State v. Deckert

• Decision Date: 25 August 1961
• Docket Number: No. 57--60,57--60
• Citation: 173 A.2d 575,69 N.J.Super. 105
• Parties: STATE of New Jersey, Respondent, v. Herbert V. DECKERT, Defendant-Appellant.
• Court: New Jersey County Court

Page 105

69 N.J.Super. 105

173 A.2d 575

STATE of New Jersey, Respondent, v. Herbert V. DECKERT, Defendant-Appellant.

No. 57--60.

Camden County Court, Law Division, New Jersey.

Aug. 25, 1961.

Frank E. Vittori, Camden, for appellant.

Richard R. S. Carroll, Asst. Pros., Camden, for respondent (Norman Heine, Camden County Pros., Camden, attorney).

MARTINO, J.C.C.

The defendant appeals from the mandatory sentence provided by N.J.S.A. 39:4--50 (driving a motor vehicle under the influence of intoxicating liquor). He was arrested on March 19, 1961 for violating N.J.S.A. 39:4--50. Before he was tried for the first offense he was again arrested and charged with violating the same statute on March 30, 1961. He was tried for the first offense on April 26, 1961, and convicted on that date. Subsequently he was tried for the offense of March 30, 1961, and was found guilty on May 10, 1961. The defendant contends that he could not be penalized as a second offender because the second offense occurred before his conviction for the first. Counsel has been unable to cite any authority for the position he assumes directly on point in this jurisdiction but argues that the apposite question has been decided in other jurisdictions. The appeal is directed only to the sentence imposed.

The statute for construction contains the following text:

'A person who operates a motor vehicle while under the influence of intoxicating liquor or a narcotic or habit producing drug, or permits another person who is under the influence of intoxicating liquor or a narcotic or habit producing drug to operate a motor vehicle owned by him or in his custody or control, shall be subject, For a first offense, to a fine of not less than two hundred nor more than five hundred dollars ($500.00), or imprisonment for a term of not less than thirty days nor more than three months, or both, in the discretion of the magistrate, and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of two years from the date of his conviction. For a subsequent violation, he shall be imprisoned for a term of three months and shall forfeit his right to operate a motor vehicle over the highways of this State for a period of ten years from the date of his conviction * * *.' (Emphasis added.) L. 1952, c. 286.

The expression 'for a first offense' referred to in the first sentence of the aforesaid statute undoubtedly refers to a conviction, for until a conviction is obtained there certainly cannot be imposed a penalty. In the second sentence of the same statute the expression 'for a subsequent violation' must mean for a conviction of a subsequent violation, since punishment provided therein is not predicated upon the mere violation without conviction.

The preponderance of authority supports the view that the prior conviction, in order to be available for imposition of increased punishment, must precede the commission of the principal offense, that is, the latest prosecution in point of time. The philosophy inherent in this theory is that the Legislature in enacting such statutes intended them to serve as a warning to first offenders and to afford them an opportunity to reform and that the reason for the infliction of severer punishment for a repetition of offenses is not so much that defendant has sinned more than once as that he is deemed incorrigible when he persists in violating the law after conviction of previous infractions. Numerous cases have decided the construction of statutes enhancing the penalty for second and subsequent offenses and it is generally held (although there is some authority to the contrary) that such statutes are to be construed as meaning that the second offense, in order to be available for the purpose of increasing the penalty, must have been committed subsequently to the commission and Conviction of the first offense. 24 A.L.R.2d 1248--1252.

N.J.S.A. 39:4--50, before it was amended, read as follows:

'No person shall operate a motor vehicle while under the influence of intoxicating liquor * * * Any person who shall violate this provision shall, upon...