# Petition for Writ of Certiorari — Vance v. New Jersey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0165%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1976 - **Citation:** 426 U.S. 935 ## Text 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 —