State v. Revie

• Decision Date: 17 December 2014
• Docket Number: A-31 September Term 2013, 072600
• Citation: 104 A.3d 221,220 N.J. 126
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. James J. REVIE, Defendant–Appellant.
• Court: New Jersey Supreme Court

220 N.J. 126

104 A.3d 221

STATE of New Jersey, Plaintiff–Respondent

v.James J. REVIE, Defendant–Appellant.

A-31 September Term 2013, 072600

Supreme Court of New Jersey.

Argued Sept. 24, 2014.

Decided Dec. 17, 2014.

Evan M. Levow, Cherry Hill, argued the cause for appellant (Levow & Associates, attorneys).

Paula C. Jordao, Assistant Prosecutor, Special Deputy Attorney General, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney).

Jeffrey Evan Gold, Cherry Hill, argued the cause for amicus curiae New Jersey State Bar Association (Paris P. Eliades, President, Sparta, attorney; Ralph J. Lamparello, Secaucus, of counsel).

Opinion

Justice PATTERSON delivered the opinion of the Court.

As part of the Legislature's statutory scheme to combat driving while intoxicated (DWI), N.J.S.A. 39:4–50 prescribes the penalties that may be imposed on a defendant for a first, second, and third or subsequent DWI offense. The statute includes a “step-down” provision, under which a second DWI offender is treated as a first DWI offender for sentencing purposes if more than ten years elapsed between his or her first and second offenses, and a third DWI offender is treated as a second DWI offender for sentencing purposes if more than ten years elapsed between his or her second and third DWI offenses. N.J.S.A. 39:4–50(a)(3). This appeal raises the issue of whether a repeat DWI offender may, on more than one occasion, invoke the N.J.S.A. 39:4–50(a)(3) “step-down” provision and thereby avoid the enhanced penalties prescribed by the statute.

Prior to the offense at issue in this case, defendant James Revie was convicted of three DWI offenses. One of those three convictions involved a guilty plea in which defendant was not represented by counsel. Pursuant to State v. Laurick, 120 N.J. 1, 16, 575 A. 2d 1340, cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed. 2d 413 (1990), that conviction does not constitute a prior offense for purposes of increasing defendant's custodial sentence, but is counted as a prior offense for purposes of imposing administrative penalties on defendant.

Following his fourth offense in 2010, defendant invoked the “step-down” provision of N.J.S.A. 39:4–50(a)(3) for the second time and sought to be sentenced as a second DWI offender. The municipal court denied defendant's request, reasoning that because defendant had received the benefit of the N.J.S.A. 39:4–50(a)(3) “step-down” provision when he was sentenced for his third DWI offense in 1994, he was ineligible for a second “step-down” in this matter. On de novo review, the Law Division reached the same conclusion. The Appellate Division affirmed defendant's conviction and sentence.

We reverse the Appellate Division's judgment. Based upon the plain language of N.J.S.A. 39:4–50(a)(3), we hold that a repeat DWI offender may invoke the statutory “step-down” provision a second time, provided that more than ten years have passed with no infraction since the defendant's most recent DWI offense. Applied to this case, N.J.S.A. 39:4–50(a)(3) requires that defendant be sentenced as a second DWI offender, rather than as a third DWI offender, with respect to any term of incarceration imposed, and as a third DWI offender with respect to the administrative penalties set forth in the statute.

I.

This appeal arises from defendant's fourth DWI conviction. His first DWI offense occurred in Hillsdale and resulted in a conviction in 1981. In 1982, defendant was again charged with DWI, this time in Bogota. Unrepresented by counsel, defendant pled guilty to the charge. Defendant's third conviction for DWI occurred in Montvale in 1994, more than ten years after his second DWI offense. Accordingly, he qualified for a “step-down” under N.J.S.A. 39:4–50(a)(3) and was, consequently, sentenced as a second DWI offender, rather than a third DWI offender.

In August 2011, defendant was granted post-conviction relief (PCR) with respect to his second DWI conviction in 1982. The PCR court held that as a consequence of Laurick, supra, 120 N.J. at 16, 575 A. 2d 1340, defendant's 1982 conviction could not be used to enhance a term of incarceration imposed for a subsequent DWI offense.

Defendant's fourth offense, which gave rise to this appeal, occurred on December 23, 2010. Defendant was arrested in Wharton by a police officer who observed his vehicle traveling at a high rate of speed and weaving across a double-yellow line. Defendant was charged with DWI, N.J.S.A. 39:4–50 ; failure to keep right, N.J.S.A. 39:4–82 ; failure to maintain lane, N.J.S.A. 39:4–88 ; reckless driving, N.J.S.A. 39:4–96 ; careless driving, N.J.S.A. 39:4–97 ; and speeding, N.J.S.A. 39:4–98. Following a trial conducted on September 23, 2011, the municipal court found defendant guilty of DWI, based on the observations of the arresting officer. The municipal court also convicted defendant of the remaining offenses, and merged the careless driving, speeding, failure to keep right, and failure to maintain lane offenses into the reckless driving offense.

At sentencing, the State argued that defendant should be sentenced as a fourth offender under the DWI statute. Defendant conceded that the current offense was his fourth. However, he asserted that by virtue of the grant of his PCR application, his second offense should be disregarded in setting a term of incarceration for any subsequent DWI offense, and that he was in effect a third offender. Defendant further contended that in light of the sixteen- year gap between defendant's third and fourth offenses, the “step-down” provision of N.J.S.A. 39:4–50(a)(3) governed, and that he should, therefore, be sentenced as a second offender.

The municipal court disagreed. It construed N.J.S.A. 39:4–50(a)(3) to afford a defendant only a single “step-down.” The municipal court sentenced defendant to 180 days in the county correctional facility, a ten-year suspension of his driving privileges and registration, and a fine of $1000, N.J.S.A. 39:4–50(a)(3), as well as $33 in court costs, N.J.S.A. 22A:3–4, $6 in miscellaneous assessments, N.J.S.A. 39:5–41(d)–(h), a $50 Victims of Crimes Compensation Board assessment, N.J.S.A. 2C:43–3.1(a)(2)(a), a $75 Safe Neighborhoods Services Fund assessment, N.J.S.A. 2C:43–3.2(a)(1), a $100 DWI surcharge, N.J.S.A. 39:4–50(i), and a $100 Drunk Driving Enforcement Fund assessment, N.J.S.A. 39:4–50.8. Defendant's incarceration was stayed pending appeal.

On de novo review, a Law Division judge affirmed defendant's conviction and sentence. The Law Division judge agreed with defendant that, under Laurick, defendant's second DWI should not have been considered when he was sentenced in this matter.

However, citing State v. Burroughs, 349 N.J.Super. 225, 793 A. 2d 137 (App.Div.), certif. denied, 174 N.J. 43, 803 A. 2d 638 (2002), the Law Division concurred with the municipal court that defendant was not entitled to a second application of the N.J.S.A. 39:4–50(a)(3) “step-down” provision. It imposed a sentence consistent with the sentence determined by the municipal court. The Appellate Division affirmed defendant's conviction and sentence, relying primarily on its decision in Burroughs, supra, 349 N.J.Super. at 225–28, 793 A. 2d 137.

We granted defendant's petition for certification, which challenged only his sentence and raised no issues regarding his conviction. 216 N.J. 14, 76 A. 3d 533 (2013).

II.

Defendant urges the Court to apply the N.J.S.A. 39:4–50(a)(3) “step-down” provision, and argues that he should, therefore, be sentenced as if the DWI conviction at issue constituted his second offense. He contends that N.J.S.A. 39:4–50(a)(3) authorizes a defendant whose DWI conviction follows his previous DWI conviction by more than ten years to obtain the benefit of more than one application of the statute's “step-down” provision. Defendant contends that the statutory language is clear, but argues that if the Court finds an ambiguity in the text, it should resolve that ambiguity in his favor.

The State urges the Court to affirm the Appellate Division determination. It argues that the Legislature did not intend N.J.S.A. 39:4–50(a)(3) to grant a pardon in perpetuity to DWI offenders. The State relies on the Appellate Division decision in Burroughs, noting that the Legislature did not amend the “step-down” language in N.J.S.A. 39:4–50(a)(3) following Burroughs, and arguing that this failure to amend the statute indicates the Legislature's agreement with the Appellate Division decision in that case.

Amicus curiae New Jersey State Bar Association (NJSBA) asserts that Burroughs does not govern defendant's sentence because the DWI offender in Burroughs committed his third offense only two years after his second offense. It notes that, in Burroughs, the Appellate Division did not address the availability of a second “step-down” to a defendant who twice meets the requirements of N.J.S.A. 39:4–50(a)(3). NJSBA contends that because defendant's second DWI conviction cannot be counted as a prior DWI conviction solely for penal sentencing purposes pursuant to Laurick, and because defendant is entitled to the N.J.S.A. 39:4–50(a)(3) “step-down,” he should be sentenced to a term of imprisonment as a second offender.

III.

A.

Appellate courts review a trial court's construction of a statute de novo. State v. J.D., 211 N.J. 344, 354, 48 A. 3d 1031 (2012) ; State v. Gandhi, 201 N.J. 161, 176, 989 A. 2d 256 (2010). In construing a statute, our role “ ‘is to determine and effectuate the Legislature's intent.’ ” State v. Friedman, 209 N.J. 102, 117, 35 A. 3d 1163 (2012) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553, 964 A. 2d 741 (2009) ). Generally, “ ‘the best indicator of that intent is the plain language chosen by the Legislature.’ ” State v. Frye, 217 N.J. 566, 575, 90 A. 3d 1281 (2014) (quoting Gandhi, supra, 201 N.J. at 176, 989 A. 2d 256 ). Statutory text “should be given its ordinary meaning and be construed in a common-sense manner.” State in Interest of K.O., 217 N.J....