State v. Davis, 933

Decision Date26 April 1967
Docket NumberNo. 933,933
Citation229 A.2d 682,95 N.J.Super. 19
PartiesSTATE of New Jersey, Plaintiff, v. Levi DAVIS, Defendant. Appeal
CourtNew Jersey County Court

Raymond S. Londa, Asst. Pros., for plaintiff (Leo Kaplowitz, Union County Pros., attorney).

Nathan A. Schanerman and Herbert Blaustein, Newark, for defendant (Schanerman & Schanerman, Newark, attorneys).

KWALICK, J.C.C.

Is defendant a first or second offender within the intendment of N.J.S.A. 39:4--50 1 which interdicted drunken driving? The degree of punishment hinges on the answer.

Defendant was charged with commission of that offense on June 2, 1966 and pronounced guilty in the municipal court and, on appeal, after a trial De novo in this court. He had not been previously convicted in New Jersey. However, four years ago he was similarly accused and convicted in Pennsylvania.

The magistrate deemed the Pennsylvania incident 'a previous violation,' adjudged defendant a second offender, and invoked the mandatory penalty: three months' imprisonment and forfeiture of driving privileges for ten years. His ruling, supported by the observation that 'An inebriate behind the wheel is just as dangerous on the highway * * * whether his first conviction was in a sister state or New Jersey,' while laudable lacks legislative as well as judicial sanction.

Absent a resolvent reported decision by the courts of this State, resort is had to those of other tribunals.

In State v. Cardin, 102 N.H. 314, 156 A.2d 118 (Sup.Ct.1959), it was held that a prior Massachusetts conviction of operating a motor vehicle while under the influence of intoxicating liquor could not be considered a first or prior offense in determining whether a second or subsequent similar offense was committed in New Hampshire.

The leading case in point, followed in Cardin, is People v. Pardee, 202 Misc. 238, 117 N.Y.S.2d 515 (Cty.Ct.1952), affirmed without opinion, 282 App.Div. 735, 122 N.Y.S.2d 902 (App.Div.1953), affirmed on further appeal without opinion, 306 N.Y. 660, 116 N.E.2d 495 (Ct.App.1953); 24B C.J.S. Criminal Law 'Place of Former Conviction,' § 1960 (4), p. 458 (1962); 7 Am.Jur.2d, Automobiles and Highway Traffic, § 262, p. 814 (1963); 1 A.L.R.2d Later Case Service 550 (1965), supplementing Annotation, 'What constitutes former 'conviction' within statute enhancing penalty for second or subsequent offense,' 5 A.L.R.2d 1080 (1949).

Pardee had been convicted in Connecticut of driving while drunk. Thereafter he was charged with a like offense in New York whose laws denounced as a misdemeanor the operation of a motor vehicle by an intoxicated person, and as a felony such operation by a previously convicted intoxicated person. A felony indictment was returned and Pardee moved to dismiss. In granting the motion the trial court held (117 N.Y.S.2d at p. 517): 'If the quoted statute be intended to prescribe a penalty by reason of a prior conviction in another state, that end should be accomplished by an act of the Legislature expressing such an intent and not by judicial interpretation.'

Defendant in Thorp (ad) v. State, 96 Okl.Crim. 135, 250 P.2d 66 (Crim.Ct.App.1952), pleaded guilty in Texas to drunken driving in that state and two months later was arrested for a similar offense on Oklahoma. Under Oklahoma's statute an intoxicated driver of a motor vehicle 'on any highway within this State' is 'deemed guilty of a misdemeanor for the first offense' and 'guilty of a felony' upon conviction of a second offense 'under the provisions of this Act. Thorp was convicted as a second offender. The appellate court reversed and directed that the matter proceed 'as for commission of a misdemeanor, and under a properly prepared information deleting the Texas conviction therefrom.'

The pertinent language of the first paragraph of N.J.S.A. 39:4--50 (and of the 1966 amendment--see note 1, supra), 'A person who operates a motor vehicle while under the influence of intoxicating liquor * * *,' is not followed by the words 'on or over any highway of this or any other state' or others of similar import. The second paragraph reads: 'A person who has been convicted of a previous violation Of this section 2 need not be charged as a second offender in the complaint * * *.' (Emphasis added), The statute does not say that the 'previous violation' may be one committed outside this State, or that a 'subsequent violation' in this State may be predicated on a prior conviction in another jurisdiction.

Although, as previously noted, there is no reported New Jersey case precisely in point, our courts have enunciated legal principles consonant with those of sister tribunals applicable here.

State v. Laird, 25 N.J. 298, 302, 135 A.2d 859, 861 (1957), holds that a 'subsequent' violation of the subject section '(c)oncerns a punitive offense, quasi-criminal in nature; and there is the same regard here as in strictly criminal cases for the essential civil rights and liberties designed to secure the individual against arbitrary action.'

In construing the subject statute to determine the legislative intent, time-tested guides 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 Div.1967).

Since it lacks explicit indication of some special meaning, the language of the statute under consideration is accorded its ordinary and easily comprehended meaning. Safeway Trails, Inc. v. Furman, 41 N.J. 467, 478, 197 A.2d 366 (1964); Sands v. Board of Examiners of Electrical Contractors, 90 N.J.Super. 82, 85, 216 A.2d 254 (App.Div.1966). This is increasingly important where, as here, the statute is penal in nature and requires strict construction.

'(A) statute shall not be extended by tenuous interpretation beyond the fair meaning of its terms lest it be applied to persons or conduct beyond the contemplation of the Legislature.' State v. Carbone, 38 N.J. 19, 24, 183 A.2d 1, 3 (1962); State v. Provenzano, 34 N.J. 318, 322, 169 A.2d 135 (1961).

'(I)t is not to be presumed that the Legislature intended punishment to extend further than expressly...

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5 cases
  • State v. Regan
    • United States
    • New Jersey Superior Court – Appellate Division
    • May 2, 1986
    ...to withdraw his plea of guilty on the grounds that he was not represented at that time. II Defendant, relying on State v. Davis, 95 N.J.Super. 19, 229 A.2d 682 (Cty.Ct.1967), contends that he should not have been treated as a third offender since he had only one previous conviction under N.......
  • State v. Jenkins
    • United States
    • Superior Court of New Jersey
    • February 5, 1980
    ......Page 29. in favor of the defendant. State v. Davis, 95 N.J.Super. 19, 229 A.2d 682 (Cty.Ct.1967); Sutherland, Statutory Construction, § 5609 (1943). Furthermore, absent a clear indication that the ......
  • Digioia v. N.J. Motor Vehicle Comm'n
    • United States
    • New Jersey Superior Court – Appellate Division
    • March 30, 2021
    ...39:5-30, and N.J.A.C. 13:19-11.1. Appellant requested a hearing to challenge the proposed suspension, and relying on State v. Davis, 95 N.J. Super. 19 (Law Div. 1967), contended that N.J.S.A. 39:4-50 does not expressly permit the Commission to consider an out-of-state conviction as a predic......
  • State v. Cromwell
    • United States
    • New Jersey Superior Court – Appellate Division
    • June 21, 1984
    ...Division was inappropriate or excessive. To the extent that it may be read as inconsistent with our conclusion, State v. Davis, 95 N.J.Super. 19, 229 A.2d 682 (Law Div.1967), is expressly disapproved. The judgment of conviction is affirmed. 1 Defendant had already served the custodial sente......
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