State v. Jenkins
| Decision Date | 05 February 1980 |
| Citation | 412 A.2d 1359,173 N.J.Super. 25 |
| Parties | STATE of New Jersey, Plaintiff, v. Sue JENKINS, Defendant. |
| Court | New Jersey Superior Court |
Kevin McCann, Asst. County Prosecutor, for plaintiff (William P. Doherty, Jr., Prosecutor of Cumberland County, attorney).
Robert E. Bailey, Vineland, for defendant (Bailey & Veight, Vineland, attorneys).
This appeal from a sentence imposed by the Municipal Court of the City of Bridgeton, calls for the interpretation of the sentencing provisions of N.J.S.A. 39:4-50.
Defendant pled guilty to operating a motor vehicle while under the influence of alcohol on August 17, 1979. N.J.S.A. 39:4-50. It was her sixth conviction for that offense, her first having occurred on December 29, 1968. The municipal court judge sentenced her as a third offender, revoked her license for five years and imposed a fine of $1,000 plus $20 court costs. At the time of sentencing defense counsel argued that the language of the statute should be interpreted to require sentencing only as a second offender. The trial judge disagreed, stating that he did not think that was the Legislature's intent. This appeal was then filed.
The statute, as amended by L.1977, c. 29, § 1, provides in pertinent part:
A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs 15 or more years after the first conviction the court shall treat the conviction as a first offense, and if a third or subsequent offense occurs 10 or more years after the first conviction, the court shall treat the conviction as a second offense. (Emphasis supplied)
Clearly, pursuant to the cited phrase, a third offense which occurs ten or more years after the first conviction would be treated as a second offense for sentencing purposes. The problem arises with respect to the effect of a "subsequent offense." Given its plain and ordinary meaning, the cited phrase would mandate second offender status for any offense which occurs more than ten but less than 15 years after a defendant's first conviction under N.J.S.A. 39:4-50. Thus a person could be convicted of innumerable violations of the statute more than ten years after the first conviction and yet could only be sentenced as a second offender.
On the other hand, if a third or subsequent offense is committed within the ten-year period dating from the defendant's first conviction, the defendant would be subject to punishment as a third or subsequent offender.
Before the 1977 amendments the statute provided for two grades of punishment: one for the first offender and a second for the subsequent offender. The present statute's additional penalty for a "third or subsequent offender" carries with it, in addition to a fine and license revocation, possible imprisonment for up to 180 days, a period of incarceration longer than...
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State v. Lucci
...L.1981, c. 47 (in part removing "subsequent offense" from the prior leniency provision that was interpreted in State v. Jenkins, supra, 173 N.J.Super. at 28, 412 A.2d 1359). That result is totally inconsistent with " 'the clear public policy of this State ... to rid the highways of drunken ......
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State v. Kyc
...denied, 122 N.J. 138, 584 A.2d 211, cert. denied, 498 U.S. 898, 111 S.Ct. 251, 112 L.Ed.2d 209 (1990); State v. Jenkins, 173 N.J.Super. 25, 29, 412 A.2d 1359 (Law Div.1980). The order dismissing the indictment is therefore reversed; the indictment is reinstated, and the matter is remanded t......
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State v. Gelok
...a second offender because her most recent offense occurred more than ten years after her first conviction. State v. Jenkins, 173 N.J.Super. 25, 28-29, 412 A.2d 1359 (Law Div.1980). The Jenkins result generated the current enhanced penalty amendment, adopted in ... If the second offense occu......
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