Defendant seeks leave to appeal from interlocutory decisions of the Livingston Municipal Court which, in essence, declined to dismiss a complaint charging him with drunk driving in violation of N.J.S.A. 39:4-50 and declined to transfer the matter to the Superior Court, Law Division for jury trial. Defendant has twice previously been convicted of violating the same statute, and on this motion he attacks the provisions thereof relating to third and subsequent offenders. His motion is basically addressed to the alleged vagueness of N.J.S.A. 39:4-50, premised on the argument that it prescribes a "minimum" of 180 days imprisonment for third and subsequent offenders, but prescribes no "maximum" authorized sentence. Defendant also argues that the minimum mandatory sentence requires right to jury trial.
As noted, defendant's principal argument is that "the third offender provisions of N.J.S.A. 39:4-50 are unconstitutionally vague because of the failure to state any maximum punishment for a violation thereof." Related to this point defendant also argues that " N.J.S.A. 39:4-50 represents a complex statutory scheme of punishment, invalidity of any part of which affects
the validity of the entire statute, thus requiring that the statute be struck down in its entirety." Further, defendant contends that "even if the third offender provisions of the statute stated a fixed term, in contravention of the unambiguous language utilized by the Legislature, it would still be constitutionally mandatory for such offenses to be tried before a jury in the Superior Court, because of the extraordinary level of potential punishment involved."
As the vagueness argument must fall, defendant's motion for dismissal of the complaint must be denied.
It is, of course, to be presumed that the Legislature is aware of the requirements of organic law and that statutes should be construed, if possible, to save their constitutionality. E.g., In re DeMarco Suspension, 83 N.J. 25, 36-37 (1980); N.J. Chamber of Commerce v. N.J. Elec. Law Enforce. Comm'n, 82 N.J. 57, 75 (1980); State v. Profaci, 56 N.J. 346 (1970); Gangemi v. Berry, 25 N.J. 1 (1957). In this case, however, it is clear that the Legislature was keenly aware of the impact of an authorized statutory maximum sentence above 180 days or six months. This is evidenced by the provisions of N.J.S.A. 2C:1-4(a), (b).*fn1 See, e.g., Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970); Note, N.J.S.A. 2A:8-21; 2A:8-22; "Preserving Jurisdiction Under the Code," 7 Crim.J.Q. (1979). See, also, Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968); Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); State v. Gonzalez, 134 N.J. Super. 472 (App.Div.1975),
mod. 69 N.J. 397 (1975); In re Yengo, 84 N.J. 111, 120-121 (1980), cert. den. 449 U.S. 1124, 101 S. Ct. 941, 67 L. Ed. 2d 110 (1980); State v. Owens, 54 N.J. 153, 156-162 (1969), cert. den. 396 U.S. 1021, 90 S. Ct. 593, 24 L. Ed. 2d 514 (1969).
Against this background*fn2 it can hardly be doubted that the Legislature would enact legislation which gave rise to the right of indictment*fn3 and trial by jury without recognizing the procedural requirements therefor. This is particularly true in light of the prior recognition by the Legislature of such right, cf. N.J.S.A. 2C:34-2; 37-1 et seq., R. 3:1-5, and the absence of contemporaneous amendments to N.J.S.A. 2A:8-21 and other statutes relating to jurisdiction. Moreover, it is inconceivable that the Legislature was unaware that cruel and unusual punishment and vagueness issues would be projected if it adopted legislation with no maximum. Hence, the statute cannot be interpreted as defendant suggests. Independently, the legislative history demonstrates that the actual intent was not to authorize a maximum above 180 days. Rather, the Legislature
prescribed a mandatory sentence of 180 days, subject to credits by virtue of community service. The Legislature merely deleted the relevant minimum and minimum-maximum aspects of N.J.S.A. 39:4-50 as it previously stood. The statement to Senate Bill 3466 which became L. 1981, c. 537, and the statement to the Senate Judiciary Committee amendments to S 3466, provided that "the mandatory jail term for a second offense would be for 90 days and for a third offense, for 180 days." (In one statement "second" and "third" were written; in the other figures were used). Nothing in the amendments to the bill changed the relevant provisions of the law between the time of introduction and ...