Opposition Brief — Iannacone v. New Jersey

Nos. 90-719 and 90-733

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1990

STEVEN JANNACONE,

Petitioner.

-

STATE OF NEW JERSEY,

Re spondent.

On Petition For A Writ Of Certiorari To

The Superior Court Of New Jersey,

Appellate Division

DONALD HAMM,

Pe titioner,.

V.

STATE OF NEW JERSEY,

Respondent.

On Petition For A Writ Of Certiorari To

The Supreme Court Of New Jersey

iESPONDENT’S CONSOLIDATED BRIEF

IN OPPOSITION

LINDA K. DANIELSON ROBERT J. DEL TUFO

De putty Attorney General Attorney (re ne ral of Ne iu’ Je rsey

Attorney of Record Richard J. Hughes Justice Complex

CN 086

Trenton, New Jersey 08625

(609) 292-9086

March 11, 1991

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

Bay or

er 4 ae

Les

QUESTION PRESENTED FOR REVIEW

1. Whether the offense of drunk driving as a third

offender, set forth at N.J. Stat. Ann. § 39:4-50

(West 1990)—subjecting a defendant upon convic-

tion to imprisonment of 180 days (all of which may

be served in an inpatient rehabilitation program

and 90 days of which may be satisfied by the per-

formance of community service) and a $1000 fine

and the additional remedial and compensatory civil

penalties of ten years license revocation, sur-

charges and fees—reflects a legislative determi-

nation that DWI in New Jersey is a ‘“‘serious”’

offense, under Blanton v. City of North Las Vegas,

489 1J.S. 538, 109 S. Ct. 1289 (1989), invoking the

Sixth Amendment right to a jury trial?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............00+ i

TABLE OF CONTENTS. ........ccsccecceescseceecceecceeseeseoeees ii

TABLE OF AUTHORITIES. ......ccccccccccccscecesceseserssscers ill

OPINIONS BELOW .......cccccocccoscssescssescsscssscssesssscsenses 2

JURISDICTION .ccsscssessccsseesses nee | censechumudiiaiecarses 2

CONSTITUTIONAL PROVISION INVOLVED ............. 2

STATUTE INVOLVED .......c.cccccccccccccscssevessncsevseseesses 3

COURT RULE INVOLVED .......ccccccccccccescescsscsscescesess 8

STATEMENT OF THE CASE ..ccccccscccsccsccsccrsceeseseeess 8

SUMMARY OF ARGUMENT .......ccccccccccsccsecscesersereees 12

REASONS WHY THE PETITION SHOULD BE

DENIED ......ccccocccccssscnsescsesesnshtsebyenssusenneuenenneniaaseanaens 13

CONCLUSION ......ccccccsrcsesessecsonsesssseedsusesesenensesesenseenes 25

ill

TABLE OF AUTHORITIES

CASES CITED: Page

Bechler v. Parsekian, 36 N.J. 242, 176 A.2d 470

Ora 20

Bet v. Burson, 402 U.S. S35 (1971) ......<.cccccceseseess 20

Blanton v. City of North Las Vegas, 489 U.S. 538,

| fs Ree passim

Clark v. New Jersey Division of Motor Vehicles, 211

N.J. Super. 708, 512 A.2d 588 (App. Div.

(EATS SEINE Sct BRA AEE ae os CR 15,19

In re Kallen, 92 N.J. 14, 455 A.2d 460 (1983) ..... 17,20

Landry v. Hoepfner, 840 F.2d 1201 (5th Cir. 1988)

(en banc), cert. denied, 109 S. Ct. 1540

EE Rio SES a eS Oe Oe aT 24

Matter of Johnson, 226 N.J. Super. 1, 543 A.2d 454

I III oc sidecases hrrbeuniagrsdindovcwecmens 19

Mullaney v. Wilbur, 421 U.S. 684 (1975) wo. 21

Muniz v. Hoffman, 422 U.S. 454 (1975) wc. 14,18

Patterson v. New York, 432 U.S. 197 (1977) ........ 21

Richter v. Fairbanks, 903 F.2d 1202 (8th Cir.

SINT iis eseineaeeveceaitinieanesibUbewseepinieoneesosseninconeees 24

Rodriguez v. Rosenblatt, 58 N.J. 281, 277 A.2d 216

SI ata itso ciia duadatapcassGebiltduieeienensenenieensgeoseeentaes 11

Schad v. Borough of Mount Ephraim, 452 U.S. 61

SIIITTETIii tht da idk endeuemicd guidantcaceneeentieusesiebaeeuns 21

Splawn v. California, 431 U.S. 595 (1977) we. 21

State in the Interest of D.G.W., 70 N.J. 488, 361

RS a rE 18

State v. De Bonis, 58 N.J. 182, 276 A.2d 137

SITTIN 51 caliedidddadtiecvdaacsinbdnvbecesencesauekavmenuiciens 18

State v. DeLuca, 108 N.J. 98, 527 A.2d 1355, cert.

meen, €5e U.S, $44 (1967) ............................ 15

State v. Dively, 92 N.J. 573, 458 A.2d 502

ee 15

Table of Authorities Continued

' Page

State v. Dyal, 97 N.J. 229, 478 A.2d 390 (1984) .. 17

State v. Fahrer, 212 N.J. Super. 571, 515 A.2d 1240

GAR DG, SIOID cccesccccssninisscesereitthbaceitaseroncinss 20

State v. Ferretti, 189 N.J. Super. 578, 461 A.2d

193 (Law Div.), certif. denied, 94 N.J. 606

REISER SCOPE RE. SEEN nee ronan 8,15

State v. Hamm, 121 N.J. 109, 577 A.2d 1259

GINIIE vicdinabediiidaatiedakiac la seumit ee cetera a 2

State v. Laird, 25 N.J. 298, 135 A.2d 859

ENE tithe tint a SE OSS. 3 o> 13

State v. Linnehan, 197 N.J. Super. 41, 484 A.2d

34, (App. Div. 1984), certif: denied, 99 NJ.

os Bot. | Pee eememnnen 8,9,15

State v. Macuk, 57 N.J. 1, 268 A.2d 1 (1970) ...... 15

State v. Mulcahy, 107 N.J. 467, 527 A.2d 368

EN diepidaidindeaniianiadideiardas ue eee 17

State v. Tischio, 107 N.J. 504, 527 A.2d 388 (1987),

appeal dismissed, 484 U.S. 1038 (1988) ......... 16

State v. Tropea, 78 N.J. 309, 394 A.2d 355

RANE Ranh ners owen eee trsste ie ua iale ERAN! 15

State v. Zopm, 196 N.J. Super. 596, 483 A.2d 844

Rn ID eat mee 15,18,19

Steadman v. Securities and Exchange Commission,

EEE Ee UE vecatvncnateioummcedenn 20

Stevenson v. District of Columbia, 562 A.2d 623

Genie SEES WUNIIED seuceicchieraciuestceacieacictenimel eas 25

United States v. Garner, 874 F.2d 1510 (11th Cir.

SEED. cnssibbvinintdedsatassoloadsdlntantasanaiciuee ai 24

United States v. Musser, 873 F.2d 1513, rehearing

denied in per curiam opinion, 883 F.2d 84

(D.C. Cir.}, cert. denied, 110 S. Ct. 518

DIE eaksctentarcshsonuccasamassem ccmmideioniecsolacseasceuen 25

United States v. Twentieth Century For Film Cor-

poration, 882 F.2d 662 (2d Cir. 1989) ........... 24

Table of Authorities Continued

Page

Vickey v. Nessler, 230 N.J. Super. 141, 553 A.2d

34, (App. Div.), certif. denied, 117 N.J. 74, 563

R20 GG CI noice 15

Webb v. Webb, 451 U.S. 493 (1981) oo. eeecceccceeee 24

STATUTES CITED:

18 U.S.C.A. § 3559(aX7) (West Supp. 1990) ....... 18

18 U.S.C.A. § 3571(6\6) (West Supp. 1990) ....... 18

28 U.S.C.A. § 2101(c) (West 1982) 0.0.0... 2,14

28 U.S.C.A. § 2101(d) (West 1982) .0.....ceccccccceeee 2,13

28 U.S.C.A. § 1257(a) (West Supp. 1990) .......... 2

28 U.S.C.A. § 2403(b) (West 1978) .....ccccccccccceees 2

Alt. Codlin § SEGAIOE ssecccsincosasssvececdesestudieneics, 22

Alaska Stat. § 28.35.030 and § 12.55.135(a) ....... 22

Ark. Stat. Ann. § 5-65-103 and § 5-65-111 ........ 22

Colo. Rev. Stat. § 42-4-1202 ooo. ccccccscscssseseee 22

Ga. Code Ann. § 40-6-391 ooo. ceccsccsscssscecsseseee 22

fll. Ann. Stat. Ch. 95 1/2, § 11-501 and Ch. 38.

§§ 1005-8-1(7), 1005-8-3(aX1) oo... eeceeeeeeessseceese 22

Ind. Code. Ann. § 9-11-2-2 and § 35-50-3-2 ........ 22

Lerma Cathe 8 GRIEG ccocsscvcisvesnasenssotessiescosencessieecss. =

Mass. Ann. Laws ch. 90, § 24 ceceecccccccccccccecccceeee, 22

N.J. Stat. Ann. § 17:294-33 (West TOG) coceccones 19

N.J. Stat. Ann. § 2C:1-4a and b (West 1982) 16

N.J. Stat. Ann. § 17:29A-35b.(2) (West 1985 & Supp.

SOMO) sisissiisvinssSeaneeninene ee 9,19

N.J. Stat. Ann. § 39:4-50 (West 1990) ....... 1,3,8,10,12,19

N.J. Stat. Ann. § 39:4-50.8 (West SOOO) Svcctocceses 9,19

N.J. Stat. Ann. § 39:4-50(a\(3) (West

ROO) cckcsdaccensaceee asa eee 8,9,14,16,17,18

N.J. Stat. Ann. § 39:4-50(b) (West OPO tees, 18,23

N.J. Stat. Ann. § 39:4-51 (West RE coe 9,18

Table of Authorities Continued

Page

N.Y. Veh. & Traf. Law § 1192 and § 1193........... 22

Okla. Stat. tht. 67, § E3OGR cccccetcanee 22

Or. Rev. Stat. § 813.010, § 161.618 ....ccccccoscccessssse 23

RI. Gen. Lawes § GhBIe ccccicccneconseeaanee 23

S. D. Codified Laws Ann. § 32-23-2, § 22-6-2 ...... 23

Tenn. Code. Ann. § 55-10-408 .........cccccccoscccsescesseees 23

RULES CITED:

Nd. CR, FR. BeAIEED consinsckcnsunceustarenncoummeeneneeneeea 10

Sap. Cb. FR. DBT .ncoccececiccseussseamunsennenaeeneiaeaanaaaen 8,13

OTHER SOURCES CITED:

Final Report of the New Jersey Criminal Law Re-

vision Commission, The New Jersey Penal Code

Volume II: Commentary (1971) ...........sseeeeeeeess 16

1962 N.J. Laws, ¢. GB sccm 16

1966 N.J. Laws, c. 1968) ccc ae 4

N.J. Admin. Code tit. 8, §§ 66A-4.1 et seq. .......... 23

N.J. Assembly, No. 828—L. 1984, ¢. 4 we 19

N.J. Senate Judiciary Committee Statement, As-

sembly No. 2293 (May 14, 1981) .................... 20

N.J.-Senate Labor, Industry and Professions Com-

— Statement, Assembly, No. 1696—L.1983,

CGD seveveesceceescevsensnsemigesuennsesunaniennnnaannene 19

N.J. Senate Law, Public Safety and Defense Com-

mittee Statement, Assembly, No. 796—L. 1982,

C. GE .cccosssecvsssepcssucsecsanepuensseecensinnananiaenannann 16

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1990

No. 90-719

STEVEN I[ANNACONE,

Petitioner,

. -

STATE OF NEW JERSEY,

Respondent.

On Petition For A Writ Of Certiorari To

The Superior Court Of New Jersey,

Appellate Division

No. 90-733

DONALD HAMM,

Petitioner,

Vv.

STATE OF NEW JERSEY,

Respondent.

— - -———

On Petition For A Writ Of Certiorari To

The Supreme Court Of New Jersey

RESPONDENT’S CONSOLIDATED BRIEF

IN OPPOSITION

bo

The respondent State of New Jersey respectfully

requests that this Court deny the petitions for writ

of certiorari, seeking, respectively, review of an opin-

ion of the Superior Court of New Jersey, Appellate

Division, and an opinion of the Supreme Court of New

Jersey. The opinion of the Appellate Division has not

been reported and is reprinted in the appendix to the

Iannacone petition at pp. 24a to 32a. The Supreme

Court opinion is reported at 121 N.J. 109, 577 A.2d

1259 (1990), and is reprinted in the appendix to the

Hamm petition at pp. la to 28a.

OPINIONS BELOW

Respondent concurs with the statements set forth

in the petitions.

JURISDICTION

The jurisdiction of this Court is invoked pursuant

to 28 U.S.C.A. §1257(a) (West Supp. 1990).

Respondent disputes, with respect to petitioner

Hamm, that 28 U.S.C.A. § 2403(b) (West 1978) is ap-

plicable because the constitutionality of a state statute

has not been challenged. Respondent also disputes

that petitioner Hamm timely filed his petition for a

writ of certiorari but recognizes that while untimely

filing is a violation of Rule 13.1 of this Court, it is

probably not a jurisdictional defect as the offense is

considered of quasi-criminal nature in New Jersey. 28

U.S.C.A. § 2101(c),(d) (West 1982).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States Con-

stitution is reprinted in the appendix to the Hamm

petition at p. 5la.

STATUTE INVOLVED

N.J. Stat. Ann. § 39:4-50 (‘West 1990)

Operating or allowing operation by person

under influence of liquor or drugs; penalties:

alcohol education or rehabilitation; collection

of driver’s license; rights of discovery; intox-

icated driver resource centers

(a) A person who operates a motor vehicle

while under the influence of intoxicating liq-

uor, narcotic, hallucinogenic or habit-produc-

ing drug, or operates a motor vehicle with

a blood alcohol concentration of 0.10% or

more by weight of alcohol in the defendant’s

blood shall ... be subject:

x * *€

(3) For a third or subsequent violation, a

person shall be subject to a fine of $1,000.00,

and shall be sentenced to imprisonment for

a term of not less than 180 days, except that

the court may lower such term for each day,

not exceeding 90 days, served performing

community service in such form and on such

terms as the court shall deem appropriate

under the circumstances and shall thereafter

forfeit his right to operate a motor vehicle

over the highways of this State for 10 years.

-_ * &

A court that imposes a term of imprisonment

under this section may sentence the person

so convicted to the county jail, to the work-

house of the county wherein the offense was

committed, to an inpatient rehabilitation pro-

gram or to an Intoxicated Driver Resource

Center or other facility approved by the Di-

rector of the Division of Alcoholism in the

Department of Health; provided that for a

third or subsequent offense a person shall not

serve a term of imprisonment at an Intoxi-

cated Driver Resource Center as provided in

subsection (f).

* *& *

(b) A person convicted under this section

must satisfy the screening, evaluation, [re-

ferral and program] (referral, program and

fee)! requirements of the Division of Alco-

holism’s [Bureau of Alcohol Countermea-

sures] (Intoxicated Driving Programs Unit),

and of the Intoxicated Driver Resource Cen-

ters and a program of alcohol education and

highway safety, as prescribed by the Director

of the Division of Motor Vehicles. The sen-

tencing court shall inform the person con-

victed that failure to satisfy such

requirements shall result in a mandatory two

day term of imprisonment in a county jail

and a driver license revocation or suspension

and continuation of revocation or suspension

until such requirements are satisfied, unless

stayed by court order in accordance with Rule

‘This statute was last amended by 1986 N.J. Laws, c. 126,

§ 1 (effective October 9, 1986). The bracketed material reflects

the statute, before the 1986 amendment, as it read on August

10, 1986, when petitioner Hamm committed his offense. The

material in parentheses is the amended statutory language in

effect on May 15, 1988, when petitioner Iannacone committed

his offense.

7:8-2 of the N. J. Court Rules, 1969, or R.S.

39:5-22. Upon sentencing, the court shall for-

ward to the Bureau of Alcohol Countermea-

sures (within the Intoxicated Driving

Programs Unit) a copy of a person’s convic-

tion record. A fee of [$40.00] ($80.00) shall

be payable to the Alcohol Education, Reha-

bilitation and Enforcement Fund established

pursuant to section 3, P.L.1983, c. 531

(C.26:2B-32) to support the [Bureau of Al-

cohol Countermeasures, to defray the cost of

screening, evaluation and alcohol education

programs in the Intoxicated Driver Resource

Centers] (Intoxicated Driving Programs Unit).

(c) Upon conviction of a violation of this sec-

tion, the court shall collect forthwith the New

Jersey driver’s license or licenses of the per-

son so convicted and forward such license or

licenses to the Director of the Division of

Motor Vehicles. The court shall inform the-

person convicted that if he is convicted of

personally operating a motor vehicle during

the period of license suspension imposed pur-

suant to subsection (a) of this section, he

shall, upon convic“ion, be subject to the pen-

alties established in R.S. 39:3-40.

~*~ ~ *

Upon conviction of a violation of this sec-

tion, the court shall notify the person con-

victed, orally and in writing, of the penalties

for a second, third, or subsequent violation

of this section.

~ * *

(d) The Director of the Division of Motor Ve-

hicles shall promulgate rules and regulations

pursuant to the “Administrative Procedure

Act,” P.L. 1968, c.410 (C. 52:14B-1 et seq.)

in order to establish a program of alcohol

education and highway safety, as prescribed

by this act.

(e) Any person accused of a violation of this

section who is liable to punishment imposed

by this section as a second or subsequent

offender shall be entitled to the same rights

of discovery as allowed defendants pursuant

to the Rules Governing Criminal Practice, as

set forth in the Rules Governing the Courts

of the State of New Jersey.

(f) The counties, in cooperation with the Di-

vision of Alcoholism and the Division Mo-

tor Vehicles, but subject to the appro.al of

the Division of Alcoholism, shall designate

and establish on a county or regional basis

Intoxicated Driver Resource Centers. These

centers shall be have the capability of serving

as community treatment referral centers and

as court monitors of a person’s compliance

with the ordered treatment, service alter-

native or community service. All centers es-

tablished pursuant to this subsection shall be

administered by a certified alcoholism coun-

sellor or other professional with a minimum

of five years’ experience in treatment of al-

coholism. All centers shall be required to de-

velop individualized treatment plans for all

~

persons attending the center; provided that

the duration of any ordered treatment or re-

ferral shall not exceed one year. It shall be

the center’s responsibility to establish net-

works with the community alcohol education,

treatment and rehabilitation resources and to

receive monthly reports from the referral

agencies regarding a person’s participation

and compliance with the program. Nothing

in this subsection shall bar these centers from

developing their own education and treat-

ment programs; provided that they are ap-

proved by the Division of Alcoholism.

Upon a person’s failure to report to the

initial screening or any subsequent ordered

referral, the Intoxicated Driver Resource

Center shall promptly notify the sentencing

court of the person’s failure to comply.

Required detention periods at the Intoxi-

cated Driver Resource Centers shall be de-

termined according to the individual

treatment classification assigned by the Bu-

reau of Alcohol Countermeasures. Upon at-

tendance at an Intoxicated Driver Resource

Center, a person shall be assessed a per diem

[charge of $25.00 to be collected by the cen-

ter and used to defray costs] (fee of $50.00

for the first offender program or a per diem

fee of $75.00 for the seconder offender pro-

gram, as appropriate).

The centers shall conduct a program of al-

cohol education and highway safety, as pre-

scribed by the Director of the Division of

Motor Vehicles.

The Director of the Division of Alcoholism

shail adopt rules and regulations pursuant to

the ‘‘Administrative Procedure Act,’ P. L.

1968, c. 410 (C. 52:14B-1 et seq.), in order

to effectuate the purposes of this subsection.

COURT RULE INVOLVED

SUP. CT. R. 13.1

A petition for a writ of certiorari to review

a judgment in any case, civil or criminal, en-

tered by a state court of last resort... shall

be deemed in time when it is filed with the

Clerk of this Court within 90 days after the

entry of the judgment....

STATEMENT OF THE CASE

These cases involve state defendants who were each

convicted of driving while intoxicated, in violation of

N.J. Stat. Ann. § 39:4-50, after a request for a jury

trial was denied, and whose claims were ultimately

rejected by the reviewing state courts.

The mandatory consequences for a conviction under

N.J. Stat. Ann. § 39:4-50 as a third offender are a

$1000 fine, a term of imprisonment of 180 days,’ a

? The state courts have recognized that the statutory language,

“‘a term not less than 180 days,’’ N.J. Stat. Ann. § 39:4-50(a\3),

was ‘“‘not well chosen,’”’ State v. Linnehan, 197 N.J. Super. 41,

43, 484 A.2d 34, 35 (App. Div. 1984), certif: denied, 99 N.J.

236, 491 A.2d 723 (1985), but have construed the language as

not authorizing a maximum sentence exceeding 180 days. (Hamm

pet. at p. 19a); State v. Ferretti, 189 N.J. Super. 578, 581-82,

461 A.2d 193, 195 (Law Div.), certif. denied, 94 N.J. 606 (1983).

According to Ferretti, the language prescribes a mandatory sen-

ten-year license revocation, a $100 surcharge fee (pur-

suant to N.J. Stat. Ann. § 39:4-50.8 (West 1990), com-

pletion of program requirements of the Division of

Alcoholism’s Intoxicated Driving Programs Unit and

an alcohol education and highway safety program, and

payment of a fee, either $80 as for petitioner Ian-

nacone or $40 for petitioner Hamm, payable to the

Alcohol Education, Rehabilitation and Enforcement

Fund. N.J. Stat. Ann. § 39:4-50(a)(3). Automobile in-

surance surcharges of $1000 per year for three years

(or not less than $1500 per year if the third or sub-

sequent DWI conviction occurs within three years of

prior DWI conviction) are also incurred. N.J. Stat.

Ann. § 17:29A-35b.(2) (West 1985 & Supp. 1990).

Petitioner Iannacone was convicted at a bench trial

in the Monroe Municipal Court of driving while in-

toxicated pursuant to N.J. Stat. Ann. § 39:4-50. He

was sentenced as a third offender to a jail term of

90 days, which may be served in an inpatient alcohol

treatment program, and 90 days of community service

and was ordered to pay a $1000 fine, $100 DMV

surcharge and $15 court costs; his driver’s license was

revoked for ten years. (Trans. of December 6, 1988,

at T89-13 to 17). The conviction and sentence were

upheld through the various levels of appeal afforded

tence of 180 days, subject to reduction for community service.

Ibid. Accord, State v. Linnehan, 197 N.J. Super. at 43, 484 A.2d

at 35. Moreover, the incarceration component of the sentence

may be reduced by up to 90 days for a comparable amount of

community service and the remainder may be served at a county

jail or workhouse or at an inpatient rehabilitation program, N.J.

Stat. Ann. § 39:4-50(a\(3); if an offender is sentenced to an in-

patient rehabilitation program, the court is empowered to release

the offender to an outpatient program for the duration of the

sentence. N.J. Stat. Ann. § 39:4-51.

10

petitioner. (Trans. of January 27, 1989, at T3-13 to

21, T5-5 to 11; Jannacone pet. at pp. 24a to 32a, 33a).

Petitioner Hamm entered a conditional plea of guilty

to a violation of N.J. Stat. Ann. § 39:4-50, preserving

for appellate review the denial of his application for

a jury trial. N.J. Ct. R. 3:9-3(f). (Trans. of Oct. and

Nov. 1987 municipal court proceedings, at T283-24 to

285-8). The municipal court dealt with the mandatory

statutory penalties by suspending the 180-day term

of imprisonment conditioned upon completion of a 30-

day inpatient rehabilitation program, and a 60-day

supervised outpatient program, imposing 90 days of

community service, and ordering the mandatory ten-

year license revocation. (Jd. at T393-12 to 394-12).

The court also assessed a $1000 fine, $15 for court

costs, and the $100 surcharge fee. (Jd. at T393-7 to

11). Petitioner Hamm’s conviction and sentence were

also upheld through the state courts (trans. of Feb.

11, 1988, at T14-3 to 7, T16-20 to 17-6; Hamm pet.

at pp. 24a to 26a, la to 23a), culminating in the

decision by the Supreme Court of New Jersey on

August 6, 1990)° in State v. Hamm. (Hamm pet. at

pp. la to 23a).

In State v. Hamm, the state supreme court held

under Blanton v. City of North Las Vegas, 489 U.S.

538, 109 S. Ct. 1289 (1989), that ‘‘the statutory pen-

alties for DWI are not so severe as to clearly reflect

a legislative determination of a constitutionally ‘se-

3 On January 12, 1990, the state supreme court stayed all DWI

appeals in which the jury trial issue was raised pending reso-

lution of State v. Hamm, et al. On August 6, 1990, the Supreme

Court rendered its opinion and on September 5, 1990, the court

denied petitioner Iannacone’s request for discretionary review.

(Iannacone pet. at p. 33a).

11

rious’ offense requiring jury trial.”” (Hamm pet. at p.

2a). According to the supreme court, the DWI offense

is not regarded as a criminal offense under the laws

of New Jersey and the state legislature has never

evidenced any intent to treat DWI offenses as in-

dictable offenses for which a jury trial is required.

Id. at pp. 2a, 10a to lla, 14a. Rather, the state

legislature has treated the offense as a “profound

social problem” and legislatively encouraged rehabil-

itative and community service alternatives to incar-

ceration. Jd. at p. 2la. The “‘legislative and judicial

history of DWI in New Jersey shows both its con-

sistent treatment as a non-criminal offense and pro-

gressive legislative emphasis upon rehabilitation and

prevention rather than punishment.”’ (Jd.).

According to the supreme court, all DWI penalties

other than the 180 day imprisonment and the $1000

fine are civil rather than criminal penalties. Jd. at

pp. 9a to 10a. These civil penalties do not serve to

create ‘‘the rare situation where a legislature packs

an offense it deems ‘serious’ with onerous penalties

that nonetheless ‘do not puncture the 6-month incar-

ceration line.’ ’’ (citing from Blanton v. City of North

Las Vegas, 109 S. Ct. at 1293). (Hamm pet. at p.

17a). While acknowledging that a license to drive is

a necessity and that under state law ‘‘substantial loss

of driving privileges’ is a ‘‘consequence of magni-

tude,” Rodriguez v. Rosenblatt, 58 N.J. 281, 285, 277

A.2d 216, 223 (1971), the supreme court recognized

that other more valued licenses, professional and busi-

ness, are subject to loss upon only notice and a fair

hearing. Jd. at p. 17a. The license revocation serves

both precautionary and penal purposes. Jd. at p. 21a.

12

The court further determined that the other civil

penalties and administrative sanctions also do not cre-

ate a right to jury trial under Blanton. The rehabil-

itation and enforcement surcharges are reasonable and

increased insurance premiums easily may result from

conduct never criminally prosecuted. Jd. at pp. 17a

to 18a. Moreover, there are limited collateral conse-

quences; other than the license suspension, ‘‘{n]o other

loss of privilege, franchise, or night of citizenship flows

from a DWI conviction.” Jd. at pp. 21a. The supreme

court accordingly determined that the criteria set

forth in Blanton for determining whether an offense

is so serious that an individual charged thereunder is

entitled to a jury trial were not violated. Jd. at pp.

22a to 23a.

SUMMARY OF ARGUMENT

It is respondent’s procedural position that the

Hamm petition should not even be considered by this

Court because it was untimely filed in clear violation

of the rules of this Court. Respondent’s substantive

position as to both petitions is that the state supreme

court correctly applied the Blanton principles to the

statutory provision at issue, N.J. Stat. Ann. § 39:4-

50. The history and development of the New Jersey

DWI laws reflect a legislative determination that DWI

is a non-criminal societal problem profoundly affecting

public safety to be dealt with preferably by preven-

tion, reparation, education and rehabilitation rather

than punishment. Because resolution of the issue re-

quires an analysis of the unique state statutory scheme

in its historical perspective, the case does not have

any consequential value beyond New Jersey. More-

Over, there is clearly no split among the circuits as

13

to how Blanton is to be interpreted. Nor has there

been a showing, based upon court decisions construing

similar or nearly identical statutes in the same his-

torical context, that the Supreme Court of New Jer-

sey has incorrectly interpreted Blanton. Further, only

a misconstruction of the state statute could produce

the conclusion that a third DWI offender is subject

upon conviction to a prison term of 182 days, which

in any event remains quantitatively insufficient to vi-

tiate the presumption that offenses are considered

petty where the maximum authorized incarceration is

six months or less. Finally, the issue referred to in

Blanton v. City of North Las Vegas, 109 S. Ct. at

1294 n.12, is not implicated herein, as it was not

presented in the state courts.

REASONS WHY THE PETITIONS SHOULD BE DENIED

1. The Hamm petition should not be considered by this

Court as it was filed out of time in violation of Sup.

Ct. R. 13.1

Final judgment in State v. Hamm was entered in

the state courts on August 6, 1990, when the Supreme

Court of New Jersey issued its opinion. (Hamm pet.

at p. la). Accordingly, the petition for a writ of

certiorari must have been filed within 90 days of the

judgment, or November 5, 1990 (November 4, 1990,

the ninetieth day, being a Sunday). Sup. Ct. R. 13.1;

28 U.S.C.A. § 2101(d). It was not filed until November

6, 1990, and is untimely. DWI proceedings are char-

acterized as ‘“‘quasi-criminal’’ because they do not in-

volve “crimes,” State v. Laird, 25 N.J. 298, 303, 135

A.2d 859, 862 (1957); the classification refers to the

fact that most of the constitutional safeguards of a

criminal proceeding are operative in these proceed-

l4

ings. Ibid. A conviction, however, implicates liberty

concerns and respondent would not argue that the

case is ‘‘civil,” rather than ‘‘criminal,” for purposes

of characterizing the proceeding herein in the context

of this Court’s jurisdiction. Cf. 28 U.S.C.A. § 2101(c).

2. The state supreme court properly concluded under

Blanton v. City of North Las Vegas, 489 U.S. 538,

109 S. Ct. 1289 (1989), and other pertinent Sixth

Amendment analysis, that the penalties for violating

the DWI law as a third offender, see N.J. Stat. Ann.

§ 39:4-50(a\(3), do not reflect a legislative determi-

nation that the offense is serious and hence entitles

a person so charged to a jury trial; the proper focus

necessarily is on the unique state statutory scheme

in the context of its historical development and leg-

islative perspective that does not have any far-reach-

ing importance beyond the state of New Jersey.

In Blanton v. City of North Las Vegas, 489 U.S.

538, 109 S. Ct. 1289, this Court considered the leg-

islature’s fixing of the maximum authorized penalty

as the critical indicator of the seriousness of the of-

fense. Blanton, 109 S. Ct. at 1292. Incarceration, ‘‘an

‘intrinsically different’ form of punishment” (quoting

Muniz v. Hoffman, 422 U.S. 454, 477 (1975)), is the

‘‘most powerful” sign of seriousness. Jbid. Hence, a

maximum authorized prison sentence of six months

or less creates a presumption that the legislature

views the offense as petty. Jbid. In the “‘rare’’ situ-

ation where the legislature has provided for ‘‘oner-

ous’ penalties as an indication of the seriousness with

which it views the offense but does not authorize a

term of incarceration exceeding six months, a

defendant is entitled to a jury trial only if he is able

to demonstrate

15

that any additional statutory penalties viewed

in conjunction with the maximum authorized

period of incarceration, are so severe that

they clearly reflect a legislative determina-

‘

tion that the offense in question is a “‘seri-

”

ous one.

Ibid. The judiciary, however, must refrain from sub-

stituting its judgment as to seriousness for that of

the legislature. [hid.

The New Jersey state courts have consistently

viewed motor vehicle violations, necessarily including

drunk driving, not as “crimes,” but as “‘petty’’ of-

fenses—handled in the municipal courts as ‘‘quasi-

criminal’’ matters ‘‘to satisfy the requirements of fun-

damental fairness and essential justice to the ac-

cused,’’ Vickey v. Nessler, 230 N.J. Super. 141, 149,

553 A.2d 34, 38 (App. Div.), certif. denied, 117 N.J.

74, 563 A.2d 836 (1989)—which do not invoke con-

stitutional guarantees of indictment or a nght to jury

trial. State v. DeLuca, 108 N.J. 98, 111, 527 A.2d

1355, 1361-62, cert. denied, 484 U.S. 944 (1987); State

v. Dively, 92 N.J. 573, 585, 458 A.2d 502, 508 (1983);

State v. Tropea, 78 N.J. 309, 314, 394 A.2d 355, 357

(1978); State v. Macuk, 57 N.J. 1, 9-10, 268 A.2d 1,

5-6 (1970); Clark v. New Jersey Division of Motor

Vehicles, 211 N.J. Super. 708, 711, 512 A.2d 588, 589

(App. Div. 1986); State v. Linnehan, 197 N.J. Super.

at 43-44, 484 A.2d at 35; State v. Zopp, 196 N.J.

Super. 596, 483 A.2d 844 (Law Div. 1984): State ».

Ferretti, 189 N.J. Super. at 582-83, 461 A.2d at 194-

95.

Similarly, by fixing the penalties that it did, the

state legislature undoubtedly intended that drunk

driving prosecutions remain outside the realm of jury

16

trials. N.J. Stat. Ann. § 2C:1-4a and b provide that

offenses embodying maximum terms of incarceration

of six months or less are “‘petty’’ and neither invoke

a right to indictment or jury trial nor, upon convic-

tion, “give rise to any disability or legal disadvantage

based upon conviction of a crime.” Final Report of

the New Jersey Criminal Law Revision Commission,

The New Jersey Penal Code Volume II: Commentary

(1971), at 9-10. Hence, petitioner Hamm’s assertion

with respect to expungement (pet. at p. 13) is simply

not pertinent for two reasons. Except for the ten-

year license revocation, “‘{nJo other loss of privilege,

franchise, or right of citizenship flows from a DWI

conviction.’ (Hamm pet. at p. 21a). Also, if ten years

have elapsed between the first and second, and second

and third, DWI convictions, the court must sentence

a second offender and a third offender as if they

were, respectively, first and second offenders. N.J.

Stat. Ann. § 39:4-50(a)(3). (See Hamm pet. at p. 19a).

Moreover, that the state legislature has character-

ized penalties for convicted second and third offenders

as ‘‘severe’’ when it extended discovery procedures

to these prosecutions, see L. 1982, c. 58; N. J. Senate

Law, Public Safety and Defense Committee State-

ment, Assembly, No. 796 (L. 1982, ¢c. 58), does not

render the offense ‘‘serious’’ in the constitutional

sense for purposes of invoking a right to jury trial.

Indeed, the amendment reflects that the legislature

obviously intended for these prosecutions to remain

in municipal court, where jury trials cannot be had.

Both the state legislature and the state judiciary

view drunk driving as a ‘‘societal dilemma” best dealt

with by “‘eliminat{ing] intoxicated drivers from the

roadways of this State.’’ State v. Tischio, 107 N.J.

17

504, 514, 527 A.2d 388, 393 (1987), appeal dismissed,

484 U.S. 1038 (1988); State v. Dyal, 97 N.J. 229, 237,

478 A.2d 390, 394 (1984) (public policy of New Jersey

is to “rid the highway of drunken drivers.’’); see State

v. Mulcahy, 107 N.J. 467, 479, 527 A.2d 368, 374

(1987) (prevention of accidents motivating force be-

hind drunk driving legislation); see also In re Kallen,

92 N.J. 14, 29, 455 A.2d 460, 467-68 (1983) (purpose

of Implied Consent Law providing for license sus-

pension upon refusal to take chemical breath test ‘‘is

not to punish the driver but to protect the motoring

public by removing the offending driver from the

highways with reasonable dispatch.”’’).

A discerning review of the penalty provisions of

the current state statutory scheme reflects this leg-

islative emphasis on protection of the public, educa-

tion, alcoholism treatment, rehabilitation and personal

and public awareness. It ailows courts to fashion, as

they did in these cases, a sentence emphasizing al-

cohol rehabilitation for a convicted third offender. At

the same time it authorizes the courts to protect the

public by precluding legal driving by one whose al-

cohol rehabilitation will, in all probability, require a

lengthy period of time.

Convicted third offenders are subject to a maximum

term of imprisonment of 180 days. N.J. Stat. Ann.

§ 39:4-50(a)(3). (See Hamm pet. at p. 19a). As noted,

however, supra, n.2, courts are permitted to fashion

a sentence, similar to the sentences imposed upon

petitioners, wherein the third offender suffers no im-

prisonment; rather, the 180-day requirement may be

satisfied by a sentence splitting the days between

performance of community service and participation

in an inpatient alcohol rehabilitation program, release

18

from which to an outpatient program is available after

approximately 30 days. N.J. Stat. Ann. § 39:4-51.

While under state law a fine ‘“‘is intended to pun-

ish,’ State v. De Bonis, 58 N.J. 182, 192, 276 A.2d

137, 142 (1971); accord, State in the Interest of

D.G.W., 70 N.J. 488, 495, 361 A.2d 513, 516 (1976)

(“Fines are essentially punitive in nature....”),

hefty fines and surcharges may be, and frequently

are, imposed in administrative proceedings—after

proof by a standard of less than a reasonable doubt.

“(I]mprisonment and fines are intrinsically different.”

Muniz v. Hoffman, 422 U.S. at 477; State »v. Zopp,

196 N.J. Super. at 600, 483 A.2d at 846. Indeed, the

only fine mandated by N.J. Stat. Ann. § 39:4-50(a)(3)

is far below the $5000 level set by Congress as the

maximum fine for an individual convicted of a class

B misdemeanor which subjects him to imprisonment

not exceeding six months. 18 U.S.C.A. § 3559(a){7)

(West Supp. 1990); 18 U.S.C.A. § 3571(b)(6) (West

Supp. 1990). Moreover, ‘‘costs’’ are not considered to

be punitive in New Jersey. State v. De Bonis, 58 N.J.

at 200-01, 276 A.2d at 147.

Third offenders are required to satisfy the screen-

ing, evaluation, referral, program and fee require-

ments of the Division of Alcoholism’s Bureau of

Aleohol Countermeasures, and of the Intoxicated

Driver Resource Centers. N.J. Stat. Ann. § 39:4-50(b).

The evaluation and program for third offenders nec-

essarily focuses upon rehabilitation and education. The

$40 or $80 fee is compensatory, in that it defrays the

cost involved. N.J. Stat. Ann. § 39:4-50(b). Similarly,

the $100 surcharge, $5 of which is used for admin-

istrative expenses and $95 of which is earmarked for

the “Drunk Driving Enforcement Fund,’ which is

19

used to establish a statewide drunk driving enforce-

ment program, is de minimis and compensatory. N.J.

Stat. Ann. § 39:4-50.8. Municipalities and law enforce-

ment agencies are entitled to grants from the Fund

to increase law enforcement efforts with respect to

N.J. Stat. Ann. § 39:4-50. Ibid., see N.J. Assembly,

No. 828—L. 1984, c. 4 (Introductory Statement).

Too, the insurance surcharges set forth in N.J. Stat.

Ann. § 17:29A-35b(2) are civil. “The insurance sur-

charge is 4 burden on the {driving} privilege. Similar

to a fine it does not involve that deprivation of free-

dom which lies at the heart of the jury trial require-

ment.” State v. Zoppi, 196 N.J. Super. at 601-02, 483

A.2d at 846; see Clark v. New Jersey Division of

Motor Vehicles, 911 N.J. Super. at 710-11, 512 A.2d

at 589 (rejecting contention that automobile sur-

charges upon drunk driving conviction are “penal’”’

and characterizing them as remedial and ejvil). In-

surance surcharges necessarily are ‘ncurred only if

the convicted DWI offender chooses to continue to

drive once his license is restored. Indeed, the sur-

charges can be characterized as remedial because the

surcharges compensate the New Jersey Automobile

Full Insurance Underwriting Association for under-

writing losses. NJ. Senate Labor, Industry and

Professions Committee Statement, Assembly, No.

1696—L.1983, ¢.6d, reprinted after N.J. Stat. Ann.

§ 17:29A-33 (West 1985); Matter of Johnson, 226 N.J.

Super. 1, 543 A.2d 454 (App. Div. 1988) (purpose of

surcharge is to compel high risk driver to bear added

‘nsurance cost of his poor driving).

Moreover, license forfeiture 1s a civil and remedial

penalty. It has been recognized, of course, that a

driver’s license in modern society 1s of ‘vital signif-

20

icance and value’ to its owner, and hence, may not

be taken away without due process. Bechler v. Par-

sekian, 36 N.J. 242, 256-57, 176 A.2d 470, 478-79

(1961); accord Bell v. Burson, 402 U.S. 535, 439

(1971). The New Jersey Division of Motor Vehicles,

however, has traditionally held the power to suspend

or revoke drivers licenses and, indeed, until January

12, 1982, authority to revoke licenses for refusal to

submit to a chemical test rested exclusively in the

Director of the Division of Motor Vehicles. See New

Jersey L. 1966, c. 142, sec. 4, as amended by L.

1977, c. 29, sec. 4. Effective January 1982, the mu-

nicipal court undertook the refusal proceedings as

purely ‘‘an efficacious means of disposing of all issues

related to the drunk driving law in the most conve-

nient forum.’’ N.J. Senate Judiciary Committee State-

ment, Assembly, No. 2293 (May 14, 1981); In re

Kallen, 92 N.J. at 21 n.2, 455 A.2d at 463 n.2; State

v. Fahrer, 212 N.J. Super. 571, 576, 515 A.2d 1240,

1244 (App. Div. 1986) (license revocation upon refusal

to take chemical test remains ‘‘civil’’ in nature). Li-

cense forfeiture can be characterized as remedial in

that it allows convicted DWI offenders to repay so-

ciety by staying off the roads until, at a minimum,

undoubtedly lengthy alcohol rehabilitation occurred.

Further, as the state supreme court recognized, for-

feiture of licenses of even greater value than a license

to drive has been ordered in proceedings in which no

entitlement to a jury trial exists and for which the

burden of proof is less than the reasonable doubt

standard. See, e.g., Steadman v. Securities and Ex-

change Commission, 450 U.S. 91 (1981) (preponder-

ance of evidence standard properly applied in

administrative hearing resulting in order permanently

21

banning investment advisor from practicing his

profession).

Accordingly, the state supreme court’s opinion is

consistent with the analysis set forth by this Court

in Blanton that refused to establish a ‘‘bright-line’’

six month rule simply to avoid the inadvertent sanc-

tioning of the admittedly rare situation where a state

legislative body has transgressed the ‘‘constitutional

limits beyond which the States may not go in this

regard,” Patterson v. New York, 482 U.S. 197, 210

(1977), that is, where the state legislature, deeming

an offense serious enough to warrant onerous punitive

sanctions, nevertheless retains a maximum statutory

incarceration not exceeding six months. Indeed, in

Blanton, this Court discounted all consequences of the

drunk driving convictions, except for the term of im-

prisonment, as either de minimis or not of sufficient

constitutional weight to factor heavily into the right

to jury trial determination.

Moreover, as the Blanton analysis necessarily de-

pends upon the state’s binding interpretation of its

laws in their historical and sociological evolvement,

see Mullaney v. Wilbur, 421 U.S. 684, 690-91 (1975);

Schad v. Borough of Mount Ephraim, 452 U.S. 61,

65 (1981); Splawn v. California, 481 U.S. 595, 600-

01 (1977), this case is not appropriate for certiorarn

as it involves a unique state statutory scheme and

perspective of consequence only to New Jersey. For

this reason, petitioners’ reliance upon practices in-

other states is unavailing and could be misleading.:

‘For example, many states have potential maximum incar-

ceration penalties for DWI offenses exceeding six months and

hence have been constitutionally required to provide jury trials.

bo

to

Hence, respondent urges that the petitions should be

denied.

Ala. Code § 32-5A-191 (imprisonment in county or municipal jail

for not more than one year); Alaska Stat. § 28.35.030 and

§ 12.55.135(a) (DWI, a class A misdemeanor, subjects convicted

offenders to term of imprisonment of not more than one year);

Ark. Stat. Ann. § 5-65-103 and § 5-65-111 (DWI first offender

subject to minimum of 24 hours and maximum of one year

imprisonment, DWI second offender (within three years of first

offense) subject to minimum of seven days and maximum of one

year imprisonment, DWI second offender (within three years)

subject to minimum of 90 days to maximum of one year im-

prisonment, DWI fourth or subsequent offender (within three

years) subject to minimum of one year and maximum of six

years imprisonment); Colo. Rev. Stat. § 42-4-1202 (imprisonment

in county jail for not less than five days nor more than one

year); Ga. Code Ann. § 40-6-391 (DWI first offender subject to

minimum of ten days and maximum of one year imprisonment,

DWI second offender (within five years) subject to minimum of

90 days and maximum of one year imprisonment); Ill. Ann. Stat.

Ch. 95*/,, § 11-561 and Ch. 38, §§ 1005-8-1(7), 1005-8-3(a1) (DWI

is Class A misdemeanor subjecting first offender to any term

less than one year; DWI is Class 4 felony subjecting third or

subsequent offender to minimum of one year and maximum of

three years imprisonment); Ind. Code. Ann. § 9-11-2-2 and § 35-

50-3-2 (DWI is class A misdemeanor subjecting convicted of-

fender to imprisonment for not more than one year); Iowa Code

§ 321J.2 (third and subsequent DWI offenses subject convicted

individual to county jail term of not less than 30 days nor more

than one year); Mass. Ann. Laws ch. 90, § 24 (DWI first offender

subject to imprisonment for not more than two years, second

offender subject to imprisonment for not less than 14 days nor

more than two years, third offender subject to imprisonment for

not less than 90 days nor more than two years; fourth offender

subject to imprisonment for not less than six months nor more

than two years); N.Y. Veh. & Traf. Law § 1192 and § 1193 (DWI

first offender subject_to imprisonment in penitentiary or county

jail for not more than one year); Okla. Stat. tit. 47, § 11-902

(first DWI offense subjects individual to jail term of not less

23

3. Petitioner Hamm is incorrect when he asserts that

his actual incarceration exposure is 182 days.

Petitioner Hamm’s allegation that the ‘‘actual ex-

posure” of a third offender is 180 days plus two days

because a failure to satisfy program requirements, see,

e.g., N.J. Admin. Code tit. 8, §§ 66A-4.1 et seq., re-

sults in a mandatory two day county jail term, N.J.

Stat. Ann. § 39:4-50(b), is without merit because the

avoidance of noncompliance consequences is totally

within his control, just as consequences for willful

non-payment of a fine would be in petitioner’s control.

Moreover, the reality is that even 182 days is quan-

titatively insufficient to remove DWI from the pre-

sumption that a maximum custodial exposure of six

months or less renders an offense ‘‘petty’’ for pur-

poses of the Sixth Amendment. Blanton, 109 S. Ct.

at 1293.

than ten days nor more than one year, second or subsequent

DWI offense within ten years subjects individual to Department

of Corrections for term not less than one year nor more than

five years); Or. Rev. Stat. § 813.010, § 161.615 (DWI is Class

A misdemeanor for which maximum sentence is one year); R.I.

Gen. Laws § 31-27-2 (first DWI offender subject to imprisonment

for up to one year, second violation within five years subjects

offender to jail term of not less than ten days nor more than

one year); S. D. Codified Laws Ann. § 32-23-2, § 22-6-2 (first

DWI offense in Class 1 misdemeanor for which county jail term

of one year is authorized); Tenn. Code. Ann. § 55-10-403 (first

offenders subject to confinement in county jail or workhouse for

not less than forty-eight hours nor more than eleven months

and twenty-nine days; second offenders subject to similar con-

finement for not less than forty-five days nor more than eleven

months and twenty-nine days; third or subsequent offenders sub-

ject to confinement for not less than 120 days nor more than

eleven months and twenty-nine days).

24

4. The issue referred to in footnote 12 of Blanton v.

City of North Las Vegas, 109 S. Ct. at 1294, is not

cognizable herein, as it was never raised specifically

and as a federal constitutional question in the state

courts.

This Court is foreclosed from addressing this issue

in this case because the claim was never raised, let

alone ‘‘adequately presented in the state system.”

Webb v. Webb, 451 U.S. 493, 496-97 (1981).

5. There is no post-Blanton split in the circuits.

For his assertion of a “‘split’’ in the circuits

petitioner Hamm relies upon Landry v. Hoepfner, 840

F.2d 1201 (5th Cir. 1988) (en banc), cert. denied, 109

S. Ct. 1540 (1989), and Richter v. Fairbanks, 903 F.2d

1202 (8th Cir. 1990). Obviously, only Richter is a post-

Blanton decision, notwithstanding that this Court de-

nied certiorary in Landry two weeks after the Blan-

ton decision.

Indeed, respondent submits that other post-Blanton

cases decided on a Sixth Amendment basis are not

inconsistent with the result reached in New Jersey.

United States v. Twentieth Century Fox Film Cor-

poration, 882 F.2d 662 (2d Cir. 1989) (corporation

being prosecuted for criminal contempt is entitled to

jury trial once fine exceeds $100,000); United States

v. Garner, 874 F.2d 1510 (11th Cir. 1989) (Florida

penalties-for first offense DUI—term of imprisonment

not exceeding six months, fine of $250 to $500, man-

datory attendance at a substance abuse program, a

mandatory term of probation not exceeding one year,

conditioned on 50 hours of community service, and

mandatory license suspension for 180 days to one

year—do not render defendant’s offense ‘‘sufficiently

serious’’ to entitle him to a jury trial); United States

25

v. Musser, 873 F.2d 1513, rehearing denied in per

curiam opinion, 883 F.2d 84 (D.C. Cir.), cert. denied,

110 S. Ct. 518 (1989) (maximum sentence upon con-

viction for unattended sign violations in national

park—imprisonment not exceeding six months and/or

$500 fine—does not trigger right to jury trial); Ste-

venson v. District of Columbia, 562 A.2d 623 (D.C.

App. 1989) (rejecting contention that legislative his-

tory’s characterization of DUI as ‘“‘serious’’ is suffi-

cient for constitutional purposes to-trigger a right to

jury trial when at the same time the code penalties

were reduced so as not to exceed the statutory

threshold of 90 days imprisonment and/or a $300 fine).

CONCLUSION

Respondent submits that the petitions for certiorarn

must be denied because the state court rulings do not

contravene the legal principles set forth in Blanton

v. City of North Las Vegas, 109 S. Ct. 1289, because

the resolution of the issue necessarily involved the

state court’s interpretation of New Jersey’s DWI law

in its unique historical context and a decision by this

Court would not supplement meaningfully Sixth

Amendment jurisprudence or have any widespread

significance and, finally, because there is no signifi-

cant, if any, split in the circuits which would warrant

this Court’s consideration.

26

Respectfully submitted,

ROBERT J. DEL TuFO

Attorney General of New Jersey

Attorney for Respondent

By: Linda K. Danielson

Deputy Attorney General

Attorney of Record

LINDA K. DANIELSON

Deputy Attorney General

Division of Criminal Justice

Appellate Section

ON THE BRIEF

DATED: March 11, 1991

attend ome or ee

oor