NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 01-44-12.
Joseph P. Rem, Jr., argued the cause for appellant (Rem Zeller Law Group; attorneys; Mr. Rem, of counsel; Lisa R. LeBoeuf and James B. Seplowitz, on the brief).
Jacqueline Choi, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Choi, of counsel and on the brief).
Before Judges Ashrafi and St. John.
Defendant Joseph B. Gaeta was convicted of Driving While Intoxicated (DWI), N.J.S.A. 39:4-50. Because the vehicle he was driving was an all-terrain vehicle (ATV) and not a car, truck, or similar motor vehicle, he argues on appeal that the penalties imposed upon him in accordance with the DWI statute are an illegal sentence. He contends that statutory provisions applicable specifically to ATV's, N.J.S.A. 39:3C-28 and -30, that were still applicable at the time of his offense limited the penalty that could be imposed to a fine of $100 to $200. We agree.
Although the cited statutes were amended in 2009 so that the standard DWI penalties would apply to a person driving an ATV while intoxicated, those amendments had not yet taken effect at the time of defendant's offense. The pre-2009 versions of the statutes were still in effect. Therefore, we reverse the sentence imposed and remand to the municipal court to resentence defendant within the limits of the pre-amendment versions of N.J.S.A. 39:3C-28 and -30.
The case proceeded in the municipal court by way of stipulated facts. On December 15, 2011, defendant, a Midland Park police officer, participated in DWI training at the Bergen County Police Academy. His volunteer role was to consume beer under controlled conditions so that other trainees could observe the effects of alcohol and learn to detect the visible signs of intoxication by means of field sobriety tests. As of 11:25 a.m. that day, defendant had a blood alcohol concentration (BAC) of .129%, according to a handheld breathalyzer device used at the police academy.
If called to testify at the trial, defendant would say he did not drink any alcoholic beverages after 11:30 that morning. He would testify that, after the training session, he went to his home and spent several hours there in the company of Officer Canonico, also a Midland Park police officer.
At 3:13 p.m. that day, defendant was off-duty and driving an ATV on Godwin Avenue in Wyckoff. Officer Canonico was following him in a car. As defendant made a turn onto Greenhaven Avenue, he failed to control the ATV, and it turned over and crashed.
Sergeant Michael Ragucci of the Wyckoff Police Department investigated at the scene of the accident. If called to testify at the trial, both Sergeant Ragucci and Officer Canonico would testify that, in their opinion, defendant was intoxicated at the time of the accident. At 4:10 p.m. on the date of the accident, a blood sample was properly drawn from defendant by a nurse at a hospital, and it revealed a BAC of .135%, that is, above the .08% limit for a per se violation under the DWI statute.
Five summonses were issued to defendant, including one charging DWI in violation of N.J.S.A. 39:4-50. At the beginning of the municipal court trial, the prosecutor conceded that defendant was not guilty of two of the offenses charged, lack of registration and lack of insurance for the ATV, and so, the prosecutor voluntarily dismissed those summonses. The factual stipulations at trial were part of an agreement between defendant and the prosecutor by which the State agreed to dismiss two additional summonses, for operating an ATV on a public road and failure to wear a helmet, if defendant was found guilty of the DWI offense and sentenced on that charge. There was no agreement as to the appropriate sentence to be imposed on the DWI charge.
Based on the stipulated facts, the municipal court found defendant guilty of DWI. Defendant then argued that the sentence that could be imposed was limited by the provisions of N.J.S.A. 39:3C-28 and -30 to a monetary fine. The court rejected that position and concluded that the usual penalties under N.J.S.A. 39:4-50 would be imposed. The conviction being defendant's first DWI offense, the court sentenced him within the appropriate range of sentences under N.J.S.A. 39:4-50 to: a fine of $306, $33 in court costs, $50 V.C.C.B. penalty, $100 drunk driving enforcement fund surcharge, $75 to the Safe Neighborhoods Services Fund, $100 state municipal ...