# Petition for Writ of Certiorari — Griffin v. New Jersey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 1077

## Text

© 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

Jt Slice Ae DN

3
2%
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 “~~ hhaltea at

ith ; ° oe 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

-~
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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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_3003%3A1. Public record. Not legal advice.