For affirmance and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the Court was delivered by Francis, J.
Upon her plea of guilty, defendant Kathy Smith was convicted in the Middlesex County District Court of the unlawful use of a narcotic drug, i.e., marihuana, in violation of N.J.S.A. 2A:170-8. Under the statute such an infraction was a disorderly person offense, and on March 26, 1970, pursuant to N.J.S.A. 2A:169-4, the trial court imposed a fine of $25 and a suspended six months workhouse sentence accompanied by an order placing her on probation for one year. In addition, acting under the legislative mandate of N.J.S.A. 2A:170-8, the court suspended her motor vehicle driver's license for one year and thereafter until the Director of Motor Vehicles, after a hearing, decides that she is no longer a drug user. An appeal was taken to the Appellate Division from the part of the judgment which suspended the driver's license, and the suspension was stayed pending the review. We certified the appeal on our own motion before it was argued there.
In seeking a reversal, defendant contends that the portion of N.J.S.A. 2A:170-8 (since repealed) which prescribed the mandatory license forfeiture was unconstitutional in that it violated the equal protection and due process requirements of the Fourteenth Amendment of the United States Constitution. We see no such infirmity in the statute, but for reasons to be stated we remand the cause to the court below for reconsideration of the sentence.
At the time of sentence the pertinent portion of N.J.S.A. 2A:170-8 provided:
Any person who uses or who is under the influence of any narcotic drug, as defined in article 1 of chapter 18 of Title 24 of the Revised Statutes (Food and Drugs), the uniform narcotic drug law, for a purpose other than the treatment of sickness or injury as
prescribed or administered by a person duly authorized by law to treat sick and injured human beings, is a disorderly person.
In addition to the general penalty prescribed for disorderly conduct pursuant to section 2A:169-4 of this Title, every person adjudged a disorderly person for a violation of this section shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of his conviction and until such privilege shall be restored to him by the Director of Motor Vehicles upon application to and after a hearing and determination by, the director that such person is no longer a user of drugs within the meaning of this section.
Defendant contends that the mandatory suspension of her driver's license for a year upon conviction for a single incident of use of marihuana, when the illegal use was unconnected with the operation of an automobile, invidiously discriminated against her and thus denied her equal protection of the laws contrary to the Constitution. Particularizing, she points out that certain users were excluded from the operation of the statutory penalty, i.e., individuals using marihuana for the treatment of "sickness or injury as prescribed or administered by a person duly authorized by law to treat sick and injured human beings" without regard to whether the license holder used the prescribed or administered narcotic drug before or while driving a motor vehicle. She notes further that other more grievous violators of the narcotics law, i.e., possessors and sellers were not subject to the automatic suspension mandate. N.J.S.A. 24:18-4, 47.
We accept the principle that in the administration of criminal justice no person can be subject to a greater or different punishment for an offense than that to which others of the same class are subjected. However, equal protection is not denied because a penal statute might have gone farther than it did or might have included some persons or classes of persons who were excluded. The need for a particular or an additional sanction in one area may appear to the legislative mind in different dimensions and proportions
-- as more acute in one situation than in another. The constitutional prescription for equal protection does not mean that a designated sanction must reach or be imposed upon every class of violators of the narcotics laws to which it might be applied -- that the Legislature must punish or regulate all such persons in precisely the same way or not at all. The Legislature has wide discretion in the creation or recognition of different classes of offenders for separate treatment. In pursuing a legitimate objective, it may recognize degrees of harm or possible harm and strike at what it feels more urgently needs repression. If there is some reasonable basis for the recognition of separate classes, and if the disparate treatment of the classes has a rational relation to the object sought to be achieved by the lawmakers, the Constitution is not offended. The transgression arises only when the classification rests upon grounds wholly irrelevant to achievement of the State's objective; the separate treatment must admit of but one conclusion beyond a rational doubt, i.e., that the basis therefore is arbitrary and unreasonable and without relevance to the legislative goal. State v. Young, 57 N.J. 240, 249-250 (1970); New Jersey Chap., American Institute of Planners v. N.J. State Bd. of Prof. Planners, 48 N.J. 581, 601-603, appeal dismissed 389 U.S. 8, 88 S. Ct. 70, 19 L. Ed. 2d 8 (1967); David v. Vesta Co., 45 N.J. 301, 314-315 (1965).
Applying the general test described, we find no difficulty in rejecting defendant's claim of invidious discrimination. Obviously, there is a difference in degree of transgression of the criminal and moral code between those who are merely users of narcotics on the one hand and those who are possessors and sellers of them on the other. The user is ordinarily the victim, potential or actual, of the other two classes of offenders, and although he is legitimately subject to punishment according to the nature of his transgression, and subject to regulation of his conduct in respect to the possible danger to the public his use of the narcotic [58 NJ Page 208] may create, it cannot be regarded as unreasonable for the Legislature in prescribing sanctions to separate him from the more flagrant violators. That the Legislature regarded the user differently from the possessor and the seller, and the former a less heinous offender than the latter two is plain. Sellers of "narcotics" over 21 years of age were guilty of a high misdemeanor punishable by a fine of not less than $2,000 or more than $10,000 and by imprisonment for not less than two years or more than life. Possessors and, apparently, sellers under 21 were also guilty of a high misdemeanor and subject, for the first offense, to imprisonment for a term of not less than two years or more than 15 years and to a fine not exceeding $2,000. N.J.S.A. 24:18-47; see now N.J.S.A. 24:21-19, 20. In addition, any motor vehicle used in or in connection with any such violations was subject to forfeiture. N.J.S.A. 24:18-38.1-38.3 (now repealed, L. 1970, c. 226, § 47; see L. 1970, c. 226, § 35b (4)); see Ben Ali v. Towe, 30 N.J. Super. 19 (App. Div. 1954); Van Oster v. Kansas, 272 U.S. 465, 47 S. Ct. 133, 71 L. Ed. 354 (1926); United States v. One 1962 Ford Thunderbird, 232 F. Supp. 1019 (N.D. Ill. 1964); but cf. Commercial Credit Corp. v. Congleton, 21 N.J. Super. 88 (Cty. Ct. 1952). Moreover, under the Motor Vehicle Act any person who operated a motor vehicle on a highway while knowingly having in his possession or in the motor vehicle any narcotic drug as defined in N.J.S.A. 24:18-2, without a valid written prescription, was subject ...