For affirmance -- Justices Mountain, Sullivan, Pashman and Schreiber and Judges Conford, Kolovsky and Halpern. For reversal -- None. The opinion of the Court was delivered by Halpern, P.J.A.D., Temporarily Assigned.
[69 NJ Page 34] The narrow issues presented on this appeal are (1) whether the mandatory jail term of the proviso contained in N.J.S.A. 39:3-40*fn1 applies to a defendant whose driver's license has been suspended but who admittedly did not cause an automobile accident which resulted in injuries, and (2) if it does, whether such mandatory jail term is cruel or unusual punishment and violative of the due process or equal protection requirements of the United States Constitution.
The stipulated facts are fully detailed in State v. Fearick, 132 N.J. Super. 165 (App. Div. 1975), and will not be repeated herein at length. The pertinent portions thereof, relevant to a disposition of this appeal, may be briefly summarized. Defendant, Robert Fearick, suffers from recurring episodes of epilepsy. The Commissioner of Motor Vehicles, pursuant to authority granted by N.J.S.A. 39:3-10.4, et seq., suspended his driving privileges in New Jersey effective November 3, 1973. On January 13, 1974, while the suspension was still operative, he drove a car which was involved in an accident resulting in personal injuries to himself and a number of other persons. The State stipulated that except for driving while his license was suspended, defendant was entirely without fault in causing the accident.
Based on these facts, defendant pleaded guilty in the Livingston Township Municipal Court to violating N.J.S.A. 39:3-40, but reserved his right to contest the mandatory jail term in the proviso of the statute. He was sentenced to the Essex County Correctional Center for a term of 45 days, fined $200 and assessed costs of $10. The sentence was stayed pending appeal.
The Essex County Court, on a de novo appeal on the record below, imposed the same fine and costs, but imposed no custodial sentence. The trial judge determined that the imposition of a prison term rested in his sound discretion, and since the accident was not caused by any fault attributable to defendant, he saw fit not to confine him. On appeal, the Appellate Division modified the County Court's judgment by reinstating the 45 day prison term imposed by the Municipal Court. This Court granted defendant's petition for certification, 68 N.J. 143 (1975), and stayed the sentence pending this appeal.
We have reviewed the entire record and are in substantial accord with the comprehensive views expressed by the Appellate Division that N.J.S.A. 39:3-40, under the factual circumstances existing in this case, mandates the imposition of the minimum 45 day prison sentence even though
the accident was not the fault of or caused by defendant. We also agree that the statute is constitutionally unassailable. However, some supplemental observations are called for in light of the arguments made by defendant.
Defendant argues that the Legislature never intended, by the adoption of the proviso in N.J.S.A. 39:3-40, to mandatorily imprison a victim of epilepsy, albeit he was driving while his license was suspended, merely because he was involved in an accident wherein injuries resulted, when he was completely free of fault for the accident. To buttress his argument he points to that portion of the Appellate Division's decision which held:
The statute is designed to deter persons whose driver's licenses have been suspended or revoked from driving upon the public highways of the State. Protection of the public is the paramount consideration. It is not accurate to say that the Legislature has chosen to inflict punishment upon blameless individuals. Rather, the Legislature has chosen to recognize the occurrence of an accident in which someone is injured as an aggravating circumstance which justifies the imposition of a greater sanction. State v. Pickens, 124 N.J. Super. 193, 196-197 (App. Div. 1973), certif. den. 63 N.J. 581 (1973). (132 N.J. Super. at 168-169).
He argues that the use of the term "aggravating circumstance" presupposes that defendant must of necessity be at fault to "justify" the imposition of the jail term. The argument lacks substance. It is crystal clear that the Appellate Division adopted the reasoning and language used in State v. Pickens, supra, and used the term "aggravating circumstance" to indicate that if defendant had complied with the law, and refrained from driving on the highway, this particular accident would never have occurred. Fault played no part in the court's use of the term "aggravating circumstance." The "aggravating circumstance" referred to by the court is the fact that defendant violated the law by driving a car when he should not have, and injury resulted therefrom.
In like vein, defendant argues that the statutory words "* * * involved in an accident ...