Petition for Writ of Certiorari — Vance v. New Jersey

AFR 9 1976

IN THE

Supreme Court of the United States

Ocroser TERM, 1975

No. €5-1438

MARSHALL G. VANCE,

Petitioner,

vs.

STATE OF NEW JERSEY,

Respondent.

On PetiTION FoR WRIT OF CERTIORARI TO THE

Superior Court or NEw JERSEY, APPELLATE Division

ee Eee

Petition for Writ of Certiorari and

Appendix in Support Thereof

Norman L. Zlotnick,

PERSKIE and CALLINAN,

A Professional Corporation,

Attorneys for Petitioner,

3311 New Jersey Avenue,

Wildwood, New Jersey 08260

(609) 522-2405

N.J. Appellate Printing Co., Inc., Woodbridge, N. J. (201) 636-2030

————

OUGH

TABLE OF CONTENTS

Petition for Writ of Certiorari to the

Superior Court of New Jersey, Appellate Division . .

ee ere ae ee

ID soos sew ka eis eden sara as ceed eKeweS

reer ee eee

Constitutional Provisions and Statutes Involved ....

NE re ss ae ek aden ee wwe 8

Reasons for Granting the Writ .................... 10

(ESSE SOE TET OOP NOT LENGE! SO BoE 15

Cases CITED:

Baldwin v. New York, t

BR A err ll BM i

Berberian v. Lussier, :

15D A.Be Ge (RE. TOUR) ... ... 26 ec cn ence cee. 13 :

Bloom v. United States, :

ee See. EE bo oxcawas #408 eek oak ebees ll ?

Codispoti v. Pennsylvania, ‘

Bk Re PG. |: Reena earns werent ll :

Duncan v. Louisiana, t

Sr ee OD as ke cl voce vee ciaes 10 e

Frank v. United States, |

/ ek ee OR. ee ree an er ll

Muniz v. Hoffman, t

Oe Se CUED ooo owcpaeeesccccanees 11 :

Rothweiler v. Superior Court of Pima County, :

100 Ariz. 7, 410 P.2d 479 (1966) ............ 13

ERGO) SORELLE SA DE RIE IEE TR, LAREN ROB LIN SLE i AERO LE

POOR COrTy

i *

;

oa

=

b

ry

&

é

&

€

TABLE OF CONTENTS

Cases CITED:

State v. Guerrido,

60 N.J. Super. 505 (App. Div. 1960) ........ 12

State v. Hanson,

59 N.J. Super. 434 (App. Div. 1960) ........ 1

State v. Ingram,

67 N.J. Super. 21 (Passaic Co. Ct. 1961) ...... 12

State v. Lanish,

103 N.J. Super. 441 (App. Div. 1968) .......... 12

State v. Macuk,

| eee ee ee eee 12

State v. Magai,

96 N.J. Super. 109 (Essex Co. Ct. 1967) ...... 12

State v. Rogers,

91 N.Jj.L. 212 (E. & A. 1917) ............... 12

State v. States,

On MS. Oe CRREB) ....- .. .- 005 n scenes. 8

Taylor v. Haynes,

a a ee ee 11

STATUTES CITED:

Ngee PT ay 6 Su ae 1, 6, 8

eeu 8s. 7, 10

ee wee) .............-2... 1, 5, 8, 10, 14

lg ales oan alan ps 1, 8

RuLes CITED:

ee ee eee ee eee ee 8

PLEED THF

a FOOLS ESE LAO ONLI LTE, EF ET TC ps Be ELE ON WP SAT NI INN

JUGH

TABLE OF CONTENTS

Ru.es CIrTep:

U.S. ConstiruTION CITED:

Ps ee, es eS Cj gs cw cc cc ccccsncsass

ne nck wack 4, 5, 10,

Fourteenth Amendment ..................... 4, 5,

U.S. Copes CITED:

NN icc ad Al grgg giv aca Bea baie

Se I os, cg ek os Sy ee dee bce ek

AUTHORITIES CITED:

Report of the New Jersey Motor Vehicle Study Com-

mission, at 133, 135 (September, 1975) ......

Rutgers University Center for Alcohol Studies,

“Comparative Legislative Report for the Alcohol

Counter-measures Project,” at p. 9 (1973) ....

Annot. “Right to Trial by Jury in Criminal Prosecutions

for Driving While Intoxicated or Similar

Offense,” 16 A.L.R. 3d 1374 (1967) ..........

APPENDIX

Addendum “A” Opinion of the Appellate Division ..

Addendum “B” Order Denying Certification ........

Addendum “C” Notice of Motion for Trial by Jury ..

Addendum “D” Order of County Court ............

Addendum “E” Oral Order Denying Motion for

NN NE csc Gs baw base ean eee

POOR CCry

SSN EE ITY REM ELLE S NOES DERE 1 NPS TORRE TENN tt 4

1]

10

12

12

hi nasil

THROUGH

SUPREME COURT OF THE UNITED STATES

OcroBeR TERM, 1975

No.

MARSHALL G. VANCE,

Petitioner,

vs.

STATE OF NEW JERSEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

This is a Petition for Writ of Certiorari to review

a judgment of the Superior Court of New Jersey, Ap-

pellate Division entered on November 18, 1975. The

judgment affirmed petitioner's conviction by the Cape May

County Court, after a trial de novo on the record in the

municipal court,’ of driving an automobile while under

the influence of alcohol in violation of N.J.S.A. 39:4-50(a)

and of passing on a curve, contrary to N.J.S.A. 39:4-86,

and further affirming the denial by the county court of

petitioner’s motion for a jury trial. Since petitioner was

a second offender under N.J.S.A. 39:4-50(a) the county

court had imposed a mandatory sentence of three months

in the county jail and revocation of driving privileges in

the State of New Jersey for ten years.”

On December 17, 1975 petitioner filed in the New

Jersey Supreme Court a petition for certification to the

Superior Court of New Jersey, Appellate Division. In

an order dated March 2, 1976 the petition for certification

was denied.

1, See, State v. Hanson, 59 N.J. Super. 434, 444 (App. Div. 1960); R.

3:23-8, New Jersey Court Rules; N.J.S.A. 2A:3-6.

2. A fine of $10.00, together with costs of proceedings was imposed for

the violation of N.J.S.A. 39:4-86.

rFOOR COFY

j

LAE, mo EET Oa SI, PROT CM ADT le Oke SFE VRRP MED yesh eae MID

2

OPINIONS BELOW

The opinion of the Superior Court of New Jersey,

Appellate Division has not been reported and appears in

the appendix herein as Addendum “A”. The order of the

New Jersey Supreme Court denying the petition for cer-

tification has not yet been reported and appears in the

appendix herein as Addendum “B”.

PLEED 1

EE —EE——————

1R OUGH

Ae PRA OL Nine Wh NCEITIO

JURISDICTION

The jurisdiction of this Court in invoked pursuant to

28 U.S.C. § 1257(3). The judgment of the Superior Court

of New Jersey, Appellate Division was entered on Novem-

ber 18, 1975. On March 2, 1976 the Supreme Court of

New Jersey denied petitioner's petition for certification.

The present petition for writ of certiorari followed.

V4. aod OBIT UE IPAS PRON ILENE SFO SIT

LOO TERA ROS DAA LNA AL IORIE So 8

QUESTION PRESENTED

1. Is a defendant accused under New Jersey law of

being a second drinking-driving offender, an offense punish-

able by a mandatory sentence of three months in

the county jail and suspension of driving privileges

for ten years, entitled under the Sixth and Fourteenth

Amendments to a jury trial?

FLEE® Tt

“4

5

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Constitution of the United States, Article III, Sec. 2,

Clause 3:

“The Trial of All Crimes, except in Cases of Impeach-

ment, shall be by Jury... .”

Constitution of the United States, Amendment VI:

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed. . . .”

Constitution of the United States, Amendment XIV:

“@ ¢ © No State shall . . . deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.”

N.J.S.A. 39:4-50(a):

rating under influence of liquor or drugs;

q

penalty; forfeiture of right to operate

(a) A person who operates a motor vehicle while

under the influence of intoxicating liquor, narcotic,

hallucinogenic or habit-producing drug, or permits

another person who is under the influence of intoxicat-

ing liquor, narcotic, hallucinogenic or habit-produc-

ing drug to operate a motor vehicle owned by him or

in his custody or control, shall be subject, for the first

offense, to a fine of not less than $200.00 nor more

than $500.00, or imprisonment for a term of not less

than 30 days nor more than 3 months or both, in the

discretion of the magistrate, and shall forthwith forfeit

his right to operate a motor vehicle over the highways

ae PLANE H SILI RIT OE ILE LNG BIT ENG LOOM NK LEER SOI OES RIE ESLER AHS C2 gE IMOPRLC HC SVD

>OLIGH PQOQOR Cory

a J ERE IRS AEE OER oe LD RN INP ET OF TE FO

Constitutional Provisions and Statutes Involved

of this State for a period of 2 years from the date of

his conviction or until he reaches the age of 21 years,

whichever is the greater period of time, in the case

of a person who at the time of his conviction is under

the age of 21 years. Except as hereinafter provided,

for a subsequent violation, he shall be imprisoned for

a term of 3 months and shall forfeit his right to operate

a motor vehicle over the highways of this State for a

period of 10 years from the date of his conviction, and,

after the expiration of said period, he may make ap-

plication to the Director of the Division of Motor

Vehicles for a license to operate a motor vehicle,

which application may be granted at the discretion of

the director. A magistrate who imposes a term of

imprisonment under this section may sentence the

person so convicted either to the county jail or to the

workhouse of the county wherein the offense was com-

mitted.

A person who has been convicted of a previous

violation of this section need not be charged as a

second offender in the complaint made against him in

order to render him liable to the punishment imposed

by this section on a second offender, but if the second

offense occurs 10 or more years after the previous

conviction the court may, in its discretion, suspend

the sentence of imprisonment, impose a fine of not

less than $300.00 nor more than $1,000.00 and place

the person on probation.

N.J.S.A. 2A:3-6:

Jurisdiction of appeals from inferior criminal courts

The county court of each county shall have jurisdic-

tion to hear, determine and review any judgment in

any cause, other than a civil cause, in the county

district court or county traffic court of the county

or in any municipal court, park police court or other

inferior court of limited criminal jurisdiction in the

county, except a criminal judicial district court, unless

rircrcnr TWO OrIeCLn

Constitutional Provisions and Statutes Involved 7

the judge of the court is also the county judge, in

which case the law division of the superior court

shall have jurisdiction to hear, determine and review

the same.

N.J.S.A. 2A:8-21(a):

Jurisdiction of specified offenses

Each municipal court, and the magistrate or

magistrates thereof, shall have jurisdiction of the

following offenses occurring within the territorial

jurisdiction of the court: ;

a. Violations of the motor vehicle and traffic laws;

DRMDo LPmrwya

STATEMENT OF THE CASE

On December 21, 1973 defendant was charged with

a violation of N.J.S.A. 39:4-50(a), driving while under the

influence of alcohol, and N.J.S.A. 39:4-86, passing on a .

curve. The hearing on the matter was held in the Muni-

cipal Court for the Township of Lower, in Cape May

County, New Jersey, on May 11, 1974 before the Honor-

able Francis Dwyer, a lay magistrate.” The hearing re-

sulted in a conviction for driving while under the influence

of alcohol and passing on a curve. With respect to the

charge of driving while under the influence of alcohol,

petitioner was sentenced as a second offender within the

meaning of the New Jersey drinking-driving law to the

minimum mandatory revocation of his driving privileges

in the State of New Jersey for ten years, and incarceration

in the Cape May County jail for a period of three months.

See, N.J.S.A. 39:4-50(a).*

Thereafter, pursuant to statute,” petitioner filed a no-

tice of appeal from the judgment of the Lower Township,

Municipal Court in Cape May County Court. At the

same time, he filed a motion demanding a jury trial."

On December 17, 1974 petitioner's motion for trial by

jury was argued and denied by the Cape May County

Court. On that same date, a trial de novo on transcript

was held. On December 26, 1974 the county court, in

a letter opinion, affirmed the conviction of the defendant

on both charges and reimposed the penalties set by the

municipal court.

Petitioner filed a notice of appeal with the Superior

Court of New Jersey, Appellate Division on January 21,

3. R. 7:61 et seq.

4. He was also sentenced under N.J.S.A. 39:4-86 (passing on a curve)

to pay a fine of $10.00 plus the cost of the proceedings.

5. N.J.S.A. 2A:3-6. See, State v. States, 44 N.J. 285 (1965).

6. R. 3:23-1 et seq.

FLEE? THROL

3H

wc am — a “Peis . DORE Sen RN OO

Statement of the Case 9

1975. That court affirmed the denial by the county court

of petitioner's motion for a jury trial. It held that a jury trial,

in proceedings in which the offender upon conviction would

receive a mandatory three months in the county jail and

loss of driving privileges in the State of New Jersey for

ten years, was not constitutionally mandated.’

Petitioner sought certification in the New Jersey Su-

preme Court, but this was denied on March 2, 1976. The

instant petition for writ of certiorari to this Court fol-

lowed.”

AIS ie TAREE: SENET tee = ET

:

;

:

é

z

t

7. Citation to Appendix at 2a. t

8. The imposition of that _ of the sentence confining petitioner ¥

to county jai been stayed throughout the pendency of the appellate .

proceedings. He currently remains on bail. Apparently, the license revoca- ?

cereal

POOR Cory

10

REASONS FOR GRANTING THE WRIT

In the State of New Jersey, all drinking-driving

cases, whether they are first offenses or subsequent of-

fenses, are heard before a magistrate in a local municipal

court ®, and, if appealed, before the county court. Any

second offender drinking-driver who is convicted, either

in municipal court or on appeal by the county court, must

suffer a mandatory penalty of three months imprisonment

in county jail and the forfeiture of his right to operate a

motor vehicle over the highways of the State for a period

of ten years from the date of his conviction. N-.J.S.A.

39:4-50(a). The courts have no discretion in the matter.””

The question, therefore, in this case is whether a second

offender drinking-driver, facing a mandatory term of im-

prisonment of three months and substantial loss of driving

privileges, is entitled to a trial by jury under the Sixth

Amendment to the Constitution as it has been applied

through the Fourteenth Amendment. Duncan v. Louisiana,

391 U.S. 145 (1968).

Duncan v. Louisiana, recognized that the right to a

jury trial in a serious criminal case was fundamental, which

had to be recognized by the States as part of their obliga-

tion to extend due process of law to all persons within

their jurisdiction." Duncan embarked upon an analysis

in which the severity of the authorized penalty was deemed

the most relevant criteria in the determination of whether

a particular charge was within the ambit of offenses for

9. N.J.S.A. 2A:8-21(a). }

10. The minimum fine for a first offender under the “a” section of

the statute is $200.00. If the second offense occurs ten or more years after )

the first conviction, the municipal court does have the discretion to suspend

the sentence of imprisonment. In that case, however, it can impose a fine

of not less than $300.00 nor more than $1,000.00 and place the individual

on probation. N.J.S.A. 39:4-50(a).

11. 391 U.S. at 149.

PLEED THROL

Reasons for Granting the Writ 11

which a jury trial was constitutionally required." This

Court subsequently held in Baldwin v. New York, 399

U.S. 66, 68 (1970) that “no offense can be deemed ‘petty’

for purposes of the right to trial by jury where imprison-

ment for more than six month is authorized.” :

As this Court has most recently recognized, however,

in dealing with the right to a jury trial in criminal con-

tempt cases, the six month criterion of Baldwin is not ex- |

clusive. Muniz v. Hoffman, 95 S. Ct. 2178, 2190 (1975). :

In discussing a fine alone, the Court gave “no talismanic ;

significance” to the definition of petty offenses found in

18 U.S.C. § 1(3). This Court found that it could not say

that a fine of $10,000.00 imposed upon a labor union “was :

a deprivation of such magnitude that a jury should have

been interposed to guard against bias or mistake.” ** Thus, '

by so holding, this Court has shown the method of analysis

that must be employed in determining whether a jury

trial is mandated under the Sixth Amendment. The ap- :

proach must be flexible; the problem must be faced from

the standpoint of “determining the seriousness of the risk :

and the extent of the possible deprivation” faced by the ‘

individual.’* Consequently, if the $500.00 maximum fine

of 18 U.S.C. § 1(3) does not represent the boundary

between a petty and serious crime, then the six month

proscription of Baldwin is not and cannot be an exclusive

prerequisite to the entitlement of a jury trial. This Court :

must embark, under the analysis of the cases, see, e.g., ;

Codispoti v. Pennsylvania, 418 U.S. 506 (1974); Taylor

v. Haynes, 418 U.S. 488 (1974); Baldwin v. New York,

399 U.S. 66 (1970); Frank v. United States, 395 U.S. 147

(1968); Bloom v. United States, 391 U.S. 194 (1968),

upon an analysis directed at the severity of the penalty.”

12. Id. at 159-62.

13. 95 S.Ct. at 2191.

14. Ibid.

15. Justice Douglas recognized that under the Court's current formula-

tion, the penalty is of controlling significance in determining whether an

offense is “petty” or “serious.” Id. at 2192 n.6 (Douglas, J. dissenting )

POOR COry

12 Reasons for Granting the Writ

New Jersey has enacted one of the strongest drinking-

driving laws in the Nation. It imposes the most severe

suspension penalties of any state for the offense of driv-

ing under the influence of alcohol."* Insofar as the statute

pertains to petitioner, a second offender, the penalties are

particularly harsh. The mandatory three month county jail

sentence and ten year suspension of driving privileges

stands in stark contrast to the treatment of subsequent

offenders in other states, none of which impose fixed penal-

ties in excess of three years.'’ In a recent case, the New

Jersey Supreme Court candidly recognized that:

License revocation proceedings do realistically effect

drivers in a serious way, often threatening their ability

to earn a livelihood, and it is settled that they must

meet those incidents of fairness underlying due process.

In Re Arndt, 67 N.J. 432, 436 (1975).

While New Jersey characterizes drinking-driving as a

“petty offense,” State v. Macuk, 57 N.J. 1, 10 (1970), its

courts have mandated that a prosecution for drinking-driv-

ing must be so conducted as to respect and safeguard

the basic rights normally accorded to one accused of a

criminal offense. State v. Lanish, 103 N.J. Super. 441

(App. Div. 1968); State v. Guerrido, 60 N.J. Super. 505

(App. Div. 1960); State v. Magai, 96 N.J. Super. 109

(Essex Co. Ct. 1967); State v. Ingram, 67 N.J. Super. 21

(Passaic Co. Ct. 1961).

Previously, the state cases justified the failure to af-

ford a jury trial by the rationale that the charge was not

“an offense indictable at common law. . . .” State v.

Rogers, 91 N.J.L. 212, 214 (E. & A. 1917). But, as has

16. Report of the New Jersey Motor Vehicle Study Commission, at 133,

135 (September, 1975).

17. Rutgers University Center for Alcohol Studies, “Comparative Legisla-

tive Report for the Alcohol Counter-measures Project,” at p. 9 (1973).

ot ee oe enn Mi. of OE on i,

Teor R SE

LM oS ’ UO AS _— s —

<? DPT EOL STA mies SS RE Bie OR arte aR ONG DRE TEED.

Reasons for Granting the Writ 13

been recognized by this Court, this method of analysis is

no longer viable. Baldwin v. New York, 399 U.S. 66, 69-70

(1970). Clearly, New Jersey considers the drinking-driver

to be a threat of first magnitude and has legislated ac-

cordingly. In today’s society, the loss of driving privileges

for an extended period of time cannot fairly be considered

to be anything other than a consequence of considerable

magnitude. This, coupled with a mandatory term of im-

prisonment, certainly places a burden even greater than

that which would be imposed by a straight six month

term of imprisonment.

The authorities in other jurisdictions are split on the

question of whether a defendant is entitled to a trial by

jury in a prosecution for driving while intoxicated. See,

Annot. “Right to Trial by Jury in Criminal Prosecutions

for Driving While Intoxicated or Similar Offiense,” 16

A.L.R. 3d 1374 (1967). Those states that have granted

the right have based their decisions not so much upon the

incarceration that might be imposed, but rather upon a

recognition that the inability to operate a motor vehicle

upon the public highways places a tremendous imposition

upon the individual. See, ¢.g., Berberian v. Lussier, 139

A.2d 869, 872 (R.I. 1958).

Clearly, magistrates hearing many, many drinking-

driving cases must become jaded to the defenses interposed.

In a sense, this is a form of governmental oppression. The

primary purpose of the jury is to prevent oppression by

18. Particularly apt is the case of Rothweiler v. Superior Court of

Pima County, 100 Ariz. 7, 410 P.2d 479 (1966) in which it was said:

It must be accepted that under the present day conditions, driving an

automobile while under the influence of an intoxicating liquor is an

offense of a serious nature . . . . the power to imprison, fine, and suspend

the right to use the public highways must be considered today as the

ability to impose greater criminal sanctions not comparable to the

petty crimes at common law which were tried summarily. In view of the

oregoing considerations, we find the offense in question to be a serious

crime which must be triable before a jury. . - .

Se ee a ae ee ee ee ee ee

ft

TE SPATE CCS CLR eM oes

TEETER

POEL

LILO EPS OL OO el IIS SOE RAITT

2A GUL Re Se OA

14 Reasons for Granting the Writ

the government and interpose between the accused and

accuser the judgment of laymen who are less likely to

function or appear as but another arm of the government.”

Baldwin v. New York,” expressly left open the ques-

tion of whether other penalties, due to their serious nature,

could nevertheless trigger the right to jury trial. In Bald-

win it appeared that the six month imprisonment was only

a “potential”;” under N.J.S.A. 39:4-50(a) the three month

jail sentence and ten year license revocation are manda-

tory. This case presents the Court with the opportunity

to close that question left opev in Baldwin. A defendant

facing a trial for an offense that could result in the

mandatory imposition of a three month jail sentence and

ten year revocation of driving privileges should have a

trial before a jury of his peers.

19. Baldwin v. New York, 399 U.S. at 72.

20. Id. at 68-69 n.6.

21. Id. at 72.

SLEED Tt

OO IIS NIU

15

CONCLUSION

For the foregoing reasons, this petition for a writ

of certiorari should be granted.

POOR Cory

Respectfully submitted,

PERSKIE and CALLINAN,

A Professional Corporation,

Attorneys for Petitioner

/s/ Norman L. Zlotnick

NORMAN L. ZLOTNICK

ee

FLEES? THROUC

la

APPENDIX

ADDENDUM “A”

OPINION OF THE APPELLATE DIVISION

Argued November 3, 1975—Decided November 18, 1975.

Before Judges Allcorn, Kole and E. Gaulkin.

On appeal from Cape May County Court.

Mr. Willis F. Flower argued the cause for appellant

(Messrs. Perskie and Callinan, P.A., attorneys ).

Mr. Robert E. Rochford, Deputy Attorney General,

argued the cause for respondent (Mr. William F. Hy-

land, Attorney General of New Jersey, attorney; Mr.

Joseph J. Rogers, Deputy Attorney General, of counsel

and on the brief).

PER CURIAM

Defendant appeals from his conviction by the county

court, after a trial de novo on the record in the municipal

court, of driving an automobile while under the influence

of alcohol in violation of N.J.S.A. 39:4-50(a) and of pass-

ing on a curve, contrary to N.J.S.A. 39:4-86. The mu-

nicipal and county courts imposed the same sentences.

Since he was a second offender under N.J.S.A. 39:4-50(a),

as required by that provision, defendant was sentenced

to 3 months in the county jail and his driving privilege

in the State was suspended for 10 years. A fine of $10,

together with costs, was imposed for the violation of

N.J.S.A. 39:4-86.

Defendant claims that the “verdict is against the weight

of the evidence” and “it was error for the county court

judge to substitute his opinion, judgment and discretion

Here REBATES ATI SND SE, VIO EERE A EIR ET GRRL

POOR COry

ve OF

a he ah eo

FRG

TE I TNR,

Qa Addendum “A”

for that of the municipal magistrate on an issue which was

uniquely concemed with the credibility of witnesses and

the concomitant weight to be accorded their evidence.”

We have considered the record below in the light of State

v. Johnson, 42 N.J. 146 (1964), which sets forth the

standards for review by the county court and this court

in this type of proceeding, as well as the legal principles

to be applied. We are satisfied that there was sufficient

evidence in the record as a whole to sustain the findings

of guilt beyond a reasonable doubt and that there is no

merit to the contention that the county court improperly

failed to give due regard to the magistrate’s assessment

of the credibility of witnesses. There is no substance to

the argument that the magistrate’s statements that defend-

ant might have been suffering from manic depression and

that he could not determine how much alcohol defendant

had imbibed are incompatible with the conclusion that de-

fendant was guilty of drunken driving.

It is further claimed that the county court erred in deny-

ing defendant's motion for a jury trial. The mandated

penalty for a second drunken driving offender is 3 months

in the county jail and suspension of his driving privilege

for 10 years. We recognize that suspension of the privilege

to operate a motor vehicle may affect a substantial right

requiring protection in accordance with incidents of due

process and fundamental fairness. See In the Matter of

Albert H. Arndt, 67 N.J. 432 (1975). Nevertheless, a jury

trial in proceedings involving such suspension, even for

the substantial period here involved, is not required. See

State v. Macuk, 57 N.J. 1, 9-10 (1970); State v. Owens, 54

N.J. 153, cert. den. 396 U.S. 1021, 90 S. Ct. 593, 24 L.Ed.2d

514 (1970). Compare Muniz v. Hoffman, Director, Region

20, National Labor Relations Board, — U.S. —, 45 L.Ed.2d

319, 95 S. Ct. — (1975).

SLEEP A LOLI ONLI PIE IE LY VENTION LILES LE YAY LIS

BLEED TE

Addendum “A” 3a

Defendant contends that the magistrate “committed

prejudicial error by striking the expert defense medical

testimony” and “by permitting a lay witness for the State

to testify in an expert capacity regarding the physical

disability of the defendant;” and committed plain error in

“demanding that defendant produce his license and

registration for inspection by the court in advance of the

hearing,” thereby becoming “apprised of the fact that

defendant was on the revoked list.” On the record before

us, we find that none of these contentions has merit. See

State v. Macon, 57 N.J. 325 ( 1971); State v. Harper, 128

N.J. Super. 270 (App. Div. 1974), certif. den. 65 N.J. 574

(1974); State v. Hanson, 59 N.J. Super. 434 (App. Div.

1960).

Affirmed.

A TRUE COPY,

/s/ Elizabeth McLaughlin

Clerk

CREEPER RNA ROL A 9 TR SERBS PEAR ONIN “or PNG ORE tee

POOR Cory

ROOT PERLE IEEE ae: cae |

LOBES PENNER Hn ted tu

coe |

4a

ADDENDUM “B’

ORDER DENYING CERTIFICATION

(Filed March 2, 1976)

To Appellate Division, Superior Court:

A petition for certification having been submitted to

this Court, and the Court having considered the same,

It is hereupon ORDERED that the petition for certifica-

tion is denied with costs.

WITNESS, the Honorable Worrall F. Mountain, Presid-

ing Justice, at Trenton, this 2nd day of March, 1976.

A TRUE COPY

/s/ Florence R. Peskoe

Clerk

FLEE? THROUG

5a

ADDENDUM “C”

NOTICE OF MOTION FOR TRIAL BY JURY

(Filed July 11, 1974)

PLEASE TAKE NOTICE that on Friday, July 26, at the

Cape May Court House, at 9:00 a.m., or at time of trial,

whichever shall first occur, attorney for the defendant,

Marshall G. Vance, will make application to the court

for an Order granting the defendant a trial by jury. The

proceeding before the court is a trial de novo on appeal

of the defendant's conviction in the Lower Township Mu-

nicipal Court on May 11, 1974, of a violation of NJS 39:4-

50A (second offense) and 39:4-86.

TAKE FURTHER NOTICE that reliance will be placed

upon defendant's brief which will be forwarded to the court

forthwith.

/s/ Willis F. Flower

WILLIS F. FLOWER

POOR Cory

et it ba eee ea ee nae

WU vets,

COE SOROS PRR MRRI RIE 5 BH om tert

Reo Hy wens e

ee S ee ee

ADDENDUM “D”

ORDER OF COUNTY COURT

(Filed March 12, 1975)

This matter being opened to the Court by Willis F.

Flower, Esquire, attorney for the defendant, Marshall

Vance, in the presence of P. Martin Way, 3rd, Esquire,

Assistant Prosecutor, and it appearing to the Court that

the defendant has appealed from a conviction of N.J.S.

39:4-50(a) (driving while under the influence of alcohol )

and N.J.S. 39:4-86 (passing on a curve) rendered by the

Lower Township Municipal Court on May 11, 1974;

And the Court having tried the matter de novo utilizing

the transcript of the Municipal Court proceeding and hav-

ing considered the argument of counsel, it is on this 9th

day of January, 1975, ORDERED AND ADJUDGED that

the defendant be and hereby is found guilty of a violation

of N.J.S. 39:4-50(a) and N.J.S. 39:4-86.

For the violation of N.J.S. 39:4-86 it is ORDERED that

the defendant pay a penalty of $10.00 and $5.00 costs.

For the violation of N.J.S. 39:4-50(a) the defendant is

found guilty as a second offender within the meaning of

the Statute and is sentenced to three months in the County

Jail and his driving license in the State of New Jersey is

ORDERED revoked for a period of ten years.

IT IS FURTHER ORDERED and ADJUDGED that

imposition of sentence be and hereby is stayed pending

appeal.

/s/ Nathan C. Staller

NATHAN C. STALLER, J.C.C.

FLEE? THROL

Ta

ADDENDUM “E”

ORAL ORDER DENYING MOTION

FOR TRIAL BY JURY

(Commencing at 8-14)

THE COURT: Well, as to the matter of a trial of this

action or this issue by a jury, it is quite clear and it has

been clear for many, many years that the Court recognizes

motor vehicle offenses and drunken driving offenses partic-

ularly as not in that category where a jury trial should be

had, notwithstanding the fact that there is on the second

offense a mandatory penalty of imprisonment.

This view is supported in Porter, 102 N. J. Law 71, and

State vs. Rogers, 91 N.J. Law, 212; and this has also been

affirmed or reaffirmed, (9) the right to a trial by jury not

extending itself to cases of this nature.

If there is to be a change in this area of the law I do not

feel that this Court should pioneer that change; and that

it is a matter for the Supreme Court or for the legislature.

The motion for a jury trial is denied.

ee ey *