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State v. Barfuss


July 18, 2007


On appeal from Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 28-06.

Per curiam.


Submitted May 15, 2007

Before Judges Payne and Graves.

Defendant, William Barfuss, convicted of his third drunk-driving offense, following entry of a conditional guilty plea, and sentenced to spend 180 days in custody with a credit for ninety days spent in an alcohol rehabilitation program and to pay appropriate fines and penalties, has appealed, raising the following issues:

I. Because Defendant Faces Significant Quasi Criminal and Civil Consequences If Convicted, He is Entitled to a Jury Trial.

II. Because Defendant's Third Offense Occurred Before There Was a Second Conviction, This Court Should Treat Him as Having Only One Prior Conviction Warranting Enhancement of the Third Offense.

The record discloses that defendant was arrested for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50(a), in April 2005, and on December 5, 2005 and December 15, 2005. He was sentenced as a first offender for the April violation. N.J.S.A. 39:4-50(a)(1). On June 19, 2006, defendant pled guilty in municipal court to the latter two violations, and was sequentially sentenced as a second and third offender on the same day. N.J.S.A. 39:4-50(a)(2) and (3).

Prior to entering a plea of guilty with respect to the third offense, defendant sought a jury trial in the matter and, upon denial of his request, he conditioned his plea upon preservation of his right to appeal from that denial. R. 7:6-2(c).*fn1 In providing a factual basis for his plea, defendant admitted that he had driven to the local municipal building, parked and, while retaining control of his car, consumed sufficient alcohol to render himself intoxicated. A breathalyzer test conducted at the time disclosed a reading of 0.17 -- far above the 0.08 legal limit. Upon appeal of his conviction to the Law Division, that conviction was affirmed. The present appeal followed.

While acknowledging that, in State v. Hamm, 121 N.J. 109 (1990), cert. denied, 499 U.S. 947, 111 S.Ct. 1413, 113 L.Ed. 2d 466 (1991), the Supreme Court held that no right to a jury trial of a third DWI offense exists, defendant argues in the present appeal that enhanced penalties, enacted since Hamm was decided, have undercut Hamm's factual and legal foundation. Defendant therefore urges us not to follow Hamm, and instead to determine that defendant possessed a constitutional right under the Sixth Amendment to a jury trial that the municipal and Law Division judges erroneously failed to recognize.

In Hamm, the Court analyzed the monetary and other penalties and discretionary six-month period of incarceration then applicable to a third-time offender pursuant to New Jersey's DWI statute in the light of Blanton v. North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed. 2d 550 (1989), and concluded that a Sixth Amendment right to a jury trial was not triggered, because the offense was not "serious" as that term was construed in Blanton. 121 N.J. at 128-29. We find nothing in Hamm or Blanton that would cause us to depart from those decisions.

In Blanton, the United States Supreme Court held that a first-time DWI offender facing Nevada's penalties of two days to six months of incarceration or, alternatively forty-eight hours of community work while identified as a DWI offender, fines of $200 to $1,000, mandatory alcohol abuse education at the offender's expense, and a ninety-day license forfeiture was not constitutionally entitled to a jury trial. The Court held that the period of incarceration, when combined with the aggregate fines and penalties, were insufficient to 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. Although the Court in Blanton affirmed that an offense with a maximum six-month sentence would presumptively not warrant a jury trial, it recognized that in a "rare situation" if a "legislature packs an offense" by imposing other penalties in a 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 445-57.

The United States Supreme Court later described its decision in Blanton as follows:

We . . . held that offenses for which the maximum period of incarceration is six months or less are presumptively "petty." A defendant can overcome this presumption, and become entitled to a jury trial, only by showing that the additional penalties, viewed together with the maximum prison term, are so severe that the legislature clearly determined that the offense is a "serious" one. [United States v. Nachtigal, 507 U.S. 1, 3-4, 113 S.Ct. 1072, 1073, 122 L.Ed. 2d 374, 379 (1993).]

With Blanton's principles in mind, the Hamm Court stated with respect to New Jersey's third-offender law:

[W]e believe that although the Legislature may regard DWI as a profound social problem based on its potential threat to public safety, the statutory penalties do not signal the Legislature's intent to treat DWI as the functional equivalent of a crime. Attainment of the "6-month incarceration line," Blanton, supra, 489 U.S. at 543, 109 S.Ct. at 1293, 103 L.Ed. 2d at 557, is not the automatic product of a third DWI offense under New Jersey's law. The law allows for various alternatives to incarceration, with a strong emphasis on community service and rehabilitative alternatives. . . . The ten-year license suspension for third offenders, although in itself a heavy burden, is both precautionary and penal. No other loss of privilege, franchise, or right of citizenship flows from a DWI conviction. [121 N.J. at 128-29.]

See also State v. Stanton, 176 N.J. 75, 88 (recognizing that "there is no right to trial by jury of DWI or other Title 39 offenses because they are not deemed to be serious enough."), cert. denied, 540 U.S. 903, 124 S.Ct. 259, 157 L.Ed. 2d 187 (2003).

Defendant notes that, since Hamm was decided, N.J.S.A. 39:4-50 has been amended to mandate a 180-day period of incarceration, thereby eliminating the sentencing discretion existing when Hamm was decided. To that extent, the statute comes closer to Blanton's "6-month incarceration line." Nonetheless, our statutory scheme permits a sentence reduction of up to one-half of the statutorily-mandated period of incarceration if the offender participates in an approved drug or alcohol inpatient rehabilitation program, as defendant did in this case. Thus, N.J.S.A. 39:4-50 retains a strong rehabilitative component as well as a mechanism for sentence reduction triggered by the offender, not the court.

In these circumstances, we do not view the combined effect of New Jersey's DWI sentencing provisions applicable to third-time offenders and the substantial fines and penalties imposed*fn2 as transforming the quasi-criminal offense of drunk driving into a criminal matter to which a Sixth Amendment jury trial right attaches. As the Hamm Court noted: "A longer retrospective view reveals that those who shaped our institutions and secured for us the constitutional guarantee of trial by jury always realized that drawing the line between 'petty' and 'serious' offenses left a 'margin for legislative discretion.'" 121 N.J. at 129 (quoting Frankfurter and Corcoran, "Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury," 39 Harv. L. Rev. 917, 979 (1926)). We view the Legislature as continuing to function within constitutionally prescribed margins, and our intervention in these circumstances as unnecessary. Id. at 129-30.

Defendant also argues that he cannot be convicted as a third-time offender because his third offense occurred before there was a second conviction. However, N.J.S.A. 39:4-50(3) merely requires that there be a "third or subsequent violation," and does not require two prior convictions. Moreover, the transcript of the municipal court proceedings demonstrates that defendant was, in fact, convicted and sentenced for his second offense before a sentence was imposed for the third. As a final matter, we find State v. Anderson, 186 N.J. Super. 174 (App. Div. 1982), aff'd, 93 N.J. 14 (1983), upon which defendant relies, to be inapposite, because in that decision we construed the far different statutory language of N.J.S.A. 2C:14-6.


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