SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Scott Robertson (A-58-14) (075326)
Argued February 1, 2016 — Reargued September 26, 2016 — Decided March 8, 2017
RABNER, C.J., writing for a unanimous Court.
In this appeal, the Court addresses the appropriate standards for a stay of a driver’s license suspension in a
driving while intoxicated (DWI) case in two contexts: a judgment of the municipal court pending a trial de novo,
and a determination by the Law Division pending appeal.
On August 11, 2012, a police officer in Wall Township pulled over a car after the officer watched it cross
the “fog line”—a solid line on the “right most portion of the roadway”—three times. As the officer approached the
stopped car, a convertible with the top down, he smelled alcohol. The driver, defendant Scott Robertson, admitted
that he drank “a small number of beers” but denied that he was intoxicated. Defendant agreed to submit to three
field sobriety tests. Based on his performance, the officer believed that defendant was impaired. The officer
arrested defendant and took him to police headquarters to administer a breath test. The results of the Alcotest
revealed that defendant had a blood alcohol concentration (BAC) of .13 percent, which is above the legal limit. As a
result, the officer issued summonses for DWI, failure to maintain a lane, and reckless driving.
Before trial, defendant moved to exclude the results of the breath test. He claimed that he was entitled to
additional discovery, namely, more detailed repair records of the Alcotest device and “data downloads” of certain
diagnostic tests. The municipal court judge found probable cause for the arrest and rejected defendant’s discovery
arguments. The court found defendant guilty of DWI. The State dismissed the other charges. The court sentenced
defendant to a total of $714 in fines and penalties, ordered him to serve twelve hours in the Intoxicated Driver
Resource Center, and revoked his driving privileges for seven months, the minimum period for a first offender under
N.J.S.A. 39:4-50(a)(1)(ii).
Upon defendant’s request and without objection from the State, the municipal court judge stayed the
license suspension for twenty days to allow defendant time to file an appeal. At a trial de novo before the Law
Division, defendant again argued that the State failed to provide adequate discovery. The trial court rejected the
claim, found defendant guilty, and imposed the same sentence. Defense counsel immediately moved to continue the
stay of defendant’s license suspension, which the State opposed. The trial judge granted the request on the condition
that defendant file an appeal within ten days.
On appeal, defendant renewed his discovery argument. In a published opinion, the Appellate Division
reviewed and rejected defendant’s position. 438 N.J. Super. 47, 54, 64-73 (App. Div. 2014). The Appellate
Division also addressed an issue that the parties had not raised. It noted “that both the municipal court and the Law
Division stayed defendant’s license suspension pending appeal in this matter without providing any statement of
reasons.” Id. at 74. The panel recognized the courts’ authority to grant a stay and added that “an application for a
stay pending appeal is governed by the three-part standard in Crowe v. De Gioia, 90 N.J. 126 (1982).” Ibid. The
panel reviewed aspects of the Crowe standard in the context of DWI cases and noted that, when “a stay is otherwise
warranted,” a court may condition the stay and limit driving for purposes of employment, or require “the verified
installation of an ignition interlock device,” among other appropriate conditions. Id. at 76.
Defendant filed a petition for certification that does not challenge his conviction or sentence. The Supreme
Court granted the petition to address an issue of “significant public importance” about the appropriate standards for
a stay of judgment in a DWI case. 221 N.J. 287 (2015).
HELD: The Crowe factors are not a good fit to assess license suspensions in driving while intoxicated (DWI)
cases. Defendants who seek a new trial before the Law Division should be presumptively eligible for a stay of a
driver’s license suspension. The State can overcome that presumption by showing that a stay would present a
serious threat to the safety of any person or the community. If no conditions would mitigate that risk, the court
should not stay the sentence. If a defendant is convicted of DWI by the Law Division, the defendant has the burden
1
to justify a stay of a driver’s license pending appeal to the Appellate Division by demonstrating the three elements
set forth in Rule 2:9-4. If a stay is granted, the court may impose appropriate conditions similar to those available
after a defendant’s conviction in municipal court. Municipal court and trial judges should set forth reasons on the
record when they rule on a stay motion.
1. DWI cases start in municipal court, which has jurisdiction over motor vehicle offenses and traffic laws. N.J.S.A.
2B:12-17(b). The State must present sufficient evidence to prove the defendant’s guilt beyond a reasonable doubt.
The defendant may appeal a conviction to the Law Division and is entitled to a trial de novo. R. 3:23-1 to -9. At a
trial de novo, the court makes its own findings of fact and conclusions of law but defers to the municipal court’s
credibility findings. Once again, the State must carry the burden of proof under N.J.S.A. 39:4-50 beyond a
reasonable doubt. If convicted at the Law Division, defendants stand on a different footing. They may appeal to the
Appellate Division and press for a conviction to be reversed. But the State no longer has the burden of proof. The
differences between DWI convictions in municipal court and the Law Division matter. After the first conviction, the
stage is set for a new trial, where the defendant retains the presumption of innocence; after the second, a defendant
loses the cloak of innocence and stands convicted -- ready to challenge that determination on appeal. Those basic
distinctions call for different standards for stay applications at the two levels of the court system. (pp. 7-9)
2. The Crowe v. De Gioia three-part test, supra, 90 N.J. 126, has not been the prevailing standard for stays in DWI
cases in municipal court. DWI cases are quasi-criminal matters. The Crowe factors are not a good fit to assess
license suspensions in DWI cases for a number of reasons. The first prong would almost always be met because
defendants who face a temporary loss of driving privileges will suffer harm that cannot be restored later. The
second factor conflicts with the nature of a trial de novo, at which the State carries the burden of proof beyond a
reasonable doubt. And the balancing of hardships that the third prong invites does not squarely address the core
concerns present in a DWI case. The Court therefore looks elsewhere for guidance and turns to statutory and court
rules that authorize judges to stay a sentence. Those sources—in particular, Rule 2:9-4—highlight the issues judges
should consider when they evaluate an application to stay the suspension of a driver’s license. The proper approach,
though, differs from the municipal court to the Law Division in light of the finality of the proceedings in each court.
(pp. 9-11)
3. Defendants who seek a new trial before the Law Division should be presumptively eligible for a stay of a driver’s
license suspension. The State has the burden to overcome that presumption. It can do so by showing that a stay of
defendant’s license suspension would present a serious threat to the safety of any person or the community. If no
conditions would mitigate that risk, the court should not stay the sentence. Judges may consider a defendant’s entire
criminal past and history of motor vehicle offenses to assess the risk a defendant poses. The more extensive the
history, the more likely it is that a defendant presents a threat to public safety. Other relevant factors include a
defendant’s history of drug and alcohol abuse and dependency, evidence of rehabilitation and relapse, the
egregiousness of the particular offense, and any evidence in general of a defendant’s disregard for the law. To
militate against risk and protect the public, a judge may stay a license suspension subject to conditions. To facilitate
review, municipal court judges should set forth reasons on the record when they rule on a stay motion. (pp. 12-14)
4. If a defendant is convicted of DWI by the Law Division, Rule 2:9-4 applies. At this stage, the defendant has the
burden to justify a stay of a driver’s license suspension pending appeal to the Appellate Division. Courts may grant
a stay only if the defendant demonstrates that (1) “it appears that the case involves a substantial question that should
be determined” on appeal, (2) the safety of any person or the community “will not be seriously threatened” if
defendant’s license is not suspended, and (3) “there is no significant risk of defendant’s flight.” R. 2:9-4. A
defendant must satisfy an onerous standard to obtain a stay of a license suspension by the Law Division. Substantial
questions can involve reasonably debatable questions of law or fact that are likely to result in reversal. But it would
be rare for a debate about questions of fact alone to present a substantial question that warrants a stay. If a stay is
granted, the court may impose appropriate conditions similar to those available after a defendant’s conviction in
municipal court. Those conditions should be the least restrictive ones needed to protect the public. Finally, trial
judges, like municipal court judges, should set forth reasons when they resolve a stay application. (pp. 14-17)
Because defendant has completed his license suspension, the Court does not apply the above standards to
his case. The standards govern future requests for a stay of a license suspension by the municipal court and the Law
Division.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON and
TIMPONE join in CHIEF JUSTICE RABNER’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-58 September Term 2014
075326
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SCOTT ROBERTSON,
Defendant-Appellant.
Argued February 1, 2016
Reargued September 26, 2016 – Decided March 8, 2017
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 438 N.J. Super. 47 (App. Div.
2014).
Matthew W. Reisig argued the cause for
appellant (Reisig & Associates, attorneys;
Mr. Reisig and Jeffrey Zajac, of counsel and
on the briefs).
Monica L. do Outeiro, Special Deputy
Attorney General/Acting Assistant
Prosecutor, argued the cause for respondent
(Christopher J. Gramiccioni, Acting Monmouth
County Prosecutor, attorney).
Matthew E. Beck argued the cause for amicus
curiae Association of Criminal Defense
Lawyers of New Jersey (Chiesa Shahinian &
Giantomasi, attorneys; Mr. Beck and Chelsea
P. Jasnoff, on the brief).
Michele E. Friedman, Assistant Deputy Public
Defender, argued the cause for amici curiae
Office of the Public Defender and American
Civil Liberties Union of New Jersey
Foundation (Joseph E. Krakora, Public
Defender and Edward L. Barocas, Legal
1
Director, attorneys; Ms. Friedman and
Alexander R. Shalom, on the brief).
Kimberly A. Yonta argued the cause for
amicus curiae New Jersey State Bar
Association (Thomas H. Prol, President,
attorney; Ms. Yonta and Jeffrey Evan Gold,
on the brief).
Claudia Joy Demitro, Deputy Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (Christopher
S. Porrino, Attorney General, attorney).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
A municipal court judge convicted a motorist of driving
while intoxicated (DWI) and suspended his license for seven
months. The court granted the driver’s request to stay his
suspension while he pursued a new trial in Superior Court. The
driver was convicted again before a Law Division judge and
sought another stay of his sentence pending appeal to the
Appellate Division.
We now address the appropriate standards for a stay of a
driver’s license suspension in a DWI case in two contexts: a
judgment of the municipal court pending a trial de novo, and a
determination by the Law Division pending appeal.
I.
Because defendant seeks review only of the standard for a
stay, we recount the underlying facts briefly. They are taken
2
from testimony presented at a motion to suppress and other parts
of the record.
On August 11, 2012, a police officer in Wall Township
pulled over a car after the officer watched it cross the “fog
line” -- a solid white line on the “right most portion of the
roadway” -- three times. As the officer approached the stopped
car, a convertible with the top down, he smelled alcohol. The
driver, defendant Scott Robertson, admitted that he drank “a
small number of beers” but denied that he was intoxicated.
Defendant agreed to submit to three field sobriety tests. Based
on his performance, the officer believed that defendant was
impaired.
The officer arrested defendant and took him to police
headquarters to administer a breath test. The results of the
Alcotest revealed that defendant had a blood alcohol
concentration (BAC) of .13 percent, which is above the legal
limit. See N.J.S.A. 39:4-50. As a result, the officer issued
summonses for DWI, ibid., failure to maintain a lane, N.J.S.A.
39:4-88(b), and reckless driving, N.J.S.A. 39:4-96.
Before trial, defendant challenged the legality of his
arrest and moved to exclude the results of the breath test. At
the center of defendant’s motion to suppress was his claim that
he was entitled to additional discovery, namely, more detailed
repair records of the Alcotest device used in the case and “data
3
downloads” of certain diagnostic tests. See State v. Robertson,
438 N.J. Super. 47, 56-59 (App. Div. 2014). The State had
provided hard copies of those test results. Id. at 56.
The municipal court judge found probable cause for the
arrest and rejected defendant’s discovery arguments. After a
trial based on stipulated facts, the court found defendant
guilty of DWI. The State, in turn, dismissed the other charges.
The court sentenced defendant to a total of $714 in fines and
penalties, ordered him to serve twelve hours in the Intoxicated
Driver Resource Center, and revoked his driving privileges for
seven months, the minimum period for a first offender under
N.J.S.A. 39:4-50(a)(1)(ii).
Defense counsel asked the court to stay the sentence
pending appeal, and the State did not object. The judge stayed
only the license suspension for twenty days to allow defendant
time to file an appeal.
At a trial de novo before the Law Division, defendant again
argued that the State failed to provide adequate discovery. The
trial court rejected the claim and found defendant guilty. It
noted that the officer’s observations independently supported a
conviction. The court then imposed the same sentence.
Defense counsel immediately moved to continue the stay of
defendant’s license suspension, which the State opposed. The
trial judge granted the request on the condition that defendant
4
file an appeal within ten days. The court added that it would
revoke the stay immediately if defendant “g[o]t arrested on a
DWI in the future.”
On appeal, defendant renewed his discovery argument. In a
published opinion, the Appellate Division reviewed and rejected
defendant’s position. Robertson, supra, 438 N.J. Super. at 54,
64-73.
At the end of its opinion, the Appellate Division addressed
an issue that the parties had not raised. It noted “that both
the municipal court and the Law Division stayed defendant’s
license suspension pending appeal in this matter without
providing any statement of reasons.” Id. at 74. The panel
recognized the courts’ authority to grant a stay and added that
“an application for a stay pending appeal is governed by the
three-part standard in Crowe v. De Gioia, 90 N.J. 126 (1982).”
Ibid. The panel reviewed aspects of the Crowe standard in the
context of DWI cases and noted that, when “a stay is otherwise
warranted,” a court may condition the stay and limit driving for
purposes of employment, or require “the verified installation of
an ignition interlock device,” among other appropriate
conditions. Id. at 76.
Defendant filed a petition for certification that does not
challenge his conviction or sentence. He seeks review only of
5
the Appellate Division’s ruling on the standard for a stay in
DWI cases. We granted the petition. 221 N.J. 287 (2015).
After a first round of oral argument, the Court invited
various amici to weigh in on the appropriate standard. We
received responses from the Attorney General, the New Jersey
State Bar Association, and the Association of Criminal Defense
Lawyers of New Jersey, as well as a joint submission from the
American Civil Liberties Union of New Jersey and the Office of
the Public Defender.
II.
The parties and amici commented on the differences among
proceedings in the municipal court, Law Division, and Appellate
Division, and on the finality of the rulings at each of those
stages. Counsel also submitted proposed tests for a stay of
judgment in the municipal court pending a trial de novo, and in
the Law Division pending an appeal.
The proposals share common features and also differ from
one another. Without attempting to summarize the presentations
one by one, we note that all of them inform our ruling. We
thank amici in particular for their helpful responses to the
Court’s request for assistance.
III.
Defendant has already completed his license suspension,
which renders this case moot. The appeal, however, raises an
6
issue of “significant public importance” about the appropriate
standards for a stay of judgment in a DWI case, which is
“capable of repetition, yet evade[s] review.” Mistrick v. Div.
of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998);
see also Nini v. Mercer Cty. Cmty. Coll., 202 N.J. 98, 105 n.4
(2010). We therefore address the question presented.
IV.
DWI cases start in municipal court, which has jurisdiction
over motor vehicle offenses and traffic laws. N.J.S.A. 2B:12-
17(b). The State must present sufficient evidence to prove the
defendant’s guilt beyond a reasonable doubt. State v.
Kuropchak, 221 N.J. 368, 382 (2015). The defendant, in turn,
may appeal a conviction to the Law Division and is entitled to a
trial de novo. R. 3:23-1 to -9.
In the Law Division, the trial judge “may reverse and
remand for a new trial or may conduct a trial de novo on the
record below.” R. 3:23-8(a)(2). At a trial de novo, the court
makes its own findings of fact and conclusions of law but defers
to the municipal court’s credibility findings. See State v.
Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95
N.J. 197 (1983). It is well-settled that the trial judge
“giv[es] due, although not necessarily controlling, regard to
the opportunity of the” municipal court judge to assess “the
credibility of the witnesses.” State v. Johnson, 42 N.J. 146,
7
157 (1964). Once again, the State must carry the burden of
proof under N.J.S.A. 39:4-50 beyond a reasonable doubt. See
Kuropchak, supra, 221 N.J. at 382; State v. Snyder, 337 N.J.
Super. 59, 61-62 (App. Div. 2001).
If convicted at the Law Division, defendants stand on a
different footing. They may of course appeal to the Appellate
Division and press for a conviction to be reversed. But the
State no longer has the burden of proof. Appellate review
instead focuses on whether there is “sufficient credible
evidence . . . in the record” to support the trial court’s
findings. Johnson, supra, 42 N.J. at 162. “[A]ppellate courts
ordinarily should not undertake to alter concurrent findings of
facts and credibility determinations made by two lower courts
absent a very obvious and exceptional showing of error.” State
v. Locurto, 157 N.J. 463, 474 (1999). The trial court’s legal
rulings are considered de novo. Kuropchak, supra, 221 N.J. at
383.
The differences between DWI convictions in municipal court
and the Law Division matter. After the first conviction, the
stage is set for a new trial, where the defendant retains the
presumption of innocence; after the second, a defendant loses
the cloak of innocence and stands convicted -- ready to
challenge that determination on appeal. Those basic
8
distinctions call for different standards for stay applications
at the two levels of the court system.
V.
The municipal court and the Law Division both stayed
defendant’s license suspension pending appeal. Neither court
explained its ruling. On appeal, the Appellate Division
concluded that, to obtain a stay, a defendant must satisfy the
standard outlined in Crowe, supra, 90 N.J. 126. Robertson,
supra, 438 N.J. Super. at 74. Under that test,
[a] party seeking a stay must demonstrate that
(1) relief is needed to prevent irreparable
harm; (2) the applicant’s claim rests on
settled law and has a reasonable probability
of succeeding on the merits; and (3) balancing
the “relative hardship to the parties reveals
that greater harm would occur if a stay is not
granted than if it were.”
[Garden State Equal. v. Dow, 216 N.J. 314, 320
(2013) (quoting McNeil v. Legislative
Apportionment Comm’n, 176 N.J. 484, 486 (2003)
(LaVecchia, J., dissenting)).]
The appellate panel added that, “[w]ith respect to the second
Crowe factor, the Court should consider whether the appeal
involves a substantial question, and whether there is a
reasonable prospect that defendant may prevail and avoid license
suspension.” Robertson, supra, 438 N.J. Super. at 74.
Crowe’s three-part test, however, has not been the
prevailing standard for stays in DWI cases in municipal court.
DWI cases are quasi-criminal matters. State v. Gibson, 219 N.J.
9
227, 240 (2014). Crowe was a civil palimony case in which the
trial court ordered temporary relief. Crowe, supra, 90 N.J. at
129-30.
The Crowe factors are not a good fit to assess license
suspensions in DWI cases for a number of reasons. The first
prong would almost always be met because defendants who face a
temporary loss of driving privileges will suffer harm that
cannot be restored later. The second factor conflicts with the
nature of a trial de novo, at which the State carries the burden
of proof beyond a reasonable doubt. And the balancing of
hardships that the third prong invites does not squarely address
the core concerns present in a DWI case, which we discuss below.
We therefore look elsewhere for guidance and turn to statutory
and court rules that authorize judges to stay a sentence.
When a license is revoked for DWI and the defendant appeals
the judgment, “the appeal shall not operate to restore the
license during the pendency of the appeal, however, the license
may be restored either by the trial court or the appellate court
pending disposition of the appeal.” N.J.S.A. 39:5-22. Rule
7:13-2 provides that, “[n]otwithstanding R. 3:23-5, a sentence
or a portion of a sentence may be stayed by the court in which
the conviction was had or to which the appeal is taken on such
terms as the court deems appropriate.” Rule 3:23-5(b), in turn,
10
states that a court may stay a fine, costs, or a forfeiture “as
the court deems appropriate.”
Two other rules offer additional guidance. When a
defendant is sentenced in the Law Division, “[a] sentence of
imprisonment shall not be stayed by the taking of an appeal or
by the filing of a notice of petition for certification, but the
defendant may be admitted to bail as provided in R. 2:9-4.” R.
2:9-3(b). Rule 2:9-4 provides more substantive direction. It
states that a defendant in a criminal case shall be admitted to
bail
only if it appears that the case involves a
substantial question that should be determined
by the appellate court, that the safety of any
person or of the community will not be
seriously threatened if the defendant remains
on bail and that there is no significant risk
of defendant’s flight.
[R. 2:9-4.]
Those sources -- in particular, Rule 2:9-4 -- highlight the
issues judges should consider when they evaluate an application
to stay the suspension of a driver’s license. The proper
approach, though, differs from the municipal court to the Law
Division in light of the finality of the proceedings in each
court.
11
A.
To reiterate, a conviction in municipal court is subject to
a trial de novo, at which the State must again prove a
defendant’s guilt beyond a reasonable doubt. See Snyder, supra,
337 N.J. Super. at 61-62. For that reason, defendants who seek
a new trial before the Law Division should be presumptively
eligible for a stay of a driver’s license suspension. The State
has the burden to overcome that presumption. It can do so by
showing that a stay of defendant’s license suspension would
present a serious threat to the safety of any person or the
community. If no conditions would mitigate that risk, the court
should not stay the sentence. Practically, when no stay is
granted, defendants may have served the full period of
suspension by the time the trial de novo takes place. See,
e.g., N.J.S.A. 39:4-50(a)(1)(i) (imposing license suspension of
three months on first offenders with BAC of .08 percent or
higher but less than .10 percent).
Judges may consider a defendant’s entire criminal past and
history of motor vehicle offenses to assess the risk a defendant
poses. The more extensive the history, the more likely it is
that a defendant presents a threat to public safety. According
to the National Highway Traffic Safety Administration,
“[d]rivers with BACs of .08 . . . or higher involved in fatal
crashes were 4.5 times more likely to have prior convictions for
12
driving while impaired (DWI) than were drivers with no alcohol
in their blood.” Nat’l Ctr. for Statistics and Analysis, Nat’l
Highway Traffic Safety Admin., Traffic Safety Facts 2015 Data:
Alcohol-Impaired Driving 4 (2016), https://crashstats.nhtsa.
dot.gov/Api/Public/ViewPublication/812350.
Other relevant factors include a defendant’s history of
drug and alcohol abuse and dependency, evidence of
rehabilitation and relapse, the egregiousness of the particular
offense, and any evidence in general of a defendant’s disregard
for the law.
To militate against risk and protect the public, a judge
may stay a license suspension subject to conditions. See R.
7:13-2 (noting that court may stay sentence “on such terms as
the court deems appropriate”). In that regard, the court may
impose conditions or limits on driving. For example, a court
could order that a defendant be allowed to travel only to and
from work or a doctor’s office, within certain hours.1 The court
could also condition a stay upon the installation of an ignition
interlock device.2 The conditions imposed should be no more
onerous than necessary to protect the public.
1 Some states have laws that allow for a restricted license.
See, e.g., Conn. Gen. Stat. § 14-37a.
2 An ignition interlock device (IID) is a “blood alcohol
equivalence measuring device which will prevent a motor vehicle
from starting if the operator’s blood alcohol content exceeds a
13
To facilitate review, municipal court judges should set
forth reasons on the record when they rule on a stay motion.
B.
If a defendant is convicted of DWI by the Law Division,
Rule 2:9-4 applies. At this stage, the defendant has the burden
to justify a stay of a driver’s license suspension pending
appeal to the Appellate Division. Courts may grant a stay only
if the defendant demonstrates that (1) “it appears that the case
involves a substantial question that should be determined” on
appeal, (2) the safety of any person or the community “will not
be seriously threatened” if defendant’s license is not
suspended, and (3) “there is no significant risk of defendant’s
flight.” R. 2:9-4.
Federal case law offers guidance on the meaning of
“substantial question.” The same phrase is used in the Bail
Reform Act of 1984. In particular, Title 18, United States
predetermined level when the operator blows into the device.”
N.J.S.A. 39:4-50.17(d). Because defendants bear the cost of an
IID, judges should be mindful of an individual defendant’s
ability to pay for the device. Cf. Bearden v. Georgia, 461 U.S.
660, 672, 103 S. Ct. 2064, 2073, 76 L. Ed. 2d 221, 233 (1983)
(holding that in revocation proceedings for failure to pay fine
or restitution, sentencing courts must inquire into reasons for
failure to pay and consider bona fide efforts defendant has made
to acquire resources).
Defendant argues that the Motor Vehicle Commission oversees
the use of an IID. We ask the Director of the Administrative
Office of the Courts to coordinate with the Chief Administrator
of the Motor Vehicle Commission about any issues that may arise.
14
Code, Section 3143(b) directs that a defendant found guilty of
an offense and sentenced to imprisonment shall be detained
unless the judge finds, among other things, that the appeal
raises a substantial question of law or fact
likely to result in (i) reversal, (ii) an
order for a new trial, (iii) a sentence that
does not include a term of imprisonment, or
(iv) a reduced sentence to a term of
imprisonment less than the total of the time
already served plus the expected duration of
the appeal process.
A majority of Circuits follows the Eleventh Circuit and
defines “substantial question” as “a ‘close’ question or one
that very well could be decided the other way.” United States
v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985) (per curiam),
cert. denied, 479 U.S. 1018, 107 S. Ct. 669, 93 L. Ed. 2d 721
(1986); see also United States v. Pollard, 778 F.2d 1177, 1182
(6th Cir. 1985); United States v. Bayko, 774 F.2d 516, 523 (1st
Cir. 1985); United States v. Bilanzich, 771 F.2d 292, 298-99
(7th Cir. 1985); United States v. Affleck, 765 F.2d 944, 952
(10th Cir. 1985) (en banc); United States v. Valera-Elizondo,
761 F.2d 1020, 1024 (5th Cir. 1985); United States v. Randell,
761 F.2d 122, 125 (2d Cir.), cert. denied, 474 U.S. 1008, 106 S.
Ct. 533, 88 L. Ed. 2d 464 (1985); United States v. Powell, 761
F.2d 1227, 1231-32 (8th Cir. 1985) (en banc), cert. denied, 475
U.S. 1015, 106 S. Ct. 1196, 89 L. Ed. 2d 311 (1986), and 476
U.S. 1104, 106 S. Ct. 1947, 90 L. Ed. 2d 357 (1986). In Powell,
15
the Eighth Circuit elaborated on the overall standard and held
that, to be released on bail after a sentence of imprisonment, a
defendant must show that the question presented is substantial -
- “that it is a close question or one that could go either way”
-- and that the substantial question “is so integral to the
merits of the conviction that it is more probable than not that
reversal or a new trial will occur if the question is decided in
the defendant’s favor.” Powell, supra, 761 F.2d at 1233-34.
The Third Circuit defines the term “substantial question”
as “one which is either novel, which has not been decided by
controlling precedent, or which is fairly doubtful.” United
States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985). The Ninth
Circuit uses a “fairly debatable” standard. United States v.
Handy, 761 F.2d 1279, 1283 (9th Cir. 1985).
Under any of those approaches, a defendant must satisfy an
onerous standard to obtain a stay of a license suspension by the
Law Division. Substantial questions can involve reasonably
debatable questions of law or fact that are likely to result in
reversal. But it would be rare for a debate about questions of
fact alone to present a substantial question that warrants a
stay.
To demonstrate that he or she does not pose a risk to
public safety, a defendant can propose conditions that would
mitigate that risk. If a stay is granted, the court may impose
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appropriate conditions similar to those available after a
defendant’s conviction in municipal court. Once again, those
conditions should be the least restrictive ones needed to
protect the public.
Finally, in only a rare case would the third factor under
Rule 2:9-4 -- significant risk of flight -- be relevant in
connection with a license suspension.
Trial judges, like municipal court judges, should set forth
reasons when they resolve a stay application.
VI.
Because defendant has completed his license suspension, we
do not apply the above standards to his case. The standards
govern future requests for a stay of a license suspension by the
municipal court and the Law Division.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.
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