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State v. Leary

Decided: February 21, 1989.

STATE OF NEW JERSEY, PLAINTIFF,
v.
MARION G. LEARY, DEFENDANT



Haines, A.j.s.c.

Haines

This opinion holds that the Intoxicated Driver Resource Centers ("IDRCs") have no valid rules of procedure and, consequently, persons convicted of driving while intoxicated ("DWI") cannot be sentenced to participate in IDRC programs. Such sentences deny due process.

Marion G. Leary was convicted of DWI and, among other things, sentenced to serve two consecutive days at an IDRC. After completing the two-day program, he was informed that 16 more weeks of outpatient counselling were required of him. He complied with this requirement but, at the last session, was told he was intoxicated and would be required to submit to further treatment. Shortly thereafter, the IDRC issued a "Noncompliance Report" stating that Leary "did not comply with treatment planned." Comments in the report were as follows:

1. Mr. Leary was released unsuccessfully from treatment after arriving intoxicated.

2. Mr. Leary describes an abusive history of alcohol consumption.

3. Client is in denial of his alcoholism.

Recommendations: Rehab. [ sic ]

A letter to the Mansfield Township Municipal Court from the Community Guidance Center of Mercer County, to which Leary had been sent for his 16-week counselling program, enclosed a "client treatment release" form. This was signed by a certified alcohol counselor who recommended inpatient treatment for Leary because he had not successfully completed his outpatient treatment. The letter to the court stated that Leary had failed to keep two appointments to discuss the recommendation, had refused inpatient treatment and had not been "seen or heard from" since the date of the refusal.

Leary appeared in the municipal court in response to the noncompliance report. He was represented by counsel. The State, in order to prove noncompliance, presented the Director of the Mercer County IDRC as its only witness. She admitted that she had not seen Leary and then said:

And what we do is we keep a record of every interaction. So that's what I have access to right now. And that's what I'm reporting from as well as my own interactions with Margo Engel who was the Administrator at the time. Mr. Leary did complete -- did come to our classes, was referred on for a 16-week group. The report back from the group was that he, in fact on two occasions, alcohol was smelled on his breath, that . . .

Defense counsel objected, saying:

Your Honor, my problem is that Miss Hart is merely a report writer. I don't even know if she had custody of the records that she is reading from. She has never met my client. She has no independent knowledge of the events that have transpired.

The court then said:

Counsellor, I don't mean to cut you short but this is a contempt hearing. If you feel that your client is not in contempt, we'll simply continue the matter and bring in the parties who were involved.

Defense counsel then said:

In that event, your Honor, could I ask for a stay of the suspension of his driving license, suspension due to that?

The court refused to continue the matter and said:

Mr. Leary, it is your duty to attend the program. You will attend the program as devised by the Intoxicated Driver Resource Center. And in order to ensure

that, I am going to impose a sentence of 60 days in the Burlington County Jail. That will be suspended on the condition that you attend the program as directed. That's simply an amendment of the original sentence.

No evidence except the quoted, interrupted testimony of Patricia Hart was received by the court prior to making its final disposition. A colloquy concerning restoration of defendant's driver's license took place after the sentence was imposed. In response, the court simply provided the informal assurance that "they will restore his license on compliance."

On appeal to this court, defendant argued that: (1) the State had failed to sustain its burden of proof, and (2) defendant had been denied due process because the IDRC had no published rules nor standards of review, and therefore, acted ...


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