Petition for Writ of Certiorari — Pavao v. New Jersey

oe | -

9 0 -2 82 Supreme Court, U.S,

FILED

AUG 8 i939

No.

POSE Ha NiO! JR.

CLERK

In The i eae ee

Supreme Court of the Hnited States

=A ee

October Term, 1990

FRANK PAVAO,

Petitioner,

VS.

STATE OF NEW JERSEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEW JERSEY

TIMOTHY J.P. QUINLAN

QUINLAN, DUNNE & HIGGINS

Attorneys for Petitioner

16 North Centre Street

Merchantville, New Jersey 08109

(609) 665-4141

10948

ts * NJ (201) 257-6850+(800) 3 APPEAL *NY (212) 840-4640°MA (617) 542-1114

Perret ine. DC (202) 783-7288*PA (215) 925-6500¢USA (800) 5 APPEAL

Liw

QUESTIONS PRESENTED FOR REVIEW

The issues in this case are rather limited ones involving

questions of probable cause under the Fourth Amendment of the

United States Constitution as applied to the states by way of the

Fourteenth Amendment and of statutory construction of New

Jersey’s sentencing provisions under N.J.S.A. 39:3-40, driving

while on the revoked list. Specifically, the questions presented

for review by the Court are:

1. Whether a stop by a police officer of defendant-petitioner’s

car can be the basis for a lawful arrest and convictions for some

motor vehicle violations, even though the police officer’s testimony

as to probable cause for the initial stop was so lacking in credibility

that such testimony was the basis for defendant’s acquittals on

driving while intoxicated and Careless driving charges.

2. Whether, in the absence of specific legislative. statement

and in light of discretionary language throughout the statutory

scheme, the term ‘‘shall be subject to’’, as utilized in N.J.S.A.

39:3-40, can be validly interpreted as a sentencing provision

mandating imposition, without suspension, of a jail sentence.

i

TABLE OF CONTENTS

Page

Questions Presented for Review... ............cccceees i

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Stasemant Of SeGIOR. . «260 5:05%0s00% nea eases 4

stacemaat OF the COOD on 64 uis osicceads c¢asneapeeaeres +

Reasons for Granting the Writ...............ccccceee: 7

COREIMNGD .. ... . «40000:05 ccc ened os eetee eee eeeees 10

TABLE OF CITATIONS

Cases Cited:

Delaware v. Prouse, 440 U.S. 648, 99S. Ct. 1391, 59 L. Ed.

20 GED CI0TED ik i ivec ds eadeaneeeeeeeee 3, 6, 8, 9

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed.

rE Fi Peerrrer rr re en Per ae 6

State v. Bolte, 560 A.2d 644, 115 N.J. 579 (1989) ..... i

State v. Burglione, 558 A.2d 51, 233 N.J. Super. 110 (App.

Div. IUGBD. o.oo nkwnccace cen coud en eeeeeeebeseeas 10

it

Contents

State v. Caron, 534 A.2d 978 (Me. 1987) .............. 8

State v. Carpentieri, 403 A.2d 963, 168 N.J. Super. 589 (App.

Div. 1979), rev’d 0.g., 414 A.2d 966, 82 N.J. 546 (1980)

Ie Ee Mat eU ye kde eww ew dtas saw ee weees 8

State v. Chapman, 495 A.2d 314 (Me. 1985) ............ i

State v. Coccomo, 427 A.2d 131, 177 N.J. Super. 575 (Law

ee es vee nee kha bw ew € ae moe iat?

State v. Egan, 516 A.2d 1115, 213 N.J. Super. 133 (App. Div.

ee ues ead eaeuesedenas hess 8

State v. Garland, 482 A.2d 139 (Me. 1984)............. 8

State v. Kirk, 493 A.2d 1271, 202 N.J. Super. 28 (App. Div.

a ee ee a a 5 x ou a a hee AS 6, 8, 9

State v. Mulcahy, 427 A.2d 368, 107 N.J. 467 (1987)..... 3,9

State v. Novembrino, 491 A.2d 37, 200 N.J. Super. 229 (App.

Div. 1985), aff’d. 519 A.2d 820, 105 N.J. 95 (1987)

gta She ne Oa an ae ne oe A eae 9

State v. Peterson, 437 A.2d 327, 181 N.J. Super. 261 (App.

rs vc csie sd ds de ckeeeeses er webivws 6

State v. Reed, A-422-87T1, decided August 8, 1988

a ala a Pg a a 9

Wager v. Burlington Elevators, Inc., 282 A.2d 437, 116 N.J.

ee UPPED oc cccrcneascenvecsecs 10

iv

Contents

Page

Statutes Cited:

Pe We ce 5 Sedo ESS ale we ida hKeneved hee 4

Be es I ED 6.5 xen cba sachedenacssedennsass 4

Pe SUP 26s oSees Sbhs ene ska eeewhauehee se

Paces SEE oo on sds ROG Ade ndda aGiewewes bs 2, 4, 10

PN re vec tceedeudavacseaebeseheuncarees 2,4

FRAP MERE Ao axe Keke un ncesesecnscusens tne 2, 4, 7

TS ube cbte skews ph cde suse nels cekd dat 2,4

Constitutions Cited:

United States Constitution, Amendment XIV........... i

New Jersey Constitution of 1947, Article I, Paragraph 7

Other Authority:

Webster’s Third International Dictionary (ed. 1967) ..... 10

APPENDIX

Appendix A — Order of the Supreme Court of New Jersey

NY CO oes codec ehesucoecspawes la

Contents

Page

Appendix B — Opinion and Order of the Superior Court of

New Jersey Appellate Division Filed March 8, 1990

AuUhsbaaderd can uate cen eaeke ee ek sae ene Ts 3a

Appendix C — Judgment of Conviction and Sentence on

Appeal Filed October 25, 1968. ...........ccccees- lla

Appendix D — Decision of Wall Township Municipal Court

BO OPP rere Poe ere ce rey 13a

Appendix E — Opinion Order in State of New Jersey v. John

M. Reed Filed August 8, 1988 ...............000.:. 1Sa

Appendix F — Relevant Statutes...................... 22a

No.

In The

Supreme Court of the United States

=

October Term, 1990

FRANK PAVAO,

Petitioner,

vs.

STATE OF NEW JERSEY,

Respodent.

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

COURT OF THE STATE OF NEW JERSEY

Petitioner, Frank Pavao, respectfully prays that a writ of

certiorari issue to review an order entered by the New Jersey

Supreme Court denying Certification of petitioner’s appeal from

an opinion of the New Jersey Superior Court, Appellate Division

which upheld convictions of driving on the revoked list and

refusing a breathalyzer test, even though the trial court found

that the police officer had no probable cause to stop defendant

for drunk driving and careless driving. Consequently, the opinion

of the New Jersey Superior Court, Appellate Division necessarily

must be reviewed for purposes of this petition. The Appellate

Division’s decision upholding the convictions for refusing a

breathalyzer test and for driving while on the revoked list, and

upholding a one day jail sentence for driving while on the revoked

list, was entered March 8, 1990 (App. B, 3a-10a). Defendant

thereafter sought Certification for review by the New Jersey

Supreme Court. That court denied certification by order dated

May 10, 1990 (App. A, la-2a).

OPINIONS BELOW

Petitioner, Frank Pavao, was cited for driving while

intoxicated (DWI), N.J.S.A. 39:4-50, careless driving, N.J.S.A.

39:4-97, refusal to take a breathalyzer test, N.J.S.A. 39:4-50.2,

and driving while on the revoked license list, N.J.S.A. 39:3-40(b).

The trial court found that the police officer’s evidence was

insufficient to sustain the charges of DWI and careless driving.

Consequently, the trial judge issued an order acquitting petitioner

of those charges. Nevertheless, the trial court’s order also set forth

the court’s judgment of ‘‘guilty’’ in regard to refusal to take a

breathalyzer test and to driving while on the revoked list (App.

D, 13a-14a).

The petitioner appealed to the New Jersey Superior Court

(App. C, 1la-12a), Law Division and the trial court’s judgment

was affirmed. From there petitioner appealed to the New Jersey

Superior Court, Appellate Division. That court, by published

opinion, upheld the convictions and the one day jail sentence (App.

B, 3a-10a). Petitioner then appealed to the New Jersey Supreme

Court for Certification, which was denied (App. A, 1la-2a).

Therefore, petitioner essentially is appealing the published opinion

of the Appellate Division.

The Appellate Division held in its opinion that the police

officer had ‘‘an objectively reasonable basis’’ to stop Mr. Pavao’s

vehicle because of the ‘‘erratic nature of the vehicle’s movement

provided an articulable and reasonable suspicion’’ that Mr. Pavao

was driving carelessly or under the influence of alcohol (App.

B, 5a). This decision ignores the fact that these criteria for stops

of this kind are synonymous for ‘‘probable cause’’. De/aware v.

Prouse, 440 U.S. 648, 99S. Ct. 1391, 59 L. Ed. 2d 660 (1979);

State v. Bolte, 560 A.2d 644, 646 n.1, 115 N.J. 579 (1989); State

v. Mulcahy, 427 A.2d 368, 107 N.J. 467 (1987); State v. Chapman,

495 A.2d. 314, 315 (Me. 1985). Moreover, the New Jersey

Appellate Division’s decision completely passes over the fact that

the trial court and the Law Division found that there was

insufficient evidence to sustain the charges of drunk driving and

careless driving. One wonders if those courts believed that probable

cause was lacking.

While it is true that the municipal and Law Division courts

only had to find a reasonable doubt to acquit Mr. Pavao on the

DWI and careless driving charges, petitioner submits that, in this

particular case, the facts establishing reasonable doubt lead

inexorably to the logical conclusion that the officer was not truthful

in his testimony. The trooper’s testimony was contradicted and

impeached by the witnesses. Nevertheless, the Appellate Division

took as gospel the trooper’s recitation of petitioner’s ‘‘erratic

driving,’’ and concluded the officer had probable cause to stop

petitioner for drunk driving and careless driving. Nowhere does

the Appellate Division detail what ‘‘erratic’’ driving gave rise to

probable cause. In fact, nothing in the record indicates that

petitioner had committed a moving violation giving rise to probable

cause to stop petitioner.

The Appellate Division then ruled that ambiguous statutory

language concerning the discretionary versus the mandatory nature

of the provision for a jail term for a second offense for driving

while on the revoked license list required at least one day in jail

(App. B, 8a-9a). Petitioner submits that where the sentencing

provisions under a criminal or quasi-criminal statute is in dispute

and the language of such sentencing provision is ambiguous, the

statutory language is to be strictly construed against the State.

STATEMENT OF JURISDICTION

Petitioner has sought judicial review to the highest court in

the State of New Jersey, without success. The jurisdiction of this

Court is invoked under the provisions of 28 U.S.C. Sec. 2101(d)

and Sec. 1257(a) to review the application of the principles of

Due Process which require probable cause by the New Jersey

Superior Court, Appellate Division and to review the method of

statutory construction by this State’s Courts to find that N.J.S.A.

39:3-40(b) mandates at least one day in jail for violation of the

statute, even in the face of ambiguous statutory language and

no legislative history supporting the courts’ position.

STATEMENT OF THE CASE

This traffic matter involves petitioner’s convictions of refusal

to take a breathalyzer test, N.J.S.A. 39:4-50.2, and driving while

on the revoked list, N.J.S.A. 39:3-40(b) (App. F, 22a-24a).

Although petitioner was initially stopped for and was charged

with drunk driving, N.J.S.A. 39:4-50, and careless driving,

N.J.S.A. 39:4-97, petitioner was acquitted by the municipal judge

of those charges (App. D, 13a-14a). Petitioner has sought relief

at all levels of the New Jersey judicial system in regard to the

conviction for refusal and driving while revoked, to no avail, and

now seeks Certiorari from this Honorable Court.

Petitioner owns an automobile shop in Belmar, New Jersey.

On January 30, 1988, petitioner worked in his shop until 6:00

p.m., having consumed no alcoholic beverages during the day.

At 6:05 p.m. he arrived at Bar Anticipation, in Belmar. There

petitioner consumed two beers. While in the bar petitioner was

observed by several witnesses who detected no signs of petitioner

being intoxicated. At about 6:30 p.m., petitioner left the bar,

intending to go to his home in New Egypt, New Jersey.

As petitioner waited to exit the parking lot in his brown 1981

standard shift Chevette, he observed a state police cruiser stopped

in the line of traffic and passing the bar. Petitioner made eye

contact with the driver of the state police car, Trooper Henry

Meyer. The trooper pulled over to the curb and then pulled in

behind petitioner’s car.

As the two proceeded, they traversed 25, 35 and 55 m.p.h.

zones. While traveling at 35 m.p.h., there was some slight

movement within the lane by petitioner’s car. Petitioner and the

trooper traveled at least two miles, stopping for at least three

lights. At each light petitioner could observe the trooper in the

rearview mirror. At each light petitioner’s car accelerated with

difficulty. The night was dark.

Petitioner continued at about 35-40 m.p.h. After turning from

Route 35 onto Route 38, a four lane highway, petitioner remained

in the right lane and continued at about the same rate of speed.

Twice a portion of petitioner’s car encroached on the fogline,

the solid while line on the right side of the roadway. Once a portion

of his car encroached on the left lane heading in the same direction.

Petitioner never crossed the center line into the opposing traffic

lanes. Other than the trooper’s cruiser, no other vehicles passed

in the vicinity in either direction. Nevertheless, Trooper Meyer

activated his overhead lights and petitioner immediately pulled

over. Trooper Meyer made no mention of seeing petitioner at

Bar Anticipation. However, Trooper Meyer insisted that he had

reason to believe petitioner had been drinking. When petitioner

asked why, he received no response.

According to Trooper Meyer, petitioner slurred his speech,

staggered, swayed, groaned, had bloodshot eyes and flushed face.

Trooper Meyer claimed that petitioner could barely exit the vehicle

and could not perform the balance tests. The trooper arrested

Mr. Pavao on the DWI charge and took him to the state trooper

barracks at Allenwood, New Jersey. There petitioner was observed

by Trooper Lintton, who did not testify at trial. Petitioner refused

to submit to a breathalyzer test because Trooper Meyer had not

been truthful as to the reason for the stop and petitioner feared

that the test results would be faked. Tickets for DWI, refusal

to take a breathalyzer test, careless driving and driving while on

the revoked list were issued. Petitioner then telephoned Bar

Anticipation. The manager and the owner’s father came to the

State Police barracks in response to the call. Neither of them

observed any signs of intoxication on the part of this petitioner.

Based upon the facts related thus far, petitioner submits that

Trooper Meyer stopped him without the requisite probable cause.

Delaware v. Prouse, supra; State v. Peterson, 437 A.2d 327, 329,

330, 181 N.J. Super. 261, 265-267 (App. Div. 1981), citing Jackson

v. Virginia, 443 U.S. 307, 317, 99 S. Ct. 2781, 2788, 61 L. Ed.

2d 560 (1979).

For the following reasons petitioner submits that Trooper

Meyer set up an arbitrary and unauthorized random roadblock.

See Delaware v. Prouse, supra; State v. Kirk, 493 A.2d 1271,

1275, 202 N.J. Super. 28, 37 (App. Div. 1985) Trooper Meyer’s

patrol area ranged from Aberdeen, New Jersey in the north to

Seaside Heights, New Jersey in the south and west to Jackson

Township, New Jersey. On occasion the trooper would position

himself across from the exits from Bar Anticipation. There was

no accident history or particular safety problem with regard to

that particular corner of Route 35. Nonetheless, Trooper Meyer

had pulled over at least six persons in the vicinity of the bar.

Within a week of the Pavao incident Trooper Meyer pulled over

two individuals connected with the bar. In the one case, the trooper

was observed parked opposite the bar about fifty yards from the

entrance. After following the person for five blocks, Trooper

Meyer pulled him over, supposedly for an equipment violation,

and inquired if the person had been drinking. Meyer then issued

a speeding ticket. In the second case, the bar’s cook saw Trooper

Meyer parked near the bar. The trooper executed a U-turn,

followed the cook and pulled him over two blocks away, with

no traffic violation by the cook. The trooper inquired if the cook

had been drinking and subjected him to balance tests and a

breathalyzer. Despite a 0.04 reading, the cook was not permitted

to drive his car home. Note that legal intoxication in New Jersey

is 0.10.

Trooper Meyer denied that he was staking out the bar on

January 30, 1988 and testified that he just happened to be driving

down Route 35 when he came up behind petitioner’s car. It is

significant, however, that the Superior Court, Law Division

specifically assumed that the trooper had been staking out Bar

Anticipation.

In the municipal court, petitioner was acquitted on the DWI

and Careless Driving charges (App. D, 13a-14a) and was convicted

of Refusal to Take a Breathalyzer Test (N.J.S.A. 39:4-50.2) and

of Driving While on the Revoked List (N.J.S.A. 39:3-40) (App.

D, 13a-14a; App. F, 22a-24a). Sentence on the Refusal charge

was a $500.00 fine, $15.00 costs, two years license suspension

and twelve hours in the Intoxicated Drivers Resource Center.

Sentence on the Driving While Revoked charge (second offense)

was $750.00 fine, $15.00 costs, 60 days license suspension and

one day in imprisonment (App. D, 13a). As to the one day in

jail, the Law Division, following trial de novo, found that such

a sentence would be excessive if imposed as an exercise of

discretion, but that the language of the statute in its opinion,

mandated a minimum term of one day imprisonment in the county

jail (App. C, 1la-12a).

REASONS FOR GRANTING THE WRIT

This petition raises substantial and important questions as

to (1) how far the state may go in condoning random, unsupervised

and unauthorized road stops of citizens without probable cause;

(2) how much the state may water down the probable cause

requirements for stopping and arresting citizens on its highways;

and (3) whether the method of statutory interpretation employed

by the courts of New Jersey were improper.

In regard to the probable cause issue and the related issue

of the random stop, petitioner submits that the exclusionary rule

should have applied to invalidate the stop itself. In this case, the

officer detected no traffic or equipment violations which would

justify stopping Mr. Pavao and the minor movements within his

lane on Route 35 were simply too insignificant to justify this stop,

e.g. - the trooper claimed that once the car went half way over

the fogline, once or twice part of the front right wheel crossed

the fogline, once the front left wheel encroached part way over

the left lane for traffic heading the same direction, and the officer

did not know how far petitioner’s car crossed those lines, except

for the first time. Erratic driving, in and of itself, is not grounds

for probable cause to stop a driver for driving while intoxicated.

State v. Bolte, supra. Compare State v. Caron, 534 A.2d 978 (Me.

1987); State v. Garland, 482 A.2d 139 (Me. 1984). Rather the

stop in this case was pretextual and an uncontrolled exercise of

discretion by Trooper Meyer in the field. This type of activity

is condemned in Delaware v. Prouse, supra; State v. Kirk, supra;

State v. Egan, 516 A.2d 1115, 213 N.J. Super. 133 (App. Div.

1986); State v. Coccomo, 427 A.2d 131, 177 N.J. Super. 575 (Law

Div. 1980); and State v. Carpentieri, 403 A.2d 963, 168 N.J. Super

589 (App. Div. 1979), rev’d 0.g., 414 A.2d 966, 82 N.J. 546 (1980).

The violation of Mr. Pavao’s constitutional rights under the United

States and New Jersey Constitutions make the stop illegal ab initio

and should not be tolerated. New Jersey Constitution of 1947,

Article 1, paragraph 7 (App. F, 24a); Delaware v. Prouse, supra;

State v. Kirk, supra.

Because the initial stop in the case at bar was illegal, the

convictions for driving while revoked and refusal to take a

breathalyzer test both were products of an unlawful stop and

arrest. State v. Bolte, supra at n.1.; State v. Mulcahy, supra; State

v. Reed, A-422-87T1, decided August 8, 1988 (unpublished) (App.

E, 1Sa-21a); State v. Chapman, 495 A.2d 314, 315 (Me. 1985).

Consequently, the exclusionary rule should have been applied to

throw out all the evidence in this case and to negate the convictions

in this case. State v. Novembrino, 491 A.2d 37, 200 N.J. Super.

229 (App. Div. 1985), aff’d 519 A.2d 820, 105 N.J. 95 (1987).

As set forth earlier there is no showing of probable cause

for the stop in this case for either drunk driving or careless driving,

which were the supposed reasons for the stop. It is significant

that petitioner was acquitted of these charges because, under the

circumstances, the rejection of part of the State’s evidence logically

and equally compelled the rejection of the remaining evidence.

If the finder of fact had believed Trooper Meyer’s litany of signs

of intoxication, doubtlessly petitioner would have been convicted

of driving while intoxicated. Yet, witnesses observed petitioner

shortly before and after the stop and no impairment of any kind

was noted. In fact, the trooper himself disclaimed any knowledge

of petitioner’s drinking or exiting the tavern, even though he

stopped petitioner for DWI.

An additional reason the writ should be granted is that the

language in the Driving While Revoked statute (N.J.S.A. 39:3-40)

is ambiguous since it is open to more than on interpretation. Where

statutory language governing criminal and quasi-criminal behavior

is unclear, it is to be strictly construed against the State.

in this case, the language in dispute is ‘‘ . . . shall be subject

to imprisonment in the county jail for not more than five days.

10

...?’ N.J.S.A. 39:3-40(b) (App. F, 23a-24a). The state insists

that this language mandates at least one day in jail. Petitioner,

on the other hand, submits that the full context of the language

indicates discretionary latitude. Thus, if the language is

discretionary, the sentence is excessive per the opinion expressed

by the Law Division.

If this language were intended to be mandated, the New Jersey

Legislature would have said ‘‘shall be subject to not less than

one day and not more than five days,’’ as it has done everywhere

else in the New Jersey Motor Vehicle Code where a mandatory

minimum jail term is intended. Moreover, ‘‘shall be subject to’’

often means ‘‘being in a position to incur.’’ See State v. Berglione,

558 A.2d 51, 54, 233 N.J. Super. 110, 115 (App. Div. 1989); Wager

v. Burlington Elevators, Inc., 282 A.2d 437, 116 N.J. Super. 390

(Law Div. 1971); Webster’s Third New International Dictionary

(ed. 1967). Therefore, the New Jersey statute here is ambiguous

and subject to more then one interpretation requiring that the

language of the statute be strictly construed against the State.

CONCLUSION

For the reasons set forth above, it is respectfully prayed that

a writ of certiorari be granted to review the New Jersey courts’

treatment of probable cause and method of statutory

interpretation.

Respectfully submitted,

Timothy J.P. Quinlan

QUINLAN, DUNNE & HIGGINS

Attorneys for Petitioner

la

APPENDIX A — ORDER OF THE SUPREME COURT OF

NEW JERSEY FILED MAY 10, 1990

SUPREME COURT OF NEW JERSEY

C-812 September Term 1989

31,697

STATE OF NEW JERSEY,

Plaintiff-Respondent,

VS.

FRANK PAVAO,

Defendant-Petitioner.

ON PETITION FOR CERTIFICATION

To the Appellate Division, Superior Court,

A petition for certification of the judgment in A-689-88T2

having been submitted to this Court, and the Court having

considered the same;

It is ORDERED that the petition for certification is denied.

WITNESS, the Honorabie Robert N. Wilentz, Chief Justice,

at Trenton, this 7th day of May, 1990.

s/ Stephen W. Townsend

CLERK OF THE SUPREME

COURT

2a

Appendix A

I hereby certify that the foregoing

is a true copy of the original on

file in my office.

s/ Stephen W. Townsend

CLERK OF THE SUPREME

COURT OF NEW JERSEY

3a

APPENDIX B — OPINION AND ORDER OF THE SUPERIOR

COURT OF NEW JERSEY APPELLATE DIVISION FILED

MARCH 8, 1990

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF

THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-689-88T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK PAVAO,

Defendant-Appellant.

Argued December 18, 1989 — Decided March 8, 1990

Before Judges O’Brien, Havey and Stern.

On appeal from the Superior Court of New Jersey, Law Division,

Monmouth County.

Nicholas J. Schuldt, III, argued the cause for appellant (Eli Lewis

Eytan on the letter brief).

Patricia Bowen Quelch, Assistant Prosecutor, argued the cause

for respondent (John Kaye, Monmouth County Prosecutor,

attorney; Mark P. Stalford, Assistant Prosecutor, on the letter

brief).

sa

Appendix B

The opinion of the court was delivered by HAVEY, J.A.D.

Defendant appeals from his conviction in the Wall Township

Municipal Court and again in the Law Division after his trial

de novo of refusing to take a breathalyzer test, NV.J.S.A. 39:4-50.2

and driving while on the revoked list, N.J.S.A. 39:3-40.' On the

refusal charge, defendant was fined $500, his driving privileges

were revoked for two years and he was ordered to participate

12 hours in the Intoxicated Drivers Resource Center. On the driving

while revoked charge, defendant was fined $750, his driving

privileges were revoked for an additional 60 days and he was

sentenced as a second offender to a one-day jail term.

On appeal, defendant raises the following points:

Point I - Where the trooper’s stop of defendant’s

automobile was pretextual, lacking probable cause

and constituting an unjustified investigatory stop,

defendant’s convictions for refusal and driving

while suspended must be reversed.

Point II - The sentence of one day imprisonment

must be set aside because such sentence was

founded upon the trial court’s erroneous legal

conclusion that such a sentence was mandatory.

We affirm.

The State’s proofs established that State Trooper David Meyer

observed defendant’s vehicle traveling southbound on State

1. Defendant was found not guilty of driving while under the influence

in the municipal court. N.J.S.A. 39:4-50.

Sa

Appendix B

Highway 35 in Wall Township. The vehicle was traveling at low

rate of speed, was weaving and, on at least two occasions, crossed

over the fog line separating the traveled portion of the highway

from the shoulder. When the trooper stopped the vehicle, he

detected an odor of alcoholic beverage on defendant’s breath.

When defendant recited the alphabet, he did so in a slow, slurred

voice. After defendant had difficulty performing coordination

tests at the scene, he was placed under arrest for driving while

intoxicated and was transported to the State Police barracks.

We are satisfied that Trooper Meyer had an objectively

reasonable basis to stop defendant's vehicle. See Delaware v.

Prouse, 440 U.S. 648, 661, 99 S.Cr. 1391, 1400, 59 L.Ed.2d 660,

672 (1979); State v. Weber, 220 N.J. Super. 420, 423 (App. Div.),

certif. den. 109 N.J. 39 (1987). The erratic nature of the vehicle’s

movement provided an articulable and reasonable suspicion that

defendant was driving carelessly, N.J.S.A. 39:4-97, or while under

the influence of alcohol, N.J.S.A. 39:4-50.

After defendant’s vehicle was stopped, the trooper properly

asked defendant to alight from the vehicle. See Pennsylvania v.

Mimms, 434 U.S. 106, 111, 98 S.Cr. 330, ___, 54 L.Ed.2d 331,

337 (1977). When asked for credentials, defendant was unable

to produce his driver’s license. As stated, his speech was slurred,

he had alcohol on his breath and he had difficulty performing

roadside physical tests. The State establishes a failure to submit

violation by proving ‘‘by a preponderance of the evidence’’ that

the ‘‘arresting officer had probable cause to believe the [defendant]

had been driving . . . while under the influence,”’ and that he

refused to submit to the test. N.J.S.A. 39:4-50.4a. The Law

Division judge’s determination that this standard was met is amply

supported by the record. State v. Johnson, 42 N.J. 146, 162 (1964).

6a

Appendix B

The next question is whether the one-day jail term imposed

for driving while revoked is sustainable. The Law ‘Division judge

concluded that a jail term is mandated for second offenders under

N.J.S.A. 39:3-40, which provides:

A person violating this section shall be subject

to the following penalties:

* * *

b. Upon conviction for a second offense, a

fine of $750.00 and imprisonment in the county

jail for not more than five days[.]

In so holding, the Law Division judge followed Sate v. Duva,

192 N.J. Super. 418, 421-422 (Law. Div. 1983), which construed

the pertinent language to mean that imprisonment in the county

jail is mandatory.

Defendant asks us not to follow Duva. He reminds us that

the statute, being penal in nature, must be strictly construed, and

hence the term ‘‘shall be subject to’’ should be interpreted to mean

that imposition of a custodial term is discretionary. We do not

agree.

Even if a statute is penal in nature, all rules of construction

are subordinate to the interpretive goal of ascertaining the intent

of the Legislature. State v. Tischio, 107 N.J. 504, 511, app. dis.

484 U.S. 1038, 108 S.Ct. 768, 98 L.Ed.2d 855 (1988). In that

quest, we must consider the policy behind the statute, concepts

of reasonableness and legislative history. Coletti v. Union Cty.

Bd. of Freeholders, 217 N.J. Super. 31, 35 (App. Div. 1987).

7a

Appendix B

Prior to L.1982, c. 45, N.J.S.A. 39:3-40 provided for a fine

of not less than $200 nor more than $1,000 or imprisonment in

the county jail for not more than six months, or both. The statute

made no distinction among first, second or third offenders. Thus,

the court had discretion whether or not to impose a custodial

term, even for second and third offenders.

L.1982, c. 45, substituted the present penal scheme which

imposes penalties depending upon the status of the offender. The

pertinent provisions are as follows:

A person violating this section shall be subject

to the following penalties:

a. Upon conviction for a first offense, a fine

of $500.00;

b. Upon conviction of a second offense, a

fine of $750.00 and imprisonment in the county

jail for not more than five days;

c. Upon conviction of a third offense, a fine

of $1,000.00 and imprisonment in the county jail

for 10 days;

d. Upon conviction, the court shall impose

or extend a period of suspension not to exceed six

months;

e. Upon conviction, the court shail impose

a period of imprisonment for not less than 45 days,

if while operating a vehicle in violation of this

section a person is involved in an accident resulting

8a

Appendix B

in personal injury to another person. [N.J.S.A.

39:3-40].

Thus, the present statute provides for a fine for a first offense,

but upon conviction for a second offense, the violator ‘‘shall be

subject to. . . a fine of $750.00 and imprisonment in the county

jail for not more than five days[.]’’ [Emphasis added]. In our

view, by so mandating, the Legislature intended to divest the

sentencing court of its discretion as to whether or not a custodial

term should be imposed. Duva so held, and we agree. We note,

for example, that N.J.S.A. 39:3-40b, in using the conjunctive

‘‘and,’’ should be compared with other provisions of Title 39

which call for a fine or imprisonment in the county jail for not

more than a specific term. See N.J.S.A. 39:4-96 (reckless driving

second offender ‘‘shall be punished by impriscument for not more

than 3 months, or by fine of not less than $100.00 or more than

$500.00, or both.’’). (Emphasis added).

This interpretation is supported by legislative history.

According to the Senate Law, Public Safety and Defense

Committee Statement, Senate, No.904 — L.1982, c. 45, the bill

‘*increases the general penalties for the offense of driving’’ while

revoked. The Statement also declares:

For a first offense, the penalty wou/d be a $500.00

fine and a suspension of license for up to 6 months;

for a second offense, a $750.00 fine, a jail sentence

of up to 5 days, and a mandatory suspension of

license for up to 6 months; for a third offense,

a $1,000.00 fine, a jail sentence of up to 10 days,

and a mandatory suspension for up to 6 months.

[See Senate Statement L.1982, c. 45 following

N.J.S.A. 39:3-10; emphasis added].

9a

Appendix B

The statement clearly states that a fine and jail sentence shall be

imposed for a second offense.

We cannot accept defendant’s argument that the language

‘*subject to’’ was intended to make a custodial term discretionary.

Black’s Law Dictionary 1278 (Sth ed. 1979) defines the term

**subject to’’ as being ‘‘[l]iable, . . . answerable for.’’ Hence, the

language ‘‘shall be subject to . . . imprisonment in the county

jail for not more than 5 days,’’ N.J.S.A. 39:3-40b, can be read

as meaning ‘‘shall be [‘liable to’ or ‘answerable for’] imprisonment

in the county jail for not more than 5 days[.]’’ As the Law Division

observed in Duva, to accept the argument that the words ‘‘be

subject to’’ intends to vest discretion in the sentencing court makes

the phrase ‘‘shall be subject to imprisonment’’ the functional

equivalent of ‘‘may be imprisoned for.’’ This result would render

the mandatory character of the word ‘‘shall’’ nugatory. See 192

N.J. Super. at 421. If the Legislature intended that a violator

‘**may be imprisoned up to 5 days’’ for a second offense, it would

have so stated.

In support of his argument, defendant also points to N.J.S.A.

39:3-40e which provides that the court ‘‘shall impose a period

of imprisonment for not less than 45 days’’ if the person drives

while on the revoked list and is involved in an accident resulting

in personal injury to another person. [Emphasis added]. See a/so

N.J.S.A. 39:4-50(a)(2) (a second drunk driving offender ‘‘shall

be sentenced to imprisonment for a term of not less than 48

consecutive hours .. .’’). Defendant contrasts the mandatory

language of N.J.S.A. 39:3-40e with the term ‘‘subject to’’ used

in N.J.S.A. 39:3-40b, and suggests that the Legislature, in using

**subject to,’’ must have intended something less than mandatory

jail terms for second offenders.

10a

Appendix B

Defendant ignores the fact that subparagraph e. is also

prefaced with the same ‘‘shall be subject to’’ language that prefaces

subparagraph b., and therefore can be read to mean ‘“‘subject

to... a period of imprisonment for not less than 45 days[.]"’

Clearly, the Legislature did not intend to make the 45-day term

discretionary. See Senate Law, Public Safety & Defense Committee

Statement, Senate, No. 1207 — L.1986, c. 38 (45-day jail term

**will be imposed’’ when accident results in personal injury by

another).

Finally, we note that since Duva’s holding, which we here

follow, the Legislature has amended N.J.S.A. 39:3-40e, making

it clear that the 45 days of imprisonment shall be imposed only

when an accident results in personal injury to someone other than

the driver. See L. 1986, c. 38. We must assume that the Legislature

was aware of the Duva holding when it amended subparagraph

e. in 1986. See Quaremba v. Allan, 67 N.J. 1, 14 (1975). Its failure

also to amend subparagraph b., in light of Duva, may be evidence

that Duva’s construction is in accord with the legislative intent.

See In re Keogh-Dwyer, 45 N.J. 117, 120 (1965); but see Masse

v. Public Employees Retirem. Sys., 85 N.J. 252, 264 (1981)

(inaction demonstrates nothing more than that subsequent

legislatures failed to act); and see Giardina v. Bennett, 111 N.J.

412, 426 (1988).

Affirmed.

I hereby certify that the foregoing

is a true copy of the original on

file in my office.

s/ R. Emille Cox

Clerk

lla

APPENDIX C — JUDGMENT OF CONVICTION AND

SENTENCE ON APPEAL FILED OCTOBER 25, 1988

SUPERIOR COURT OF NEW JERSEY

Monmouth County Court House

Freehold, New Jersey 07728

SUPERIOR COURT OF NEW JERSEY

COUNTY OF MONMOUTH

LAW DIVISION (CRIMINAL)

APPEAL NO. 164-88

THE STATE OF NEW JERSEY

RESPONDENT

VS.

FRANK PAVAO

al DEFENDANT-APPELLANT.

JUDGEMENT OF CONVICTION AND SENTENCE ON

APPEAL

THIS MATTER HAVING BEEN BROUGHT BEFORE

THE COURT BY DEFENDANT-APPELLANT ON APPEAL

FROM THE JUDGEMENT OF CONVICTION ENTERED

AGAINST HIM IN THIS CASE IN THE MUNICIPAL COURT

OF THE TOWNSHIP OF WALL ON THE IST DAY OF JULY,

1988, AND RALPH CRETELLA, LEGAL ASST. FOR THE

COUNTY OF MONMOUTH APPEARING, AND THE

DEFENDANT-APPELLANT IN PERSON AND BY COUNSEL

APPEARING, NICHOLAS SCHULDT, ESQUIRE

12a

Appendix C

IT IS ON THIS 16th DAY OF SEPTEMBER, 1988,

ADJUDGED ON TRIAL DE NOVO THAT THE

DEFENDANT-APPELLANT IS GUILTY OF THE

OFFENSE(S) OF:

39:3-40 DRIVING WHILE SUSPENDED

39:4-50.2 REFUSAL TO TAKE BREATHALYZER TEST.

AS CHARGED, AND IS HEREBY CONVICTED OF SAID

OFFENSE(S).

IT IS ADJUDGED THAT THE DEFENDANT-

APPELLANT IS HEREBY SENTENCED TO $1,250.00 FINE

AND COURT COSTS OF $30.00 PAYABLE TO THE WALL

TOWNSHIP MUNICIPAL COURT.

* DRIVING PRIVLEGES IN THE STATE OF NEW JERSEY

BE REVOKED FOR A PERIOD OF (2) TWO YEARS AND

SIXTY (60) DAYS.

ONE (1) DAY M.C.C.I

12 HOURS I.D.R.C.

s/ John A. Ricciardi

JOHN A. RICCIARDI 154.

[stamped]

ORIGINAL FILED

MONMOUTH COUNTY

OCT 25 1988

JANE G. CLAYTON

DEPUTY CLERK OF THE

SUPERIOR COURT

l3a

APPENDIX D — DECISION OF WALL TOWNSHIP

MUNICIPAL COURT DATED JULY 1, 1988

WALL TOWNSHIP MUNICIPAL COURT

ALLAIRE ROAD & BAILEY CORNER ROAD

P.O. BOX 1168, WALL, NEW JERSEY 07719

EVAN W. BROADBELT 449-4666 GAIL W. CONNORS

JUDGE COURT CLERK

July 1, 1988

Frank Pavao

P.O. Box 33

New Egypt, New Jersey 08533

Joseph A. Zampardi, Esq.

506 Hooper Avenue

Toms River, New Jersey 08753

Dear Sirs:

Judge Broadbelt has rendered his decision on the four

summons as follows: 39:4-50 Not Guilty, 39:4-97 — Not Guilty.

39:3-40 Guilty fine $750. cost $15. revoke dl for 60 days. and

39:4-50.2 Guilty Fine $500. and $15. cost $15. all due forthwith.

Revocation on the 39:4-50.2 is 2 years and your drivers license

must be turned in immediately. You also must serve 12 hours

with the Intoxicated Drivers Resource Center. You will be advised

when to do so.

If you have any questions please advise. You have 20 days

in which to file an appeal.

cc: court

l4a

Appendix D

Very truly yours,

s/ Gail W. Connors

Gail W. Connors

1Sa

APPENDIX E — OPINION ORDER IN STATE OF NEW

JERSEY V. JOHN M. REED FILED AUGUST 8, 1988

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

STATE OF NEW JERSEY,

Plaintiff-Respondent,

JOHN M. REED,

Defendant-Appellant.

Submitted June 21, 1988 - Decided August 8, 1988

Before Judges Pressler and Gaynor.

On appeal from Superior Court, Law Division, Ocean County.

Stuart D. Synder, attorney for appellant (Roni J. Daniels, on

the brief).

James W’. Holzapfel, Ocean County Prosecutor, attorney for

respondent (Samuel J. Marzarella, Assistant County Prosecutor,

on the brief).

PER CURIAM

Following a trial before the Municipal Court of Surf City,

defendant was acquitted of the charge of operating a motor vehicle

while under the influence of intoxicating liquor, N.J.S.A. 39:4-50,

but convicted of refusing to submit to a breathalyzer test in

l6a

Appendix E

violation of N.J.S.A. 39:4-50.2. As a second offender, his driving

privileges in New Jersey were revoked for a period of two years

and a fine of $250 was imposed. On his appeal to the Law Division,

he was found guilty of the same offense and similar sanctions

were imposed. On this appeal, defendant presents the following

appellate arguments:

I. WHETHER THE MUNICIPAL COURT

ERRED IN ADMITTING THE TESTIMONY OF

THE POLICE OFFICER IN VIOLATION OF R.

7:4-2(g).

I]. WHETHER THE CONVICTION SHOULD

BE REVERSED DUE TO THE COURT’S

ERRONEOUS DETERMINATION THAT

PROBABLE CAUSE EXISTED FOR THE

INITIAL STOP OF THE VEHICLE.

III. WHETHER THE CONVICTION SHOULD

BE REVERSED DUE TO THE COURT’S

ERRONEOUS DETERMINATION THAT THE

ARRESTING OFFICER HAD REASONABLE

GROUNDS TO BELIEVE THE DEFENDANT

HAD BEEN OPERATING A MOTOR

VEHICLE IN VIOLATION OF N.J.S.A. 39:4-50.

We are satisfied from our review of the record in light of

the applicable principles of law that there is clearly no merit to

the argument advanced in Point I in support of defendant’s

contention that a reversal of his conviction is required. R.

2:11-3(e)(2). However, we are satisfied that the stop of defendant’s

vehicle was arbitrary, random and wholly without justification

17a

Appendix E

and thus an unconstitutional seizure. The subsequent arrest and

the consequences thereof, being the fruit of the random stop,

were thus tainted and rendered invalid. Accordingly, the refusal

conviction cannot stand. This conclusion renders it unnecessary

for us to consider defendant’s Point III.

We adopt the following factual findings of the Law Division

judge bearing upon the justification for the officer’s stop of

defendant’s vehicle:

Now, this Court finds the facts as follows:

On November 17th, 1986, after one o’clock in the

morning defendant’s automobile was observed

crossing the center line of Long Beach Boulevard

by one Officer Furlong who observed the car then

make a west turn, or left turn west. He was either

in Ship Bottom or Surf City on a routine patrol.

He was going north io that section of Long Beach

Township, which encompasses Loveladies. Later

on he saw what he believed to be the same car.

It was going north. He also went north behind it,

and at the time he was in the left lane.

He testified that there was a sudden change

in the, not that there was a left turn right in front

of him in the sense that the driver cut him off,

but he moved over in front of him. Then he

observed the car again, attempted to stop it by

turning on his overhead lights, and the defendant

continued to proceed and not pulling over to the

shoulder of the road. When Marina Lane came

up the defendant turned left into Marina Lane.

The policeman followed him, the lights and siren

18a

Appendix E

on, according to the policeman; still failed to pull

over. Defendant eventually pulled up in his own

driveway and exited the vehicle.

It is noteworthy that the officer, in his testimony before the

municipal court, was unable to specify any motor vehicle violation

committed by defendant, or to indicate other circumstance giving

rise to a reasonable suspicion of unlawful conduct justifying the

pursuit and stop of the vehicle. Although stating that defendant

made an abrupt lane change, the officer did not consider this

movement of the vehicle to be an unlawful lane change as he

could not say that defendant’s directional signal had not been

operating. In response to a further inquiry as to the reason for

the stop, the officer testified;

Probably, to the best of my recollection since

I can’t testify that he in fact, did or did not have

his turn signal on, and whether or not | would

or would not have been in his sight, probably

careless operation at that time might be — might

be the appropriate statute for the culmination of

that particular maneuver, I don’t know, possibly

it could be failure to keep right. I would have to

— he wasn’t charged with that so I didn’t dwell

on that, sir.

We learn from Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. °

1391, 59 L.Ed.2d 660 (1979), that random investigatory stops of

motor vehicles made without probable cause or reasonable

suspicion are unconstitutional. There, the court noted that the

stopping of a vehicle and detaining its occupants constituted a

seizure within the meaning of the Fourth and Fourteenth

Amendments and was lawful only if grounded in some rational

19a

Appendix E

basis for the deployment of such intrusive law enforcement action.

In this respect, the court cbserved:

To insist neither upon an appropriate factual basis

for suspicion directed at a particular automobile

nor upon some other substantial and objective

standard or rule to govern the exercise of discretion

‘“‘would invite intrusions upon constitutionally

guaranteed rights based on nothing more

substantial than inarticulate hunches... .”’ Terry

v Ohio, 392 US, at 22, 20 L.Ed 2d 889, 88 S Ct

1868, 44 Ohio Ops 2d 383. By hypothesis, stopping

apparently safe drivers is necessary only because

the danger presented by some drivers is not

observable at the time of the stop. When there is

not probable cause to believe that a driver is

violating any one of the multitude of applicable

traffic and equipment regulations — or other

articulable basis amounting to reasonable suspicion

that the driver is unlicensed or his vehicle

unregistered — we cannot conceive of any

legitimate basis upon which a patrolman could

decide that stopping a particular driver for a spot

check would be more productive than stopping any

other driver. This kind of standardless and

unconstrained discretion is the evil the Court has

, discerned when in previous cases it has insisted that

the discretion of the official in the field be

circumscribed, at least to some extent. [440 U.S.

at 661; citations omitted.]

We have also recently concluded that the rights of our citizens

to travel the highways of our State without police interdiction

20a

Appendix E

is similarly protected under Art. I, par. 7 of our State Constitution.

State v. Kirk, 202 N.J. Super. 28, 35-36 (App. Div. 1985).

Here, there was no motor vehicle violation observed by the

officer nor any factual basis for an articulable suspicion of criminal

conduct on the part of the driver or occupant of the automobile

providing probable cause or justification for the stopping of

defendant’s vehicle. See State v. Kirk, 202 N.J. Super. at 55-56.

The absence of such standard governing the action of the officer

in the present case permitted him to thus act upon an inarticulate

hunch in infringing upon defendant’s reasonable expectation of

privacy while traveling in his automobile. As Prouse instructs us,

the grave danger of abuse of discretion does not disappear simply

because the automobile is subject to state regulation resulting in

numerous instances of police-citizen contact. 440 U.S. at 662.

While we are not unmindful of the dangers and serious threats

to public safety posed by drunk drivers on our highways, such

compelling interests do not justify the use of indiscriminate efforts

at law enforcement. State v. Kirk, 202 N.J. Super. at 55-56.

As the proofs failed to establish that the stopping of

defendant’s vehicle was justified under the circumstances, and

thereby permissible as a valid warrantless seizure, defendant’s

subsequent arrest for the alleged violation of N.J.S.A. 39:4-50

resulting in his conviction for refusing to submit to a breathalyzer

test cannot stand as being the fruit of a constitutionally

objectionable random investigatory stop.

The judgment of conviction is therefore reversed.

[stamped]

ORIGINAL FILED

APPELLATE DIVISION

AUG 8 1988

2la

Appendix E

s/ Josh G. Trubenbash

Clerk

[stamped]

FILED

AUG 1 1988

M. DEAN HAINES

CLERK COUNTY OF OCEAN

22a

APPENDIX F — RELEVANT STATUTES

Last additions in text indicated by italics; deletions by —.

39:4-50.2. Consent to taking of samples of breath; record of test;

independent test; prohibition of use of force; informing accused

(a) Any person who operates a motor vehicle on any public

road, street or highway or quasi-public area in this State shall

be deemed to have given his consent to the taking of samples

of his breath for the purpose of making chemical tests to determine

the content of alcohol in-his blood; provided, however, that the

taking of samples is made in accordance with the provisions of

this act and at the request of a police officer who has reasonable

grounds to believe that such person has been operating a motor

vehicle in violation of the provisions of R.S. 39:4-50.

(b) A record of the taking of any such sample, disclosing

the date and time thereof, as well as the result of any chemical

test, shall be made and a copy thereof, upon his request, shall

be furnished or made available to the person so tested.

(c) In addition to the samples taken and tests made at the

direction of a police officer hereunder, the person tested shall

be permitted to have such samples taken and chemical tests of

his breath, urine or blood made by a person or physician of his

own selection.

(d) The police officer shall inform the person tested of his

rights under subsections (b) and (c) of this section.

(e) No chemical test, as provided in this section, or specimen

necessary thereto may be made or taken forcibly and against

physical resistance thereto by the defendant — The police officer

shall, however, inform the person arrested of the consequences

23a

Appendix F

of refusing to submit to such test — in accordance with section

2 of this amendatory and supplementary act.' A standard

statement, prepared by the director, shall be read by the police

officer to the person under arrest.

Amended by L.1977, c. 29, § 3; L.1981, c. 512, § 1, eff.Jan.

12, 1982.

39:3-40. Driving when license refused, suspended, revoked or

prohibited; motor vehicle license revoked; punishment

No person to whom a driver’s license has been refused or

whose driver’s license or reciprocity privilege has been suspended

or revoked, or who has been prohibited from obtaining driver’s

license, shall personally operate a motor vehicle during the period

of refusal, suspension, revocation, or prohibition.

No person whose motor vehicle registration has been revoked

shall operate or permit the operation of such motor vehicle during

the period of such revocation.

A person violating this section shall be subject to the following

penalties:

a. Upon conviction for a first offense, a fine of $500.00;

b. Upon conviction for a second offense, a fine of $750.00

and imprisonment in the county jail for not more that five days;

c. Upon conviction for a third offense, a fine of $1,000.00

and impiisonment in the county jail for 10 days;

1. Section 39:4-50.4a.

24a

Appendix F

d. Upon conviction, the court shall impose or extend a period

of suspension not to exceed six months;

e. Upon conviction, the court shall impose a period of

imprisonment for not less than 45 days, if while operating a vehicle

in violation of this section a person is involved in an accident

resulting in personal injury fo another person.

Nothwithstanding subsections a. through e., any person

violating this section while under suspension issued pursuant to

R.S. 39:4-50, upon conviction, shall be fined $500.00, shall have

his license to operate a motor vehicle suspended for an additional

period of not less than one year nor more than two years, and

may be imprisoned in the county jail for not more than 90 days.

Amended by L.1981, c. 38 § 1, eft. Feb. 12, 1981; L.1982, c.

45, § 2; L.1983, c. 90, § 1, eff. March 11, 1983; L.1986, c. 38,

§ 1, eff. June 25, 1986.

New Jersey Constitution of 1947, Article I

Freedom from unreasonable searches and seizures; warrant

7. The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable searches and

seizures, shall not be violated; and no warrant shall issue except

upon probable cause, supported by oath or affirmation, and

particularly describing the place to be searched and the papers

and things to be seized.

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