On appeal from the Superior Court of Monmouth County, Law Division, Docket No. MA-05-106.
The opinion of the court was delivered by: Gilroy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued October 24, 2007
Before Judges Weissbard, S. L. Reisner and Gilroy.
Defendant appeals from that part of the October 27, 2006, order of the Law Division, which sentenced him to 180 days of incarceration as a third offender under the Driving While Intoxicated (DWI) statute, N.J.S.A. 39:4-50(a). The question presented on appeal is whether a defendant, who has had three prior convictions for DWI, is entitled to the benefit of the ten-year "step-down" provision of N.J.S.A. 39:4-50(a)(3) on a fourth conviction, where the first conviction was entered by way of an uncounseled plea. We answer the question in the affirmative; reverse that part of the October 27, 2006, order sentencing defendant to 180 days of incarceration; and remand the matter to the trial court to re-sentence defendant as a second offender under the DWI statute.
The facts are not disputed. Defendant was convicted of DWI on October 12, 1982; April 17, 1990; and August 1, 1995. He was not represented by counsel when he pled guilty to the first offense, but was represented by counsel when he pled guilty to the second and third offenses. Because less than ten years had elapsed between the first and second offenses, as well as between the second and third offenses, defendant never previously received the benefit of the step-down provision. On November 27, 2005, defendant was arrested for DWI and other motor vehicle offenses. On May 17, 2006, defendant pled guilty to DWI; driving while suspended, N.J.S.A. 39:3-40; and falsifying his driver's license application, N.J.S.A. 39:3-37. Other charges were merged or dismissed. At sentencing, defendant had argued that although he should be sentenced as a third offender for purposes of fines and license suspension, he should only be sentenced as a second offender for purposes of incarceration. Defendant contended that his uncounseled conviction in 1982 could not be used to enhance a subsequent custodial sentence, citing State v. Laurick, 120 N.J. 1 (1990),*fn1 and that he was entitled to the benefit of the step-down provision contained in N.J.S.A. 39:4-50(a)(3).
The municipal court judge rejected defendant's argument and sentenced defendant on the DWI conviction as a third offender to 180 days in jail, with a maximum 90 days to be served in an approved alcohol inpatient rehabilitation program; a $1,000 fine; and a ten-year suspension of his driving privileges and motor vehicle registration. On his conviction for driving while suspended, defendant was sentenced as a second offender to a fine of $750; a two-month suspension of driving privileges; and one day in jail, to run consecutively to the sentence imposed on the DWI conviction. On the conviction for falsifying a driver's license application, defendant was sentenced to a forty-five-day suspended jail sentence. All other appropriate fines and penalties were also assessed. The custodial sentence was stayed, pending appeal.
On appeal de novo, from the custodial sentence imposed on the DWI conviction only, the Law Division judge again rejected defendant's argument and sentenced him as a third offender. Defendant was sentenced to the same sentence imposed in the municipal court, including 180 days in jail, with a maximum of 90 days to be served in an approved alcohol inpatient rehabilitation program.*fn2 On November 3, 2006, an order was entered staying the imposition of the custodial sentence pending appeal.
On appeal, defendant argues as he did in the Law Division, that he should not have been sentenced "as a third offender for custodial purposes for his violation of N.J.S.A. 39:4-50[(a)]." Defendant contends that he "should be granted both the 'step[-]down' relief under Subsection (a)(3) of N.J.S.A. 39:4-50[(a)], as well as the relief afforded by the holding in Laurick." Defendant asserts that because the Law Division had concluded that Laurick was applicable in determining his sentence on the DWI conviction, the 1982 uncounseled conviction may not be used to enhance the custodial sentence on any convictions that occurred after the 1982 conviction. Accordingly, defendant argues that after applying Laurick, he stood before the trial court as a third offender for custodial purposes and should have been granted the benefit of the step-down provision, pursuant to N.J.S.A. 39:4-50(a)(3), because his 2006 violation had occurred more than ten years after the date of his 1995 offense.
The State concedes that defendant's 1982 uncounseled DWI conviction may not be used to enhance the period of incarceration for a subsequent offense under the DWI statute. However, the State argues because it is actually defendant's fourth DWI conviction, he is not entitled to the benefit of the step-down provision. The State contends that although Laurick prohibits the use of an uncounseled DWI conviction to enhance a later-imposed term of incarceration, it "does not erase the conviction from the count of the defendant's prior DWI offenses." The State asserts that the uncounseled conviction still exists and may be used to establish defendant's repeat offender status for purposes of the enhanced penalty provisions of the statute. Accordingly, the State argues that "defendant stood before both [the municipal court judge and Law Division judge] as a fourth offender and not as a third offender . . . ."
The question presented requires us to reconcile Laurick against the operative language of N.J.S.A. 39:4-50(a)(3). Although the arguments on each side of the issue are colorable, we conclude that defendant is entitled to the benefit of the step-down provision of the DWI statute. We do not reach this decision lightly. We acknowledge "[t]he primary purpose behind New Jersey's drunk driving statutes was to curb the senseless havoc and destruction caused by intoxicated drivers." State v. Tischio, 107 N.J. 504, 512 (1987); see also State v. Johnson, 42 N.J. 146, 165 (1964) ("[A] great number of serious accidents have involved drinking drivers - a fact which becomes a greater importance and public concern almost daily in this motor age with ever increasing vehicle speeds, the constantly growing number of vehicles on the roads[,] and the staggeringly mounting accident toll."). However, because of the severity of the penalties which flow from a DWI conviction, both direct and indirect, our duty is to ensure that the DWI statute is enforced fairly, based on established principles of jurisprudence.
The differences in the mandatory penalties, which attach to a second DWI conviction as compared to a third DWI conviction, are substantial. On a second conviction, a defendant is subject to a fine between $500 and $1,000, a thirty-day period of community service, a two-year suspension of driving privileges, and incarceration between forty-eight consecutive hours and ninety days. N.J.S.A. 39:4-50(a)(2). On a third conviction, a defendant is subject to a fine of $1,000; incarceration for a term not less than 180 days, "except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program;" and a suspension of driving privileges for a period of ten years. N.J.S.A. 39:4-50(a)(3). Under both sections, a defendant shall also be required "to install an ignition interlock device . . . or shall have his registration certificate and registration plates revoked" for two years on a second conviction and ten years on a third conviction. N.J.S.A. 39:4-50(2) and (3).
The DWI statute also contains a step-down provision that "accords sentencing leniency to a driver who is a second and repeat DWI offender where there is a hiatus of ten or more years in between respectively, the first and second, and the second and third infractions." State v. Lucci, 310 N.J. Super. 58, 61 (App. ...