This matter comes before the court by way of a trial de novo from a final determination of the Plainfield Municipal Court. At trial, in the court below, on December 18, 1985, defendant, Shirley Anderson, pled guilty to having in her possession, while operating a motor vehicle, under 25 grams of marijuana, in violation of N.J.S.A. 39:4-49.1, "Operating motor vehicle with certain drugs in possession or in motor vehicle." Under the section, recently amended, (effective July 17, 1985) marijuana is now an included illegal substance within the ambit of the statute. By reason of the amendment to N.J.S.A. 39:4-49.1, the judge below was obligated to impose on defendant, a mandatory two-year loss of driving privileges.*fn1
From this determination, defendant appeals on the ground that the statute is unconstitutional. She contends that there is no rational relationship between the legislation and the end sought to be achieved by the Legislature. Further, defendant contends, as applied to her, the statute constitutes, "cruel and unusual punishment under the Eighth Amendment and the New Jersey Constitution."
N.J.S.A. 39:4-49.1, as amended, provides in pertinent part:
No person shall operate a motor vehicle on any highway while knowingly having in his possession or in the motor vehicle any controlled dangerous substance as classified in Schedules I, II, III, IV and V of the 'New Jersey Controlled Dangerous Substances Act', P.L.1970 c. 226 (C. 24:21 et seq.). . . . A person who violates this section shall be fined not less than $50.00 and shall forthwith forfeit his right to operate a motor vehicle for a period of two years from the date of his conviction.
Defendant argues that there is no legitimate, regulatory purpose for including marijuana (listed in schedule I of the Controlled Dangerous Substances Act) within the purview of N.J.S.A. 39:4-49.1. She asserts that, in essence, under the newly amended version of N.J.S.A. 39:4-49.1, the possession of only one seed of marijuana, while operating a motor vehicle, is as serious an offense as the possession of a pound of heroin, while operating a motor vehicle. Defendant maintains the mandatory loss of driving privileges for two years for the possession of less than 25 grams of marijuana is not rationally related to any legitimate, regulatory purpose of our Legislature. According to defendant, the unreasonableness of N.J.S.A. 39:4-49.1 is patently obvious.
Defendant argues that comparison to N.J.S.A. 39:4-50(a) shows the unreasonableness of N.J.S.A. 39:4-49.1's penalty. Defendant maintains that under N.J.S.A. 39:4-50(a) a conviction for being under the influence of an intoxicating liquor, for a first time offender, carries, at a minimum, a loss of driving privileges for only six months. Defendant contends that a violation of being under the influence of alcohol is a more serious offense than the mere possession of marijuana and therefore it is irrational to impose a harsher penalty for a less serious offense.
In reviewing the reasoning above employed, defendant has grossly understated the potential extent of the penalty imposed by N.J.S.A. 39:4-50(a). In full, as applied to a first time offender, it provides:
(1) For the first offense, to a fine of not less than $250.00 nor more than $400.00 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of the Intoxicated Driver Resource Centers established under subsection (f) of this section and, in the discretion of the court, a term of imprisonment of not more than 30 days and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of not less than six months nor more than one year.
While N.J.S.A. 39:4-49.1 carries a mandatory two-year loss of driving privileges, there is no term of imprisonment provided for by that section. Admittedly, while a loss of driving privileges may constitute a severe inconvenience to defendant, the penalty cannot be considered as severe as having to serve a prison sentence. It is therefore clear that the penalty that a court could impose under N.J.S.A. 39:4-50(a) potentially is far more onerous a penalty than that imposed by N.J.S.A. 39:4-49.1.
Defendant also argues that our motor vehicle statutes should draw the same distinction between marijuana and other drugs, as is drawn under the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq. Defendant maintains that it is irrational to draw a distinction between marijuana and other drugs in the criminal penal statute and not to draw the same distinction in the motor vehicle statute. Essentially, defendant contends that there is no sound justification for imposing such a harsh penalty, by a quasi-criminal statute, where the criminal statute does not impose a consonant penalty for the possession of less than 25 grams of marijuana. Defendant again fails to appreciate that the purpose of the Controlled Dangerous Substances Act is distinct from the purposes of our motor vehicle statutes. In State v. DiCarlo, 67 N.J. 321 (1975), the ...