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State of New Jersey v. Jeffrey S. Zeikel

November 9, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEFFREY S. ZEIKEL, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 59-09-P.

The opinion of the court was delivered by: Ashrafi, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 26, 2011

Before Judges Rodriguez,*fn1 Sabatino and Ashrafi.

The opinion of the court was delivered by ASHRAFI, J.A.D.

Defendant Jeffrey Zeikel appeals his sentence under N.J.S.A. 39:4-50 as a third-time offender for driving while intoxicated ("DWI"). We affirm.

I.

On December 6, 2009, defendant was arrested in Bedminster Township after a motor vehicle stop, and chemical testing determined his blood alcohol concentration as 0.29%. He pleaded guilty to DWI on June 15, 2010.

Defendant's certified driver's abstract indicated he had three previous drinking-and-driving convictions. On September 12, 1981, he was convicted in New York State of driving while ability impaired ("DWAI"), in violation of N.Y. Veh. & Traf. Law § 1192(1). On June 13, 1984, defendant was convicted again in New York State of DWAI and of refusal to submit to a chemical test. On October 13, 1994, he was convicted in Chatham Borough, New Jersey, of DWI and of refusal to submit to a chemical test. Defendant asserts he was sentenced as a first-time offender for the 1994 offense. After pleading guilty to the present offense in 2010, he again sought to be sentenced as a first-time offender under the so-called "step-down" provision of the DWI statute.*fn2

The Bedminster Township Municipal Court concluded that defendant was a four-time repeat offender and rejected his argument for sentencing as a first-time offender. The court acknowledged the passage of more than ten years since his last offense in 1994 but took into account his 1980s New York State convictions. The court sentenced defendant as a third-time offender to 180 days in the county jail, ten years suspension of his driver's license, a fine of $1,006, and other mandatory money penalties and loss of driving and motor vehicle registration privileges.*fn3

Defendant appealed his sentence to the Superior Court, Law Division, pursuant to Rule 3:23. On de novo review, the Law Division determined that defendant was correctly sentenced to penalties as a third-time offender and imposed the same sentence as the municipal court.

On appeal before us, defendant makes the following arguments:

POINT I

RETROACTIVE APPLICATION OF AMENDMENT TO N.J.S.A. 39:4-50 GOVERNING OUT-OF-STATE CONVICTIONS IS NOT PERMITTED UNDER THE UNITED STATES ...


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