State v. Reiner

FUENTES, J.A.D.,

dissenting.

My colleagues in the majority have concluded that defendant is subject to the enhanced penalties expressly reserved for second offenders under N.J.S.A. 39:4-50(g), despite the fact that this is the first time he has committed this type of offense. I disagree and therefore dissent. The majority’s conclusion runs counter to well established principles of statutory construction, undermines the policy of deterrence underlying the linkage between offense-specific recidivism and the escalation of punishment and needlessly casts irito doubt the statute’s constitutionality.

In adopting N.J.S.A. 39:4-50(g) the Legislature created a new and separate motor vehicle offense of driving while intoxicated within 1,000 feet of school property or through a school crossing. This offense has clearly delineated elements:

(1) [driving while intoxicated] on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property; [or]
(2) driving [while intoxicated] through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or
(3) driving [while intoxicated] through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

The State bears the burden of proving these statutory elements beyond a reasonable doubt. In recognition of this burden of proof, the statute provides for a specific means of establishing *183whether the offense occurred within 1,000 feet of any school property. It also disallows four potential affirmative defenses by declaring as “irrelevant to the imposition of sentence” for convictions based on (1) DWI within 1,000 feet of school property; and (2) DWI through a school crossing which has been duly designated by municipal ordinance that: (i) defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property; (ii) or while driving through a school crossing; or (iii) that no juveniles were present on the school property or crossing zone at the time of the offense; or (iv) that the school was not in session.

As a separate offense, subsection (g) also has a separate sentencing scheme intended to punish and deter the specific misconduct delineated therein. The Legislature made this clear when it declared that “except as provided in subsection (g)” a person convicted of DWI will be subject to the sentencing provisions in subsection (a). Thus, the sentencing guidelines of subsection (g) can only be triggered when a defendant is convicted of committing that particular offense.

A court’s principal duty when construing a statute is to consider its plain meaning. State v. Hoffman, 149 N.J. 564, 578, 695 A.2d 236, 243 (1997); State v. Marchiani, 336 N.J.Super. 541, 546, 765 A.2d 765, 768 (App.Div.), certif. denied, 168 N.J. 292, 773 A.2d 1156 (2001). “ ‘As a general rule of statutory construction, we look first to the language of the statute. If the statute is clear and unambiguous on its face and admits of only one interpretation, we need delve no deeper than the act’s literal terms to divine the Legislature’s intent.’ ” State v. Thomas, 166 N.J. 560, 567, 767 A.2d 459, 463 (2001) (quoting State v. Butler, 89 N.J. 220, 226, 445 A.2d 399, 402 (1982)).

Here, the plain language used by the Legislature excludes any interpretation applying second offender subsection (g) penalties based solely on a defendant’s status as a second offender under subsection (a). To hold otherwise would create a disconnect between the escalation of sanctions and a recurrence of the *184offending conduct. Such a prospect would violate basic fairness and directly undermine well established principles of criminal justice. See N.J.S.A. 2C:1-2b.

There is no textual support for the majority’s conclusion. Adoption of the majority’s interpretation would be tantamount to redrafting subsection (g) so that in lieu of the portion that begins “for a second offense ...,” the following language is substituted: “for an offense under this sub-section' committed by one who has previously been convicted under either this sub-section (g) or subsection (a)----”

If the Legislature intended such language it would have written it into the statute. It is not our job as judges to rewrite a statute so it may comport with our notion of what it should have said. As noted by Justice Clifford,

Uncompromising enforcement of laws designed to rid our highways of the scourge of the drunk driver ranks only slightly behind the veneration of motherhood and probably slightly ahead of a robust hankering after apple pie in the hierarchy of values firmly embedded in our culture. And that surely is as it should be. The Court outdoes itself, however, in support of that eminently desirable enforcement objective by effectively writing a new statute — one that establishes wholesome social policy and hence might well attract my support were I a member of the legislative branch. But I am not, any more than are my colleagues, so it does not. In my view the Court has “ventured beyond the bounds of ‘interpretation’ or ‘construction’ and into the realm of ‘creation’ and ‘substitution.’ ” (citation omitted).
[State v. Tischio, 107 N.J. 504, 522, 527 A.2d 388, 397 (1987), (Clifford, J., dissenting).]

However, to the extent that there may be an ambiguity as to the applicable sentencing guidelines, it must be resolved against the State and in defendant’s favor. State v. Alexander, 136 N.J. 563, 573, 643 A.2d 996, 1001 (1994); State v. Maguire, 84 N.J. 508, 514, 423 A.2d 294, 297 (1980).

As previously noted, defendant here committed two separate offenses, triggering the application of two separate sentencing schemes. First, he operated his motor vehicle while intoxicated. This is the second time defendant has been convicted of this offense. Therefore, he should be sentenced as a second offender under subsection (a). Defendant also operated his motor vehicle *185while intoxicated and within 1,000 feet of school property, in violation of subsection (g). This is the first time he has been convicted of this offense. He should, therefore, be sentenced as a first offender under subsection (g), consecutive to his second offender penalties under subsection (a). This approach would eliminate the needless conflict created by the majority between the offenses found in subsections (a) and (g). There is simply no need for one offense to be subsumed by the other. The sections serve separate and distinct legislative goals and target separate and distinct conduct.

Subsection (g) was signed into law on August 19, 1999. The majority decision leaves the door open for a defendant to be sentenced as a second offender under subsection (g) based on a violation under subsection (a) which predated the passage of subsection (g). If subsection (g) is not solely a recidivist statute, but a separate and distinct offense with clearly enumerated elements, as I believe it is, then the majority’s ruling would violate the Ex Post Facto Clauses of the federal and state constitutions. U.S. Const., art. I, § 10, cl. 1; N.J. Const., art. IV, § 7, ¶ 3; See also Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948); State v. Oliver, 162 N.J. 580, 588, 745 A.2d 1165, 1169 (2000).

It is well settled that a statute should be interpreted so that, whenever possible, it does not conflict with the Constitution. Jones v. United States, 526 U.S. 227, 229, 119 S.Ct. 1215, 1222, 143 L.Ed.2d 311, 323 (1999); State v. Stanton, 176 N.J. 75, 92, 820 A.2d 637, 647 (2003). The majority’s decision needlessly runs afoul of this injunction by engrafting language onto N.J.S.A. 39:4-50(a), thereby creating an ambiguity where none exists to achieve a desired result.