# Opposition Brief — Vance v. New Jersey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0165%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1976 - **Citation:** 426 U.S. 935 ## Text OU GH TABLE OF CONTENTS CONSTITUTIONAL PROVISIONS AND STATUTES SY cute een ee S54 Fann siden vei es eae ns STATEMENT OF THE CASE PROCEDURAL HISTORY FACTUAL BACKGROUND ................... REASONS FOR DENYING CERTIORARI CONCLUSION ee CASES CITED ALBUQUERGUE v. ARIAS, 64 N.M. 337, 328 P.2d ey PINE, BUD nis wip icc ccteandpoacasceeaces APODACA v. OREGON, 406 U.S. 404 (1972).......... ARNDT, In re, 67 N.J. 432, 436, 341 A.2d 596 (1975) ... AUSTIN v. DENVER, 170 Colo. 448, 462 P.2d 600, 603-604 (Sup.Ct.1969), cert. den., 398 U.S. 910 (1970) AUSTIN v. UNITED STATES, 299, A.2d 545, 546-547 (D.C. App. 1973) ey PAGE 14 10 10 BALDWIN v. NEW YORK, 399 U.S. 66, 69-70 (1970) . . 8,9,12 BARRON v. MAYOR AND CITY COUNCIL, 32 U.S. DIN s Kher ele iss wsksaSevieak seh eawees BERBERIAN v. LUSSIER, 8&7 R.I. 226, 139 A.2d 869 RRR SERENE ee RL rd Cap are cea eon BLOOM v. ILLINOIS, 391 U.S. 194, 198 (1968)........ BLUE JEANS CORP. v. AMALGAMATED CLOTHING WORKERS OF AMERICA, 275 N.C. 503, 169 S.E.2d 867 (App.Ct.1969) ...............6. BRIEHRER, In re, 50 N.J. 501, 517-518, 236 A.2d 592 SUE +i ten eRe vas BAe wn Saas de deck ewesu see BUFFALO v. CANNIZZARIO, 17 Misc. 2d 839, 188 N.Y.S.2d 795, 798 (Sup. Ct. 1959) ii CASES CITED (continued) PAGE CALLAN v. WILSON, 127 U.S. 540 (1888) ........... 6 CARUSO v. PORTER, 102 N.J.L. 71, 73, 180 A. 805 ee ce ana e oe ae vi ieu wae seus ek Si4 7 CHEFF v. SCHNACKENBERG, 384 U.S. 375, 379 se eee We eis ink ewénec Cer ea nh eke Ke eh 6 CODISPOTI v. PENNSYLVANIA, 418 U.S. 506, 512 cee Bras kb aie hans Heese ord deo Wises 6,8 DABEZIES v. BOURG, 273 So.2d 622, 626 (La. App. 1973), cert. den., 277 So.2d 445 (1973) ...... 10 DE STEFANO v. WOODS, 392 U.S. 631, 633-634 (1968) 14 DISTRICT OF COLUMBIA v. CLAWANS, 300 U.S. 8, rrr rrr rer rrr rrr: Leer er eee 6 DISTRICT OF COLUMBIA v. COLTS, 282 U.S. 63, EE cep ct de eiekwascnsinuee see peoaeawe’s oe 6 DUNCAN v. LOUISIANA, 391 U.S. 145, 149 (1968) ... 6,8,9 DYKE v. TAYLOR IMPLEMENT MFG CO., 391 U.S. Bey ECL 55 vic ccecsescsessescserceas ses 6,8 FRANK v. UNITED STATES, 395 U.S. 147, 148 (1969) 6,8,12 GAITHOR v. UNITED STATES, 251 A.2d 644 EE EA re ee eee ee re 10 GANNON, In re, 26 Cal. App.3d 731, 103 Cal. Rptr. 224, MN 6 oo bg ecivg Va ce sisas kb0 00.6 x4 we 10 HAMILTON v. WALKER, 65 N.M. 470, 340 P.2d 407, I ED bhava asawdcn evden sesaewan. 11 HILLIARD v. GAINESVILLE, 213 So.2d 689, 691 (Fla.Sup.Ct.1968) app. dism’d 393 U.S. 321 (1969).... 11 JOHNSON v. LOUISIANA, 406 U.S. 356 (1972)....... 14 JOHNSON v. TURNER, 429 F.2d 1152, 1154 (10 Cir. Ee pe Battie preter Are erat ere pe 9 LATIMER v. WILSON, 103 N.J.L. 159, 164, 1384 A. 750 ED Gans can ndnasmdustace es ik cau eeekan ke 7 FLEES THROL ill CASES CITED (continued) PAGE LAWTON v. STEELE, 152 U.S. 133 (1894) ........... 6 FMONROE v. WILHITE, 255 La. 838, 233 So.2d 535, 536 (Sup.Ct.1970), cert. den., 400 U.S. 910 (1970) .... 11 MUNIZv. HOFFMAN, 422 U.S. 454 (1975) ........... NATAL v. LOUISIANA, 139 U.S. 621 (1891).......... NORVELL v. ILLINOIS, 373 U.S. 420, 424 (1963)..... 14 PHILIPPS v. UNITED STATES, 457 F.2d 1318 (8 Cir. CCL ce KE USK GE ERLEL EE PIM EEENES KR OSA KET KS 9 PUERTO RICO NEWSPAPER GUILD LOCAL, In re, 225, 476 F.2d 856, 857-858 (1 Cir.1973) ............6. 9 ROTHWEILER v. SUPERIOR CT. OF PIMA CTY., DOD BEE. 7, GRO Fe SeP GOD io cicdsucvencaaeneses 9 ST. PAUL v. ULMER, 261 Minn. 178, 111 N.W.2d 612, Se NE isd Cesc c esse iaceesncavexses 10 SUHICK v. UNITED STATES, 195 U.S. 65 (1904) ..... 6 SHAFSKY v. CASPER, 487 P.2d 468, 471 i ies chy abe nekisdeteasadautc 10 SMITH v. STATE, 17 Md. App. 217, 301 A.2d 54, 61-64 er Toye TST eT eeT TE eT Cre ee 12,13 STATE v. CONNORS, 129 N.J. Super. 476, 481-482, 324 ee OE 655 444 oo xcs uk 04d bees Reece ns 7 STATE v. CUSICK, 110 N.J. Super. 149, 151, 264 A.2d EE oo bs aku cd ban ea eeeaniaseensas 7 STATE v. GREEN, 277 N.C. 188, 176 S.E.2d 756, 760 rcs eva dlrctadacersav ca hesadeesass 10 STATE v. HENDRICKS, 309 So.2d 232, 233 PE ee riers Veta dulce raid yeew ans 11 STATE v. HOLLIDAY, R.1 , 280 A.2d 333, ig cola tea kicsadnad ketene aes 10 STATE v. JOHNSON, 191 Neb. 535, 216 N.W.2d 517, 518-519 (Sup.Ct.1974), cert. den., 419 U.S. 949 (1974) 10 POOR COry a a Na “i952 EES wh - 2 iv CASES CITED (continued) STATE v. JONES, 191 Neb. 538, 216 N.W.2d 519, 520 AE. ITE) o.os oc kite scceesceyae aces cnnesaseess STATE v. MACUK, 57N.J. 1, 9-10, 268 A.2d 1 (1970)... STATE v. MAIER, 13 N.J. 235, 277, 99 A.2d 21 (1953) .. STATE v. OWNES, 54 N.J. 158, 159-162, 254 A.2d 97 (1969), cert. den., 396 U.S. 1021 (1970)...........05. STATE v. RODGERS, 91 N.J.L. 212, 102 A. 433 ot 2 oe) eer ere r ey Tere rr ry Tere eee ee STATE v. SHAK, 51 Haw. 612, 466 P.2d 422, 424-425 (Sup.Ct.1970) cert. den., 400 U.S. 930 (1970) ........ STATE v. TABISZ, 129 N.J. Super. 80, 322 A.2d 453 CS PE ea aii es aesceeca teoeNsentveceiene STATE v. THIGPEN, La , 275 So.2d 760, ET Ory et Cree STATE v. YOUNG, 194 Neb. 544, 234 N.W.2d 196, I ooh sv enkgurcdunseees STATE v. ZUCCONI, 93 N.J. Super. 380, 384-387, 226 A.2d 16 (App.Div.1967), affd 50 N.J. 361, 235 A.2d CR ote Ca erctee ree ak yhke thew ane ree STATE ex rel. DE CONCINI v. TUCSON CITY CT., 9 Ariz. App. 522, 454 P.2d 192 (Ct. App.1969).......... TAY LOR v. HAYES, 418 U.S. 488, 495 (1974) ......... UNION NACIONAL DE TRABAJADORES, In re, 502 F.2d 113, 116 (1 Cir.1974) ........ceeeeeeseseees UNITED STATES v. CAIN, 454 F.2d 1285, 1287-1288 (7 eS SR Pr yee er rene ree eT eee ee eee UNITED STATES v. FLOYD, 477 F.2d 217, 221-222 (10 Cir. 1973), cert. den., 414 U.S. 1044 (1973) .......... UNITED STATES v. GOELTZ, 513 F.2d 193, 195-196, cert. den., U.S , 96 S.Ct. 51 (1975) (10 Cir. PAGE 11 7,12 7 10 BPLEEO THR 2 OY Vv CASES CITED (continued) PAGE UNITED STATES v. IRELAND, 493 F.2d 1208, 1209 (4 on scs hs hkRRAdeeeR eh Rane pea birews 9 UNITED STATES v. JARMAN, 491 F.2d 764, 767 (4 Pe Co eek een tse eee keenwnebee os q UNITED STATES v. MERRICK, 459 F.2d 644, 645 (4 OR co oh ay cacie SkuC kb Ki kewennmhites 9 UNITED STATES v. POTVIN, 481 F.2d 388, 381 (10 UO a a ee eae ee ied AIOE i) UNITED STATES v. PROFFITT, 498 F.2d 1124, 1127 (3 Cir. 1974), cert. den., 419 U.S. 1002 (1974) ........ 9 UNITED STATES v. ROGERS, 354 F.Supp. 502 I conc can keene nan apedubitenwnnheeesss i) VADNAIS HEIGHTS v. BEARDSLEY, 296 Minn. 154, 207 N. W.2a 339, 340 (Sup.Ct. 1973) ..............00- 10 VIRGINIA ex rel. SHIFFLETT v. COOK, 333 F.Supp. yp Soe, te rere errr errr re 9,13 WILLIAMS v. FLORIDA, 399 U.S. 78 (1970) ......... 14 UNITED STATES CONSTITUTION CITED ee cca eee kee awn 4,5 ey rt RR TE NS ook. os os ean cdsn ven ienaiens 5 NEW JERSEY CONSTITUTION CITED Avticte 1, Parmmrenn® ooo. sn 0 ose cic ccssieccncncices 1,5 NEW JERSEY STATUTES CITED Oe a slash nce asain mica wk Wn Wena ll FEB a ie sins kV anon evana sane vaanewas 2,4 N.J.S.A. 39:4-86 UGH NATE AY YS RIE OTE BONE UNAM TL TH anes wT ENS POOR COry vi CASES CITED (continued) PAGE NEW JERSEY RULES CITED OOS. cccceccencdsccucoucececeessecnceussescoes 7 OD nc ccccvidcascedcecéonccctcneeecseneeseccesns 2 BR. FSBO CA) on cc cccccccccccccccccccccsccnccccccess 7 PR. POBDERD on ccc ccccccccccccccccccssccccsessevese 7 DO Bied nc ccccccccccccccceccaccesoccscsesesescss 7 R.7:4-2(g) 2... ccc cece eee e cece ewes eneceeseneceness 7 DBS oc cccccccccccctocccccesecccocsesssccesseees 7 OTHER SOURCES CITED 16 A.L.R.3d 1373 (1967) 2... 6.6.0 cece eee ee ence eee 7 TABLE TO APPENDIX Brief Filed By Petitioner With The Appellate Division Of The Superior Court Of New Jersey, Page 27 ...... Rla New Jersey Constitution, Article I, Paragraph 9 ....... R2a N.J.S.A. BOz4-BB . ow wwe ccc ccccccccccccccscnccccccccs R3a New Jersey Court Rule 3:23-1 ........----++seeeeeees R4a New Jersey Court Rule 1:2-1-.........--- esse eeeeeeee R5da New Jersey Court Rule 7:4-2 ..........--20seeeeeees R6a New Jersey Court Rule 7:5-1 «2... 2... --00+ee eee eeees R9a rLEE? THROUGH — ac aot es a) CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED* New Jersey Constitution, Article I, Paragraph 9: The right of trial by jury shall remain in- violate . . . (see R2a). N.J.S.A. 39:4-86. See R3a. New Jersey Court Rule 3:23-1. See R4a. New Jersey Court Rule 1:2-1. See R5a. New Jersey Court Rule 7:4-2. See R6a, R7a. New Jersey Court Rule 7:5-1. See R8a. i * These provisions and statutes are supplemental to those con- tained in the Petition filed in the instant case. POOR Cory OTE RN OE CRO OE Statement of the Case Procedural History On December 21, 1973, Summons No. 2725 was issued by the Municipal Court of Lower Township against petitioner Marshall G. Vance. The summons charged petitioner with driving while under the influence of alcohol, contrary to N.J.S.A. 39:4-50(a). On the same date, Summons No. 2726 was issued by the Municipal Court of Lower Township charging petitioner with passing on a curve, contrary to N.J.S.A. 29:4-86. On May 11, 1974, a hearing was conducted in the Lower Township Municipal Court before the Honorable Francis Dwyer. Petitioner was found guilty of both charges. On the same date, Judge Dwyer sentenced petitioner to a term of three months in the county jail and suspension of driving privileges for a period of ten years for a second violation of N.J.S.A. 39:4-50(a). Petitioner was fined $10 and $5 costs for violation of N.J.S.A 39:4-86. On May 13, 1974, petitioner filed a Notice of Appeal to the Cape May County Court pursuant to N.J. Court Rule 3:23. A trial de novo on the transcripts below was conducted by the Honorable Nathan C. Staller, J.C.C. on December 17, 1974. On that same date petitioner’s motion for trial by jury was denied. In a letter opinion of December 26, 1974 the County Court reconvicted petitioner on both charges and reimposed sentences issued by the Municipal Court. Petitioner filed a Notice of Appeal to the Appellate Divi- sion of the Superior Court of New Jersey on January 21, 1975. The cause, including petitioner's jury trial claim, was argued before that court on November 3, 1975. On Novem- ber 18, 1975 the Appellate Division rejected petitioner's jury trial argument and affirmed his conviction. A Petition for Certification to the Appellate Division was filed by peti- tioner on December 17, 1975 with the Supreme Court of New Jersey. The Petition was denied on March 2, 1976. On May 31, 1976 petitioner filed with this Court a Petition for Writ of Certiorari. FLEE? THROUGH Factual Background The facts giving rise to the present litigation were ad- duced at the Municipal Court proceeding below." Petitioner had staggered into a service station on December 21, 1973. He reeked of alcohol. His speech was slurred and his dress dishevelled. Petitioner acted aggressively and obnoxiously to the service station owner and his attendant. The station owner accompanied petitioner to the latter’s vehicle which was embedded in sand and smelt strongly of alcohol. The vehicle was towed to the service station where petitioner threatened the station owner and refused to pay the towing bill. The station owner summoned a policeman who advised petitioner that he was inebriated and suggested that peti- tioner take a taxi home. The officer departed and peti- tioner, ignoring the warnings of the station owner, drove away. A second policeman, who was on his way to the sta- tion for backup duty, observed petitioner leave the station. Petitioner's car swerved, once passing over the white line dividing the highway. Petitioner then passed two vehicles on a curve (a designated non-passing zone). The pursuing officer turned on his patrol car’s siren and flashing lights. Petitioner ignored these signals and stopped his automobile only upon receiving hand signals from the officer. When petitioner emerged from the vehicle he acted aggressively and manifested the symptoms of extreme drunkenness, /.é. bloodshot eyes, slurred speech, staggering gait and odor of aleohol. These symptoms persisted through petitioner’s processing at the Lower Township Police Headquarters. Petitioner declined to take a breathalyzer test.? At trial petitioner was unable to recall the events sur- rounding his arrest. 1 This factual statement is drawn from the testimony of five eyewitnesses. 2 Evidence of the refusal to take the breathalyzer was stricken by the Municipal Court although under New Jersey law such evidence is admissible. See State rv. Tabisz, 129 N.J. Super. 80, 322 A.2d 453 (App. Div. 1974). BS ae Le eS ee a POOR COry nee * : said, uae Ladin deka ee RYT 47 SED TRICE Te Reasons for Denying Certiorari The Sixth and Fourteenth Amendments Do Not Require a State To Provide A Jury Trial In The Prosecution Of A Recidivist Drunk Driver Where Conviction Results In A Man- datory Sentence Of Three Months Imprison- ment And Loss Of Driving Privileges For Ten Years. Petitioner was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of N.J.S.A. 39:4-50(a).2 Since petitioner had been pre- viously convicted of violating this statute he was sentenced both in Municipal Court and in County Court (following a trial de novo on the record below) to the mandatory statu- tory penalty of three months imprisonment and a ten year revocation of his driver’s license.* Prior to the trial de novo in the County Court petitioner demanded a jury trial on the 3 In addition petitioner was convicted of passing on a curve in violation of N.J.S.A. 39:4-86. A fine of $10 and $5 costs was imposed on this charge. No claim regarding this offense is raised in the Petition. 4 N.J.S.A. 39:4-50(a) provides that for a subsequent violation (within ten years of the earlier violation) of that statute a defendant, ... 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 expira- tion of said period, he may make application to the Director of the Division of Motor Vehicles for a li- ce to operate a motor vehicle, which application may be granted at the discretion of the director. FLEED THROUGH Reasons for Denying Certiorari (Continued) driving while intoxicated charge. (P5a).5 This claim was denied by the County Court. (P7a). In an appeal to the Appellate Division of the Superior Court of New Jersey petitioner pursued his jury trial by demand, relying on the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Paragraph 9 of the New Jersey Constitution. (R2a).* The Appellate Division rejected these claims (P2a), which petitioner again raised in a Petition for Certification filed with the Supreme Court of New Jersey. That Petition was denied. (P4a). In his Petition for Cer- tiorari petitioner has again asserted that he was entitled to a jury trial in the County Court under the provisions of the Sixth and Fourteenth Amendments. Respondent re- spectfully disagrees. The right to trial “by an impartial jury” is guaranteed to a defendant “{iJn all criminal prosecutions” by the Sixth Amendment. Initially this right applied only in federal prosecutions.? See Barron v. Mayor and City Council, 32 U.S. 243 (1833). In 1968 this Court found that the right toa 5 Respondent notes that the record does not disclose whether federal constitutional provisions were relied on by petitioner for this claim before the County Court. In his appeal to the Appellate Divi- sion of the Superior Court of New Jersey, petitioner did explicitly rely on both federal and state constitutional guarantees to support his jury trial demand. (Rla). 6 Article I, Paragraph 9 of the New Jersey Constitution provides: The right of trial by jury shall remain inviolate... 7 Jury trials were also required in federal prosecutions by Article III, Section II of the United States Constitution which provided: The Trial of all Crimes, except in Cases of Im- peachment, shall be by Jury. ... POOR COry DAO ET HEY anatomy opty LP EI MGEN LN rE PR Reasons for Denying Certiorari (Continued) jury trial in criminal prosecutions was “fundamental to the American scheme of justice” and, pursuant to the Four- teenth Amendment, held that the Jury Trial Clause of the Sixth Amendment was applicable in state criminal prosecu- tions. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). Peti- tioner’s sole claim is that the Sixth Amendment required the State of New Jersey to afford him a trial by jury in a drunk driving prosecution where the mandatory statutory sentence is three months imprisonment and a ten year sus- pension of driving privileges. This contention is lacking in both logic and precedential support. In Duncan this Court specifically disclaimed the intention to require jury trials in all state prosecutions of whatever nature. Rather, this Court recognized the existence of, ...a category of petty crimes or offenses which is not subject to the Fourteenth Amendment jury trial requirement here ap- plied to the States. Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses .. .[at 159}. Summary disposition of cases involving petty offenses has long been upheld by this Court in the face of Sixth Amendment claims. Taylor v. Hayes, 418U.S. 488, 495 (1974); Codispoti v. Pennsylvania, 418 U.S. 506, 512 (1974), Frank v. United States, 395 U.S. 147, 148 (1969); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 219-220 (1968); Bloom v. Illinois, 391 U.S. 194, 198 (1968); Cheff v. Schnackenberg, 384 U.S. 375, 379 (1966); District of Colum- bia v. Clawans, 300U.S. 617, 624 (1937): District of Columbia v. Colts, 282 U.S. 63, 72-73 (1930); Schick v. United States, 195 U.S. 65 (1904); Natal v. Louisiana, 139 U.S. 621 (1891): Callan v. Wilson, 127 U.S. 540 (1888). Cf. Lawton v. Steele, 152 U.S. 133 (1894). Respondent believes that a drunk driv- - NS 8 ERIN OLA LENS LEE EE EEE DSLRE VLEET FLEES? THROUGH Reasons for Denying Certiorari (Continued) ing prosecution under N.J.S.A. 39:4-50 (a) constitutes a petty offense within the meaning of the above cases. Under New Jersey law an offense punishable by no more than six months imprisonment and a $500 fine is a “petty offense” which may be tried without a jury. State v. Ownes, 54N.J. 153, 159-162, 254 A. 2d 97 (1969), cert. den. 396 U.S. 1021 (1970); Jn re Briehrer, 50N.J. 501, 517-518, 236A. 2d 592 (1967). Motor vehicle offenses are considered to be within this classification and hence triable to a municipal magis- trate and thereafter to a judge of the County Court.® See State v. Macuk, 57N.J. 1, 9-10, 268 A.2d 1 (1970); State v. Maier, 13 N.J. 235, 277, 99 A. 2d 21 (1953); State v. Zucconi, 93 N.J.Super. 380, 384-387, 226 A.2d 16 (App.Div. 1967), aff'd 50 N.J. 361, 235 .A.2d 193 (1967); State v. Connors, 129 N.J.Super. 476, 481-482, 324 A.2d 85 (App. Div. 1974); State v. Cusick, 110 N.J.Super. 149, 151, 264 A.2d 735 (App. Div. 1970): Latimer v. Wilson, 103 N.J.L. 159, 164, 134 A. 750 (E.& A. 1926); Caruso v. Porter, 102N.J.L. 71, 73, 180A. 805 (Sup.Ct. 1925); State v. Rodgers, 91N.J.L. 212, 102 A. 433 (E.&A. 1917). See also Annotation, “Drunk Driving-Jury Trial,” 16 A.L.R.3d 1373 (1967). Delineation of the line between “serious” and “petty” of- fenses was addressed by this Court in Duncan, supra. The Court found it necessary to draw a somewhat arbitrary line and stated that, 8 New Jersey law broadly applies the incidents of due process to proceedings, both administrative and judicial, that involve possible revocation of driving privileges. See e.g. In re Arndt, 67 N.J. 482, 436, 341 A.2d 596 (1975). In a Municipal Court prosecution a defen- dant, such as petitioner, is afforded notice, counsel, pretrial discov- ery, bail and a public trial with the opportunity to make objections, present defenses and confront the witnesses against him or her. See New Jersey Court Rules 1:2-1; 7:4-2(a) (1); 7:4-2(a) (2); 7:4-2(e); 7:4-2 (g): 7:5-1. SERGI PEELS PENOLA PENILE LIE LUD GET RASS MYT DINED ERT Tene ae enemies? POOR AE A BP PR ARETE RCI Reasons for Denying Certioari (Continued) ...the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the man- dates of the Sixth Amendment. Duncan v. Louisiana, supra at 159. This Court went on to emphasize that it is the statutory maximum, not the sentence actually imposed, that deter- mines the “seriousness” of the crime for Sixth Amendment purposes. Duncan v. Louisiana, supra at 160. Accord, Dyke v. Taylor Implement Mfg. Co., 391U.S. 216, 220 (1968). Sub- sequently, this Court described the six month incarceration requirement as a “fixed dividing line between petty and serious offenses.” Codispoti v. Pennsylvania, 418 U.S. 506, 512 (1974). Seemingly recognizing this, petitioner argues that the ten year revocation of driving privileges mandated by N.J.S.A. 39:4-50(a) is sufficient to make a violation of that statute a serious offense. This Court recognized in Baldwin v. New York, 399 U.S. 66, 69-70 (1970) that “collateral conse- quences, such as loss of occupation and other civil dis- abilities, may accompany a fine and incarceration but declined to attach much significance to such factors in de- termining the scope of the Sixth Amendment jury trial guarantee. Rather, this Court reaffirmed the rule that the surest indicia of the seriousness of an offense and the com- munity’s attitude toward that offense could be found in the maximum authorized period of incarceration. Baldwin v. New York, supra. Accord, Taylor v. Hayes, 418 U.S. 488, 495 (1974); Frank v. United States, 395 U.S. 147, 148-149 (1969). Quite recently this Court reaffirmed that approach and up- held the imposition of a $10,000 fine after a summary pro- ceeding in which the defendant’s jury trial demand had been rejected. Muniz v. Hoffman, 422 U.S. 454 (1975). PLEED THROUC Reasons for Denying Certiorari ( Continued) Lower federal courts have also recognized the distinction between “petty” and “serious” offenses in determining the sweep of the Jury Trial Clause of the Sixth Amendment. United States v. Potvin, 481 F.2d 380, 381 (10 Cir. 1973); United States v. Floyd, 477 F.2d 217, 221-222 (10 Cir. 1973), cert. den. 414 U.S. 1044 (1973); United States v. Merrick, 459 F.2d 644, 645 (4 Cir. 1972); Johnson v. Turner, 429 F.2d 1152, 1154 (10 Cir. 1970); United States v. Rogers, 354 F.Supp. 502 (D. Colo. 1973). These courts have consistently looked to the maximum imposable penalty in determining the se- riousness of an offense. See e.g. United States v. Goeltz, 513 F.2d 193, 195-196, cert. den. U.S. , 96 S.Ct. 51 (1975) (10 Cir. 1975); In re Puerto Rico Newspaper Guild Local 225, 476 F.2d 856, 857-858 (1 Cir. 1973); Virginia Ex. Rel. Shifflett v. Cook, 333 F. Supp. 718, 720-721 (W.D. Va. 1971). Where that penalty did not or could not legally ex- ceed the six months/$500 standard set forth in Duncan, supra and Baldwin, supra no right to a jury trial was found to exist. In Re Union Nacional De Trabajadores, 502 F.2d 113, 116 (1 Cir. 1974); United States v. Proffitt, 498 F.2d 1124, 1127 (3 Cir. 1974), cert. den. 419 U.S. 1002 (1974); United States v. Jarman, 491 F.2d 764, 767 (4 Cir. 1974); United States v. Ireland, 493 F.2d 1208, 1209 (4 Cir. 1973); United States v. Merrick, supra, 459 F.2d at 645; United States v. Cain, 454 F.2d 1285, 1287-1288 (7 Cir. 1972). Cf. Philipps v. United States, 457 F.2d 1318 (8 Cir. 1972). Petitioner relies heavily on Rothweiler v. Superior Ct. of Pima Cty., 100 Ariz. 7, 410 P.2d 479 (1966), a pre-Diuncan case which held that a jury trial was required in a drunk driving prosecution where the defendant, upon conviction, was liable to a $100 to $300 fine, imprisonment for 10 days to 6 months and license revocation for a period of up to 90 days. In reaching this conclusion the Rothweiler court speci- fically relied on a provision in the Arizona Constitution and disclaimed any intention of deciding the case under the POOR COYry 10 Reasons for Denying Certiorari ( Continued) Sixth Amendment to the United States Constitution. Jd. at 484-485. Respondent finds it difficult to understand how Roth- weiler can possibly bolster Petitioner’s federal claim. That case merely reflects the application of a state originated right to a jury trial, which may of course be broader than that estab- lished by the Sixth and Fourteenth Amendments. See e.g. Vadnais Heights v. Beardsley, 296 Minn. 154, 207N.W. 2d 339, 340 (Sup.Ct. 1973); St. Paul v. Ulmer, 261 Minn. 178, lll N.W. 2d 612, 618-619 (Sup.Ct. 1961); Buffalo v. Cannizzario, 17 Misc. 2d 889, 188 N.Y.S.2d 795, 798 (Sup.Ct. 1959). Indeed it appears that the petty offense/serious offense dis- tinction is drawn by many states in determining whether a jury trial is required in criminal or quasi-criminal prosecutions. J Re Gannon, 26 Cal.App.3d 731, 103 Cal.Rptr. 224, 228-229 (Ct.App. 1972); Austin v. Denver, 170 Colo. 448, 462 P.2d 600, 603-604 (Sup.Ct. 1969), cert. den. 398 U.S. 910 (1970); State v. Shak, 51 Haw. 612, 466 P.2d 422, 424-425 (Sup.Ct. 1970), cert. den. 400 U.S. 930 (1970); State v. Thigpen, La , 275 So.2d 760, 761 (Sup. Ct. 1973); Dabezies v. Bourg, 273 So. 2d 622, 626 (La. App. 1973), cert. den. 277 So.2d 445 (1973); State v. Johnson, 191 Neb. 535, 216 N.W.2d 517, 518-519 (Sup. Ct. 1974), cert. den. 419 U.S. 949 (1974); State v. Green, 277 N.C. 188, 176 S.E.2d 756, 760 (Sup.Ct. 1970); Shafsky v. Casper, 487 P.2d 468, 471 (Wyo.Sup.Ct. 1971). Cf. State v. Holliday, —\ a 2s , 280A. 2d 333, 338 (Sup.Ct. 1971).® Traffic offenses are generally considered to be petty offenses triable summarily without a jury. See e.g. State Ex Rel. De Concini v. Tucson City Ct., 9 Ariz.App. 522, 454 P. 2d 192 (Ct. App. 1969); State v. ® The District of Columbia Court of Appeals has rejected jury trial claims in cases where the maximum imposable penalty did not exceed six months incarceration. Austin v. United States, 299 A.2d 545, 546-547 (D.C.App. 1973); Gaithor v. United States, 251 A.2d 644 (D.C.App. 1969). WARREN AD REI TOES LIS ARETE FLEED THROU _~- ll Reasons for Denying Certiorari (Continued) Hendricks, 309 So.2d 232, 233 (Fla.App. 1975); Monroe v. Wilhite, 255 La. 838, 233 So.2d 535, 536 (Sup.Dt. 1970); cert. den. 400 U.S. 910 (1970). Charges alleging recidivist drunk driving have been treated as being within this classification. Hilliard v. Gainesville, 213 So.2d 689, 691 (Fla.Sup.Ct. 1968), app. dism’d 393 U.S. 321 (1969); State v. Young, 194 Neb. 544, 234 N.W. 2d 196, 197-198 (Sup.Ct. 1975); Hamilton v. Walker, 65 N.M. 470, 340 P.2d 407, 408-409 (Sup.Ct. 1959); Albuquerque v. Arias, 64.N.M. 387, 328 P.2d 593, 594 (Sup.Ct. 1958). Petitioner seeks to support his jury trial claim by focusing on: (1) the mandatory three month period of incarceration for second offenders under N..J.S.A. 39:4-50(a) and, (2) the manda- tory ten year period of license revocation. As noted above the Duncan standard pertains to maximum imposable sentences exceeding six months incarceration. Mandatory periods of in- carceration not surpassing the six month criteria do not give rise to a constitutional right to a jury trial. State v. Jones, 191 Neb. 538, 216 N.W.2d 519, 520 (Sup.Ct. 1974). In Jones the Nebraska Supreme Court rejected the jury trial demand of a second offense drunk driver who faced a mandatory term of sir months imprisonment upon conviction. Jd. Moreover re- spondent notes that a violation of N.J.S.A. 39:4-50(a) arises only when a relatively high degree of drunkenness has been exhibited by the operator of a motor vehicle. N.J.S.A. 39:4-39 creates a two tiered system of drunk driving proscriptions. Subsection b. of that statute forbids driving while “impaired” and sets penalties considerably lower than N.J.S.A. 39:4-50(a) which proscribes driving while intoxicated. Petitioner was con- victed of violating subsection a. and properly faced the more stringent penalties prescribed by that statute. This bifurcated treatment of offenders based on the degree of drunkenness exhibited does not represent an arbitrary imposition of penal sanctions as implied by Petitioner. Rather it reflects a deep POOR COry See eee eee eT | wire SARL OLCEET ASOS, . GANT RL I Se RI GELATO 12 Reasons for Denying Certiorari (Continued) seated concern with the danger associated with drunk driving and an attempt to match the degree of peril to the public with a system of penalties. The impositicn of a mandatory ten year revocation of driving privileges does not elevate N.J.S.A. 39:4-50(a) into that cate- gory of “serious” crimes that must, under the Sixth Amend- ment, be tried before a jury. New Jersey statutory law, the best indicia of community sentiment, considers second offense drunk driving to be a petty offense. State v. Macuk, supra, 57 N.J. at 9-10. The loss of driving privileges only constitutes a collateral consequence and cannot be said to so augment the three month period of incarceration as to bring N JS.A. 39:4-50(a) within the scope of the Sixth Amendment. In Bald- win v. New York, supra this Court declined to attach much significance to “collateral consequences” such as loss of occupa- tion in evaluating a jury trial claim. See Blue Jeans Corp. v. Amalgamated Clothing Workers of America, 275 N.C. 503, 169 S.E.2d 867 (App.Ct. 1969) (Loss of re-employment rights and unemployment privileges did not create a right to jury trial on contempt charge where maximum imposable sentence was Six months imprisonment or a $500 fine). Mandatory license rev- ocation accompanying a three month period of incarceration has been held not to give rise to a right to a jury trial under the Sixth Amendment. Smith v. State, 17 Md.App. 217, 301 A. 2d 54, 61-64 (Ct. App. 1973). Similarly in Frank v. Un ited States, 395 U.S. 147 (1969), this Court ruled that a five year period of probation could be coupled with up to six months imprisonment and a $500 fine without giving the defendant a right to a jury trial. Jd. 151-152. This Court reached that conclusion even while acknowledging that probation constituted “a significant infringement of personal freedom.” Jd. at 151. Clearly a ten year loss of driving privileges, which involves no loss of per- sonal liberty, does not give rise to 4 constitutionally protected right to a jury trial. aT OT EP ? i 13 Reasons for Denying Certiorari (Continued) This position is bolstered by an analysis of the nature of license revocation. Revocation of a driver’s license under a drunk driving statute such as N.J.S.A. 39:4-50(a) is punitive only in its incidental effect. The principal purpose of such legis- lation is the protection of the public from recidivist drunk driv- ers like Petitioner and, ...the furtherance of the public safety and welfare, necessary to the proper administration of the traffic laws, rather than punishment. State v. Smith, supra, 17Md.App. at ,301A.2d at 64. Accord, Virginia Ex. Rel. Shifflett v. Cook, Supra, 333 F. Supp. at 720. The power to revoke an individual's driving privileges in order to protect the public safety on the highways lies very close to the heart of those police powers reserved to the states by the Tenth Amendment. Berberian v. Lussier, 87 R.1. 226, 139 A.2d 869 (Sup.Ct. 1958).!° In the present case Petitioner was afforded due process in two successive evidentiary hear- ings and in each instance he was adjudged guilty of driving while intoxicated in violation of N.J.S.A. 39:4-50(a). Petitioner 10In Berberian the Supreme Court of Rhode Island stated: Whatever may be its nature, the right to use the public highways for travel by motor vehicle is one which properly can be regulated by the legislature in the valid exercise of the police power of the state...a valid exercise of such power is not viola- tive of the fourteenth amendment of the federal con- stitution even though protected interests are affected. Berberian v. Lussier, supra, 139 A.2d at 872. 2 Zee, ese 6s SIE AAP IO eS OE IO I TIE NP SAP eS 14 Reasons for Denying Certiorari raises no claim of innocence before this Court in his assertion of a right to a jury trial under the Sixth and Fourteenth Amend- ments.'! The states must be accorded flexibility in exercising their police powers. The imposition of a rigid jury trial require- ment under the Sixth and Fourteenth Amendments would se- riously handicap efforts to guarantee traffic safety and protect the general public from the menace of drunk drivers. Trial of such offenders in New Jersey before a Municipal Court Judge with trial de novo in County Court constitutes the form of “practical accommodation” with the Due Process Clause that this Court has approved in the past. Norvell v. Illinois, 373 U.S. 420, 424 (1963).?? Respondent respectfully submits that this Court has estab- lished a clear dividing line between petty offenses triable to a magistrate and serious crimes which require the availability of jury trials under the Sixth and Fourteenth Amendments. Where the maximum imposable penalty does not exceed six months incarceration and a $500 fine there exists no federally guaranteed right to a jury trial in a state prosecution. Peti- tioner was liable to, and received, the mandatory sentence of three months imprisonment and a ten year revocation of driv- ing privileges as authorized by N.J.S.A. 39:4-50(a). Since the 11Jury fact-finding is not intrinsically superior to judicial fact-find- ing and the availability of a jury trial does not therefore substantially enhance the truth determinative process at trial. De Stefano v. Woods, 392 U.S. 631, 633-634 (1968); Duncan v. Louisiana, supra at 158. 12]t should be noted that under this Court’s prior decisions the states are allowed greater freedom than the federal government in satisfying the demands of the Jury Trial Clause of the Sixth Amend- ment. States may try criminal cases to juries of less than twelve persons and may convict or acquit on non-unanimous jury verdicts. Apodaca v. Oregon, 406 U.S. 404 (1972); Johnson v. Louisiana, 406 U.S. 356 (1972); Williams v. Florida, 399 U.S. 78 (1970). ee ee en Te FLEE? THROUGH 15 Reasons for Denying Certiorari custodial sentence did not exceed six months under the criteria established in Duncan and its progeny Petitioner had no Sixth or Fourteenth Amendment right to a jury trial on the recidi- vist drunk driving charge. The ten year revocation of Peti- tioner’s driver's license is a collateral consequence, designed to safeguard the public, that does not elevate the sanction pre- seribed in N.J.S.A. 39:4-50(a) to such dimensions that a jury trial is required by the United StateS Constitution. ft POOR Cory 16 Conclusion For the reasons set forth herein, it is respectfully urged that the Writ of Certiorari should be denied. Respectfully submitted, WILLIAM F. HYLAND ATTORNEY GENERAL OF NEW JERSEY ATTORNEY FOR RESPONDENTS STATE HOUSE ANNEX TRENTON, NEW JERSEY 08625 DAVID S. BAIME DEPUTY ATTORNEY GENERAL DIVISION OF CRIMINAL JUSTICE OF COUNSEL ROBERT E. ROCHFORD DEPUTY ATTORNEY GENERAL DIVISION OF CRIMINAL JUSTICE ON THE BRIEF. Ria Brief Filed by Petitioner with the Appellate Division of the Superior Court of New Jersey, Page 27. The right to a jury is a basic safeguard interposed between the individual and the State. Concepts of fundamental fairness embodied in due process of law require that the defendant be given such protection as a matter of right. The Sixth and Four- teenth Amendments to the Constitution of the United States as well as Article I, Para. 1 of the Constitution of the State of New Jersey dictate that a trial by jury be afforded to the defendant. e- bs 3 : = : = ® i § ; La k : br ia ee Cg ER ty Rede te ee Cea ne a a er Ot | — at ad ae ee REO . ae R2a New Jersey Constitution, Article I, Paragraph 9. The right of trial by jury shall remain inviolate; but the Legislature may authorize the trial of civil causes by a jury of j six persons when the matter in dispute does not exceed fifty dollars. The Legislature may provide that in any civil cause a verdict may be rendered by not less than five-sixths of the é jury. The Legislature may authorize the trial of the issue of mental incompetency without a jury. ee ee ee eee ai ee Be ee ee ee ME ST tet me R3a N.J.S.A. 39:4-86. The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless the left side is clearly visible and free of oncoming traffic for a sufficient dis- tance ahead to permit the overtaking and passing to be made in safety. The driver of a vehicle shall not drive to the left of the center of a highway in order to overtake and pass another vehicle proceeding in the same direction upon the crest of a grade or upon a curve in the highway where the driver’s view along the highway is obstructed within a distance of five hundred feet. Except when otherwise directed by a duly constituted traffic or police officer or when the lane in which he is operating is obstructed and impassable, the driver of a vehicle shall not cross an appropriately marked “No Passing” line in a “No Pass- ing” zone duly established pursuant to a duly promulgated reg- ulation of the State Highway Commissioner or an ordinance or resolution duly adopted by a municipal governing body or a board of chosen freeholders, whichever has jurisdiction over the highway. - IPT EEN SE ES RRO SP PNP DIMER eas R4a New Jersey-Court Rule 3:23-1. Except as provided by R.2:2-3(b), review of a judgment of ; conviction in a criminal action or proceeding in a court of lim- i ited criminal jurisdiction shall be by appeal as provided by R.3:23. Se RS ORO CBT R5a New Jersey Court Rule 1:2-1. All trials, hearings of motions and other applications, pre- trial conferences, arraignments, sentencing conferences (ex- cept with members of the probation department) and appeals shall be conducted in open court unless otherwise provided by rule or statute. Settlement conferences, however, may be heard at the bench or in chambers. Every judge shall wear judicial robes during proceedings in open court. 3 — > ef ca iE: menace : . Da EL ® RSS eng RRS ISSSE SARIS PII oI SRS USNR SIRS SE META PON ROD POPES AIERLE BTL DP DOLE EIB, SOE OG SAB Ga A R6a New Jersey Court Rule 7:4-2 (cont. 7a) Proceedings Before Trial (a) Arraignment. (1) Except as otherwise provided by paragraph (2) of this rule, arraignment shall be conducted in open court and shall consist of reading the complaint to the defendant or stating to him the substance of the charge, and calling on him, after he is given a copy of the complaint, to plead thereto. The defendant may waive the reading of the complaint. (2) When a defendant is represented by an attorney and desires to plead not guilty, unless the court otherwise orders, such plea shall be entered by the filing, at or before the time fixed for arraignment, of a written statement, signed by the attorney, certifying that the defendant has received a copy of the complaint, has read it or the attorney has read it or ex- plained it to him, understands the substance of the charge, and pleads not guilty to the charge. (b) Pleas. A defendant may plead not guilty or guilty, but the court may in its discretion refuse to accept a plea of guilty, and shall not accept such plea without first addressing the defendant personally and determining by inquiry of the defendant and of others in the court’s discretion that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea and that there is a factual basis for the plea. Upon the request of the defendant the court may at the time of the acceptance of a plea of guilty order that such plea shall not be evidential in any civil proceed- ing. If a defendant refuses to plead or stands mute or if the court refuses to accept a plea of guilty, the court shall enter a plea of not guilty. If a plea of guilty is entered, the court may hear the witnesses in support of the complaint prior to judg- ment and sentence, and after such hearing may, in its discre- tion, refuse to accept the plea. Except as otherwise provided by R. 7:7-4, a plea or appearance by a defendant corporation, BLEED THRO R7a New Jersey Court Rule 7:4-2 (Continued from 6a) partnership or unincorporated association must be made by an t attorney at law of this State. If the defendant is a corporation, partnership or unincorporated association and fails to respond to an order entered pursuant to R. 7:3-1(c), the court, if satis- fied that service was duly made, shall enter an appearance and a plea of not guilty for the defendant and thereupon proceed to & hear the complaint. : (c) Adjournment. On or before the return day of a warrant or summons, the court may adjourn the hearing for a period i not exceeding 14 days, except that an adjournment for a longer ‘ period or additional adjournments may be granted if the court deems postponement of the hearing to be reasonably neces- sary. In contested matters the court, on granting an adjourn- ment, shall specify a trial date. The court shall cause the complaining witness, all defendants and all other known wit- nesses to be notified of any adjournment, which together with the reasons therefor, shall be noted in the record. AERTS POOR (d) Pretrial Procedure. The pretrial procedure provided by R. 3:13-1 may be employed in the court’s discretion upon its own or a party’s motion. (e) Motions. R. 3:10-1 (defenses and objections which may be raised), R. 3:10-2 (defenses and objections which must be raised before trial), R. 3:10-3 (defenses and objections which may be raised only before or after trial), and R. 3:10-4 (defense of lack of jurisdiction) are applicable to actions in the municipal court except that for purposes of this rule the reference in R. i 3:10-2, to indictment or accusation shall be deemed to mean the ; complaint and R. 3:10-3 shall be deemed also to include the defense that an ordinance under which a complaint is made is unconstitutional. The court shall upon request provide an op- portunity for the presentation of such motions before proceed- ing to trial. Motions may be made orally and informally, but affidavits or oral testimony may be presented thereon when required. A motion shall include all such defenses and objec- tions then available to the defendant. The court or clerk shall Be ee eet ee ee eee SOM RP IRR YS MR OMNI GR 2 Ea PLO OER LORE EOE SEE. OREO Ag GH POOR COCry R8a New Jersey Court Rule 7:4-2 (Continued from 7a) briefly note in the record all defenses or objections raised by motion and the disposition thereof. Appeals from interlocutory orders dismissing or refusing to dismiss a complaint may be taken to the county court pursuant to R. 3:24. (f) Trial of Complaints Together. The court may order that 2 or more complaints be tried together if the offenses arose out of the same facts and circumstances, regardless of the number of defendants. In all other matters, with the consent of the persons charged, the court, for convenience, may consolidate complaints for trial. (g) Depositions and Discovery. The court may order deposi- tions to be taken and discovery made in criminal actions as provided by R. 3:13-2 and R. 3:13-3. (h) Dismissal. If the complaint is not moved on the return day, the court may direct that it be heard on a specified date and a notice thereof be served on the complaining witness, all defendants and all other known witnesses by subpoena. Upon failure of trial to be held on the day set, the court, after first notifying the county prosecutor if the offense charged is indict- able, may order the complaint dismissed. A complaint may be dismissed by the court for good cause at any time on the motion of the state or municipality or on the motion of the defendant, and a complaint on file for more than 6 months may be dis- missed for failure to prosecute by the court on its own motion. Written notice of a motion to dismiss shall be served, by ordi- nary mail or in such other manner as the court directs, on the prosecuting attorney, the defendant, the complaining witness, and, if the complaint charges an indictable offense, also on the county prosecutor, at least 10 days before the date specified for the hearing thereof. LORE ISP MER TEEE A SINE BISA FPS RET AE OT OT re ae on A oa