State v. Nugent
| Decision Date | 07 September 1977 |
| Citation | 152 N.J.Super. 557,378 A.2d 95 |
| Parties | STATE of New Jersey, Plaintiff, v. Daniel J. NUGENT, Defendant. |
| Court | New Jersey Municipal Court |
J. Noble Sellarole, Municipal Prosecutor, Hackensack, for the state.
James P. Patuto, Hackensack, for defendant.
KIRSCH, J. M. C.
This action involves the sole issue of whether defendant is to be penalized as a first or second drunk driving offender pursuant to N.J.S.A. 39:4-50, as amended, and as effective May 25, 1977.
The facts are not in dispute. Defendant pleaded guilty to driving while under the influence of an intoxicant on April 22, 1977 and requested, as allowed, to be sentenced under the penalties of the amended law. Defendant admits that on September 23, 1975 he was convicted of violating N.J.S.A. 39:4-50(b), then known as the "impaired" driving section of the drunk driving law.
Defendant contends that he should not be penalized as a second offender for the reason that his present conviction under the May 25, 1977 law would expose him to ex post facto hazards. He insists that the elements of this new 1977 law, as well as the standards of proof required to convict, are distinctly different from the law as it existed on the date of his prior conviction, September 23, 1975. These contentions cannot be sustained.
The new 1977 law is not substantively different from prior drunk driving laws. See N.J.S.A. 39:4-50 et seq., as amended, L.1952, c. 286, § 1; see also, N.J.S.A. 39:4-50 et seq., as amended, L.1966, c. 141, § 1, effective September 18, 1966. A reading of the present and prior drunk driving statutes leaves no doubt that the same offense is created by these drunk driving laws.
The penalties of the present and prior statutes do differ. The 1952 law and the 1966 law mandatorily required a first offender to forfeit his right to operate a motor vehicle in the State of New Jersey for a period of two years, and, as a second offender, mandatorily forfeit driving privileges for a period of ten years and serve three months in jail. The new law reduces the penalty markedly, favoring treatment and rehabilitation over extremely oppressive punishment. Revocation periods are no longer mandatory but discretionary. Under the present law a first offender must forfeit his license for from two to six months; and second offender for one to three years, within a court's discretion. Jail terms are discretionary, as are monetary fines.
As a general rule, additional punishment for multiple offenders (i. e., criminal recidivists) does not necessarily create ex post facto problems where the additional punishment comes as a result of the subsequent offense. In re Caruso, 10 N.J. 184, 188-190, 89 A.2d 661 (1952); In re Zee, 13 N.J.Super., 312, 317-320, 80 A.2d 480 (Cty.Ct.1951), aff'd 16 N.J.Super. 171, 84 A.2d 29 (App.Div.1951), cert. den. 343 U.S. 931, 72 S.Ct. 766, 96 L.Ed. 1340 (1952).
Heavier penalties are often provided by law for a second or any subsequent offense than for the first; and it has not been deemed objectionable that, in providing for such heavier penalties, the prior conviction authorized to be taken into the account may have taken place before the law was passed. In such cases, it is the second or subsequent offense that is punished, not the first. * * * (Cooley, Const.Lim. 553, as cited in In re Zee, 319, 80 A.2d at 483)
The present N.J.S.A. 39:4-50 et seq. imposes, in degree, lesser punishment for a first, second or third offender than did earlier drunk driving laws. Certainly defendant here is relieved from rather than placed in, greater hazard.
The further fact that the 1977 law changes the blood alcohol concentration level from .15% BAC to .10% BAC to establish the legal presumptions of...
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State v. Oliver
... ... 452, 404 A.2d 1270 (1979) (subsequent offender provisions such as that contained in current drinking-driving statute, N.J.S.A. 39:4-50, do not undertake to punish again for prior offenses and are not violative of ex post facto provisions of federal and state constitutions); State v. Nugent, 152 N.J.Super ... Page 548 ... 557, 378 A.2d 95 (1977) (generally, additional punishment for recidivists does not necessarily create ex post facto problems where additional punishment comes as a result of subsequent offense); State v. Sturn, 119 N.J.Super. 80, 83, 290 A.2d 293 ... ...
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Hawkins v. State
...Ill.App.3d 109, 80 Ill.Dec. 554, 465 N.E.2d 666 (1984); State v. Campbell, 9 Kan.App.2d 474, 681 P.2d 679 (1984); State v. Nugent, 152 N.J.Super. 557, 378 A.2d 95 (1977). State v. Acton, supra and State v. Levey, supra were both cases in which an offender pleaded guilty to an offense prior ......
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State v. Phillips
...safeguards than the drinking-driving laws discussed in the cases cited. Finally, it must be noted that in State v. Nugent, 152 N.J.Super. 557, 378 A.2d 95 (Mun.Ct.1977), the court expressly held the defendant to be a subsequent offender under N.J.S.A. 39:4-50, as amended by L.1977, c. 29, b......
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