On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. 18232, Municipal Appeal No. 05-2008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Parrillo.
Defendant, Yvonne Hubbard, who entered a conditional guilty plea as a third D.W.I. (driving while intoxicated) offender, appeals from the Law Division's denial of her motion asserting a challenge to the constitutionality of the sentencing provision of N.J.S.A. 39:4-50(a)(3), which provides a discretionary alternative of serving 90 days of the mandatory l80-day jail term in an approved inpatient drug or alcohol rehabilitation facility. Appellant claims the provision violates equal protection "as applied" because the "working poor" like her cannot avail themselves of this opportunity. We affirm.
On March l0, 2008, defendant entered a conditional plea of guilty to D.W.I. and was sentenced as a third offender to 180 days in jail, of which 90 days could be served at an inpatient rehabilitation facility pursuant to N.J.S.A. 39:4-50(a)(3). The statute provides that a third or subsequent violator "shall be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse, 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 approved by the Intoxicated Driver Resource Center [IDRC] . . . ." Defendant's plea was entered after the municipal court judge heard argument on defendant's motion to declare the sentencing provisions of N.J.S.A. 39:4-50(a)(3) violative of the equal protection clauses of the United States and State Constitutions, and denied the motion on the basis he did not have the authority to make such determination.
On de novo review on the record, R. 3:23-8(a), the Law Division judge considered defendant's certification that she was unable to pay for an inpatient alcohol rehabilitation program because she did not have personal funds and because her HMO insurance plan through employment did not cover treatment at an inpatient alcohol rehabilitation facility.*fn1 Defendant conceded she did not apply to any inpatient treatment facility, nor did she seek a waiver of a fee, financial aid, payment plan, or any other financial accommodation for admission either prior to or after her initial motion. Nevertheless, defendant argued she was effectively precluded from availing herself of the benefit of serving up to half of her sentence in an inpatient rehabilitation facility simply because of her lack of insurance or personal funds. According to defendant, the sentencing provision allows for indigent people like herself to receive disparate treatment affecting their ability to obtain inpatient services and the quality of those services. Defendant asserted that people of means will be able to "buy their way out of jail" because they have insurance or can afford an inpatient facility for most, if not all, of the ninety-day "reprieve" period, while people like her will be forced to remain incarcerated for the entire 180 days. Furthermore, other persons with more money could take advantage of a higher level of services by going to a resort-style rehabilitation facility such as a Betty Ford Clinic, as compared to a free or nominal cost facility that defendant might be able to afford and attend. Accordingly, defendant urged that she only be required to serve a total of ninety days in jail.
The State's position was that the statute was applied equally as defendant had the exact same opportunity as anyone else to receive the benefit of an inpatient rehabilitation program once the municipal court judge, within his discretion, afforded her that opportunity. Defendant, however, did not take the opportunity to find out whether or not the statute would apply to her as she made no showing she applied for or was denied rehabilitation anywhere, either at a charity or a "spa" facility, for the ninety-day period. Thus defendant's equal protection argument was premature. Moreover, defendant presented no proofs about the differences or disparities between the inpatient rehabilitation programs in New Jersey.
The Law Division judge found, as a threshold matter, the record was devoid of any evidence to support defendant's argument that "poor people . . . cannot avail themselves of the 90-day option and wealthy people can[,]" noting that virtually all of the approved inpatient rehabilitation facilities contained in the list supplied by defendant provided for "payment assistance, state [and county] funding, [and] self pay[/]sliding scale." Furthermore, there was "no proof that [defendant] was ineligible for a program" or that "any of the approved listed programs are posh or such that wealthy people would have a significantly disparate experience . . . ." Even assuming defendant were able to make that showing, however, there was still no violation of equal protection under a rational basis test. There was no disparate treatment of a liberty interest as all third D.W.I. offenders are confined for l80 days, and there were legitimate governmental reasons to enact the statute. Judge Ostrer further reasoned that even if the statute were unconstitutional, he would be required "to excise the infirm provisions to the extent appropriate to preserve the legislative intent[,]" which clearly was that the statutorily-designated offenders be in custody for l80 days. The judge concluded that it would be inconceivable that if the Legislature were faced with the possible infirmity of the ninety-day inpatient treatment option, it would reduce all jail sentences to ninety days. Accordingly, Judge Ostrer entered a judgment of conviction against defendant and imposed the same sentence, fines, and penalties as did the municipal court judge. This appeal ensued.*fn2
Defendant renews her arguments on appeal, at argument emphasizing that her "limitation of options" makes the statute unconstitutional as applied. She also asserted that her fundamental interest is liberty and urged that the disparate treatment lies in the comparison between a "bare-bones jail with guards and bars" and a "Betty Ford facility."
The record and applicable law do not support defendant's constitutional challenge. N.J.S.A. 39:4-50(a)(3) makes it completely discretionary with the judge as to whether to allow a third or subsequent D.W.I. offender the alternative of serving half of their mandatory l80-day jail term in an approved drug or alcohol inpatient treatment program. No claim has been made or evidence proffered that such discretion is linked in any way to a defendant's socio-economic status. Here, the municipal court judge allowed defendant to service ninety days in an inpatient facility. However, despite the apparent wide variety of funding options available, she chose not to apply to any rehabilitation programs. As defendant provided no proof she was rejected from the alternative treatment because of her status, she cannot prove she suffered harm from being sentenced under N.J.S.A. 39:4-50(a)(3). Thus, the impact of the sentencing provisions of the challenged statute on defendant's impoverished state cannot be determined. Moreover, the only inpatient treatment facilities available under the statute are those approved by the IDRC and there is no evidence in the record that any of these facilities even offer a resort-style rehabilitation option. Accordingly, defendant's constitutional challenge is premature and not ripe for adjudication. See Trombetta v. Mayor and Comm'rs of Atlantic City, 181 N.J. Super. 203, 233 (App. Div. l981) (For an issue to be ripe for constitutional review it "must be fully developed, clearly defined and not merely speculative, conjectural or premature.").
Even if defendant had developed the appropriate record, her constitutional challenge would fail when analyzed under the rational basis test. An equal protection analysis under the New Jersey Constitution is largely guided by the same considerations applied in the equal protection analysis under the United States Constitution. Sojourner A. ex rel. Y.A. v. Dept. of Human Servs., 350 N.J. Super. 152, 166, 173 (App. Div. 2002) (employing a balancing test that weighs the interests of the affected class against the interests of the government regulation), aff'd, 177 N.J. 318 (2003). The disparate classification of the wealthy and the poor are reviewed under the rational basis test. Barone v. Dep't of Human Servs., Div. of Med. Assistance and Health Servs., 107 N.J. 355, 365-66 (1987); McGarrah v. Dep't of Law and Public Safety, Div. of Motor Vehicles, 268 N.J. Super. 577, 582 (App. Div. l993), certif. denied, 135 N.J. 469 (1994). A statute subject to a rational basis test "will survive . . . if the classification is rationally related to a legitimate government [interest]." McGarrah, supra, 268 N.J. Super. at 582; see Barone, supra, 107 N.J. at 365. Furthermore, New Jersey legislation is generally presumed valid and "should not be declared void unless its repugnancy to the Constitution is clear beyond a reasonable doubt." Sojourner, supra, 350 N.J. Super. at 173 (quoting Planned Parenthood of Cent. N.J. v. Farmer, 165 N.J. 609, 644 (2000)).
The challenged D.W.I. sentencing provision is rationally related to achieving an important public safety goal of decreasing the number of repeat drunk driving incidents by promoting alcoholism treatment by allowing the court, in its discretion, to lower the mandatory jail sentence by one day for each day a defendant is confined to a treatment facility. The sentencing provisions do not create disparate treatment among the poor and the wealthy because all three-time D.W.I. offenders are statutorily required to be confined for l80 days; personal freedom to go wherever one decides is not part of the inpatient treatment regimen. Moreover, although alcohol rehabilitation treatment is the type of service the government should be encouraged to fund, there is no fundamental ...