# Opposition Brief — Iannacone v. New Jersey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 947

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3059%3A2. Public record. Not legal advice.