as
shall be necessary to implement the provisions of this act." L. 2019, c. 248. In
addition, the statute indicated it was applicable only to offenses that occurred
after that date.
Our Supreme Court has established "well-settled" principles governing
statutory interpretation. In re Kollman, 210 N.J. 557, 568 (2012). Under these
principles, a court's "primary goal when interpreting a statute is to determine
and carry out the Legislature's intent." Ibid. (citing Allen v. V. & A Bros., Inc.,
208 N.J. 114, 127 (2011)). This process begins with the statutory language.
Ibid. "[Courts] ascribe to the statutory words their ordinary meaning and
significance, and read them in context with related provisions so as to give sense
to the legislation as a whole." DiProspero v. Penn, 183 N.J. 477, 492 (2005)
(citations omitted). If the plain language is clear, the court's task is complete.
N. J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 549 (2012) (citation
omitted). Under the plain language of the statute, because the offense of which
defendant was convicted occurred in November 2017, he was not entitled to the
benefit of the amended law.
A-0952-19 17 We are not persuaded by defendant's argument that the trial court violated
his equal protection rights in not retroactively applying the amended law.
Specifically, defendant contends the four-month period between the law's
passage and its effective date was imposed without a rational basis.
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.
City of Cleburne v. Cleburne Living Ctr., 473 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)).
Within the New Jersey Constitution, the principle of equal protection
derives from 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 term "equal
protection." However, "it is well settled law that the expansive language of that
A-0952-19 18 provision" is the source for this "fundamental [state] constitutional guarantee[]."
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)).
An equal protection analysis under the New Jersey Constitution slightly
differs from analysis of this fundamental right under the United States
Constitution. Greenberg v. Kimmelman, 99 N.J. 552, 567 (1985). In Robinson
v. Cahill, 62 N.J. 473, 491-92 (1973), our Supreme 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, 43
(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
A-0952-19 19 'rational basis' analysis." State v. Lagares, 127 N.J. 20, 34 (1992) (citing
Dandridge v. Williams, 397 U.S. 471 (1970)). Under this analysis, the
government action 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. N.J. Dep't of Human Servs., 107 N.J. 355, 368 (1987)).
Here, the four-month period between the adoption and effective date of
the new DWI law need only pass rational basis review. The revocation of an
individual's driver's license no doubt constitutes a serious penalty; however, it
does not rise to the level of the deprivation of a fundamental right. See State v.
Hamm, 121 N.J. 109, 125 (1990). Moreover, individuals such as defendant, who
will have their licenses revoked for ten years rather than eight years for their
third DWI offense, do not constitute a "suspect" class. See Barone, 107 N.J. at
365 (citing San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973))
(defining a suspect class as one "saddled with such disabilities, or subjected to
A-0952-19 20 such a history of purposeful unequal treatment or relegated to such a position of
political powerlessness as to command extraordinary protection from the
majoritarian political process.").
In amending the DWI statute, the Legislature provided the required
rational basis for the four-month delay from the passage date until the December
1, 2019 effective date. The Legislature expressly stated the delay was imposed
so that "[t]he Chief Administrator of the New Jersey Motor Vehicle Commission
may take any anticipatory administrative action in advance of that date as shall
be necessary to implement the provisions of this act." L. 2019, c. 248.
Defendant has not established the Legislature's proffered justification for
the four-month delay was "wholly unrelated to the legislative objective." Acuna
v. Turkish, 354 N.J. Super. 500, 512 (App. Div. 2002) (citation omitted).
Therefore, defendant's equal protection argument fails.
Defendant also argues the trial court erred in not using its inherent
authority to retroactively apply the amended DWI law. He contends the
amendments to the existing DWI law were curative and/or ameliorative and thus
justify retroactive application.
Generally, the law favors prospective, rather than retroactive, application
of new legislation unless a recognized exception applies. James v. N.J. Mfrs.
A-0952-19 21 Ins. Co., 216 N.J. 552, 563 (2014). Courts must apply a two-part test to
determine if a statute should be applied retroactively: (1) whether the
Legislature intended to give the statute retroactive application; and (2) whether
retroactive application "will result in either an unconstitutional interference with
vested rights or a manifest injustice." Ibid. (citation omitted). Under the first
prong of the James test, there are three circumstances that will justify the
retroactive application of a statute: (1) where the Legislature has declared such
an intent, either explicitly or implicitly; (2) where the expectations of the parties
warrant retroactive application; and (3) where the statute is curative or
ameliorative. Matter of D.C., 146 N.J. 31, 51 (1996).
A curative law is one which "amends a previous law which is unclear or
which does not effectuate the actual intent of the Legislature in adopting the
original act." Schiavo v. John F. Kennedy Hosp., 258 N.J. Super. 380, 386 (App.
Div. 1992). The purpose of a curative amendment is merely to "remedy a
perceived imperfection in or misapplication of a statute." Ibid. The amendment
explains or clarifies existing law and brings it into "harmony with what the
Legislature originally intended." Ibid.
The term "ameliorative" "refers only to criminal laws that effect a
reduction in a criminal penalty." Street v. Universal Mar., 300 N.J. Super. 578,
A-0952-19 22 582 (App. Div.1997) (quoting Kendall v. Snedeker, 219 N.J. Super. 283, 286
(App. Div. 1987)). Further, "[e]very statutory amendment which ameliorates or
mitigates a penalty for a crime is not automatically subject to a presumption of
retroactivity. The ameliorative amendment must be aimed at mitigating a
legislatively perceived undue severity in the existing criminal law." Kendall,
219 N.J. Super. at 286 n.1.
Here, there is no evidence that the Legislature intended the amended DWI
law to apply retroactively. To the contrary, the statute clearly provided, "[t] his
act shall take effect on the first day of the fourth month after enactment and shall
apply to any offense occurring on or after that date[.]" L. 2019, c. 248. In
addition, a directive from the Administrative Office of the Courts dated
December 4, 2019 stated, "the new sentencing provisions apply only to
defendants charged with a DWI or refusal on or after December 1, 2019." 5
Moreover, this court has previously considered this argument and rejected
it on several occasions. In State v. Chambers, 377 N.J. Super. 365 (App. Div.
2005), the State appealed the court's retroactive application of N.J.S.A. 3 9:4-50
which imposed a DWI sentence enacted after the date of the offense and after
5 AOC directives are "unquestionably binding on all trial courts." State v. Morales, 390 N.J. Super. 470, 472 (App. Div. 2007). A-0952-19 23 the municipal sentence. We reversed, finding N.J.S.A. 1:1-15 prohibited the
retroactive application of a statutory amendment reducing a criminal penalty
unless the amendment expressly stated it applied retroactively. Id. at 372. We
held the amended statute was not ameliorative because the defendant incurred
the penalty under the former version of the statute at the time of the municipal
sentencing, prior to the amendment's effective date. Id. at 374-75. See also
State v. Kostev, 396 N.J. Super. 389, 391 (App. Div. 2007) (stating a defendant
is subject to the sentencing options available at the time of his or her DWI
offense); State v. Luthe, 383 N.J. Super. 512, 514 (App. Div. 2006) (stating
where the statutory mandate is clear, "we need not resort to extrinsic evidence
to discern the Legislature's intent in enacting this amendment."). Defendant has
not met the James test to apply the amended statute retroactively.
Defendant also has not demonstrated the Legislature amended the DWI
law because it was unclear or failed to effectuate the legislative intent behind
the law. Rather, the legislative findings at the beginning of the amendments
indicate the Legislature implemented the change to expand the use of ignition
interlock devices because such devices "are more effective in deterring drunk
driving than license suspension." L. 2019, c. 248. Given the absence of any
A-0952-19 24 indication that the amendment was meant to clarify the existing DWI law, it
cannot be said that the amendment was curative in nature.
Nor can the amendment be classified as ameliorative. The new law
"significantly expands" the use of ignition interlock devices. While this
expansion is accompanied by a lessening of the period of license forfeiture,
including a reduction from ten to eight years for third DWI offenders, there is
no indication that the law was amended because the Legislature perceived an
undue severity in the existing penalties for DWI convictions. There is no
suggestion that the Legislature found the previous license forfeiture period was
unduly harsh. Rather, the amendment was intended to introduce more effective
penalties. Defendant has not established any error in the trial court's decision to
decline sentencing him under the amended law.
Affirmed.
A-0952-19 25