Opposition — Vance v. New Jersey

+ BACH RODAK, JR., @LES

IN THE MACHAEL OD:

Supreme Court of the United y ig

OCTOBER TERM, 1975

No. 75-1438

MARSHALL G. VANCE,

Petitioner,

vs.

STATE OF NEW JERSEY,

Respondent.

On Petition for Writ of Certicrari to the

Superior Court of New Jersey, Appellate Division

BRIEF AND APPENDIX IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

WILLIAM F. HYLAND

ATTORNEY GENERAL OF NEW JERSEY

ATTORNEY FOR PLAINTIFF-RESPONDENT

STATE OF NEW JERSEY

STATE HOUSE ANNEX

TRENTON, NEW JERSEY 08625

ROBERT E. ROCHFORD

DAVID S. BAIME DEPUTY ATTORNEY GENERAL

DEPUTY ATTORNEY GENERAL STATE OF NEW JERSEY

CHIEF, APPELLATE SECTION DIVISION OF CRIMINAL JUSTICE

DIVISION OF CRIMINAL JUSTICE APPELLATE SECTION

STATE OF NEW JERSEY 7 GLENWOOD AVENUE

OF COUNSEL EAST ORANGE, NEW JERSEY 07017

ON THE BRIEF

——

LEGAL MIME OGRAPHING SERVICE

190 South Harr:son St., Eos? Orange, N.J. 97018

(201) 643-4292 (201) 678-8200

TABLE OF CONTENTS

CONSTITUTIONAL PROVISIONS AND STATUTES

PEE wens edswascdccsecececeestsecesessees

STATEMENT OF THE CASE

PROCEDURAL HISTORY ....................

FACTUAL BACKGROUND ...................

REASONS FOR DENYINGCERTIORARI..........

EEE s4 eK ewe ender decctpasaeeracavecsesse

CASES CITED

ALBUQUERGUE v. ARIAS, 64 N.M. 337, 328 P.2d

593, 594 (Sup.Ct. 1958) ...........ceeeecceeeeeeees

APODACA v. OREGON, 406 U.S. 404 (1972)..........

ARNDT, In re, 67 N.J. 432, 436, 341 A.2d 596 (1975) ...

AUSTIN v. DENVER, 170 Colo. 448, 462 P.2d 600,

603-604 (Sup. Ct. 1969), cert. den., 398 U.S. 910 (1970)

AUSTIN v. UNITED ST TES, 299, A.2d 545, 546-547

nn NN a Oe

PAGE

14

10

10

BALDWIN v. NEW YORK, 399 U.S. 66, 69-70 (1970) . .8,9,12

BARRON v. MAYOR AND CiTY COUNCIL, 32 U.S.

GE s Foc e ns qendecdenescccencessccesiedinees

BERBERIAN v. LUSSIER, 87 R.[. 226, 139 A.2d 869

ie cee ee cee eee cee eu Eid ss oid kes

BLOOM v. ILLINOIS, 391 U.S. 194, 198 (1968)........

BLUE JEANS CORP. v. AMALGAMATED

CLOTHING WORKERS OF AMERICA, 275 N.C.

503, 169 S.E.2d 867 (App.Ct.1969) ...........0 cece

BRIEHRER, In re, 50 N.J. 501, 517-518, 236 A.2d 592

SN BN RAdOCARREAKCAGKE DENA CORRS RE SEes se ce cen ee

BUFFALO v. CANNIZZARIO, 17 Mise. 2d 839, 18

N.¥.5.20 706, T08(Sup.Ct. 1968) ... 2. ccccccccsccees

10

ii

CASES CITED (continued) PAGE

CALLAN v. WILSON, 127 U.S. 540 (1888) ........... 6

CARUSO v. PORTER, 102 N.J.L. 71, 73, 180 A. 805

(up. Cr. IGG «ccc cccceccesssacuanueneeeeeeee 7

CHEFF v. SCHNACKENBERG, 384 U.S. 375, 379

(ROG 2... ccccccscecceccssecvenssusnenl 6

CODISPOTI v. PENNSYLVANIA, 418 U.S. 506, 512

(ROTO .nccicoccvcceccesscsusnnensnneee 6,8

DADBEZIES v. BOURG, 273 So.2d 622, 626

(La. App. 1973), cert. den., 277 So.2d 445 (1973) ...... 10

DE STEFANO v. WOODS, 392 U.S. 631, 633-634 (1968) 14

DISTRICT OF COLUMBIA v. CLAWANS, 300 U.S.

GET, GRE (IBBT) ... . wacccccccesesssseucseeueeeeueees 6

DISTRICT OF COLUMBIA v. COLTS, 282 U.S. 63,

cal) PP rrrrrrrTrrrr 6

DUNCAN v. LOUISIANA, 391 U.S. 145, 149 (1968) ... 6,8,9

DYKE v. TAYLOR IMPLEMENT MFG CO., 391 U.S.

ZIG, Z19-BHS (ISSH) 2... cccccvccccccccoscssuueaees 6,8

FRANK v. UNITED STATES, 395 U.S. 147, 148 (1969) 6,8,12

GAITHOR v. UNITED STATES, 251 A.2d 644

(D.C. Ame. B0GD ....cccccecsccnuneneuneneee 10

GANNON, In re, 26 Cal. App.3d 731, 103 Cal.Rptr. 224,

338-300 (Ce. An. 107E) «oo 0nseecescesseuuenneeee 10

HAMILTON v. WALKER, 65 N.M. 470, 340 P.2d 407,

406-400 (Sap CX. 1GED) ... oc ccccccecscscuuaeueueeee 11

HILLIARD v. GAINESVILLE, 213 So.2d 689, 691

(Fla.Sup.Ct. 1968) app. dism’d 393 U.S. 321 (1969).... = 11

JOHNSON v. LOUISIANA, 406 U.S. 356 (1972) ....... 14

JOHNSON v. TURNER, 429 F.2d 1152, 1154 (10 Cir.

| 9

LATIMER v. WILSON, 103 N.J.L. 159, 164, 134 A. 750

(E.BA.1BER) 2... ccccccccccsnscesesceunenen enna 7

ill

CASES CITED (continued)

LAWTON v. STEELE, 152 U.S. 133 (1894) ...........

FMONROE v. WILHITE, 255 La. 838, 233 So.2d 535,

536 (Sup.Ct.1970), cert. den., 400 U.S. 910 (1970) ....

MUNIZv. HOFFMAN, 422 U.S. 454 (1975) ...........

NATAL v. LOUISIANA, 139 U.S. 621 (1891)..........

NORVELL v. ILLINOIS, 373 U.S. 420, 424 (1963)... ..

PHILIPPS v. UNITED STATES, 457 F.2d 1313 (8 Cir.

DPRMMEUUUBEEMUDEESGESSeccedccecccccccccecccce

PUERTO RICO NEWSPAPER GUILD LOCAL, In re,

225, 476 F.2d 856, 857-858 (1 Cir.1973) ..............

ROTHWEILER v. SUPERIOR CT. OF PIMA CTY.,

100 Ariz. 7, 410 P.2d 479 (1966) .......... cece eees

ST. PAUL v. ULMER, 261 Minn. 178, i11 N.W.2d 612,

618-619 (Sup.Ct.1961) .... 0... ccc cece eee eeeeeees

SCHICK v. UNITED STATES, 195 U.S. 65 (1904) .....

SHAFSKY v. CASPER, 487 P.2d 468, 471

occ concenccccccses

SMITH v. STATE, 17 Md. App. 217, 301 A.2d 54, 61-64

EES IEEE SS OT OTTT TTT ET TEATS

STATE v. CONNORS, 129 N.J. Super. 476, 481-482, 324

Tee ee eee cece eka cesescescecs

STATE v. CUSICK, 110 N.J. Super. 149, 151, 264 A.2d

EEE EES EES ET TTT

STATE v. GREEN, 277 N.C. 188, 176 S.E.2d 756, 760

Te eres ccc eceebecccocces

STATE «. HENDRICKS, 309 So.2d 232, 233

EE EE

STATE v. HOLLIDAY, R.1 , 280 A.2d 333

Ne i es nec eaesecccces

STATE v. JOHNSON, 191 Neb. 535, 216 N.W.2d 517,

518-519 (Sup.Ct. 1974), cert. den., 419 U.S. 949 (1974)

ll

12,13

10

10

iv

CASES CITED (continvwed)

STATE v. JONES, 191 Neb. 538, 216 N.W.2d 519, 520

GER. EES sock csnceccnccsnectncdnesndesaieun

STATE v. MACUK, 57 N.J. 1, 910, 268 A.2d 1(1970)...

STATE v. MAIER, 13 N.J. 235, 277, 99 A.2d 21 (1953) ..

STATE v. OWNES, 54 N.J. 153, 159-162, 254 A.2d 97

(1969), cert. den., 396 U.S. 1021 (1970)..............

STATE v. RODGERS, 91 N.J.L. 212, 102 A. 433

Ge. @ Bs TAG a ccciccccnecenatetcceunsuaceunene

STATE v. SHAK, 51 Haw. 612, 466 P.2d 422, 424-425

(Sup.Ct. 1970) cert. den., 400 U.S. 930 (1970) ........

STATE v. TABISZ, 129 N.J. Super. 80, 322 A.2d 453

CATON SPEED 6 nek cccécsescscenieeaeonssebeawen

STATE v. THIGPEN, La. , 275 So.2d 760,

Wee SA UE s enc hntevetscnncncesdvisdheninn

STATE v. YOUNG, 194 Neb. 544, 234 N.W.2d 196,

SPOR OED +o dntnccstiavansasscnennsenee

STATE v. ZUCCONI, 93 N.J. Super. 380, 384-387, 226

A.2d 16 (App. Div.1967), affd 50 N.J. 361, 235 A.2d

PE 60 csnnntennsesdeunaaen PTTTCe TTT Te

STATE ex rel. DE CONCINI v. TUCSON CITY CT., 9

Ariz. App. 522, 454 P.2d 192 (Ct. App.1969)..........

TAY LOR v. HAYES, 418 U.S. 488, 495 (1974) .........

UNION NACIONAL DE TRABAJADORES, In re,

OSS FBS BEB, BIG CO IT® oc cc cnsccccvcedasesecs

UNITED STATES v. CAIN, 454 F.2d 1285, 1287-1288 (7

Sk SUED Kcleldes 60 ce ceuuusauended one

UNITED STATES v. FLOYD, 477 F.2d 217, 221-222 (10

Cir. 1973), cert. den., 414 U.S. 1044(1973) ..........

UNITED STATES v. GOELTZ, 513 F.2d 193, 195-196,

cert. den., ___U.S. , 96 S.Ct. 51 (1975) (10 Cir.

PUES cccccdcccvesnensceccesededssseuanabnueunane

PAGE

11

~]

10

CASES CITED (continued) PAGE

UNITED STATES v. IRELAND, 493 F.2d 1208, 1209 (4

SE ooo dk aee edb aeeeneeneenennnae’ a)

UNITED STATES v. JARMAN, 491 F.2d 764, 767 (4

SME cnc d ied cds cde obns enbaeend Menenenetads q

UNITED STATES v. MERRICK, 459 F.2d 644, 645 (4

Ee Pe dd ee a eee bee eeunt q

UNITED STATES v. POTVIN, 481 F.2d 388, 381 (10

re Seer ns eee i)

UNITED STATES v. PROFFITT, 498 ©.2d 1124, 1127

(3 Cir. 1974), cert. den., 419 U.S. 1002 (i974) ........ 4

UNITED STATES v. ROGERS, 354 F.Supp. 502

oes 4

VADNAIS HEIGHTS v. BEARDSLEY, 296 Minn. 154,

207 N.W.2d 339, 340 (Sup.Ct.1973) ................. 10

VIRGINIA ex rel. SHIFFLETT v. COOK, 333 F.Supp.

- G&S ee ene 9,13

WILLIAMS v. FLORIDA, 399 U.S. 78(1970) ......... 14

UNITED STATES CONSTITUTION CITED

a I ued on ce deceksuee eeu 4,5

ELE ER LS OH

EE ccc Gcanuwecesbeunaeestae tender

NEW JERSEY CONSTITUTION CITED

REED FB, FRI on. decnenesensscncossececeoss: 1,5

NEW JERSEY STATUTES CITED

a eeuaeanes 11

i eaheeaee aan 2.4

a a ae ee 2,4

vi

CASES CITED (continued) PAGE

NEW JERSEY RULES CITED

DE SheuKsvneseddedendancasdedcuudistdenenséaee 7

Ps 6tenctddesieucdswdnaebesestoutes jiviawewee 2

GED hdd bkadisdensaddndicssvedadeusiteoweens 7

i scivciadecadscndsseewedie vuseeeekneees 7

PL ckbcesesPdsuentedeserusousieeceueneeecuns 7

Pc .bécecdneiebenduesnienneveseeeesseeneens 7

Pe cccctdcducédsbadeccede Cemubunsiaweneuaenees 7

OTHER SOURCES CITED

PP ED 660 6ebddedpennsessaceucusdess 7

TABLE TO APPENDIX

Brief Filed By Petitioner With The Appellate Division

Of The Superior Court Of New Jersey, Page 27 ...... Rla

New Jersey Constitution, Article I, Paragraph9....... R2a

PR Sc kee deweecencsdsceesecessseousenees R3a

New Jersey Court Rule 3:23-1 ..............0eeeeeees R4a

See SAN GO TO BF cov cucccccécccnsenvsscss R5da

New Jersey Court Rule 7:4-2 ............cccecceceees R6a

New Jersey Court Rulle 7:5-1 . 0... cc ccc cc ccccccccces R9a

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED*

New Jersey Constitution, Article 1, Paragraph 9:

The right of trial by jury shall remain in-

violate... (see R2a).

N.J.S.A. 39:4-86. See R3a.

New Jersey Court Rule 3:23-1. See R4a.

New Jersey Court Rule 1:2-1. See R5a.

New Jersey Court Rule 7:4-2. See R6a, R7a.

New Je*sey Court Rule 7:5-1. See R&a.

* These provisions and statutes are supplemental to those con-

tained in the Petition filed in the instant case.

Statement of the Case

Procedural History

On December 21, 1973, Summons No. 2725 was issued by

the Municipal Court of Lower Township against petitioner

Marshall G. Vance. The summons charged petitioner with

driving while under the influence of alcohol, contrary to

N.J.S.A. 39:4-50(a). On the same date, Summons No. 2726

was issued by the Municipal Court of Lower Township

charging petitioner with passing on a curve, contrary to

N.J.S.A. 29:4-86.

On May 11, 1974, a hearing was conducted in the Lower

Township Municipal Court before the Honorable Francis

Dwyer. Petitioner was found guilty of both charges. On the

same date, Judge Dwyer sentenced petitioner to a term of

three months in the county jail and suspension of driving

privileges for a period of ten years for a second violation of

N.J.S.A. 39:4-50(a). Petitioner was fined $10 and $5 costs

for violation of N.J.S.A 39:4-86. On May 13, 1974, petitioner

filed a Notice of Appeal to the Cape May County Court

pursuant to N.J. Court Rule 3:23. A trial de novo on the

transcripts below was conducted by the Honorable Nathan

C. Staller, J.C.C. on December 17, 1974. On that same date

petitioner’s motion for trial by jury was denied. In a letter

opinion of December 26, 1974 the County Court reconvicted

petitioner on both charges and reimposed sentences issued

by the Municipal Court.

Petitioner filed a Notice of Appeal to the Appellate Divi-

sion of the Superior Court of New Jersey on January 21,

1975. The cause, including petitioner's jury trial claim, was

argued before that court on November 3, 1975. On Novem-

ber 18, 1975 the Appellate Division rejected petitioner's

jury trial argument and affirmed his conviction. A Petition

for Certification to the Appellate Division was filed by peti-

tioner on December 17, 1975 with the Supreme Court of

New Jersey. The Petition was denied on March 2, 1976. On

May 31, 1976 petitioner filed with this Court a Petition for

Writ of Certiorari.

Factual Background

The facts giving rise to the present litigation were ad-

duced at the Municipal Court proceeding below.’ Petitioner

had staggered into a service station on December 21, 1973.

He reeked of alcohol. His speech was slurred and his dress

dishevelled. Petitioner acted aggressively and obnoxiously

to the service station owner and his attendant. The station

owner accompanied petitioner to the latter’s vehicle which

was embedded in sand and smelt strongly of alcohol. The

vehicle was towed to the service station where petitioner

threatened the station owner and refused to pay the towing

bill.

The station owner summoned a policeman who advised

petitioner that he was inebriated and suggested that peti-

tioner take a taxi home. The officer departed and peti-

tioner, ignoring the warnings of the station owner, drove

away. A second policeman, who was on his way to the sta-

tion for backup duty, observed petitioner leave the station.

Petitioner’s car swerved, once passing over the white line

dividing the highway. Petitioner then passed two vehicles

on a curve (a designated non-passing zone). The pursuing

officer turned on his patrol car’s siren and flashing lights.

Petitioner ignored these signals and stopped his automobile

only upon receiving hand signals from the officer. When

petitioner emerged from the vehicle he acted aggressively

and manifested the symptoms of extreme drunkenness, /.e.

bloodshot eyes, slurred speech, staggering gait and odor of

alcohol. These symptoms persisted through petitioner’s

processing at the Lower Township Police Headquarters.

Petitioner declined to take a breathalyzer test.?

At trial petitioner was unable to recall the events sur-

rounding his arrest.

1 This factual statement is drawn from the testimony of five

eyewitnesses.

2 Evidence of the refusal to take the breathalyzer was stricken by

the Municipal Court although under New Jersey law such evidence is

admissible. See State v. Tabisz, 129 N.J. Super. 80, 322 A.2d 453

(App. Div. 1974).

Reasons for Denying Certiorari

The Sixth and Fourteenth Amendments Do

Not Require a State To Provide A Jury Trial

In The Prosecution Of A Recidivist Drunk

Driver Where Conviction Results In A Man-

datory Sentence Of Three Months Imprison-

ment And Loss Of Driving Privileges For Ten

Years.

Petitioner was convicted of operating a motor vehicle

while under the influence of intoxicating liquor in violation

of N.J.S.A. 39:4-50(a).° Since petitioner had been pre-

viously convicted of violating this statute he was sentenced

both in Municipal Court and in County Court (following a

trial de novo on the record below) to the mandatory statu-

tory penalty of three months imprisonment and a ten year

revocation of his driver’s license.* Prior to the trial de novo

in the County Court petitioner demanded a jury trial on the

3 In addition petitioner was convicted of passing on a curve in

violation of N.J.S.A. 39:4-86. A fine of $10 and $5 costs was imposed

on this charge. No claim regarding this offense is raised in the

Petition.

* N.J.S.A. 39:4-50(a) provides that for a subsequent violation

(within ten years of the earlier violation) of that statute a defendant,

... Shall be imprisoned for a term of 3 months and

shall forfeit his right to operate a motor vehicle over

the highways of this State for a period of 10 years

from the date of his conviction, and, after the expira-

tion of said period, he may make application to the

Director of the Division of Motor Vehicles for a li-

ce to operate a motor vehicle, which application

may be granted at the discretion of the director.

Reasons for Denying Certiorari (Continued)

driving while intoxicated charge. (P5a).5 This claim was

denied by the County Court. (P7a). In an appeal to the

Appellate Division of the Superior Court of New Jersey

petitioner pursued his jury trial by demand, relying on the

Sixth and Fourteenth Amendments to the United States

Constitution and Article I, Paragraph 9 of the New Jersey

Constitution. (R2a).* The Appellate Division rejected these

claims (P2a), which petitioner again raised in a Petition for

Certification filed with the Supreme Court of New Jersey.

That Petition was denied. (P4a). In his Petition for Cer-

tiorari petitioner has again asserted that he was entitled to

a jury trial in the County Court under the provisions of the

Sixth and Fourteenth Amendments. Respondent re-

spectfully disagrees.

The right to trial “by an impartial jury” is guaranteed to

a defendant “(ijn all criminal prosecutions” by the Sixth

Amendment. Initially this ... it applied only in federal

prosecutions.? See Barron v. Mayor and City Council, 32

U.S. 243 (1833). In 1968 this Court found that the right toa

5 Respondent notes that the record does not disclose whether

federal constitutional provisions were relied on by petitioner for this

claim before the County Court. In his appeal to the Appellate Divi-

sion of the Superior Court of New Jersey, petitioner did explicitly

rely on both federal and state constitutional guarantees to support

his jury trial demand. (Rla).

6 Article I, Paragraph 9 of the New Jersey Constitution provides:

The right of trial by jury shall remain inviolate...

7 Jury trials were also required in federal prosecutions by Article

III, Section II of the United States Constitution which provided:

The Trial of all Crimes, except in Cases of Im-

peachment, shall be by Jury....

Reasons for Denying Certiorari (Continued)

jury trial in criminal prosecutions was “fundamental to the

American scheme of justice” and, pursuant to the Four-

teenth Amendment, held that the Jury Trial Clause of the

Sixth Amendment was applicable in state criminal prosecu-

tions. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). Peti-

tioner’s sole claim is that the Sixth Amendment required

the State of New Jersey to afford him a trial by jury in a

drunk driving prosecution where the mandatory statutory

sentence is three months imprisonment and a ten year sus-

pension of driving privileges. This contention is lacking in

both logic and precedential support.

In Duncan this Court specifically disclaimed the intention

to require jury trials in all state prosecutions of whatever

nature. Rather, this Court recognized the existence of,

...a category of petty crimes or offenses

which is not subject to the Fourteenth

Amendment jury trial requirement here ap-

plied to the States. Crimes carrying possible

penalties up to six months do not require a

jury trial if they otherwise qualify as petty

offenses ...[at 159).

Summary disposition of cases involving petty offenses

has long been upheld by this Court in the face of Sixth

Amendment claims. Taylor v. Hayes, 418U.S. 488, 495

(1974); Codispoti v. Pennsylvania, 418 U.S. 506, 512 (1974);

Frank v. United States, 395 U.S. 147, 148 (1969); Dyke v.

Tuylor Implement Mfg. Co., 391 U.S. 216, 219-220 (1968);

Bloom v. Illinois, 391 U.S. 194, 198 (1968); Cheff v.

Schnackenberg, 384 U.S. 375, 379 (1966); District of Colum-

bia v. Clawans, 300U’.S. 617, 624 (1937): District of Columbia

v. Colts, 282 U.S. 63, 72-73 (1930); Schick v. United States,

195 U.S. 65 (1904); Natal v. Lowisiana, 1389 U.S. 621 (1891);

Callan v. Wilson, 127 U.S. 540 (1888). Cf. Lawton v. Steele,

152 (’.S. 133 (1894). Respondent believes that a drunk driv-

Reasons for Denying Certiorari (Continued)

ing prosecution under N.J.S.A. 39:4-50 (a) constitutes a

petty offense within the meaning of the above cases.

Under New Jersey law an offense punishable by no more

than six months imprisonment and a $500 fine is a “petty

offense” which may be tried without a jury. State v. Ownes,

54N.J. 153, 159-162, 254 A. 2d 97 (1969), cert. den. 396 U.S.

1021 (1970); Jn re Briehrer, 50N.J. 501, 517-518, 236A. 2d 592

(1967). Motor vehicle offenses are considered to be within

this classification and hence triable to a municipal magis-

trate and thereafter to a judge of the County Court.® See

State v. Macuk, 57 N.J. 1, 9-10, 268 A.2d 1 (1970); State v.

Maier, 13 N.J. 235, 277, 99 A.2d 21 (1953); State v. Zucconi,

93 N.J.Super. 380, 384-387, 226 A.2d 16 (App.Div. 1967),

aff'd 50 N.J. 361, 235 A.2d 193 (1967); State v. Connors, 129

N.J.Super. 476, 481-482, 324 A.2d 85 (App. Div. 1974); State

v. Cusick, 110 N.J.Super. 149, 151, 264 A.2d 735 (App. Div.

1970); Latimer v. Wilson, 103 N.J.L. 159, 164, 134 A. 750

(E.&A. 1926); Caruso v. Porter, 102 N.J.L. 71, 73, 130A. 805

(Sup.Ct. 1925); State v. Rodgers, 91.N.J.L. 212, 102 A. 433

(E.&A. 1917)..See also Annotation, “Drunk Driving-Jury

Trial,” 16 A.L.R.3d 1373 (1967).

Delineation of the line between “serious” and “petty” of-

fenses was addressed by this Court in Duncan, supra. The

Court found it necessary to draw a somewhat arbitrary line

and stated that,

8 New Jersey law broadly applies the incidents of due process to

proceedings, both administrative and judicial, that involve possible

revocation of driving privileges. See e.g. Jn re Arndt, 67 N.J. 432,

436, 341 A. 2d 596 (1975). In a Municipal Court prosecution a defen-

dant, such as petitioner, is afforded notice, counsel, pretrial discov-

ery, bail and a public trial with the opportunity to make objections,

present defenses and confront the witnesses against him or her. See

New Jersey Court Rules 1:2-1; 7:4-2(a) (1); 7:4-2(a) (2); 7:4-2(e); 7:4-2

(g); 7:5-1.

Reasons for Denying Certioari (Continued)

... the penalty authorized for a particular

crime is of major relevance in determining

whether it is serious or not and may in itself,

if severe enough, subject the trial to the man-

dates of the Sixth Amendment.

Duncan v. Louisiana, supra at 159.

This Court went on to emphasize that it is the statutory

maximum, not the sentence actually imposed, that deter-

mines the “seriousness” of the crime for Sixth Amendment

purposes. Duncan v. Louisiana, supra at 16%. Accord, Dyke

v. Taylor Implement Mfg. Co., 391U.S. 216, 220 (i968). Sub-

sequently, this Court described the six month incarceration

requirement as a “fixed dividing line between petty and

serious offenses.” Codispoti v. Pennsylvania, 418 U.S. 506,

512 (1974).

Seemingly recognizing this, petitioner argues that the

ten year revocation of driving privileges mandated by

N.J.S.A. 39:4-50(a) is sufficient to make a violation of that

statute a serious offense. This Court recognized in Baldwin

v. New York, 399 U.S. 66, 69-70 (1970) that “collateral conse-

quences, such as loss of occupation and other civil dis-

abilities, may accompany a fine and incarceration but

declined to attach much significance to such factors in de-

termining the scope of the Sixth Amendment jury trial

guarantee. Rather, this Court reaffirmed the rule that the

surest indicia of the seriousness of an offense and the com-

munity’s attitude toward that offense could be found in the

maximum authorized period of incarceration. Baldwin v.

New York, supra. Accord, Taylor v. Hayes, 418 U.S. 488, 495

(1974); Frank v. United States, 395 U.S. 147, 148-149 (1969).

Quite recently this Court reaffirmed that approach and up-

held the imposition of a $10,000 fine after a summary pro-

ceeding in which the defendant’s jury trial demand had

been rejected. Muniz v. Hoffman, 422 U.S. 454 (1975).

Reasons for Denying Certiorari (Continued)

Lower federal courts have also recognized the distinction

between “petty” and “serious” offenses in determining the

sweep of the Jury Trial Clause of the Sixth Amendment.

United States v. Potvin, 481 F.2d 380, 381 (10 Cir. 1973);

United States v. Floyd, 477 F.2d 217, 221-222 (10 Cir. 1973),

cert. den. 414 U.S. 1044 (1973); United States v. Merrick, 459

F.2d 644, 645 (4 Cir. 1972); Johnson v. Turner, 429 F.2d 1152,

1154 (10 Cir. 1970); United States v. Rogers, 354 F.Supp. 502

(D. Colo. 1973). These courts have consistently looked to

the maximum imposable penalty in determining the se-

riousness of an offense. See e.g. United States v. Goeltz, 513

F.2d 193, 195-196, cert. den. U.S. , 96 S.Ct. 51

(1975) (10 Cir. 1975); In re Puerto Rico Newspaper Guild

Local 225, 476 F.2d 856, 857-858 (1 Cir. 1973); Virginia Ex.

Rel. Shifflett v. Cook, 333 F. Supp. 718, 720-721 (W.D. Va.

1971). Where that penalty did not or could not legally ex-

ceed the six months/$500 standard set forth in Duncan,

supra and Baldwin, supra no right to a jury trial was found

to exist. Jn Re Union Nacional De Trabajadores, 502 F.2d

113, 116 (1 Cir. 1974); United States v. Proffitt, 498 F.2d 1124,

1127 (3 Cir. 1974), cert. den. 419 U.S. 1002 (1974); United

States v. Jarman, 491 F.2d 764, 767 (4 Cir. 1974); United

States v. Ireland, 493 F.2d 1208, 1209 (4 Cir. 1973); United

States v. Merrick, supra, 459 F.2d at 645; United States v.

Cain, 454 F.2d 1285, 1287-1288 (7 Cir. 1972). Cf. Philipps v.

United States, 457 F.2d 1313 (8 Cir. 1972).

Petitioner relies heavily on Rothweiler v. Superior Ct. of

Pima Cty., 100 Ariz. 7, 410 P.2d 479 (1966), a pre-Diuncan

ease which held that a jury trial was required in a drunk

driving prosecution where the de.endant, upon conviction,

was liable to a $100 to $300 fine, imprisonment for 10 days to

6 months and license revocation for a period of-up to 90

days. In reaching this conclusion the Rothweiler court speci-

fically relied on a provision in the Arizona Constitution and

disclaimed any intention of deciding the case under the

10

Reasons for Denying Certiorari (Continued)

Sixth Amendment to the United States Constitution. Jd. at

484-485. Respondent finds it difficult to understand how Roth-

weiler can possibly bolster Petitioner’s federal claim. That case

merely reflects the application of a state originated right to a

jury trial, which may of course be broader than that estab-

lished by the Sixth and Fourteenth Amendments. See e.g.

Vadnais Heights v. Beardsley, 296 Minn. 154, 207N.W. 2d 339,

340 (Sup.Ct. 1973); St. Paul v. Ulmer, 261 Minn. i78, ill

N.W. 2d 612, 618-619 (Sup.Ct. 1961); Buffalo v. Cannizzario, 17

Misc. 2d 839, 188 N.Y.S.2d 795, 798 (Sup.Ct. 1959).

Indeed it appears that the petty offense/serious offense dis-

tinction is drawn by many states in determining whether a jury

trial is required in criminal or quasi-criminal prosecutions. /n

Re Gannon, 26 Cal.App.3d 731, 103 Cal.Rptr. 224, 228-229

(Ct.App. 1972); Austin v. Denver, 170 Colo. 448, 462 P.2d 600,

603-604 (Sup.Ct. 1969), cert. den. 398 U.S. 910 (1970); State v.

Shak, 51 Haw. 612, 466 P.2d 422, 424-425 (Sup.Ct. 1970), cert.

den. 400 U.S. 930 (1970); State v. Thigpen, La , 275

So.2d 760, 761 (Sup. Ct. 1973); Dabezies v. Bourg, 273 So. 2d

622, 626 (La. App. 1973), cert. den. 277 So.2d 445 (1973); State

v. Johnson, 191 Neb. 535, 216 N.W.2d 517, 518-519 (Sup. Ct.

1974), cert. den. 419 U’.S. 949 (1974); State v. Green, 277 N.C.

188, 176 S.E.2d 756, 760 (Sup.Ct. 1970); Shafsky v. Casper, 487

P.2d 468, 471 (Wyo.Sup.Ct. 1971). Cf. State v. Holliday, —~)

a , 280A. 2d 333, 338 (Sup.Ct. 1971).° Traffic offenses

are generally considered to be petty offenses triable summarily

without a jury. See e.g. State Ex Rel. De Concini v. Tucson

City Ct., ° Ariz.App. 522, 454 P. 2d 192 (Ct. App. 1969); State v.

* The District of Columbia Court of Appeals has rejected jury trial

claims in cases where the maximum imposable penalty did not exceed

six months incarceration. Austin v. United States, 299 A.2d 545,

546-547 (D.C.App. 1973); Gaithor v. United States, 251 A.2d 644

(D.C. App. 1969).

ed

ll

Reasons for Denying Certiorari (Continued)

Hendricks, 309 So.2d 232, 233 (Fla.App. 1975); Monroe v.

Wilhite, 255 La. 838, 233 So.2d 535, 536 (Sup.Dt. 1970); cert.

den. 400 U.S. 910 (1970). Charges aileging recidivist drunk

driving have been treated as being within this classification.

Hilliard v. Gainesville, 213 So.2d 689, 691 (Fla.Sup.Ct. 1968),

app. dism’d 393 U.S. 321 (1969); State v. Young, 194 Neb. 544,

234 N.W. 2d 196, 197-198 (Sup.Ct. 1975); Hamilton v. Walker, 65

N.M. 470, 340 P.2d 407, 408-409 (Sup.Ct. 1959); Albuquerque

v. Arias, 64N.M. 337, 328 P.2d 593, 594 (Sup.Ct. 1958).

Petitioner seeks to support his jury trial claim by focusing

on: (1) the mandatory three month period of incarceration for

second offenders under N..J.S.A. 39:4-50(a) and, (2) the manda-

tory ten year period of license revocation. As noted above the

Duncan standard pertains to maximum imposable sentences

exceeding six months incarceration. Mandatory periods of in-

carceration not surpassing the six month criteria do not give

rise to a constitutional right to a jury trial. State v. Jones, 191

Neb. 538, 216 N.W.2d 519, 520 (Sup.Ct. 1974). In Jones the

Nebraska Supreme Court rejected the jury trial demand of a

second offense drunk driver who faced a mandatory term of si.r

months imprisonment upon conviction. /d. Moreover re-

spondent notes that a violation of N.J.S.A. 39:4-50(a) arises

only when a relatively high degree of drunkenness has been

exhibited by the operator of a motor vehicle. N.J.S.A. 39:4-39

creates a two tiered system of drunk driving proscriptions.

Subsection b. of that statute forbids driving while “impaired”

and sets penalties considerably lower than N.J.S.A. 39:4-50(a)

which proscribes driving while intoxicated. Petitioner was con-

victed of violating subsection a. and properly faced the more

stringent penalties prescribed by that statute. This bifurcated

treatment of offenders based on the degree of drunkenness

exhibited does not represent an arbitrary imposition of penal

sanctions as implied by Petitioner. Rather it reflects a deep

2

Reasons for Denying Certiorari (Continued)

seated concern with the danger associated with drunk driving

and an attempt to match the degree of peril to the public with a

system of penalties.

The imposition of a mandatory ten year revocation of driving

privileges does not elevate N.J.S.A. 39:4-50(a) into that cate-

gory of “serious” crimes that must, under the Sixth Amend-

ment, be tried before a jury. New Jersey statutory law, the

best indicia of community sentiment, considers second offense

drunk driving to be a petty offense. State v. Macuk, supra, 57

N.J. at 910. The loss of driving privileges only constitutes a

collateral consequence and cannot be said to so augment the

three month period of incarceration as to bring N.J.S.A.

39:4-50(a) within the scope of the Sixth Amendment. In Bald-

win v. New York, supra this Court declined to attach much

significance to “collateral consequences” such as loss of occupa-

tion in evaluating a jury trial claim. See Blue Jeans Corp. v.

Amalgamated Clothing Workers of America, 275.N.C. 503, 169

S.E.2d 867 (App.Ct. 1969) (Loss of re-employment rights and

unemployment privileges did not create a right to jury trial on

contempt charge where maximum imposable sentence was six

months imprisonment or a $500 fine). Mandatory license rev-

ocation accompanying a three month period of incarceration

has been held not to give rise to a right to ajury trial under the

Sixth Amendment. Smith v. State, 17 Md.App. 217, 301 A.2d

54, 61-64 (Ct.App. 1973). Similarly in Frank v. United States,

395 U.S. 147 (1969), this Court ruled that a five year period of

probation could be coupled with up to six months imprisonment

and a $500 fine without giving the defendant a right to a jury

trial. /d. 151-152. This Court reached that conclusion even

while acknowledging that probation constituted “a significant

infringement of personal freedom.” /d. at 151. Clearly a ten

year loss of driving privileges, which involves no loss of per-

sonal liberty, does not give rise to a constitutionally protected

right to a jury trial.

13

Reasons for Denying Certiorari (Continued)

This position is bolstered by an analysis of the nature of

license revocation. Revocation of a driver’s license under a

drunk driving statute such as N.J.S.A. 39:4-50(a) is punitive

only in its incidental effect. The principal purpose of such legis-

lation is the protection of the public from recidivist drunk driv-

ers like Petitioner and,

...the furtherance of the public safety and

welfare, necessary to the proper administration

of the traffic laws, rather than punishment.

State v. Smith, supra, 17Md.App. at ,301A.2d

at 64.

Accord, Virginia Ex. Rel. Shifflett v. Cook, Supra, 333 F.

Supp. at 720.

The power to revoke an individual's driving privileges in

order to protect the public safety on the highways lies very

close to the heart of those police powers reserved to the states

by the Tenth Amendment. Berberian v. Lussier, 87 R.J. 226,

139 A.2d 869 (Sup.Ct. 1958).'° In the present case Petitioner

was afforded due process in two successive evidentiary hear-

ings and in each instance he was adjudged guilty of driving

while intoxicated in violation of N.J.S.A. 39:4-50(a). Petitioner

1°0In Berberian the Supreme Court of Rhode Island stated:

Whatever may be its nature, the right to use the

public highways for travel by motor vehicle is one

which properly can be regulated by the legislature in

the valid exercise of the police power of the

state...a valid exercise of such power is not viola-

tive of the fourteenth amendment of the federal con-

stitution even though protected interests are

affected. Berberian v. Lussier, supra, 139 A.2d at

872.

14

Reasons for Denying Certiorari

raises no claim of innocence before this Court in his assertion of

a right to a jury trial under the Sixth and Fourteenth Amend-

ments.'! The states must be accorded flexibility in exercising

their police powers. The imposition of a rigid jury trial require-

ment under the Sixth and Fourteenth Amendments would se-

riously handicap efforts to guarantee traffic safety and protect

the general public from the menace of drunk drivers. Trial of

such offenders in New Jersey before a Municipal Court Judge

with trial de novo in County Court constitutes the form of

“practical accommodation” with the Due Process Clause that

this Court has approved in the past. Norvell v. Illinois, 373

U.S. 420, 424 (1963).!?

Respondent respectfully submits that this Court has estab-

lished a clear dividing line between petty offenses triable to a

magistrate and serious crimes which require the availability of

jury trials under the Sixth and Fourteenth Amendments.

Where the maximum imposable penalty does not exceed six

months incarceration and a $500 fine there exists no federally

guaranteed right to a jury trial in a state prosecution. Peti-

tioner was liable to, and received, the mandatory sentence of

three months imprisonment and a ten year revocation of driv-

ing privileges as authorized by N.J.S.A. 39:4-50(a). Since the

‘Jury fact-finding is not intrinsically superior to judicial fact-find-

ing and the availability of a jury trial does not therefore substantially

enhance the truth determinative process at trial. De Stefano v.

Woods, 392 U.S. 631, 633-634 (1968); Duncan v. Louisiana, supra at

158.

121t should be noted that under this Court’s prior decisions the

states are allowed greater freedom than the federal government in

satisfying the demands of the Jury Trial Clause of the Sixth Amend-

ment. States may try criminal cases to juries of less than twelve

persons and may convict or acquit on non-unanimous jury verdicts.

Apodaca v. Oregon, 406 U.S. 404 (1972); Johnson v. Louisiana, 406

U.S. 356 (1972); Williams v. Florida, 399 U.S. 78 (1970).

15

Reasons for Denying Certiorari

custodial sentence did not exceed six months under the criteria

established in Duncan and its progeny Petitioner had no Sixth

or Fourteenth Amendment right to a jury trial on the recidi-

vist drunk driving charge. The ten year revocation of Peti-

tioner’s driver's license is a collateral consequence, designed to

safeguard the public, that does not elevate the sanction pre-

scribed in N.J.S.A. 39:4-50(a) to such dimensions that a jury

trial is required by the United States Constitution.

16

Conclusion

For the reasons set forth herein, it is respectfully urged that

the Writ of Certiorari should be denied.

Respectfully submitted,

WILLIAM F. HYLAND

ATTORNEY GENERAL OF NEW JERSEY

ATTORNEY FOR RESPONDENTS

STATE HOUSE ANNEX

TRENTON, NEW JERSEY 08625

DAVID S. BAIME

DEPUTY ATTORNEY GENERAL

DIVISION OF CRIMINAL JUSTICE

OF COUNSEL

ROBERT E. ROCHFORD

DEPUTY ATTORNEY GENERAL

DIVISION OF CRIMINAL JUSTICE

ON THE BRIEF.

Ria

Brief Filed by Petitioner with the Appellate Division of the

Superior Court of New Jersey, Page 27.

The right to a jury is a basic safeguard interposed between

the individual and the State. Concepts of fundamental fairness

embodied in due process of law require that the defendant be

given such protection as a matter of right. The Sixth and Four-

teenth Amendments to the Constitution of the United States

as well as Article I, Para. 1 of the Constitution of the State of

New Jersey dictate that a trial by jury be afforded to the

defendant.

R2a

New Jersey Constitution, Article 1, Paragraph 9.

The right of trial by jury shall remain inviolate; but the

Legislature may authorize the trial of civil causes by a jury of

six persons when the matter in dispute does not exceed fifty

dollars. The Legislature may provide that in any civil cause a

verdict may be rendered by not less than five-sixths of the

jury. The Legislature may authorize the trial of the issue of

mental incompetency without a jury.

R3a

N.J.S.A. 39:4-86.

The driver of a vehicle shall not drive to the left side of the

center line of a highway in overtaking and passing another

vehicle proceeding in the same direction unless the left side is

clearly visible and free of oncoming traffic for a sufficient dis-

tance ahead to permit the overtaking and passing to be made in

safety.

The driver of a vehicle shall not drive to the left of the center

of a highway in order to overtake and pass another vehicle

proceeding in the same direction upon the crest of a grade or

upon a curve in the highway where the driver’s view along the

highway is obstructed within a distance of five hundred feet.

Except when otherwise directed by a duly constituted traffic

or police ofticer or when the lane in which he is operating is

obstructed and impassable, the driver of a vehicle shall not

cross an appropriately marked “No Passing” line in a “No Pass-

ing” zone duly established pursuant to a duly promulgated reg-

ulation of the State Highway Commissioner or an ordinance or

resolution duly adopted by a municipal governing body or a

board of chosen freeholders, whichever has jurisdiction over

the highway.

R4a

New Jersey Court Rule 3:23-1.

Except as provided by R.2:2-3(b), review of a judgment of

conviction in a criminal action or proceeding in a court of lim-

ited criminal jurisdiction shall be by appeal as provided by

R.3:23.

R5a

New Jersey Court Rule 1:2-1.

All trials, hearings of motions and other applications, pre-

trial conferences, arraignments, sentencing conferences (ex-

cept with members of the probation department) and appeals

shall be conducted in open court unless otherwise provided by

rule or statute. Settlement conferences, however, may be

heard at the bench or in chambers. Every judge shall wear

judicial robes during proceedings in open court.

R6a

New Jersey Court Rule 7:4-2

(cont. 7a)

Proceedings Before Trial

(a) Arraignment.

(1) Except as otherwise provided by paragraph (2) of this

rule, arraignment shall be conducted in open court and shall

consist of reading the complaint to the defendant or stating to

him the substance of the charge, and calling on him, after he is

given a copy of the complaint, to plead thereto. The defendant

may waive the reading of the complaint.

(2) When a defendant is represented by an attorney and

desires to plead not guilty, unless the court otherwise orders,

such plea shall be entered by the filing, at or before the time

fixed for arraignment, of a written statement, signed by the

attorney, certifying that the defendant has received a copy of

the complaint, has read it or the attorney has read it or ex-

plained it to him, understands the substance of the charge, and

pleads not guilty to the charge.

(b) Pleas. A defendant may plead not guilty or guilty, but

the court may in its discretion refuse to accept a plea of guilty,

and shall not accept such plea without first addressing the

defendant personally and determining by inquiry of the

defendant and of others in the court’s discretion that the plea is

made voluntarily with understanding of the nature of the

charge and the consequences of the plea and that there is a

factual basis for the plea. Upon the request of the defendant

the court may at the time of the acceptance ofa plea of guilty

order that such plea shall not be evidential in any civil proceed-

ing. If a defendant refuses to plead or stands mute or if the

court refuses to accept a plea of guilty, the court shall enter a

plea of not guilty. Ifa plea of guilty is entered, the court may

hear the witnesses in support of the complaint prior to judg-

ment and sentence, and after such hearing may, in its discre-

tion, refuse to accept the plea. Except as otherwise provided

by R. 7:7-4, a plea or appearance by a defendant corporation,

R7a

New Jersey Court Rule 7:4-2

(Continued from 6a)

partnership or unincorporated association must be made by an

attorney at law of this State. If the defendant is a corporation,

partnership or unincorporated association and fails to respond

to an order entered pursuant to R. 7:3-1(c), the court, if satis-

fied that service was duly made, shall enter an appearance and

a plea of not guilty for the defendant and thereupon proceed to

hear the complaint.

(c) Adjournment. On or before the return day of a warrant

or summons, the court may adjourn the hearing for a period

not exceeding 14 days, except that an adjournment for a longer

period or additional adjournments may be granted if the court

deems postponement of the hearing to be reasonably neces-

sary. In contested matters the court, on granting an adjourn-

ment, shall specify a trial date. The court shall cause the

complaining witness, all defendants and all other known wit-

nesses to be notified of any adjournment, which together with

the reasons therefor, shall be noted in the record.

(d) Pretrial Procedure. The pretrial procedure provided by

R. 3:13-1 may be employed in the court’s discretion upon its

own or a party’s motion.

(e) Motions. R. 3:10-1 (defenses and objections which may be

raised), R. 3:10-2 (defenses and objections which must be

raised before trial), R. 3:10-3 (defenses and objections which

may be raised only before or after trial), and R. 3:10-4 (defense

of lack of jurisdiction) are applicable to actions in the municipal

court except that for purposes of this rule the reference in R.

3:10-2, to indictment or accusation shall be deemed to mean the

complaint and R. 3:10-3 shall be deemed also to include the

defense that an ordinance under which a complaint is made is

unconstitutional. The court shall upon request provide an op-

portunity for the presentation of such motions before proceed-

ing to trial. Motions may be made orally and informally, but

affidavits or oral testimony may be presented thereon when

required. A motion shall include all such defenses and objec-

tions then available to the defendant. The court or clerk shall

R6a

New Jersey Court Rule 7:4-2

(Continued from 7a)

briefly note in the record all defenses or objections raised by

motion and the disposition thereof. Appeals from interlocutory

orders dismissing or refusing to dismiss a complaint may be

taken to the county court pursuant to R. 3:24.

(f) Trial of Complaints Together. The court may order that

2 or more complaints be tried together if the offenses arose out

of the same facts and circumstances, regardless of the number

of defendants. In all other matters, with the consent of the

persons charged, the court, for convenience, may consolidate

complaints for tial.

(g) Depositions and Discovery. The court may order deposi-

tions to be taken and discovery made in criminal actions as

provided by R. 3:13-2 and R. 3:13-3.

(h) Dismissal. If the complaint is not moved on the return

day, the court may direct that it be heard on a specified date

and a notice thereof be served on the complaining witness, all

defendants and all other known witnesses by subpoena. Upon

failure of trial to be held on the day set, the court, after first

notifying the county prosecutor if the offense charged is indict-

able, may order the complaint dismissed. A complaint may be

dismissed by the court for good cause at any time on the motion

of the state or municipality or en the motion of the defendant,

and a complaint on file for more than 6 months may be dis-

missed for failure to prosecute by the court on its own motion.

Written notice of a motion to dismiss shall be served, by ordi-

nary mail or in such other manner as the court directs, on the

prosecuting attorney, the defendant, the complaining witness,

and, if the complaint charges an indictable offense, also on the

county prosecutor, at least 10 days before the date specified for

the hearing thereof.

R9a

New Jersey Court Rule 7:4-2

(Continued from 8a)

New Jersey Court Rule 7:5-1.

Except as otherwise provided by R. 7:5-2 and 7:5-3, the

provisions of R. 3:26-1(a) (bail before conviction), 3:26-2 (au-

thority to admit to bail), 3:26-3 (bail for witness), 3:26-4 (de-

posit of bail), 3:26-5 (justification of sureties), 3:26-6

(forfeiture), and 3:26-7 (exoneration) apply to the municipal

and county district courts.