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State v. Costello

Decided: March 31, 1988.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
PHILLIP COSTELLO, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Burlington County.

King, Gaulkin and Gruccio. The opinion of the court was delivered by King, P.J.A.D.

King

This unusual case involves the application of the Double Jeopardy Clause to two convictions for two acts of driving while intoxicated which took place within a two-hour period during the early morning of September 28, 1986 in Mt. Laurel. The defendant was convicted of these two violations of N.J.S.A. 39:4-50 (DWI) in the Mt. Laurel Municipal Court on February 3, 1987. On his appeal de novo on the record, R. 3:23-8, the Law Division judge found him not guilty of the second offense. The State now appeals and the defendant contends that the appeal must be dismissed because the judgment of the Law Division operated as an acquittal of the second offense. Although the Law Division judge erroneously acquitted the defendant of the second offense, we agree that the Double Jeopardy Clause bars this appeal which seeks in effect to reinstate the second conviction after an acquittal.

On the morning of September 28, 1986 at about 3:30 a.m. Patrolman Zelby of the Mount Laurel Township Police Department arrested defendant for driving while under the influence of alcohol and took him to the station house. At about 4:15 a.m. Corporal Shepard administered two blood alcohol tests which produced readings of .23. The police told defendant to have someone come and pick him up at the station. They returned his car keys and identification to him. Instead of taking defendant home, his friend drove defendant back to his parked truck which he drove away. While on his way home to Mount Holly, defendant was stopped again at about 5:15 a.m., this time by Patrolman Plunkett of the Mount Laurel police, for driving while under the influence of alcohol in violation of N.J.S.A. 39:4-50. He was again taken to the police station where Corporal Shepard again administered two breathalyzer tests. These tests produced readings of .21 and defendant was charged a second time.

As noted, the Municipal Court judge convicted defendant of both offenses. The Law Division judge on the appeal de novo

on the record found that the second offense was "part of the same offense" and acquitted defendant of the second offense.

At the plenary trial de novo on the record established in the Municipal Court, R. 3:23-8, the Law Division judge made these findings:

I find him guilty on Ticket 35853, driving at 3:30 a.m. On Ticket 3641, driving at 5:13 a.m., I find him not guilty. That is part of the same offense, even though he was at the station and went out. Because if he was -- the proof of the first is the disproof of the second, actually. Because if he was so drunk that he was fumbling, that he couldn't get to the letter J in the alphabet, that he got out of the vehicle and swayed and staggered, that he couldn't walk heel to toe, that he almost fell, that he had a .23 blood alcohol at 4:19 a.m. when the test was given, he was too drunk to know that he shouldn't be driving. And they shouldn't have given him his keys and his ID to put him in a position where he could then go out and do it. He should have been kept from driving. And having been permitted to drive in that way, it relates back to the first offense. And I express no opinion as to what the liabilities would have been if he had been released as a drunk and killed someone. He shouldn't have been let out with his own keys at that point because he didn't know what he was doing.

Therefore, as I said, I find him guilty of the offense that took place at 3:30 a.m. and not guilty of the other.

The judge then signed a "judgment of conviction" which stated in pertinent part

The defendant having appealed a conviction entered by the Municipal Court of the TOWNSHIP of MT. LAUREL on FEBRUARY 3, 1987, and this Court having conducted a plenary trial de novo on the record, and this court having rendered a judgment of guilty on the charge of violating N.J.S.A. 39:4-50 DRIVING UNDER THE INFLUENCE.

It is on this 9th day of June, 1987, ORDERED and ADJUDGED that the defendant be and is sentenced MOTION BY MS. NANCY GRAHAM, ESQ., DEFENSE ATTY. TREAT THE TWO MOTOR VEHICLES SUMMONS AS ONE OFFENSE -- GRANTED. COURT FINDS DEFENDANT ...


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