State v. Cannon, No. 50--66

CourtNew Jersey County Court
Citation226 A.2d 755,94 N.J.Super. 66
Decision Date01 February 1967
PartiesThe STATE of New Jersey, Plaintiff, v. Frank CANNON, Sr., Defendant.
Docket NumberNo. 50--66

Page 66

94 N.J.Super. 66
226 A.2d 755
The STATE of New Jersey, Plaintiff,
v.
Frank CANNON, Sr., Defendant.
No. 50--66.
Middlesex County Court
Law Division, New Jersey.
Feb. 1, 1967.

Page 68

[226 A.2d 756] Philip L. Strong, New Brunswick, for defendant (Strong, Strong & Gavarny, New Brunswick, attorneys).

Peter J. Schwartz, Asst. Pros., for plaintiff (Edward J. Dolan, Pros.).

HALPERN, A.J.S.C. (temporarily assigned).

This proceeding involves the construction of motor vehicle statutes which were amended in 1966, and has resulted in conflicting decisions by municipal magistrates in construing them.

The facts are not in dispute. Defendant was convicted of driving while under the influence of intoxicating liquor 17 years ago, a violation under N.J.S.A. 39:4--50 as it then existed. Recently he was charged and convicted of driving while his ability was impaired by the consumption of alcohol, under N.J.S.A. 39:4--50(b), which statute was approved June 18, 1966 and became effective on September 18, 1966.

The municipal magistrate considered the conviction 17 years ago as being defendant's first violation under N.J.S.A. 39:4--50(b) and imposed a penalty on the present charge as if it were a second violation. He fined defendant $100 plus costs, and revoked his driver's license for a period of two years. Defendant admits his guilt but argues that the magistrate erred in imposing sentence.

The issue is clear-cut. Should the conviction which occurred 17 years ago be considered as the first conviction under subsection (b) of the statute, and the present conviction as the second in order to impose the greater penalty? I submit it cannot. In reaching this conclusion I have considered all the statutes dealing with this subject matter, including N.J.S.A. 39:4--50(a) and (b) as amended in 1966, and the so-called implied consent law, N.J.S.A. 39:4--50.2 et seq., which were adopted at the same time. All

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these statutes, dealing with driving while under the influence, impaired driving, implied consent and presumptions arising from drunkometer examinations, are In pari materia and have to be considered together in arriving at the intent of the Legislature in adopting the amendments.

One of the Legislature's goals was to create an offense known as 'impaired driving,' which was to be of a lesser degree of seriousness than an offense of driving while under the influence. This is obvious by the difference in penalties provided for each offense (N.J.S.A....

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5 practice notes
  • State v. Oliver
    • United States
    • Superior Court of New Jersey
    • 8 Noviembre 1996
    ...second offender penalties does not violate ex post facto provisions of federal and state constitutions); but see, State v. Cannon, 94 N.J.Super. 66, 226 A.2d 755 (Law Div.1967) (use of prior conviction to enhance penalty under a subsequently enacted statute is ex post facto and Because defe......
  • State v. Conners
    • United States
    • New Jersey County Court
    • 13 Noviembre 1973
    ...scheme leaves the court to its own devices in determining what is 'impaired' in the absence of the breath test. See State v. Cannon, 94 N.J.Super. 66, 69, 226 A.2d 755 (Cty.Ct.1967), overruled on other grounds in State v. Sturn, 119 N.J.Super. 80, 290 A.2d 293 (App.Div. 1972). This is not a......
  • State v. Davis, No. 933
    • United States
    • New Jersey County Court
    • 26 Abril 1967
    ...were observed and statutes In pari materia considered. Loboda v. Clark Township, 40 N.J. 424, 435, 193 A.2d 97 (1963); State v. Cannon, 94 N.J.Super. 66, 68--69, 226 A.2d 755 (Law Since it lacks explicit indication of some special meaning, the language of the statute under consideration is ......
  • State v. Sturn
    • United States
    • New Jersey Superior Court – Appellate Division
    • 27 Abril 1972
    ...and therefore the second or subsequent offender provision was properly invoked. Statements to the contrary in State v. Cannon, 94 N.J.Super. 66, 226 A.2d 755 (Cty.Ct.1967), are Since the earlier offense of driving under the influence includes the lesser offense of driving while impaired and......
  • Request a trial to view additional results
5 cases
  • State v. Oliver
    • United States
    • Superior Court of New Jersey
    • 8 Noviembre 1996
    ...second offender penalties does not violate ex post facto provisions of federal and state constitutions); but see, State v. Cannon, 94 N.J.Super. 66, 226 A.2d 755 (Law Div.1967) (use of prior conviction to enhance penalty under a subsequently enacted statute is ex post facto and Because defe......
  • State v. Conners
    • United States
    • New Jersey County Court
    • 13 Noviembre 1973
    ...scheme leaves the court to its own devices in determining what is 'impaired' in the absence of the breath test. See State v. Cannon, 94 N.J.Super. 66, 69, 226 A.2d 755 (Cty.Ct.1967), overruled on other grounds in State v. Sturn, 119 N.J.Super. 80, 290 A.2d 293 (App.Div. 1972). This is not a......
  • State v. Davis, No. 933
    • United States
    • New Jersey County Court
    • 26 Abril 1967
    ...were observed and statutes In pari materia considered. Loboda v. Clark Township, 40 N.J. 424, 435, 193 A.2d 97 (1963); State v. Cannon, 94 N.J.Super. 66, 68--69, 226 A.2d 755 (Law Since it lacks explicit indication of some special meaning, the language of the statute under consideration is ......
  • State v. Sturn
    • United States
    • New Jersey Superior Court – Appellate Division
    • 27 Abril 1972
    ...and therefore the second or subsequent offender provision was properly invoked. Statements to the contrary in State v. Cannon, 94 N.J.Super. 66, 226 A.2d 755 (Cty.Ct.1967), are Since the earlier offense of driving under the influence includes the lesser offense of driving while impaired and......
  • Request a trial to view additional results

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