On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz, and Justices Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by O'Hern, J.
The question in this case is whether a defendant, after having been twice convicted of driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50(a), has a constitutional right to trial by jury for a third DWI offense. We hold that the statutory penalties for DWI are not so severe as to clearly reflect a legislative determination of a constitutionally "serious" offense requiring jury trial.
Defendant was arrested for his third DWI offense on August 10, 1986. Prior to trial defendant moved for a trial by jury. The municipal court judge denied that motion, relying on State v. Linnehan, 197 N.J. Super. 41, 484 A.2d 34 (App.Div.1984), certif. denied, 99 N.J. 236, 491 A.2d 723 (1985), in which the court had ruled that a three-time DWI offender was not entitled to a jury trial, and accepted defendant's plea of guilty conditioned on the preservation of the pretrial motion for a jury trial. The court sentenced defendant, in accordance with N.J.S.A. 39:4-50(a)(3), to ninety days of community service, twenty-eight days in an inpatient program and sixty days in an outpatient program. The court fined defendant $1,000; imposed a surcharge of $100, N.J.S.A. 39:4-50.8, and $15 court costs; and suspended his license for ten years.
On defendant's appeal, the Law Division affirmed the trial court's denial of his motion for a jury trial, and the Appellate Division affirmed that judgment. We granted defendant's petition for certification. 117 N.J. 51, 563 A.2d 819 (1989).
We begin by noting that the question is posed primarily as one of federal-constitutional right. That is because New Jersey has never recognized a right to trial by jury for the motor-vehicle offense of DWI. It is simply not a crime under New Jersey law.
Persons charged with crime are constitutionally entitled to trial by jury. Those charged with petty offenses are not. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). The New Jersey Supreme Court has held that the only reliable test for distinction is the severity of the authorized punishment, and that jury trial is not required unless the maximum penalty to which the defendant is exposed exceeds six months incarceration and a fine of $1,000. State v. Owens, 54 N.J. 153, 254 A.2d 97 (1969); In re Yengo, 84 N.J. 111, 417 A.2d 533 (1980). See Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970). Where factually related petty offenses are tried together whose maximum sentences total more than six months, and the defendant is not offered a jury trial, the sentences may not total more than six months. State v. Owens, supra. Concurrent jail sentences, each of which does not exceed six months, are permissible. Id. 54 N.J. at 163, 254 A.2d 97. [ State v. Linnehan, supra, 197 N.J. Super. at 43, 484 A.2d 34.]
Our federal analysis centers on the United States Supreme Court's decision in Blanton v. North Las Vegas, 489 U.S. 538, 109 S. Ct. 1289, 103 L. Ed. 2d 550 (1989). In that case the Court held that first-time offenders of the Nevada drunk-driving laws were not entitled to trial by jury. A first-time DWI offender in Nevada may face between two days and six months of incarceration or, in the alternative, forty-eight hours of community work while identifiably dressed as a DWI offender. In addition, the defendant must pay a fine ranging from $200 to $1,000, enter an alcohol abuse education program at defendant's own expense, and automatically forfeit his or her license for ninety days.
In Blanton, the Court traced the long development of the doctrine of the constitutional right to trial by jury, and summarized its general view that if the maximum sentence of incarceration
for an offense is six months or less, society views that offense as "petty" and there is presumptively no right to trial by jury. 489 U.S. at 543, 109 S. Ct. at 1293, 103 L. Ed. 2d at 556. See generally Note, "Drunk Drivers Have No Right to Jury Trial," 20 Seton Hall L.Rev. 600 (1990) (analyzing Blanton). That doctrine is based on a long history of non-jury trials of what were regarded as petty offenses in colonial courts. "[T]he common law, despite its veneration for the jury, always recognized a wide range of petty offenses which were tried summarily before a magistrate without the interposition of a jury." H. Kalven, Jr. & H. Zeisel, The American Jury 15 (1966).*fn1
But the Court in Blanton considered as well the penalties other than incarceration imposed under Nevada DWI law, and concluded that taken in the aggregate the various fines, period of license suspension, and community service requirements did
not make a first-time DWI conviction in Nevada a "serious" offense for sixth-amendment purposes. 489 U.S. at 545, 109 S. Ct. at 1294, 103 L. Ed. 2d at 558. With regard to the possible $1,000 fine faced by a first-time DWI offender in Nevada, the Court indicated that that amount was "well below the $5,000 level set by Congress in its most recent definition of a 'petty' offense, 18 U.S.C. § 1 * * *." Id. at 544, 109 S. Ct. at 1294, 103 L. Ed. 2d at 557.
The Court in Blanton recognized that there may be some offenses to which a legislature attaches such onerous penalties that sixth-amendment concerns may be implicated. Hence, the Court stated that although an offense with a maximum six-month sentence would presumptively not warrant a jury trial, yet in a "rare situation" if a "legislature packs an offense" by imposing other penalties in such a manner that it becomes "serious" without "punctur[ing] the 6-month incarceration line," a jury trial would be necessary. Id. at 542-43, 109 S. Ct. at 1292-93, 103 L. Ed. 2d at 556-57. In the wake of Blanton the
Court has given no indication of what criteria it may invoke in the future to give content to the expression "serious." Nonetheless, these principles, which have remained unmodified, provide the analytical framework for resolving this case.*fn2 The question we must decide is whether the Legislature has so
"packed" the offense of DWI that it must be regarded as "serious" for sixth-amendment purposes.
New Jersey's history and traditions with respect to DWI offenses convince us that however deliberately our Legislature has addressed the problem, it has yet to take that step that would transform a DWI offense into a constitutionally "serious" offense. This is not to say that our DWI laws are not tough. Indeed, Governor Kean described them as the "toughest in the nation." Kelly v. Gwinnell, 96 N.J. 538, 545, 476 A.2d 1219 (1984) (citing Governor's Annual Message to the N.J. State Legislature, Jan. 10, 1984). But he was obviously not referring to the criminal punishment that we inflict. Many states impose longer sentences of imprisonment than we. Many impose a one-year maximum, several a two-year maximum, for a first offense. See Note, "The Federal Constitutional Right to Trial By Jury for the Offense of Driving While Intoxicated," 73 Minn.L.Rev. 122 (1988) [hereinafter Note, "Jury for DWI"] (Appendix surveying state statutory penalties for first-time DWI violations). Some impose much longer sentences for repeat offenses. In Louisiana, for example, a fourth offender is subject to a mandatory ten years at hard labor, with a maximum thirty-year term of imprisonment. La.Rev.Stat.Ann. § 14:98. What Governor Kean undoubtedly had in mind was the ever-tightening grid of regulations that accompanied federal highway-safety requirements and rising public awareness of the social costs of drunk driving. Statistics indicate that nationally approximately 6,700 lives were saved in 1987 alone as a result of heightened efforts to rid the highway of drunk drivers. National Highway Traffic Safety Administration: Alcohol-Related Traffic Fatalities, 1982-1987.
Our judicial doctrines have reinforced these legislative changes at each step in the DWI-litigation process: the validation
of the breathalyzer as the critical scientific test of blood alcohol (BAT) in establishing the offense, Romano v. Kimmelman, 96 N.J. 66, 474 A.2d 1 (1984); the rejection of individualized evidence that would undermine the BAT in trying such cases, State v. Tischio, 107 N.J. 504, 527 A.2d 388 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988), and State v. Downie, 117 N.J. 450, 569 A.2d 242 (1990); and the elimination of a mental-state requirement for the offense, State v. Hammond, 118 N.J. 306, 571 A.2d 942 (1990). In each of those cases we have recognized the social significance of DWI. We found that "[t]he primary purpose behind New Jersey's drunk-driving statutes is to curb the senseless havoc and destruction caused by intoxicated drivers * * * [and] to eliminate intoxicated drivers from the roadways of this State." State v. Tischio, supra, 107 N.J. at 512 and 514, 527 A.2d 388.
Despite the fact that the Legislature regards DWI as a profound social problem, it has yet to impose the full force of law on that offense that would denote a social evaluation that DWI is a "crime" or an offense that equates with the need of trial by jury. The Legislature has yet to require a sentence in excess of six months, or even to require a mandatory six months of incarceration. It continues to address the problem with a measured response tempered by strong doses of rehabilitation and reparation.
In State v. Laurick, 120 N.J. 1, 5, 6, 575 A.2d 1340 (1990) we gave a brief but non-definitive summary of DWI penalties. All offenders must satisfy various educational and rehabilitative requirements and must pay enforcement and insurance surcharges. The escalating penalties that are the primary concern of this appeal are the fines, license ...