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State v. Bischoff

Decided: May 8, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT
v.
ROBERT S. BISCHOFF, DEFENDANT-APPELLANT



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

Havey and Brochin. The opinion of the Court was delivered by Havey, J.A.D.

Havey

Defendant Robert S. Bischoff was convicted in the Parsippany Municipal Court and again after a trial de novo in the Law Division of driving while under the influence of alcohol, contrary to N.J.S.A. 39:4-50. Defendant was sentenced as a second offender to a custodial term of 48 consecutive hours to be served at an Intoxicated Driver Resource Center. He was also required to perform 30 days community service, his license was suspended for two years, and he was fined $750 and assessed a $100 surcharge.

Defendant suffered his first conviction for driving while under the influence on September 29, 1977. The present offense occurred on July 1, 1987 resulting in his conviction in the municipal court on October 27, 1987.

On appeal, defendant contends that he is not a second offender under N.J.S.A. 39:4-50 because his present conviction occurred more than ten years after his prior conviction.

The pertinent language of N.J.S.A. 39:4-50 is as follows:

A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

Defendant contends that the statutory reference to the ten-year period between "offenses," is intended to mean "convictions" because, as he argued in the Law Division, "an offense does not become an offense until the judgment of conviction has been entered on the books." Thus, defendant argues, since his prior conviction on September 27, 1977 occurred more than ten years prior to his present October 27, 1987 conviction, he is not a second offender.

We agree with both the municipal court and Law Division that the date of the second offense, rather than the second conviction, is the critical date in establishing second-offender status. In so concluding, we need only look to the plain language of the statute. See Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 128 (1987); Renz v. Penn Central Corp., 87 N.J. 437, 440 (1981). N.J.S.A. 39:4-50 provides in applicable part:

Clearly, the statute focuses on the date of the subsequent offense, not the date of the subsequent conviction.

Moreover, the most significant factor in construing N.J.S.A. 39:4-50 is the Legislature's intent. See State v. Tischio, 107 N.J. 504, 510-511 (1987), app. dis. U.S. , 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988). While it is true that the statute is penal in ...


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