Matthews, Furman and Havey. The opinion of the court was delivered by Furman, J.A.D.
At issue on appeal is whether defendant's conviction and sentence for drunk driving, N.J.S.A. 39:4-50, infringed his constitutional protection against double jeopardy. The conviction was his second for drunk driving. His sentence after a trial de novo on the transcript was identical to that imposed in the Municipal Court: a fine of $1,000, revocation of his driver's license for three years and a 90-day custodial term in the county jail to be served concurrently with the eight days remaining on his six-month custodial term for causing death by auto, N.J.S.A. 2C:11-5. His driver's license had been previously revoked for five years in an administrative proceeding.
Defendant also appeals from his conviction for driving on the wrong side of the highway, N.J.S.A. 39:4-82.1, and his sentence to a $100 fine and $10 costs for that offense. In his brief his double jeopardy and fundamental unfairness in sentencing arguments are directed to his conviction and sentence for drunk driving and not to his conviction and sentence for driving on the wrong side of the highway.
In the Municipal Court defendant pleaded guilty to both offenses. Before the Law Division he argued only that his sentence for drunk driving was excessive. He has not disputed throughout this proceeding that he was under the influence of intoxicating liquor when he drove his motor vehicle into a head-on collision with a motor vehicle driven by Edward DeVestern in the center of three southbound lanes of Route 9 in
Woodbridge Township sometime after midnight on November 4, 1981. DeVestern was killed as the result of the accident. Defendant's motor vehicle had been travelling on the wrong side of Route 9, northbound in the southbound lanes. His blood alcohol content less than an hour and a half later was .148%, giving rise to a presumption that he was under the influence of intoxicating liquor pursuant to N.J.S.A. 39:4-50.1, as it was then in effect.
His prosecution for drunk driving and driving on the wrong side of the highway, motor vehicle offenses, followed his conviction for causing death by auto, a criminal offense, upon a jury verdict of guilty, his sentence to a three-year probationary term conditioned upon his serving a six-month custodial term, and his unsuccessful appeal from that conviction and sentence. During the pending of the appeal his sentence was stayed.
In the two lower courts, as well as before us, defendant pressed the issue of the fundamental unfairness of his custodial sentence for drunk driving. That issue was preserved for appeal. On the record we conclude that defendant waived his alternative issue of double jeopardy, which he failed to raise below, as a defense to his prosecution for the motor vehicle offenses. R. 3:10-2, which is applicable in the Municipal Court under R. 7:4-2(e), provides:
The defense of double jeopardy and all other defenses and objections based on defects in the institution of the prosecution or in the indictment or accusation, except as otherwise provided by R. 3:10-3 (defenses which may be raised only before or after trial) and R. 3:10-4 (lack of jurisdiction), must be raised by motion before trial. Failure to so present any such defense constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver.
In any event, we are of the view that the defense of double jeopardy would be of no avail to defendant on appeal from his conviction for drunk driving, notwithstanding double jeopardy is applicable to motor vehicle, as well as criminal, offenses, State v. Dively, 92 N.J. 573, 586 (1983).
The test for double jeopardy set down in Illinois v. Vitale, 447 U.S. 410, 416-417, 100 S. Ct. 2260, 2265, 65 L. Ed. 2d 228 (1980), was specifically approved in Dively. Double jeopardy applies not only to dual prosecutions for the same offense but also to prosecutions for a lesser offense after conviction or acquittal of a greater offense and to prosecutions for a greater offense after conviction or acquittal of a lesser offense. Double jeopardy is a bar if the lesser offense requires no proof beyond that required to prove the greater offense and proof of the greater offense establishes the lesser offense. Double jeopardy is not a bar if each offense requires proof of an additional fact which the other does not require.
At the time of defendant's collision with DeVestern's motor vehicle, the death by auto statute, N.J.S.A. 2C:11-5, proscribed as criminal homicide causing death by driving a motor vehicle "carelessly and heedlessly, in willful or wanton disregard of the rights or safety of others." The quoted language was deleted and replaced by the ...