Porreca, J.c.c. Temporarily Assigned.
[154 NJSuper Page 114] These are four appeals from four separate sentences imposed by the municipal courts of Downe Township and Upper Deerfield Township after the courts found defendants guilty of violating N.J.S.A. 39:4-50. Each of the four defendants contends that the trial judge erred in holding him to be a subsequent offender under the statute (N.J.S.A. 39:4-50) as amended by L. 1977, c. 29, effective May 25, 1977, by reason of his conviction under the statute prior to this amendment. The issue before this court on appeal is whether a defendant convicted for driving a motor vehicle while impaired by the consumption of alcohol (N.J.S.A. 39:4-50(b) of the statute prior to the 1977 amendment) should be deemed to be convicted of a prior violation of the current statute and thus sentenced as a subsequent offender. This court holds that the subsequent offender provision was properly invoked.
Defendants now before this court are Phillips, Seay, Smith and Welden. A statement of the essential facts respecting each is in order.
Phillips: On March 22, 1977 defendant Phillips was convicted of a violation of N.J.S.A. 39:4-50(b) under the statute as it existed prior to the 1977 amendments -- driving a motor vehicle while his ability was impaired by the consumption of alcohol. The date of the offense was December 4, 1976. In accordance with N.J.S.A. 39:4-50.7 defendant requested to be sentenced under the provisions of the current statute. On June 7, 1977 he was sentenced under the current statute as a second offender because he had been convicted in 1967 of driving a motor vehicle while his ability was impaired by the consumption of alcohol, in violation of N.J.S.A. 39:4-50(b).
Seay: On April 9, 1977 defendant Seay was arrested and charged with violating N.J.S.A. 39:4-50(b), operating a motor vehicle while his ability was impaired by the consumption of alcohol. On June 7, 1977 he pleaded guilty and requested to be sentenced under the current statute. He was sentenced as a second offender by reason of a prior conviction in May 1977 when he was found to have violated N.J.S.A. 39:4-50(b) under the prior statute.
Smith: On June 15, 1977 the defendant Smith was found guilty of driving a motor vehicle while under the influence, N.J.S.A. 39:4-50(a). The date of the offense was April 8, 1977. Defendant requested to be sentenced in accordance with the penalties of the current statute. He was sentenced as a third offender because he had two prior convictions under the drinking-driving law as it existed before the 1977 amendments. One conviction was for driving a motor vehicle while under the influence of intoxicating liquor, N.J.S.A. 39:4-50(a), and the other was for driving a motor vehicle while his ability was impaired, N.J.S.A. 39:4-50(b).
Welden: Defendant Welden was arrested on February 5, 1977 and charged with driving a motor vehicle while under the influence of alcohol, in violation of N.J.S.A. 39:4-50(a).
On March 16, 1977, he was convicted as charged; however, the imposition of a sentence was deferred until after May 25, 1977, the effective date of the current statute. Defendant was sentenced as a third offender because he had been convicted on two prior occasions of driving a motor vehicle while his ability was impaired, N.J.S.A. 39:4-50(b).
This issue arises because N.J.S.A. 39:4-50, as it existed before the 1977 amendments, provided for two types of offenses respecting the operation of a motor vehicle after a defendant had consumed alcohol. Subsection (a) of that statute concerned the more serious offense of driving while under the influence of intoxicating liquor, while subsection (b) was directed at the lesser offense of driving while ability was impaired by the consumption of alcohol. This statute as amended in May 1977 eliminates the (a) and (b) distinctions and provides for a single drinking-driving offense.
Defendants contend that the Legislature could not have intended a subsection (b) violation to be considered by the courts as a prior conviction when sentencing under the current statute, and to hold otherwise would be a violation of both the New Jersey and Federal Constitutions which prohibit the passage of ex post facto laws. Defendants argue that when the Legislature passed the current statute it abolished the two drinking-driving offenses which distinguished between an (a) violation, "under the influence," and a (b) violation, "impaired," and retained only the (a) violation. Defendants seek support for this contention in the fact that the Legislature retained language substantially similar to that of the prior subsection (a) violation, to wit, "under the influence."
An equal argument can be advanced supporting the abolition of the (a) offense and the retention of the (b) offense on the ground that the BAC% (blood alcohol content) standard and presumptions in the current statute (N.J.S.A. 39:4-50.1) are those amounts applicable to the (b) offense of the prior statute (N.J.S.A. 39:4-50.6).
Both of these arguments must fail. If the Legislature intended to retain one of the prior ...