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State v. Culbertson

Decided: February 1, 1978.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GEORGE CULBERTSON, DEFENDANT-APPELLANT



Lynch, Bischoff and Kole. The opinion of the court was delivered by Bischoff, J.A.D.

Bischoff

The sole issue presented by this appeal is whether a defendant, convicted of operating a motor vehicle while under the influence of intoxicating liquor, who is sentenced pursuant to the recent amendments of N.J.S.A. 39:4-50 (L. 1977, c. 29, § 1), effective in May 1977, can be sentenced as a second or subsequent offender based on a prior conviction for impaired operation under N.J.S.A. 39:4-50(b).

This issue arises because the 1966 amendment to N.J.S.A. 39:4-50 (L. 1966, c. 141, § 1) distinguished between operating "a motor vehicle while under the influence of intoxicating liquor" (N.J.S.A. 39:4-50(a)) and operating a motor vehicle while the ability to do so "is impaired by the consumption of alcohol" (N.J.S.A. 39:4-50(b)).

The 1977 amendment deleted all reference to the separate offense of impaired operation and treats all violations of the statute as "operating a motor vehicle while under the influence of intoxicating liquor * * *." [ N.J.S.A. 39:4-50, as amended, L. 1977, c. 29, § 1.]

Defendant was arrested on March 18, 1977 and charged with "driving while drunk," in violation of N.J.S.A. 39:4-50. He entered a plea of guilty on May 26, 1977 and consented to be sentenced under the statute in effect at that time. L. 1977, c. 29, § 7.

Defendant had been convicted in 1973 of operating a motor vehicle while his ability to do so was impaired, contrary to N.J.S.A. 39:4-50(b), and he was accordingly sentenced in municipal court as a second offender. He appealed to the County Court, where he was again sentenced for a second violation of the statute.*fn1

Defendant again appeals, contending that a conviction of operating while his ability to do so was impaired under the statute as it existed prior to the 1977 amendment (N.J.S.A. 39:4-50(b)) is not such a conviction as makes the "second or subsequent offender" provision operative under the statute as it now exists.

Defendant argues that his prior conviction was not for a violation "of this section" but of a statute which has since been repealed, and relies on the case of State v. Davis , 95 N.J. Super. 19 (Cty. Ct. 1967).

This argument is without merit. In State v. Davis defendant was convicted of drunken driving and was sentenced as a second offender because he had previously been convicted of drunk driving in Pennsylvania, though he had no prior convictions in New Jersey. On appeal to the County Court, the second offender conviction was reversed and defendant was sentenced as a first offender.

The court there held that in the absence of an express statement in the statute to the contrary, "a conviction under the laws of another State can have no effect by way of penalty beyond the limits of the State in which the judgment is rendered." Here, both convictions of defendant Culbertson are for violations of the statutes of this State.

Defendant also argues that the case of State v. Sturn , 119 N.J. Super. 80 (App. Div. 1972), certif. den. 61 N.J. 157 (1972), is authority for his contention that he is ...


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