On appeal from Superior Court of New Jersey, Law Division, Mercer County, MER-97-02-0261.
Before Judges Wefing, Fall and C.S. Fisher.
The opinion of the court was delivered by: Wefing, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2004
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we reverse.
Defendant was involved in a serious motor vehicle accident on July 19, 1996, following which he was charged with failure to obey traffic signals, N.J.S.A. 39:4-81; driving while on the revoked list, N.J.S.A. 39:3-40; driving while intoxicated (DWI), N.J.S.A. 39:4-50; and failure to wear a seatbelt, N.J.S.A. 39:3- 76.2f. In addition, he was indicted for assault by auto, N.J.S.A. 2C:12-1(c). Eventually, he agreed to a negotiated disposition under which he entered a plea of guilty to assault by auto, DWI, and driving while on the revoked list. The remainder of the charges were dismissed.
At his sentencing in 1998, the trial court placed defendant on probation for five years for the assault conviction, conditioned upon his serving one hundred eighty days in jail, attending three meetings a week of Alcoholics Anonymous and performing one hundred hours of community service.
To settle on an appropriate sentence for the DWI conviction, the court reviewed defendant's driving abstract, which revealed that defendant had been convicted in January 1987 of DWI. It also revealed that defendant's driver's license had been suspended in 1994 after he had been convicted of operating a vessel while intoxicated, a violation of N.J.S.A. 12:7-46. The trial court thus sentenced defendant as a third offender. It directed he serve one hundred eighty days in jail, concurrent with the term imposed for assault by auto, and that his driver's license be suspended for ten years.
For the remaining conviction, driving while on the revoked list, the court sentenced defendant to a concurrent forty-five days in jail and suspended his driver's license for one year, consecutive to the license suspension for DWI.
In October 2002, defendant filed a petition for post- conviction relief in which he urged that the trial court in 1998 had improperly sentenced him as a third offender.*fn1 The trial court denied his petition.
Defendant has appealed from the trial court order, contending that the conviction for operating a vessel while intoxicated does not constitute an offense under N.J.S.A. 39:4- 50, and thus he should not have been sentenced in 1998 as a third offender. The State concedes that N.J.S.A. 39:4-50 is ambiguous in this regard but asserts that a conviction under N.J.S.A. 12:7-46 can still be used for purposes of a penalty enhancement under N.J.S.A. 39:4-50. It stresses that neither statute precludes a violation of the one statute from triggering a penalty enhancement under the other. It also contends that to interpret Title 39 in this manner serves the legislative intent and accords with the policies underlying the statute.
At the time of defendant's offense, N.J.S.A. 39:4-50(a) provided in pertinent part:
A person who operates a motor vehicle while under the influence of intoxicating liquor,... or operates a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood..., shall be subject:
(1) For the first offense, to... a term of imprisonment of not more than 30 days and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period ...