STATE OF NEW JERSEY VS. MICHAEL J. REILLY (08 19, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0952-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL J. REILLY,

Defendant-Appellant.
_______________________

Argued November 16, 2020 – Decided March 3, 2021

Before Judges Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Municipal Appeal
No. 08-19.

Thomas Cannavo argued the cause for appellant (The
Hernandez Law Firm, PC, attorneys; Thomas Cannavo,
of counsel and on the brief).

Alexis R. Agre, Assistant Prosecutor, argued the cause
for respondent (Scott A. Coffina, Burlington County
Prosecutor, attorney; Alexis R. Agre, of counsel and on
the brief).

PER CURIAM
 Defendant appeals from the Law Division's order entered after a de novo

trial on the record. The Law Division found defendant guilty of driving while

intoxicated (DWI), N.J.S.A. 39:4-50, DWI with a minor in the motor vehicle,

N.J.S.A. 39:4-50.15; possessing an open container of an alcoholic beverage in a

motor vehicle, N.J.S.A. 39:4-51b; and delaying traffic, N.J.S.A. 39:4-56. We

affirm.

We derive our facts from the testimony elicited at trial. On November 22,

2017, at approximately 10:37 p.m., Medford Township police officer John

Sabados was on duty as a patrolman when he received a call reporting a car

parked in an intersection "for a long period of time with loud music." Sabados

responded to the scene and saw an SUV parked in an intersection, approximately

ten feet past a stop sign. The engine was running, its lights were on, and there

was loud music coming from the vehicle. Sabados could see the driver, later

identified as defendant, "looking down or slouched down."

Sabados parked his police car behind the SUV and activated the

emergency lights on his vehicle. 1 The officer got out of his car and approached

the driver's side of defendant's car. As he stood at the driver's side window,

1
This also activated the Motor Vehicle Recording (MVR) in Sabados's car. The
MVR was part of the record reviewed by this court.
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Sabados observed defendant looking down at his cell phone in his lap. Sabados

knocked on the window several times before defendant noticed him. The officer

described defendant as "shocked" and then he lowered his window a few inches.

Sabados saw a "small child" in a car seat in the backseat of defendant's

car, and a "half empty" "pint-size, 750 milliliter" bottle of Fireball whisky was

in the front center console. Sabados stated he "detected the odor of alcoholic

beverage emanating from the vehicle." Defendant said the whisky belonged to

his fiancée, who he had recently dropped off at their home after an argument .

Afterwards, defendant stated he went for a drive with his daughter to cool off.

When Sabados asked defendant for certain documents, defendant

"fumbled" to remove his license, taking a period of time to produce it. He

eventually gave the officer the registration for a different vehicle and an expired

insurance card. Defendant told Sabados he had gone to dinner with his fiancée

earlier in the evening where he consumed two or three drinks. Sabados noted

defendant's slurred speech and bloodshot eyes.

Sabados then asked defendant to exit his car and walk to the front of the

police car to perform standardized field sobriety tests. To perform a horizontal

gaze nystagmus test, Sabados instructed defendant to follow a pen using only

his eyes and not to move his head. Sabados said defendant moved his head to

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follow the pen several times. Sabados also detected the odor of alcohol

emanating from defendant's mouth as he stood next to him.

Before conducting a walk-and-turn test, Sabados asked defendant if he

had any issues with his legs which would affect his ability to walk or stand in a

straight line. Defendant responded that he had no cartilage in his right leg,

which affected his ability to both bend and walk.

The officer instructed defendant to put his left foot in front of his right

foot with his hands down at his sides, demonstrating the position for him. He

also asked defendant to take nine heel-to-toe steps forwards and nine steps

backwards along an imaginary line. Defendant failed to keep his hands down at

his side, failed to walk heel-to-toe, failed to properly turn, and stepped off the

imaginary line multiple times. 2

Prior to conducting the one-leg stand test, Sabados again inquired whether

defendant had any injuries that would affect his ability to stand on one leg.

When defendant indicated he had a bad leg, Sabados asked whether standing on

the other leg would help defendant and defendant replied "yes". Sabados then

instructed defendant to stand with his feet together with his arms down at his

2
A review of the MVR shows defendant unable to maintain his balance while
performing this test.
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sides. Sabados told defendant to lift the leg of his choice, directly in front of

him, six inches above the ground, and, while staring at his raised foot, to count

out loud until the officer instructed him to stop. Sabados again demonstrated

the proper position.

Defendant attempted to perform the test by lifting his right leg. In doing

so, he swayed, put his foot down several times, failed to keep his arms at his

sides, failed to look at his raised foot, and slurred his speech while counting. At

one point, defendant stated he had a bad knee. In light of his observations and

defendant's inability to perform the field sobriety tests, Sabados concluded

defendant was unfit to operate a motor vehicle and arrested him for DWI.

Once defendant was seated in the back of the police car, Sabados noted

the strong odor of alcohol. He also detected the odor of alcohol emanating from

defendant's mouth once he was brought to the police station.

Defendant was tried on the DWI and other related charges in municipal

court on two days in January and March 2019. The Alcotest results were ruled

inadmissible because of a break in the officers' direct observation of defendant

prior to the administration of the test. The State presented Sabados as its

witness.

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 Kevin Flanagan, a former State Trooper, was qualified as an expert in the

administration of field sobriety tests. Flanagan opined that Sabados did not

instruct defendant properly regarding the tests. He also stated that defendant's

orthopedic condition with his knee would cause him pain and his obesity might

cause him difficulty in performing the tests. On cross-examination, Flanagan

conceded that defendant failed the tests and it was only possible that his physical

condition affected his performance.

Defendant also introduced testimony from Dr. Lawrence Guzzardi, M.D.,

qualified as an expert in the areas of emergency medicine, medical toxicology,

and orthopedic trauma. Dr. Guzzardi testified that he reviewed a medical record

that indicated defendant had sustained a metatarsal fracture in his right foot in

2011. In addition, Dr. Guzzardi stated he reviewed chiropractic records from

March 2014 in which defendant complained of back pain and stiffness, and hip

and rib cage discomfort. An MRI of the lower spine in 2014 revealed bulging

discs.

Dr. Guzzardi also testified regarding his review of additional records in

2014 in which defendant was diagnosed with a degenerative condition – a

meniscal tear in his right knee. Although the meniscus was repaired, Dr.

Guzzardi stated defendant continued to have recurring pain and swelling in the

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knee. Dr. Guzzardi opined that defendant's orthopedic issues and obesity

adversely impacted his ability to complete the field tests.

Dr. Guzzardi also stated that the video footage of defendant's arrest did

not conclusively establish defendant's intoxication. He opined that defendant's

initial slurring was not due to intoxication because defendant's speech returned

to normal at a rate faster than alcohol dissipates. Guzzardi expressed his belief

that defendant's slurred speech was due to being suddenly awakened by Sabados.

On cross-examination, Dr. Guzzardi admitted he did not examine

defendant at any time. He also conceded he did not know the condition of

defendant's knee or back at the time of defendant's arrest. Although the doctor

agreed defendant exhibited signs of impairment on the MVR, he found there

were other explanations for his demeanor and behavior other than alcohol

intoxication.

On May 1, 2019, the municipal court judge issued an oral decision. He

initially advised that he found all of the witnesses to be credible. Having

reviewed the videotape, the judge noted that when Sabados arrived at the scene,

defendant's car was parked in the middle of an intersection. There was very loud

music coming from the interior of the car and defendant did not respond to the

police car's overhead lights or the initial knocks on the window.

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 The judge found defendant was unable to maintain his balance and had

"significant slurring" of his speech. Although the judge noted defendant told

Sabados he had orthopedic issues with his right knee, he nevertheless had

trouble performing the field sobriety tests that appeared unrelated to any

problems with his knee. The judge concluded that "given the totality of the

circumstances, [and] all of the observations," defendant was guilty of DWI, DWI

with a minor in the car, possessing an open container of alcohol in the car, and

delaying traffic.

The court sentenced defendant as a third DWI offender3 to 180 days in the

county jail, ten years' loss of driver's license with eleven years of ignition

interlock to run concurrently, forty-eight hours at the Intoxicated Driver

Resource Center, as well as a $1006 fine, and various fines and surcharges. For

the DWI with a minor in the car conviction, the judge imposed an additional six

months' loss of driving privileges to run consecutively with the suspension for

defendant's DWI conviction, as well as an additional fine and court costs. The

court stayed the jail sentence pending the outcome of the appeal.

3
This was defendant's fourth DWI offense. Defendant was convicted of two
DWIs in the 1990s and when he was convicted a third time more than ten years
later, he was given the benefit of the "step down" provision in N.J.S.A. 39:4-
50(a)(3).
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 Defendant appealed to the Law Division where the court conducted a trial

de novo on the record. On October 9, 2019, the Law Division judge issued an

oral decision, finding defendant guilty of the four charges. The judge stated:

[A]fter fully reviewing . . . several times all of the
evidence, I find the State has met the burden of proof
and I find beyond a reasonable doubt, and I am firmly
convinced that on November 22nd at 10:37 and
thereafter, [defendant] was operating a motor vehicle
while under the influence of alcohol. I find from the
totality of the evidence and circumstances that I am
firmly convinced that [defendant] had a substantial
deterioration of his physical capabilities from alcohol.
And as a result, it was improper and illegal for him to
operate a motor vehicle.

The Law Division judge explained his reasoning based on the officer's

observations and his own review of the MVR:

The motor vehicle, where it was and how it was stopped
at the -- the amount of time[] it was stopped at an
intersection, very strange. Bloodshot eyes, yes, not
proof maybe, but they were noted. The odor of alcohol
was clear, there was an opened container of alcohol in
the motor vehicle, which [] defendant was operating.

There was slurred speech, there was some problems
retrieving correct documents. There was the result of
the field sobriety test, there was the video and what
could be observed in that. There was a child in the car
after an argument with the other member of the family.
There was blaring music. . . . And [] defendant
apparently was either somewhat asleep and nodding out
there when awakened by the officer or he was, in fact,
operating a cell phone down by his legs while seated.

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 In addressing the charge for delaying traffic, the judge found:

As far as delaying traffic, I mean, it's all part of the
[c]ourt's decision as to DUI and, I mean, I didn't see any
traffic delay, frankly, as a fact in here, but he had the
capability of doing it. But certainly, there were cars
that passed by that I saw and although the [c]ourt below
found him guilty of that, I find it's really part and parcel
to driving under the influence.

The court imposed a similar sentence as the municipal court with three

exceptions. First, on defendant's DWI conviction, the judge offered defendant

the right to apply for a ninety-day inpatient rehabilitation program in lieu of

ninety days of incarceration. The judge also ran the six-month license

suspension for the conviction of DWI with a minor in the car concurrent, rather

than consecutive, with the ten-year license suspension under the third DWI

conviction. Finally, the judge merged defendant's delaying traffic conviction

into his DWI conviction for sentencing purposes.

Defendant argued he should be sentenced under the recently amended, but

not yet effective, DWI law. 4 In denying the application, the judge stated:

4
On August 23, 2019, N.J.S.A. 39:4-50 was amended to expand the use of
ignition interlock devices and reduce the duration of license forfeitures. See
DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS—IGNITION
INTERLOCK DEVICES (L. 2019, c. 248); see also Administrative Directive
#25-19, "Implementation of New DWI Law (L. 2019, c. 248) – Includes
Expanded Use of Ignition Interlock Devices for First-Time Offenders" (Dec. 4,

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 With all due respect to the various arguments, I would
just say that I happen to agree that this law that is being
asked to be applied is not even in effect. This is a case
that goes back for two years as to the date of the
allegations of the violation. I can't agree that he should
be sentenced under a new law that is not in effect yet
....

The Law Division judge stayed defendant's jail sentence pending appeal to this

court.

Defendant presents the following issues on appeal:

I. THE LAW DIVISION ERRED IN FINDING
DEFENDANT GUILTY OF THE OBSERVATIONAL
PRONG OF THE DWI OFFENSE

II. ONCE ACQUITTED OF DWI, THEN THE
N.J.S.[A.] 39:4-50.15 CONVICTION MUST ALSO
RESULT IN AN ACQUITTAL

III. THERE IS INSUFFICIENT EVIDENCE IN THE
RECORD OF DELAYING TRAFFIC. THUS, THE
LAW DIVISION ERRED IN FINDING DEFENDANT
GUILTY OF N.J.S.[A.] 39:4-56 AND DEFENDANT
SHOULD THEREFOR[E] BE ACQUITTED OF THIS
OFFENSE

2019). Relevant to this appeal is the reduction of license forfeiture for third
DWI offenders from ten to eight years. These amendments became effective
and "shall apply to any offense occurring on or after" December 1, 2019,
approximately four months after enactment so that "[t]he Chief Administrator
of the New Jersey Motor Vehicle Commission may take any anticipatory
administrative action in advance of that date as shall be necessary to implement
the provisions of this act." L. 2019, c. 248.
A-0952-19
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 IV. THE LAW DIVISION ERRED IN FAILING TO
SENTENCE DEFENDANT PURSUANT TO LAWS
OF 2019, C. 248 AS A THIRD DWI OFFENDER
SENTENCED DE NOVO AFTER THE PASSAGE OF
THE ACT. THUS, IF NOT ACQUITTED OF DWI, []
DEFENDANT'S SENTENCE SHOULD BE
CORRECTED TO AN EIGHT-YEAR LICENSE
FORFEITURE INSTEAD OF A TEN-YEAR
LICENSE SUSPENSION

A. FAILURE TO APPLY THE NEW DWI
SENTENCING LAW TO THIS DEFENDANT AND
ANY THIRD OFFENDER SENTENCED AFTER ITS
AUGUST 23, 2019 PASSAGE[] VIOLATES
DEFENDANT'S CONSTITUTIONAL EQUAL
PROTECTION RIGHTS

B. EVEN IF THE EFFECTIVE DATE PROVISION
OF THE NEW DWI SENTENCING LAW IS UPHELD
AS CONSTITUTIONAL, AS A MATTER OF
FUNDAMENTAL FAIRNESS AND INHERENT
AUTHORITY OF OUR COURTS TO
RETROACTIVELY SENTENCE TO
AMELIORATIVE TERMS, THIS DEFENDANT AND
ALL THIRD DWI AND REFUSAL OFFENDERS
SENTENCED AFTER AUGUST 23, 2019 SHOULD
BE SO SENTENCED UNDER THE PROVISIONS OF
LAWS OF 2019, C. 248.

Defendant contends the Law Division erred in finding him guilty of DWI

because there was insufficient evidence to satisfy the required observational

prong under N.J.S.A. 39:4-50. We disagree.

Our review is "limited to determining whether the Law Division's de novo

findings 'could reasonably have been reached on sufficient credible evidence

A-0952-19
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present in the record.'" State v. Palma, 426 N.J. Super. 510, 514 (App. Div.

2012) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

[We] defer to trial courts' credibility findings that are often
influenced by matters such as observations of the character
and demeanor of witnesses and common human
experience that are not transmitted by the record. [T]he
rule of deference is more compelling where . . . two lower
courts have entered concurrent judgments on purely
factual issues. Under the two-court rule, appellate 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) (citations
omitted).]

In reviewing a trial judge's conclusions in a non-jury case, substantial

deference is given to the trial court's findings of fact. Cesare v. Cesare, 154 N.J.

394, 411-12 (1998) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474,

483-84 (1974)). These findings should only be disturbed when there is no doubt

that they are inconsistent with the relevant, credible evidence presented below,

such that a manifest denial of justice would result from their preservation. Id.

at 412. We owe no deference to the trial judge's legal conclusions. Manalapan

Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995).

N.J.S.A. 39-4:50 prohibits the operation of a motor vehicle while under

the influence of intoxicating liquor or drugs. This offense may be proven in

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either of two alternative methods: (1) proof of a defendant's blood alcohol level;

or (2) proof of a defendant's physical condition. State v. Kashi, 360 N.J. Super.

538, 545 (App. Div. 2003). "The statute does not require as a prerequisite to

conviction that the accused be absolutely 'drunk' in the sense of being sodden

with alcohol. It is sufficient if the presumed offender has imbibed to the extent

that his physical coordination or mental faculties are deleteriously affected."

State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988) (citing State v.

Emery, 27 N.J. 348, 355 (1958)).

In State v. Morris, 262 N.J. Super. 413, 416, 421 (App. Div. 1993), this

court upheld a DWI conviction, finding that slurred speech, disheveled

appearance, bloodshot eyes, alcoholic odor on breath, and abrasive demeanor

were evidence of the defendant's intoxication. See also State v. Buglione, 233

N.J. Super. 110, 112 (App. Div. 1989) (upholding DWI conviction based on the

defendant's conduct in driving his car, demeanor, bloodshot eyes, swaying, and

odor of alcohol).

Here, in his de novo review, the Law Division judge found Sabados's

testimony credible. The judge noted the officer's observations of defendant's

bloodshot eyes, the odor of alcohol in the vehicle and on defendant's breath,

defendant's slurred speech and his difficulty in retrieving documents, the blaring

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music and defendant's failure to notice the police car's overhead lights or the

officer's knocking on the window.

Moreover, the judge viewed the MVR himself and corroborated

defendant's slurred speech, difficulty retrieving his documents and his i nability

to perform the field sobriety tests. In addition, there was an open container of

alcohol in the vehicle. And, the car was stopped in an intersection for a long

period of time.

We discern no basis to disturb the Law Division judge's decision. His

findings are supported by the substantial credible evidence. He determined

under all of the circumstances that defendant was under the influence of alcohol

while driving his vehicle. Therefore, we affirm the convictions under N.J.S.A.

39:4-50 and 39:4-50.15.

Defendant also contends the Law Division erred in finding him guilty of

N.J.S.A. 39:4-56, delaying traffic. We are unconvinced.

The statute provides: "No person shall drive or conduct a vehicle in such

condition . . . as to be likely to cause delay in traffic . . . ." N.J.S.A. 39:4-56. A

reading of the plain language clearly indicates that the State need not establish

defendant's operation of his vehicle caused an actual delay in traffic, rather, only

that such operation was likely to cause a delay. See Marino v. Marino, 200 N.J.

A-0952-19
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315, 329 (2009) (alteration in original) (quoting O'Connell v. State, 171 N.J.

484, 488 (2002)) (noting "[Courts] will not 'rewrite a plainly-written enactment

of the Legislature [or] presume that the Legislature intended something other

than that expressed by way of the plain language.'").

Here, the Law Division judge convicted defendant under the statute

because the way he operated his car "had the capability of [delaying traffic]."

The judge's conclusion was supported by the evidence in the record showing

defendant's car was parked, with the lights on and engine running, in an

intersection approximately ten feet beyond a stop sign. The MVR also shows

several cars driving through the intersection and around defendant's car. We are

satisfied there is sufficient and credible evidence in the record to support the

judge's finding that defendant's conduct was likely to delay traffic.

In challenging his sentence, defendant contends the Law Division judge

erred by not sentencing him under the amended DWI law. Again, we disagree.

On August 23, 2019, the Legislature amended N.J.S.A. 39:4-50 to expand

the use of ignition interlock devices and reduce the duration of license

forfeitures. Applicable to defendant, the amendment reduced the period of

license forfeiture for third DWI offenders from ten years to eight years.

A-0952-19
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 However, the law did not become effective until December 1, 2019 so that

"[t]he Chief Administrator of the New Jersey Motor Vehicle Commission

m[ight] take any anticipatory administrative action in advance of that date as

shall be necessary to implement the provisions of this act." L. 2019, c. 248. In

addition, the statute indicated it was applicable only to offenses that occurred

after that date.

Our Supreme Court has established "well-settled" principles governing

statutory interpretation. In re Kollman, 210 N.J. 557, 568 (2012). Under these

principles, a court's "primary goal when interpreting a statute is to determine

and carry out the Legislature's intent." Ibid. (citing Allen v. V. & A Bros., Inc.,

208 N.J. 114, 127 (2011)). This process begins with the statutory language.

Ibid. "[Courts] ascribe to the statutory words their ordinary meaning and

significance, and read them in context with related provisions so as to give sense

to the legislation as a whole." DiProspero v. Penn, 183 N.J. 477, 492 (2005)

(citations omitted). If the plain language is clear, the court's task is complete.

N. J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 549 (2012) (citation

omitted). Under the plain language of the statute, because the offense of which

defendant was convicted occurred in November 2017, he was not entitled to the

benefit of the amended law.

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 We are not persuaded by defendant's argument that the trial court violated

his equal protection rights in not retroactively applying the amended law.

Specifically, defendant contends the four-month period between the law's

passage and its effective date was imposed without a rational basis.

The Equal Protection Clause of the Fourteenth Amendment commands

that no State shall "deny to any person within its jurisdiction the equal protection

of the laws," meaning that all persons similarly situated should be treated alike.

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyer

v. Doe, 457 U.S. 202, 216 (1982)). The general rule is that legislation is

presumed to be valid if the statute's classification is rationally related to a

legitimate state interest. Id. at 440 (citing Schweiker v. Wilson, 450 U.S. 221,

230 (1981)).

Within the New Jersey Constitution, the principle of equal protection

derives from constitutional language, which states: "All persons are by nature

free and independent, and have certain natural and unalienable rights, among

which are those of enjoying and defending life and liberty, of acquiring,

possessing, and protecting property, and of pursuing and obtaining safety and

happiness." N.J. Const. art. I, ¶ 1. Article I does not contain the term "equal

protection." However, "it is well settled law that the expansive language of that

A-0952-19
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provision" is the source for this "fundamental [state] constitutional guarantee[]."

Sojourner A. v. N.J. Dep't of Human Servs., 177 N.J. 318, 332 (2003) (quoting

Planned Parenthood of Cent. N.J. v. Farmer, 165 N.J. 609, 629 (2000)).

An equal protection analysis under the New Jersey Constitution slightly

differs from analysis of this fundamental right under the United States

Constitution. Greenberg v. Kimmelman, 99 N.J. 552, 567 (1985). In Robinson

v. Cahill, 62 N.J. 473, 491-92 (1973), our Supreme Court began to develop an

independent analysis of state constitutional rights under Article I, Paragraph 1,

that "rejected two-tiered equal protection analysis . . . and employed a balancing

test in analyzing claims under the state constitution." Greenberg, 99 N.J. at 567

(quoting Taxpayers Ass'n of Weymouth Twp. v. Weymouth Twp., 80 N.J. 6, 43

(1976)). That balancing test considers "the nature of the affected right, the

extent to which the governmental restriction intrudes upon it, and the public

need for the restriction." Ibid. (citing Right to Choose v. Byrne, 91 N.J. 287,

308-09 (1982)).

In later cases, the Court at times has applied traditional federal tiers of

scrutiny to an equal protection analysis, instead of a balancing test. "Where a

statute does not treat a 'suspect' or 'semi-suspect' class disparately, nor affect a

fundamental right [including a liberty interest], the provision is subject to a

A-0952-19
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'rational basis' analysis." State v. Lagares, 127 N.J. 20, 34 (1992) (citing

Dandridge v. Williams, 397 U.S. 471 (1970)). Under this analysis, the

government action only must be "rationally related to the achievement of a

legitimate state interest." Ibid. (citing Byrne, 91 N.J. at 305); see also Lewis v.

Harris, 188 N.J. 415, 443 (2006).

Although the terms of the balancing test and the tiered-scrutiny test differ,

the Court in Sojourner pointed out that "although our mode of analysis [under

the New Jersey Constitution] differs in form from the federal tiered approach,

the tests weigh the same factors and often produce the same result." 177 N.J. at

333 (citing Barone v. N.J. Dep't of Human Servs., 107 N.J. 355, 368 (1987)).

Here, the four-month period between the adoption and effective date of

the new DWI law need only pass rational basis review. The revocation of an

individual's driver's license no doubt constitutes a serious penalty; however, it

does not rise to the level of the deprivation of a fundamental right. See State v.

Hamm, 121 N.J. 109, 125 (1990). Moreover, individuals such as defendant, who

will have their licenses revoked for ten years rather than eight years for their

third DWI offense, do not constitute a "suspect" class. See Barone, 107 N.J. at

365 (citing San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973))

(defining a suspect class as one "saddled with such disabilities, or subjected to

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such a history of purposeful unequal treatment or relegated to such a position of

political powerlessness as to command extraordinary protection from the

majoritarian political process.").

In amending the DWI statute, the Legislature provided the required

rational basis for the four-month delay from the passage date until the December

1, 2019 effective date. The Legislature expressly stated the delay was imposed

so that "[t]he Chief Administrator of the New Jersey Motor Vehicle Commission

may take any anticipatory administrative action in advance of that date as shall

be necessary to implement the provisions of this act." L. 2019, c. 248.

Defendant has not established the Legislature's proffered justification for

the four-month delay was "wholly unrelated to the legislative objective." Acuna

v. Turkish, 354 N.J. Super. 500, 512 (App. Div. 2002) (citation omitted).

Therefore, defendant's equal protection argument fails.

Defendant also argues the trial court erred in not using its inherent

authority to retroactively apply the amended DWI law. He contends the

amendments to the existing DWI law were curative and/or ameliorative and thus

justify retroactive application.

Generally, the law favors prospective, rather than retroactive, application

of new legislation unless a recognized exception applies. James v. N.J. Mfrs.

A-0952-19
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Ins. Co., 216 N.J. 552, 563 (2014). Courts must apply a two-part test to

determine if a statute should be applied retroactively: (1) whether the

Legislature intended to give the statute retroactive application; and (2) whether

retroactive application "will result in either an unconstitutional interference with

vested rights or a manifest injustice." Ibid. (citation omitted). Under the first

prong of the James test, there are three circumstances that will justify the

retroactive application of a statute: (1) where the Legislature has declared such

an intent, either explicitly or implicitly; (2) where the expectations of the parties

warrant retroactive application; and (3) where the statute is curative or

ameliorative. Matter of D.C., 146 N.J. 31, 51 (1996).

A curative law is one which "amends a previous law which is unclear or

which does not effectuate the actual intent of the Legislature in adopting the

original act." Schiavo v. John F. Kennedy Hosp., 258 N.J. Super. 380, 386 (App.

Div. 1992). The purpose of a curative amendment is merely to "remedy a

perceived imperfection in or misapplication of a statute." Ibid. The amendment

explains or clarifies existing law and brings it into "harmony with what the

Legislature originally intended." Ibid.

The term "ameliorative" "refers only to criminal laws that effect a

reduction in a criminal penalty." Street v. Universal Mar., 300 N.J. Super. 578,

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582 (App. Div.1997) (quoting Kendall v. Snedeker, 219 N.J. Super. 283, 286

(App. Div. 1987)). Further, "[e]very statutory amendment which ameliorates or

mitigates a penalty for a crime is not automatically subject to a presumption of

retroactivity. The ameliorative amendment must be aimed at mitigating a

legislatively perceived undue severity in the existing criminal law." Kendall,

219 N.J. Super. at 286 n.1.

Here, there is no evidence that the Legislature intended the amended DWI

law to apply retroactively. To the contrary, the statute clearly provided, "[t] his

act shall take effect on the first day of the fourth month after enactment and shall

apply to any offense occurring on or after that date[.]" L. 2019, c. 248. In

addition, a directive from the Administrative Office of the Courts dated

December 4, 2019 stated, "the new sentencing provisions apply only to

defendants charged with a DWI or refusal on or after December 1, 2019." 5

Moreover, this court has previously considered this argument and rejected

it on several occasions. In State v. Chambers, 377 N.J. Super. 365 (App. Div.

2005), the State appealed the court's retroactive application of N.J.S.A. 3 9:4-50

which imposed a DWI sentence enacted after the date of the offense and after

5
AOC directives are "unquestionably binding on all trial courts." State v.
Morales, 390 N.J. Super. 470, 472 (App. Div. 2007).
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the municipal sentence. We reversed, finding N.J.S.A. 1:1-15 prohibited the

retroactive application of a statutory amendment reducing a criminal penalty

unless the amendment expressly stated it applied retroactively. Id. at 372. We

held the amended statute was not ameliorative because the defendant incurred

the penalty under the former version of the statute at the time of the municipal

sentencing, prior to the amendment's effective date. Id. at 374-75. See also

State v. Kostev, 396 N.J. Super. 389, 391 (App. Div. 2007) (stating a defendant

is subject to the sentencing options available at the time of his or her DWI

offense); State v. Luthe, 383 N.J. Super. 512, 514 (App. Div. 2006) (stating

where the statutory mandate is clear, "we need not resort to extrinsic evidence

to discern the Legislature's intent in enacting this amendment."). Defendant has

not met the James test to apply the amended statute retroactively.

Defendant also has not demonstrated the Legislature amended the DWI

law because it was unclear or failed to effectuate the legislative intent behind

the law. Rather, the legislative findings at the beginning of the amendments

indicate the Legislature implemented the change to expand the use of ignition

interlock devices because such devices "are more effective in deterring drunk

driving than license suspension." L. 2019, c. 248. Given the absence of any

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indication that the amendment was meant to clarify the existing DWI law, it

cannot be said that the amendment was curative in nature.

Nor can the amendment be classified as ameliorative. The new law

"significantly expands" the use of ignition interlock devices. While this

expansion is accompanied by a lessening of the period of license forfeiture,

including a reduction from ten to eight years for third DWI offenders, there is

no indication that the law was amended because the Legislature perceived an

undue severity in the existing penalties for DWI convictions. There is no

suggestion that the Legislature found the previous license forfeiture period was

unduly harsh. Rather, the amendment was intended to introduce more effective

penalties. Defendant has not established any error in the trial court's decision to

decline sentencing him under the amended law.

Affirmed.

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