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State v. Davis

Decided: April 26, 1967.

STATE OF NEW JERSEY, PLAINTIFF,
v.
LEVI DAVIS, DEFENDANT



Kwalick, J.c.c.

Kwalick

Is defendant a first or second offender within the intendment of N.J.S.A. 39:4-50*fn1 which interdicted drunken driving? The degree of punishment hinges on the answer.

Defendant was charged with commission of that offense on June 2, 1966 and pronounced guilty in the municipal

court and, on appeal, after a trial de novo in this court. He had not been previously convicted in New Jersey. However, four years ago he was similarly accused and convicted in Pennsylvania.

The magistrate deemed the Pennsylvania incident "a previous violation," adjudged defendant a second offender, and invoked the mandatory penalty: three months' imprisonment and forfeiture of driving privileges for ten years. His ruling, supported by the observation that "An inebriate behind the wheel is just as dangerous on the highway * * * whether his first conviction was in a sister state or New Jersey", while laudable lacks legislative as well as judicial sanction.

Absent a resolvent reported decision by the courts of this State, resort is had to those of other tribunals.

In State v. Cardin, 102 N.H. 314, 156 A. 2 d 118 (Sup. Ct. 1959), it was held that a prior Massachusetts conviction of operating a motor vehicle while under the influence of intoxicating liquor could not be considered a first or prior offense in determining whether a second or subsequent similar offense was committed in New Hampshire.

The leading case in point, followed in Cardin, is People v. Pardee, 202 Misc. 238, 117 N.Y.S. 2 d 515 (Cty. Ct. 1952), affirmed without opinion, 282 App. Div. 735, 122 N.Y.S. 2 d 902 (App. Div. 1953), affirmed on further appeal without opinion, 306 N.Y. 660, 116 N.E. 2 d 495 (Ct. App. 1953); 24B C.J.S. Criminal Law "Place of Former Conviction", § 1960(4), p. 458 (1962); 7 Am. Jur. 2 d Automobiles and Highway Traffic, § 262, p. 814 (1963); 1 A.L.R. 2 d Later Case Service 550 (1965), supplementing Annotation, "What constitutes former 'conviction' within statute enhancing penalty for second or subsequent offense," 5 A.L.R. 2 d 1080 (1949).

Pardee had been convicted in Connecticut of driving while drunk. Thereafter he was charged with a like offense in New York whose laws denounced as a misdemeanor, the operation of a motor vehicle by an intoxicated person, and as a felony

such operation by a previously convicted intoxicated person. A felony indictment was returned and Pardee moved to dismiss. In granting the motion the trial court held (117 N.Y.S. 2 d, at p. 517): "If the quoted statute be intended to prescribe a penalty by reason of a prior conviction in another state, that end should be accomplished by an act of the Legislature expressing such an intent and not by judicial interpretation."

Defendant in Thorp [ad] v. State, 96 Okla. Crim. 135, 250 P. 2 d 66 (Crim. Ct. App. 1952), pleaded guilty in Texas to drunken driving in that state and two months later was arrested for a similar offense in Oklahoma. Under Oklahoma's statute an intoxicated driver of a motor vehicle "on any highway within this State" is "deemed guilty of a misdemeanor for the first offense" and "guilty of a felony" upon conviction of a second offense "under the provisions of this Act." Thorp was convicted as a second offender. The appellate court reversed and directed ...


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