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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 898

## Text

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
Falta Of COMRGENE.. 65 6 «is sknden cmegeceeeaeereey il
Weis OF COMBO 5 o5 5 ak ks 0:0 00cm eee il
Copia BRUNO. 6 sis x sen 60d swn nde eee eee 2
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.

—— an > = :
7 - eae > aa oa _ va ee 7 —— PS —— i Se os - =

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2665%3A1. Public record. Not legal advice.