On appeal from the Superior Court of New Jersey, Law Division, Sussex County, A-64542.
Before Judges Wecker, Lisa and Fuentes.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 26, 2003
Defendant, Philip Reiner, appeals from a judgment entered after a trial de novo on appeal from the Newton Municipal Court pursuant to R. 3:23-8. The issue raised by this appeal is the permissible sentence for an individual convicted of a second offense for driving while intoxicated (DWI), N.J.S.A. 39:4-50, when the second offense occurs within a school zone as defined by N.J.S.A. 39:4-50(g), but the first DWI offense did not.
In an interlocutory appeal to the Law Division from rulings denying defendant a jury trial, defense counsel also argued that the statute was ambiguous with respect to whether the penalties prescribed by sub-section (a) or sub-section (g) would apply to defendant, and therefore could not advise his client properly as to his exposure. On that issue, the Law Division judge offered his view, which was consistent with the municipal court judge's previously expressed view.*fn1
The Law Division Judge said this:
I think that what happened when they drafted this statute is they increased the penalties for each situation. Those increases in penalties exceed the original penalties for multiple offenders, I believe.
So if your client [.minus] the point you're making is if a prior offense was a non school zone and he gets convicted again for DWI but in a school zone, you're arguing it's a first offense under the statute. [the municipal court judge] argued you'll have to apply, I believe, the second aspect of the statute.
And what is appealing about his decision is if an individual convicted of DWI in a school zone for a [.minus] and it's a second DWI, if you apply the first penalty provisions for a school zone it's less than a second conviction under non-school zone. And I don't think you can do that.
When defendant was convicted and sentenced in municipal court, the judge addressed the question whether defendant was to be sentenced as a second offender under sub-section (g), or sub section (a) of the DWI statute, N.J.S.A. 39:4-50.*fn2
On defendant's appeal to the Law Division, based on the record in the municipal court, Judge Conforti found defendant guilty beyond a reasonable doubt on the DWI charge in a school zone, under N.J.S.A. 39:4-50(a) and (g). The judge merged three lesser motor vehicle charges [.minus] driving the wrong way on a one way street, failure to stop before turning right on red, and failure to maintain his lane - with the DWI conviction. Defendant was sentenced as a second-offender pursuant to sub section (g) and received the following sentence on the DWI charge: four days in the Sussex County jail, seventy-five days service in the SLAP program,*fn3 a four-year suspension of driving privileges, sixty days of community service, a $1,500 fine, and various mandatory minimum penalties and assessments.
The evidence in the record establishes these facts. On Tuesday, October 10, 2000, defendant obtained a cash advance from a bank located in Newton Township. The Assistant Branch Manager noticed that the defendant appeared to be intoxicated. She smelled alcohol on his breath and noticed that his speech was slurred and that he was staggering. After the transaction was completed, defendant left the building. The manager, accompanied by a co-worker, followed defendant to the parking lot. There they saw him first"wandering the parking lot looking for his car" and then getting into a blue-colored jeep. Believing that defendant was intoxicated, the assistant manager telephoned the police.
Police Officer Dean Coppolella received a call from the police dispatcher informing him of a possible intoxicated driver in a blue jeep. The officer spotted defendant's blue jeep traveling down the center lane of a three-lane highway. The officer positioned his patrol car closely behind the jeep, which moved abruptly into the right-turn-only lane approaching an intersection.
The jeep wove outside the traffic lanes, twice crossing over the lines, and made a right turn at a red traffic light without coming to a stop. The officer then switched on his emergency lights and siren. The jeep proceeded for approximately one quarter mile before turning right down a one-way street, traveling in the wrong direction. It stopped after traveling approximately fifteen feet. A pick-up truck was coming from the opposite direction, and the driver of the pick up stopped in front of the blue jeep.
The officer recognized the driver of the pick-up as a crossing guard who worked at two nearby intersections. The officer testified that there are three schools in the area. After further investigation, the officer determined that defendant came to a stop approximately 550 feet from a grammar school. He made that calculation by reference to trial exhibit S-3, an"official street map for the Town of Newton that was prepared by [the] Town Engineer" and dated October 24, 2000 (two weeks after the incident).
At the scene, the officer approached the vehicle and asked defendant for his credentials. Before giving his credentials to the officer, defendant twice dropped them in his own lap. The officer detected a strong odor of alcohol on defendant and noticed that his speech was slurred, making it difficult to understand. Defendant's eyelids were"very droopy." Defendant also told the officer he was traveling to the"Wantage section" of Newton, a non-existent location. When asked if he had been drinking, defendant stated that he had had a couple of drinks.
The officer asked defendant to exit the vehicle. Defendant had difficulty standing and at one point grabbed onto the side of the jeep's door. When asked to stand on one leg for thirty seconds, defendant could only maintain his balance for a few seconds. During the next test, defendant was unable to walk (as instructed) heel-to-toe over a straight line for nine steps, pivot on his left foot and walk back nine steps. Based upon the officer's observations and defendant's failure to perform the field sobriety examinations, he was placed under arrest. Defendant refused to take a breathalyzer examination at the police station. Additional field-type sobriety tests were administered at the station, which defendant did not perform successfully. The State later determined that defendant had one previous DWI conviction.
After trial de novo on appeal in the Law Division, Judge Conforti addressed the sentencing issue and concluded:"[I]t would be a second offense DWI with enhancement for a school zone."
On appeal, defendant raises these arguments:
POINT I N.J.S.A. 39:4-50(g) IS UNCONSTITUTIONALLY VAGUE BECAUSE IT FAILS TO PROVIDE OFFENDERS WITH ADEQUATE NOTICE OF PENALTIES AND FAILS TO ADEQUATELY DESCRIBE HOW THE STATUTE IS TO BE APPLIED.
POINT II MR. REINER WAS ENTITLED TO A JURY TRIAL AND GRAND JURY PRESENTMENT BECAUSE N.J.S.A. 39:4-50(g), AS INTERPRETED, AUTHORIZED IMPRISONMENT IN EXCESS OF SIX MONTHS, AND BECAUSE THE TOTALITY OF PENALTIES UNDER THE STATUTE RENDERED THE OFFENSE SUFFICIENTLY SERIOUS UNDER THE SIXTH AMENDMENT.
POINT III DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE OFFICER STOPPED MR. REINER BASED ON AN ANONYMOUS TIP, WITHOUT KNOWING THE CREDIBILITY OF THE INFORMER, AND WITHOUT OBTAINING CORROBERATING FACTS.
POINT IV DEFENDANT'S CONVICTION FOR DRIVING WHILE INTOXICATED WITHIN 1000 FEET OF A SCHOOL SHOULD BE VACATED BECAUSE DEFENDANT WAS NEVER CHARGED WITH THIS OFFENSE IN THE COMPLAINT, AND BECAUSE THE STATE NEVER CALCULATED ...