Petition for Writ of Certiorari — Griffin v. New Jersey

© 8 8 -2 (4. Supreme Court, —g

FILE

auc 5 1988

JOSEPH F. SPANIOL, JR.

DocKe NO CLERK

IN THE SUPREME COURT OF THE

UNITED STATES

| STATE OF NEW JERSEY, Octoper Term 1988

Plaintiff-Respondent,

vs.

WALTER R. GRIFFIN,

Derendant-Petitioner.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF NEW JERSEY

CHARLES J. CASALE, JR., P.A.

311 Whitehorse Ave.

Trenton, N.J. 08610

(609) 585-7711

Attorney for Petitioner

David A. Gies

41

QUESTION PRESENTED

ai Whether the offense of driving while

intoxicated under New Jersey law is a “serious

crime" to which the Sixth Amendment right to trial

by jury applies?

TABLE OF CONTENTS

Table of Authorities

Reports of Opinions

Statement of Jurisdiction

Text of Authorities .... .

Statement of the Case . « @ ee

| aaa

CR@SiON .« «¢ 2 es eo

ppendix

TABLE OF AUTHORITIES

Baldwin v. New York, 399 U.S. 66, 26,

L.Ed. 2d 437, 90 S. Ct. 1886 (1968)

Bartaglia v. Union County Welfare Board,

88 N.J. 49 (1981)

Blanton v. North Las Vegas Municipal

Court, Nev. ’ ys 26

(1988), cert. granted, no. 87-

1437 (June 20, 1988) ‘

Brady v. Blair, 427 F. Supp. 5 (S.D.

Ohio 1976) ro a oe ee er oe

Bronson v. Swinney, 648 F. Supp. 1094

D. Nev. 1986)

tm

Q

Callan v. Wilson, 127 U.S. 540, 32 L.

223, 8 S. Ct. 1301 (1888)

District of Columbia v. Colts, 282 U.S.

63, 75 L. Ed. 177, 51 S. Ct. 52 (1930)

Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed.

2qg 491, 28 S. Ct. 144 (1968) ......

Hamilton vs. Walker, 65 N.M. 470, 340 P. 2d

Dts - « «© »« 6 «© © © © @ 6 » “~*~

Bak -

~

-

L

Landry v. Hoepfner, 818 F. 2d 1169 (5

1987), reversed F. 2d (Sth

1988) (en banc) sae fo eae

+

_-

~+

Matos vs. Rodriguez, 440 F. Supp. 673 (D.

Puerto Rico 1976) knee. & @ en

PAGE

12,

ht

iw

14,

18

iZe

13

Muniz v. Hoffman, i422 U.S. 454, 45 L. Ed. 2d

319, 95 S. Ct. 2178 (1974) 14,

State v. Linnehan, 197 N.J. Super. 41 (App.

Div. 1984) lO,

State v. Macuk, 57 N.J. 1 (1970) saa

State v. Owens, 54 N.J. 153 (1969) 12

State v. Smith, 99 Nev. 806, 672 P. 2d

631 (1983) 23

State v. Tenriero, 183 N.J. Super. 519 (App.

Div. 1981) ap dk ge La ee 22

State v. Tischioc, 107 N.J. 504 (1987) 23

State v. Zoppi, 196 N.J. Super. 596 (Law Div.

1984) ‘ 22

United States Craner, 652 F. 2d 23 (9th

Cir. 1981) ‘ . 14,

United States v. Fletcher, 505 F. Supp. 1053

(W.D. Va. 1981) ae ae

United States v. Jenkins, 780 F. 2d 472 (4th

Cir. 1986) >» ae

United States v. Woods, 450 F. Supp. 1335

(D. Md. 1978) ag aS a ee ae 14,

Welsh v. Wisconsin, 466 U.S. 740, 80 L. Ed.

2d 732, 104 S. Ct. 2091 (1981) . 14

STATUTES:

N.J.S.A. 2A:8-21(a) 2

N.J.S.A. 17:29A-35 3,

N.J.S.A. 39:4-50(a) 2

20,

~ii-

15,

19

16

}

,

REPORTS OF OPINIONS

State of New Jersev vs. Walter R. Griffin,

Docket No. C-1102, September Term 1987, Supreme

Court of New Jersey, June 7, 1988.

State of New Jersey vs. Walter R. Griffin,

Docket No. A-6162-86T8, Superior Court of New Jersey,

Appellate Division, April 8, 1988 - unpublished

opinion.

state c= New Jersey vs. Walter 2. Griffin,

Docket No. 8743, Appeal No. 61-87, Superior Court

of New Jersey, Law Division, July 31, 1987.

State of New Jersev vs. Walter R. Griffin,

Docket No. N610401, Municipal Court of the Township

of Lawrence, County of Mercer and State of New

Jersey, May 12, 1987.

STATEMENT OF JURISDICTION

On June 7, 1988, the New Jersey Supreme Court

ntered an Order denying the defendant-petitioner's

etition for Certification and dismissing the

efendant-petitioner's appeal. (A-1). This

onstituted final action by the State of New Jersey

n the appellate procedure.

The controversy herein involves the

onstitcutionality of N.J.S.A. 2A:8-2ila) as it

pplies to N.J.S.A. 39:4-50, (New Jersey's drunk

riving statute), and the defendant-petitioner's

onstitutional right to trial by jury. The decisions

endered by the lower New Jersey courts are based

pon =sét- heir respective interpretations of the

pplicable federal constitutional law.

Consequently, the Supreme Court of the United

tates has the authority to exercise jurisdiction

ver this matter pursuant to 28 U.S.C. §1257(3).

TEXT OF AUTHORITIES

N.J.S.A. 2A:8-21(a):

JURISDICTION OF SPECIFIED OFFENSES

Each municipal court, and the judge

or judges thereof, shall have

jurisdiction of the following offenses

occurring within the territorial

jurisdiction of the court:

a. Violations of the motor vehicle

and traffic laws;

N.J.S.A. 17:29A-35(b):

MERIT RATING ACCIDENT SURCHARGE FOR

PRIVATE PASSENGER AUTOMOBILES: ->LANS;

SUSPENSION OF LICENSE; DISPOSITION

OF FUNDS: AMOUNT OF SURCHARGE: RULES

AND REGULATIONS

b. There is created a New Jersey

Merit Rating Plan which shall apply

to all drivers and shall include,

but not be limited to the following

provisions:

(l)(a) Plan surcharges shall be

levied, beginning on or after January

l, 1984, by the Division of Motor

Vehicles on any driver who has

accumulated, within the immediately

preceding three year period, beginning

on or after January 1, 1983, six

or more motor vehicle points as

provided in Title 39 of the Revised

Statutes, exclusive of any points

for convictions for which surcharges

are levied under paragraph (2) of

this subsection; except that the

allowance for a reduction of points

in Title 39 of the Revised Statutes

shall not apply for the purpose of

determining surcharges under this

paragraph. Surcharges shall be levied

for each year in which the driver

possesses six or more points.

Surcharges assessed pursuant to this

paragraph shall be not less than

$100.00 for six points, and not less

than $25.00 for each additional point.

The commissioner may increase the

amount of surcharges as he deems

necessary to effectuate the purposes

of aubsection d. of this section

and ?.L.1983, c. 65 (C. 17:29A-33

et al.), and may, pursuant to

regulation, permit the deferral of

all or part of any surcharges

authorized by this subsection until

the end of the policy term of an

automobile insurance policy with

an effective date prior to January

l, 1984, upon presentation of

appropriate evidence that an insured

has already paid an equivalent

surcharge arising from the same motor

vehicle violations or convictions.

(b) (Deleted by amendment P.L.1984,

c. 1.)

(2) Plan surcharges shall be levied

for convictions under R.S. 39:4-.d

or section 2 of P.L.198l1, c. 512

(Cc. 39:4-50.4a), or for offenses

of a substantially similar nature

committed in other jurisdictions,

for violations occurring on or after

January 1, 1983. Surcharges under

this paragraph shall be levied annually

for a three year period, and shall

be not less than $1,000.00 per year

for each of the first two convictions,

and not less than $1,500.00 per year

for the third conviction occurring

within a three year period. If a

driver is convicted under both R.S.

39:4-50 and section 2 of P.L.1981,

c. 512 (C. 39:4-50.4a) for offenses

arising out of the same incident,

the driver shall be assessed only

one surcharge for the two offenses.

The commissioner may increase the

amount of surcharges as he deems

necessary to effectuate the purposes

of subsection d. of this section

and P.L.1983, c. 65 (C. 17:29A-33

et al.), and may, pursuant to

regulation, permit the deferral of

all or any part of these surcharges

as provided in paragraph ‘l)(a) of

this subsection.

N.J.S.A. 39:4-50(a):

OPERATING OR ALLOWING OPERATION BY

PERSON UNDER INFLUENCE OF LIQUOR

OR DRUGS; PENALTIES; ALCOHOL EDUCATION

OR REHABILITATION COLLECTION OF

DRIVER'S EICPaE? RIGHTS OF DISCOVERY ;

INTOXICATED DR RESOURCE CENTERS

(a) A person who operates a motor

vehicle while under the influence

of intoxicating liquor, narcotic,

hallucinogenic or habit-producing

drug, or operates a motor vehicle

with a blood alcohol concentration

of 0.10% or more by weight of alcohol

in the defendant's blood or permits

another person who is under’ the

influence of intoxicating liquor,

narcotic, hallucinogenic or

habit-producing drug to operate a

-5-

motor vehicle owned by him oor in

his custody or control or permits

another to operate a motor vehicle

with a blood alcohol concentration

of 0.10% or more by weight of alcohol

in the defendant's blood, shall _ be

subject:

(1) For the first offense, to a

fine of not less than $250.00 nor

more than $400.00 and a period of

detainment of not less than 12 hours

nor more than 48 hours spent during

two consecutive days of not less

than six hours each day and served

as prescribed by the program

requirements of the Intoxicated Driver

Resource Centers established under

subsection (f) of this section and,

in the discretion of the court, a

term of imprisonment orf not “More

than 30 days and shall forthwith

forfeit his right to operate a motor

vehicle over the highways of this

State of a period of not less than

Six months nor more than one year.

(2) For a second violation, a person

shall be subject to a fine of not

less than $500.00 nor more than

$1,000.00, and shall be ordered by

the court to perform community service

for a period of 30 days, which shall

be of such form and on such terms

as the court shall deem appropriate

under the circumstances, and shall

be sentenced to imprisonment for

a term of not less than 48 consecutive

hours, which shall not be suspended

or served on probation, nor more

than 90 days, and shall forfeit his

right to operate a motor’ vehicle

over the highways of this State for

a period of two years upon conviction,

and, after the expiration of said

period, he may make application to

the Director of the Division of Motor

Vehicles for a license to operate

a motor vehicle, which application

may be granted at the discretion

of the director, consistent with

subsection (b) of this section.

(3) For a third or subsequent

violation, a person shall be subject

to a fine of $1,000.00, and shall

be sentenced to imprisonment for

a term of not less than 180 days,

except that the court may lower such

term for each day, not exceeding

90 days, served performing community

service in such form and on_ such

terms as the court shall deem

appropriate under the circumstances

and shall tnereafter forfeicz nis

right to operate a motor’ vehicle

Over the highways of this State for

10 years.

STATEMENT OF THE CASE

Walter R. Griffin is a life-long resident

of Mercer County, New Jersey and is currently

employed by Princeton University in its food service

department.

On November 24, 1986, Mr. Griffin was charged

with driving while intoxicated in violation of

N.J.S.A. 39:4-50 by the New Jersey State Police

when he was driving through Lawrence Township,

Mercer County, New Jersey.

Mr. Griffin was convicted of violating the

Same statute on one previous occasion.

Mr. Griffin challenged the constitutionality

of N.J.S.A. 2A:8-21l(a) as it applied to N.J.S.A.

39:4-50(a)(2) at all stages of these proceedings

in New Jersey. Mr. Griffin asserted that he was

constitutionally entitled to a trial by jury because

the offense of drunk driving is a serious offense

in the State of New Jersey, but that pursuant to

N.J.S.A. 2A:8-21(a), the Municipal Courts of this

State are not authorized to decide motor vehicle

matters with a jury trial afforded the individual

-8-

:

i

?

i

so charged. The Municipal Court denied Mr. Griffin's

motion and found that he was not constitutionally

entitled to a trial by jury. (A-4). Thereafter,

the Municipal Court found Mr. Griffin guilty and

sentenced him to a term of imprisonment for 90

days, which was suspended, except for 2 days to

be served at the Intoxicated Driver's Resource

Center, to pay a fine of $500.00, together with

costs of $15.00 and a $100.00 insurance surcharge

and to a loss of driving privileges in New Jersey

for 2 years. As a result, Mr. Griffin is also

subject to a surcharge imposed by the Division

of Motor Vehicles in the amount of $1,000.00 per

year for 3 years. N.J.S.A. 17:29A-35.

On July 3, 1987, a trial de novo was held

in the Superior Court of New Jersey, Mercer County,

Law Division. Again on motion, Mr. Griffin

challenged the constitutionality of N.J.S.A. 2A:8-21

as it applied to N.J.S.A. 39:4-50, and the Law

Division denied his motion. (A-3). Moreover,

the Law Division sentenced Mr. Griffin in accordance

with the trial court's Order.

ae

On April 8, 1988, the New Jersey Superior

Court, Appellate Division, in a per curiam opinion,

affirmed the denial of Mr. Griffin's motion for

a jury trial citing State v. Linnehan, 197 N.J.

Super. 41 (App. Div. 1984), as controlling. (A-2).

Finally, on June 7, 1988, the New Jersey Supreme

Court denied Mr. Griffin's Petition for Certification

and dismissed his appeal. (A-l).

-l10-

EA Oe MOA Ma tS eae

6 inl alta Re atl aE Ap TERE Aton Pot

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3

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i

ARGUMENT

INDIVIDUALS CHARGED WITH VIOLATING

N.J-S.A. 39:4-50 ARE CONSTITUTIONALLY

ENTITLED TO TRIAL BY JURY BECAUSE

THE OFFENSE OF DRIVING WHILE

INTOXICATED IS A SERIOUS CRIME IN

THE STATE OF NEW JERSEY.

The legal background to the present action

is the protection provided by the Sixth Amendment

of the Constitution of the United States. That

Amendment provides in pertinent part, that "in

all criminal prosecutions, the accused shall enjoy

-1€ }~aGnce tO a . . . trial By an impartial jury

ot The full scope of that protection has

been afforded to the defendants in state court

prosecutions pursuant to the Fourteenth Amendment.

Duncan _v. Louisiana, 391 U.S. 145, 20 L. Ed. 24

491, 28 S. Ct. 144 (1968). In Duncan, the Court

held that:

Because we believe that trial by

jury in criminal cases is fundamental

to the American scheme of justice,

we hold that the Fourteenth Amendment

guarantees a right of trial by jury

in all criminal cases where-were

they to be tried in a federal

court-could come within the Sixth

Amendment's guarantee.

-ll-

Duncan vv. Louisiana, 391 U.S. at 149; see also

Bartaqlia v. Union County Welfare Board, 88 N.J.

48, 60 (1981). Consequently, the Supreme Court

of the United States has held that persons charged

with a "serious" offense are constitutionally

entitled to a jury trial and that persons charged

with a "petty" offense are not. Baldwin v. New

York, 399 U.S. 66, 26 Ls. Ea. 28 437, 90 8s €&.

1886 (1968); see Duncan v. Louisiana, supra; see

also State v. Owens, 54 N.J. 153 (1969).

In order to determine the seriousness of an

offense, the United States Supreme Court has examined

“objective criteria, Chiefly the existing laws

and practices in the Nation." Duncan v. Louisiana,

391 U.S. at 161, 20 L. Ed. 2d at 503. A particularly

relevant indication of the seriousness of the offense

is the authorized maximum penalty that could be

imposed. If the authorized sentence of incarceration

exceeds six months and the permitted fines exceed

$500.00, the offense is "serious" for jury trial

purposes. Baldwin v. New York, supra.

o12<

fu

ct

)

:

While the penalty authorized for a particular

may be utilized as a valuable tool

determining whether an offense is serious or

the United States Supreme Court has stated that:

[djecisions of this Court have looked

to both the nature of the offense

itself, District of Columbia v. Colts,

ue Geese Che 2h Ba COn Sade -05 tae

Ed. 177 (1930), as well as the maximum

potential sentence, Duncan vs.

Louisiana, 391 U.S. 145, 88 S. Ct.

1444, 20 L. Ed. 2d 491 (1968), in

determining whether a particular

offense was so serious as to require

a jury trial.

69 n. 6. Moreover, it opined that:

(iJndeed we long ago declared that

the Sixth Amendment right to jury

trial ‘is not to be construed as

relating only to felonies, or offenses

punishable by confinement in the

penitentiary. It embraces as well

some classes of misdemeanors, the

punishment of which involves or may

involve the deprivation of the liberty

of the citizen.' Callan v. Wilson,

127 U.S. 540, S49, 32 L. Ed. 223,

226, 8 S. Ct. 1301 (1888).

A better guide '‘'[iJn determining

whether the length of the authorized

prison term or the seriousness of

other punishment is enough in itself

to require a jury trial' is disclosed

by ‘the existing laws and practices

in the Nation.' Duncan v. Louisiana,

supra, at 161, 20 L. Ed. 2d at 503.

-13-

Id. at 70. Therefore, other consequences, collateral

in nature, cannot escape judicial examination and

may, in themselves, be enough to require a jury

trial. Id.; Muniz v. Hoffman, 422 U.S. 454, 476,

ss LL. BG. 26 3492 93 Be CE 2178 (1974); see also

Welsh v. Wisconsin, 466 U.S. 740, 761-763, 80

L. Ed. 24 732, 104 S&S. Ct. 2091 (1984) (see

particularly White, J., dissenting).

Consequently, a strict adherence to the Baldwin

“bright-line" test should not control the disposition

of the question presented and it is the character

of the offense itself that is determinative.

Several lower federal courts have considered

collateral factors in prosecutions for driving

while intoxicated. United States v. Craner, 652

F. 2€ 23, 24-27 (9th Cir. 1981); Bronson v. Swinney,

648 F. Supp. 1094 (D. Nev. 1986); United States

v. Woods, 450 F. Supp. 1335 (D. Md. 1978); Bradv

v. Blair, 427 F. Supp. 5 (S.D. Ohio 1976).

In United States v. Craner, the defendant

therein, charged with driving while intoxicated

-14-

ee

i

.

:

a

«

in Yosemite National Park, faced a maximum penalty

or six months imprisonment and/or a $500.00 fine,

plus costs. United States v. Craner, 652 F. 24d

at 24. Because the penalty does not exceed a period

of six months imprisonment or a $500.00 fine, it

falls below the Baldwin "bright-line" test. However,

the Ninth Circuit Court of Appeals held that the

offense with which the defendant was charged is

a “serious” one for which the Federal Constitution

Guarantees a2 trial by jury. Id. In determining

that the offense of driving while intoxicated was

serious, the Ninth Circuit stated that:

The extent of possible punishment

does not, however, alone determine

whether an offense is serious or

petty. Although Congress has

established the Sanctions of six

months' imprisonment or $500 in fines

as the bright line between serious

and petty offenses, see 18 U.S.C.

§ 1(3), the Supreme Court has not

found ‘talismanic Significance’ in

this formula when determining whether

a constitutional right to a jury

trial exists. Muniz, supra, 422

U.S. at 477, 95 S.Ct. at 2190. Inquiry

into the seriousness of an offense

does not end where Title 18 begins.

Otherwise, the constitutional right

to a jury trial would exist only

-15-

at the sufferance of the legislative

In United States v. Woods, the defendant therein

was charged with driving while intoxicated on

mational park land and as the defendant in Craner,

was faced with a penalty of six months imprisonment

and/or a $500.00 fine, plus costs. United States

Vv. Woods, 450 F. Supp. at 1336. Holding that

the defendant was constitutionally entitled to

a trial by tury under che Federa. -onstitution,

the District Court for the District of Maryland

Opined that:

Beyond the prescribed punishment,

the Court may properly examine, with

regard to the offense of driving

while intoxicated, ‘the laws and

practices of the community taken

as a guage of its social and ethical

judgments.’ (Citations omitted).

Id. at 1345. In this regard, the court examinec

several factors to determine the seriousness with

which the State of Maryland accords offenders of

this type, including the term of imprisonment,

the fine imposed and collateral consequences such

~16-

baw

than

consequences

conviction

Bronson

Swinney,

driving

of not

-0OQ. Bronson

two

the defendant was charged

intoxicated under Nevada state

Moreover,

subsequently

[ijn the

* the

consequences

the offense,

penalty

mandato

such

and

convicted

The District

offense,

od os re ~~ -

<v or or a

—Wwinne* r i > “~~ hhaltea at

ith ; ° oe <

+ os ~ . 7 7 — = 7

> tf - a A Ss

~.acec wit everai coiiaterai

of driver's license upon

enhancement of penalties if

the same offense. Id.

bar, the nature

the collateral

conviction for

the fact that the

offense includes

onment are factors

that reflect the seriousness with

which society regards the offense

of driving while intoxicated. These

are factors that cannot be ignored

in deciding whether the petitioner

has a constitutional right to a jury

trial.

Id. at 1098-99. Concluding, the court held that

the defendant was constitutionally entitled to

a jury trial under the Federal Constitution. Id.

at 1101.

In Brady vv. Blair, the District Court for

the Southern District of Ohio held that a defendant

is constitutionally entitled to a trial by jury

because the offense of driving while intoxicated

is serious where the maximum penalty under state

law had carried a fine of $500.00, a term of

imprisonment of six months and a mandatory three

day sentence. Brady v. Blair, 427 F. Supp. at

10.

Interestingly, in United States v. Jenkins,

the Fourth Circuit Court of Appeals found that

under South Carolina law, the defendant therein

was not constitutionally entitled to a jury trial

because the offense of drunk drivine was not serious;

nowever, though holding that the maximum penalty

a oe

was not serious enough to warrant a jury trial

as guaranteed by the Federal Constitution, the

court did correctly analyze the collateral

consequenses. United States _v. Jenkins, 780 F.

2d 472 (4th Car. 1986). Those collateral

consequences that were not sufficient to classify

(a) $25.00 mandatory assessment upon

conviction; Drobation and community

service work in lieu of incarceration;

attendance at an alcohol and treatment

} program costing as much as $200.00;

automatic suspension of South Carolina

Driver's License for Six months;

. a six month automatic suspension

; of driving privileges in South Carolina

; for out-of-state drivers and possible

Suspension of driver's license by

: offender's home state; and possible

increased insurance rates.

|

i offense as “serious” included:

’

:

iId. at 474.

| Other federal courts have Geclined to award

jury trials in drunk driving matters and have held

that the court need not examine the collateral

consequences in such instances. Landry v. Hoepfner,

-19-

818 F. 2d 1169 (Stn Cir. 1987), reversed

7, 2a (Sth Cir. 1988) (en banc); United States

Vv. Fletcher, 505 F. Supp. 1053 (W.D. Va. L981);

Matos v. Rodriquez, 440 F. Supp. 673 (D. Puerto

Rico 1976).

Thus, it is noteworthy that on June 20, 1988

the United States Supreme Court granted certiorari

in Blanton v. North Las Veqas Municipal Court,

Docket No. 87-1437, on the question of whether

a misdeameanor offense of driving under the influence

of an intoxicating liquor under Nevada State law

is a "serious" crime to which attaches the right

to a jury trial.

Particular to this case, Mr. Griffin was

sentenced as a second offender and is liable to

pay a fine of up to $1,000.00, to serve a term

of imprisonment of up to 90 days, to forfeit his

driving privileges in this State for 2 years and

to perform community service for a period of 30

days. N.J.S.A. 3924-50(a) (2). Moreover, he is

liable to serve a period of detainment at an

-20-

Intc.1lcated Driver Resource Center. In addition,

ne 1s required to pay $100.00 to the Division of

Motor Vehicles and at least $3,000.00 to the New

Merit Rating Plan within a three (3) year period.

N.J.S.A. 17:29A-35(b)(1) and (2).

Also, New Jersey's drunk driving statute

provides that the penalties’ shall increase for

second and for third and Subsequent offenders.

N.J.S.A. 39:4-50(a) (2) and (a2. A third and

subsequent offender is liable to pay a fine of

up to $1,000.00, to serve a term of imprisonment

for not less than 180 days and to forfeit his driving

privileges on the New Jersey highways for ten years.

N.J.S.A. 39:4-50(a) (3).

SO ee sd co Nee i i a Si

Me

By comparison, the penalties imposed on those

individuals convicted of drunken driving in New

Jersey are at least identical, if not more severe,

than the penalties imposed by the courts in the

cases discussed above. Also, the collateral

consequences such as the loss of driving privileges,

the insurance surcharges and the enhanced penalties

-2l1-

with each subsequent conviction of N.J.S.A. 39:4-50

are factors that reflect the seriousness with which

the State of New Jersey views the offense of driving

while intoxicated. New Jersey courts, however,

have not found it desirable to award a jury trial

to defendants charged with violating N.J.S.A.

39:4-50, and have refused to properly analyze the

factors relevant to the determination of whether

the offense is serious as opposed to petty. In

essence, they regard the severity of the authorized

punishment as the only reliable factor in

distinguishing between a serious offense and a

petty offense. State v. Linnehan, 197 N.J. Super.

41 (App. Div. 1984). Prior decisions in New Jersey

have held that it is, in fact, the term of the

imprisonment and not the fine imposed, or for that

Matter, any other form of penalty, that is the

key to the jury trial analysis. State v. Zoppi,

196 N.J. Super. 596 (Law Div. 1984); see also State

v. Tenriero, 183 N.J. Super. 519 (Law Div. 1981).

Further, of the state courts that have addressed

this issue, only the courts in New Jersey, New

Mexico and Nevada appear to deny the right to a

jury trial to all defendants. State v. Linnehan,

Supra; State v. Smith, 99 Nev. 806, 672 P. 2d 631

(1983); Hamilton v. Walker, 65 N.M. 470, 340 P.

2d 407 (1959); see also (A-5).

Finally, the New Jersey Supreme Court itself

has observed that drunk driving is an offense which

imposes an “extremely grave menace to the public

safety and welfare". soace WV. Macuk, 57 N.J. il,

> e976). More recently, the Court has opined

that:

The overall scheme of New Jersey's

drunk driving laws reflects the

dominant legislative purpose to

eliminate intoxicated drivers from

the roadway of this State. To this

end, the Legislature, working in

tandem with the courts, has

consistently sought to streamline

the implementation of these laws

and to remove the obstacles impeding

efficient and successful prosecution

of those who drink and drive.

state v. Tischio, 107 N.J. 504, 514 (1987).

Such a public policy pronounced by the highest

-23<

court in the State of New Jersey acknowledges that

removing the drunk driver from our highways is

an important law enforcement objective.

Consequently, while arguing against an individual's

Sixth Amendment right to a jury trial in matters

Such as the one before this Court, the State of

New Jersey has cast itself into the uncomfertable

position of downplaying the seriousness with which

our society and our legislature regard the offense

of drunk driving. More importantly, though,

Streamlining the implementation of the drunk driving

laws and removing the obstacles impeding efficient

and successful prosecution, cannot be accomplished

at the expense of _ individual's constitutional

right to trial by jury. Thus, it is clear that

the so-called "bright-line" test is not the sole

Standard to determine the constitutional requirements

for a jury trial. It is further clear that the

collateral consequences attendant to the second

grade of the offense of drunk driving in New Jersey

make a jury trial applicable to this case.

-24-

ee ee ee ee Be vate

herefore “he

, “he defendant in thi case is

constitutionally entitled to a trial by jury because

the offense of driving while intoxicated is a serious

crime in the State of New Jersey.

-25-

CONCLUSION

Wherefore, the defendant-petitioner prays,

for the reasons set forth herein, that this Court

grant Certiorari.

Respectfully submitted,

1

Gj leuls

Dated: August +, 1988

sth Kade Witte oo ge) 6! | ere os

a

CERTIFICATE OF SERVICE

i, Charles J. Casale, Jr., hereby certify

that pursuant to Rule 28.5(b), on August 4, 1988

I served three (3) copies of the Petition for Writ

of Certiorari on the Attorney General of the State

of New Jersey at his Principle place of business

at the Richard J. Hughes Justice Complex in Trenton,

New Jersey by regular mail.

Datec: August 4, 1988 j 4 . N

lle! Laut b

er CASALE, BP.

o27@

APPENDIX

On Petition for Certification to the

Appellate Division, New Jersey

Superior Court dated June 7, 1988 A-1l

Opinion of the Appellate Division,

New Jersey Superior Court dated

April 8, 1988 A-2

Judgment of the Law Division, New

Jersey Superior Court dated

July 31, 1987 A-3

Order of the Municipal Court of

Lawrence Township, in the County

of Mercer and State of New Jersey

dated May 26, 1987 A-4

State Courts That Recognize A Right

To Trial By Jury In Cases Involving

Prosecution Of Driving While

Intoxicated A-5

OO a a

SUPREME COURT OF NEW JERSEY

C-1102 September Term 1987

STATE OF NEW JERSEY, 28,773

Plaintiff-Respondent,

Vs.

WALTER R. GRIFFIN, ON PETITION FOR

CERTIFICATION

Defendant-Petitioner.

To the Appellate Division, Superior Court,

A petition for certification of the judgment in

,orTm

lll an a |

-~Us

8 having been submitted to this Court, and

ure naving considered the same;

It 1S ORDERED that the petition for certification

is denied with costs; and it is further

ORDERED that the appeal filed in the within

matter is dismissed pursuant to Rule 2:12-9.

WITNESS, the Honorable Robert N. Wilentz, Chief

Justice, at Trenton, this 7th Gay of June, 1988.

S/Stephen W. Townsend

CLERK OF THE SUPREME COURT

NOT FOR PUBLICATION WITHOUT THI PPROVA,

OF THE COMMITTEE ON OPINION:

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

STATE F NEW JERSEY, A-6162<-86TS

PP ez e)

Plaintiff-Respondent,

WALTER R. GRIFFIN,

Defendant-Appellant.

Argued March 29, 1988 -- Decided Dri! » 1.988

- ‘ + ° ° -

Betcre ucces icneis anc A.M. tein.

On appeal from the Sup

New Jersey, Law Divisi

Oo ®

Charles J. Casale, Jr. argued the cause for

appellant (Mr. Casale, attorney;

David A. Gies, of counsel and on the brief).

Ellen Ann Fraulino, Assistant Mercer County

Prosecutor, argued the cause for respondent

(Paul T. Koenig, Jr., Mercer County

Prosecutor, attorney; Ms. FPraulino, of

counsel and on the letter brief)

PER CURIAM.

Defendant Walter R. Griffin was charced with

operating a vehicle while under the influence of

. . - . . “ -

(32 + ee ‘wrnae _- v7 ~*--—- se So- Z s

intoxicatine ee -~+* ¥iOCiat ion ~——_ Pew euw aed a7 . oS a

N@w

he parties

-

or

ried

~

-

ases

-~

—

respective

heir

~

~

nave

court.

Lawrence

ne

as sentencec

,

wnicn “as

ays

~

-

two days in the Intoxicated Driver Resource Center

anc 130 days of community service. Am 4«6addition,

Getencant was fined $500, surcharged $100, and

has Griving privileges were revoked for two years.

The municipal court denied defendant's motion

challenging the constitutionality of N.J.S.A.

20:8-2la as applied to N.J.S.A. 39:4-50 and held

that defendant was not entitled to a trial by jury.

Defendant appealed to the Law Division where,

following a trial de novo on the record, the trial

court rejectec his constitutional challenge to

trial without a jury and found jim guilty of

operating his moter vehicle while under the influence

of intoxicating liquor. The trial court imposed

the same sentence as that imposed by the municipal

court. Defendant appealed and his applications

to the trial court, the Appellate Division, the

New Jersey Supreme Court and the United States

Supreme Court for a stay of his sentence pending

appeal were denied.

Defendant seeks a reversal of his conviction

or, alternatively, a reversal and remand for a

trial by jury, contending solely that he was

constitutionally entitled to a jury trial because

the offense of driving while intoxicated in violation

of N.J.S.A. 39:4-50 is a serious crime in New Jersey.

We have carefully considered the convention and

all of the arguments advanced by defendant in support

of it and find that it is Clearly without merit.

R. <:ll-3(e)(2). We affirm the denial of defendant's

motion for a jury trial substantially for the reasons

expressed by Judge DeMartin in his oral opinion

of culy 21, 19867. The trial court's decision is

consistent with and controlled by State v. Linnehan,

197 NeJ, Super. 41 (App. Div. 1984), certif. den.

99 NJ. 236 (1985). In Linnehan, we _ held

specifically that a defendant charged as a third

offender with driving while intoxicated in violation

of N.J.S.A. 39:4-50 was not entitled to a jury

trial, stating:

Persons charged with crime are

constitutionally entitled to trial

Sy jury. Those charged with petty

offenses are not. Duncan v. Louisiana,

391 U.S. 145, 88 S. CE. 44, °

24 491 (1968). The New Jersey Supreme

Court has held that the only reliable

st for distinction is the severity of

e authorized punishment, and that jury

ial is not required unless the maximum

enalty to which the defendant 1s exposed

xceeds six months incarceration and a

fine of $1,000. State v. Owens, 54 N.J.

ys 0

'O ct ct ct

153 (1969); In re Yengo, 84 N.J. lll

(1980). See Baldwin v. New York, 399

U.S. 66, 930 &. Ce. L866, 26 L. Ea. 2d

437 (1970). Where factually related

petty offenses are tried together whose

maximum sentences total more than six

months, and the defendant is not offered

a jury trial, the sentences may not total

more than six months. State v. Owens,

supra. Concurrent jail sentences, each

of which does not exceed six months, are

permissible. Id. 54 N.J. at 163.

The penalty for a drunk driving

third offender is a mandatory term of

incarceration for 180 days, a fine of

$1,000 and loss of license for 10 years.

N.J.S.A. 39:4-50. The statutory

language, "a term of not less than 180

days, “was not well chosen. However,

we are satisfied of the legislative

intent and we adopt the reasoning of

State v. Ferretti, 189 N.J. Super.

578 (Law Div. 1983) in this regard.

Defendant was ordered to be jailed

for a total of 200 days less 90 days

of community service, or a net 110

days. Since his total sentence

exposure was to incarceration of not

more than six months and a fine of

$1,000, and his actual incarceration

will be less, there is no constitutional

infirmity. [197 N.J, Super. at 43].

See also State v. Owens, 54 N.J. 153 (1969), cert.

Kaa +

Accordingly, the judgment under review 1s

arrirmed.

I hereby certify that the foregoing

is a true copy of the original on

files in my office.

S/ Jack G. Trubenbach

CLERK OF THE APPELLATE DIVISION

LAW DIVISION

QUASI-CRIMINAL

DOCKET NO. 8

APPEAL NO. 6

THE STATE OF NEW JERSEY

VS.

WALTER R.

D

VIOLATION

GRIFFIN

JUDGMENT

efendant.

Driving While Under the Influence of

Alcohol 239:4-50 Summons No. N610401

MUNICIPALIT

APPEAL FILE

TRIAL DE NO

DISPOSITION

. 4 Lawrence Township

D May 22, 1987

VO on transcript, Julv 31, 1987

Defendant having been found quilty

to Driving While Under the Influence

of Alcohol.

Motion by Defense for a Jury

Trial- Denied by Court.

Sentence

90 days incarceration (suspended all

but two days to be served at the

Intoxicated Driver's Resource Center)

years revocation cf Driver's License:

4

$500.00 Fine;

$15.00 Court Costs;

$100.00 Surcharge;

30 days Community Service (to be

assigned by Municipal Court

Authorities).

Motion by Defense for a stay pending

appeal- Denied by Court.

However, imposition of sentence is. stayed for one

week, at which time defendant is to surrender

driver's license to Municipal Court by 12 NOON.

Entereq in docket of MERCER COUNTY CLERK'S OFFICE

On friday August 7, 1987 and make arrangements

for payment of fine, unless otherwise Ordered

Pursuant to R.3:31-5 & R.3:23-8(e) by Appellate

Court

S/ THOMAS DeMARTIN, J.S.C.

S/ ALBERT E. DRIVER, JR.

County Clerk

Dated: July 3l, 1987

CHARLES J. CASALE, JR., P.A.

311 Whitehorse Avenue

Trenton, New Jersey 08610

(609) 585-7711

Attorney for Defendant-Appellant

MUNICIPAL COURT OF THE

TOWNSHIP OF LAWRENCE

COUNTY OF MERCER

STATE OF NEW JERSEY

DOCKET NO. N610401

STATE OF NEW JERSEY,

Plaintiff-Respondent

vs.

ORDER

WALTER R. GRIFFIN,

Defendant-Appellant

This matter having been brought oefore the

Court by Charles J. Casale, Jr., Esq., attorney

for Defendant, in the presence of Andrew J. Smithson,

Esq., Prosecutor, Lawrence Township, and it appearing

that Defendant has filed a timely appeal with the

Superior Court of New Jersey, Mercer County, from

his conviction cf N.J.S.A. 39:4-50 in the Lawrence

Township Municipal Court, and that he was sentenced

to a pay a fine of $500.00, together with costs

of $15.00, $100.00 surcharge, revocation of his

New Jersey driver's license for two (2) years,

thirty (30) days of community service, and a term

of imprisonment for ninety (90) days, of which

Said term is suspended except for two (2) days

to be served at the Intoxicated Driver Resource

en

~ su

It is ORDERED on this 26th day of May, 1987,

that the sentence imposed be and hereby is stayed

pending the appeal; and

It is further ORDERED that the defendant's

request for a jury trial be and hereby is denied.

Lee)

, 1987

bt

Dated: May

S/ LINDA R. FEINBERG, J.M.C.

6.

:

STATE COURTS THAT RECOGNIZE A RIGHT

TO TRIAL BY JURY IN CASES INVOLVING

PROSECUTION OF DRIVING WHILE INTOXICATED.

Alaska- Baker v. City of Fairbanks, 471 P.2d

386 (Alaska 1970).

Arizona- Rotnhweiler v. Superior Court, 100

Ariz. 37, 410 P. 2d 479 (1966) (en

banc).

California- Mills v. Municipal Court, 10 Cal.

3d 288, 110 Cal. Rptr. 329, 515

P. 20 212. taerers

Colorado- City of Canon City v. Merris, 323

P. 2d 614 (Colo. 1958) (charge of

driving while intoxicated is a

state-wide concern and is not a

local matter; therefore, defendant

charged as such shall be afforded

the same constitutional protections

as any criminal defendant).

Florida- Carvery v. State, 436 So. 2d. 191

(Fla. App. 2 Dist. 1983) (right to

jury trial under Florida statute

on the charge of driving while under

the influence, section 316. 193 (1)

(a); but see State v. Whirley, 421

So. 2d 555 (Fla. App. 2 Dist. 1982)

(no right to jury trial under Florida

statute on the charge of driving

while intoxicated, section 316. 1931).

Hawaii- State v. O'Brien, 68 Haw. 39, 704

P. 2d 883 (1985).

Idaho- Miller v. Winstead, 270 P. 2d 1010

(Idaho 1954) (right to demand jury

trial under state statute on de novo

appeal).

Loulsiana- State v. Sonnier, 461 So. 24d 367

(La. App. 3 Cir. 1984) (constitutional

right to jury trial accorded third-time

offenders of State Grunk dri ing

Statute).

Maine- State v. Sklar, 317 A. 2d 160 (Me

1974) (constitutional right to

jury trial under state law in all

Criminal prosecutions, ncluding petty

offenses).

Maryland- Wilson v. State, 21 Md. App. 55

321 A. 2d 549 (Md. App. 1974).

Minnesota- State v. Hoben, 98 N.W. 2d 813

(Minn. 1959).

Mississippi- Scarborough v. State, 261 So.

2d 475 (Miss. 1972}.

=

Shio- City of Lima v. Rambo, 113 Ohio aA

158, 17 Ohio Ops. 2d 133, 177 N.E.

2d 554 (Ohio App. 1960).

Oklahoma- Evans v. Lambert, 418 P. 24 217

(Okla. 1966).

Oregon- Brown v. Multnomah County District

Court, 570 P. 2d 52 (Oregon 1977)

(en banc).

ct

tO

Wirh

\O

South Dakota- Parham v. Municipal

Sioux Falls, 86 S.D

Cour

N.W. 2d 501 (1973).

-?

18. Texas- Turner v. State, 725 S.&. 24

409 (Tex. Ct. App. lst Disc

1987).

19. Vermont- State v. Becker, 287 A. 2a 580 (Vt.

1972) (constitutional right under

State law to jury trial in all

criminal prosecutions, including

petty offenses).

20. Wisconsin- City of Oshkosh v. Llovd, 255

Wis. 601, 39 N.W. 2d 772 (1949)

21. Wyoming- Lapp v. City of Worland, 612 P.

2d 868 (Wyo. 1980); see also

City of Casper v. Cheatham, 739

P. 2d 1223 (Wyo. 1987).