McGann, Patrick J. Jr., J.s.c., Temporarily Assigned.
Defendant-appellant Bowman challenges his sentencing by the Municipal Court of the Borough of Belmar as a second offender under § 2 of the Compulsory Motor Vehicle Insurance Law (N.J.S.A. 39:6B-2.)
On May 31, 1974 Bowman was charged in the Borough of Brielle with operating a motor vehicle without having the motor vehicle liability insurance coverage required by N.J.S.A. 39:6B-1. On June 2, 1974, in the Borough of Belmar, he was again issued a summons charging him with the same violation. On June 26, 1974 he pled guilty to the first violation and was fined. On August 28, 1974 he pled guilty to the second violation and was sentenced as a second offender to 90 days in the county jail plus costs of $15. It is his status as a second offender that he contests on this appeal.
N.J.S.A. 39:6B-2 in pertinent parts reads as follows:
Any owner * * * of a motor vehicle registered * * * in this State who operates * * * a motor vehicle upon any public road or highway in this State without motor vehicle liability insurance coverage required by this act * * * shall be subject, for the first offense, to a fine of not less than $50.00 nor more than $200.00 or imprisonment for a term of not less than 30 days nor more than 3 months or both,
in the discretion of the municipal judge, and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of 6 months from the date of conviction. Upon subsequent conviction, he shall be imprisoned for a term of 3 months and shall forfeit his right to operate a motor vehicle for a period of 2 years from the date of his conviction. * * *
A literal reading of the statute justifies the action of the municipal judge. The plea of guilty before him was a "subsequent conviction" for the same offense. Defendant-appellant argues that the rather severe penalty mandated by the statute is not deserved or legally appropriate. In his view "subsequent conviction" must be expanded to read "subsequent conviction of an offense which took place after a prior conviction for the same offense". He argues that such interpretation accords with a fundamental sense of justice and points to State v. Johnson, 109 N.J. Super. 69 (App. Div. 1970), as supporting that rationale.
The State agrees that the Johnson case does generally support that rationale, but distinguishes Johnson as applicable only to a criminal proceeding. The proper approach, in the State's view, is that set forth in the drunken driving cases, N.J.S.A. 39:4-50(a), to wit, State v. Guiendon, 113 N.J. Super. 361 (App. Div. 1971); State v. Cain, 107 N.J. Super. 215 (Cty. Ct. 1969), and State v. Deckert, 69 N.J. Super. 105 (1961). It argues that since the instant case involves an offense under the Motor Vehicle Act, the stricter and more literal construction of "subsequent violator" made in the above cited cases logically should be applied here.
In State v. Johnson, supra, defendant was sentenced as a second offender under the Narcotic Drug Law, for an offense which occurred prior to his first conviction. The statute involved provided that "for a second offense" the accused would be liable to enhanced punishment. The options available in construing legislative intent were expressed as follows by the court:
If the statute is considered as essentially punitive and repressive, then it may be argued that it is the mere commission of the offense
that is critical, and enhanced punishment would therefore be justified. On the other hand, if one accepts the more modern view that our system of criminal justice is aimed equally at rehabilitating offenders, then it would not be appropriate to sentence an accused as a second offender before he had had an opportunity to amend ...