Wednesday, October 28, 2015

Jury trials for repeat DUI? NJ Supreme Court hears argument ?? NJ Law Journal

Lawyers argued before the New Jersey Supreme Court on Oct. 26 over whether a driver charged with a third or subsequent drunken driving offense is entitled to a jury trial because of the potential financial and penal consequences.
The court is considering the appeal of James Denelsbeck, who is facing a mandatory 180-day jail term after being charged with his fourth DWI violation and whose demand for a jury trial was denied by a municipal court judge, a Superior Court judge and the Appellate Division.
The Supreme Court agreed to hear the appeal in State v. Denelsbeck despite the fact that the Appellate Division ruling was unpublished and there was no dissent.
Lawyers representing Denelsbeck, the American Civil Liberties Union of New Jersey and the New Jersey State Bar Association urged the court to allow for jury trials for third-time and subsequent offenders because of the onerousness of today's jail time requirements and fines, penalties and surcharges.
A third offense calls for a 180-day jail term, although 90 days of that can be served in an in-patient rehabilitation facility. The offender loses his or her license for 10 years and must have an ignition interlock device—which requires a driver to blow into a machine that can detect alcohol—installed in any car he or she uses. Fines, costs and penalties can amount to thousands of dollars a year.
Denelsbeck was charged with his fourth offense in Ventnor on Oct. 5, 2011, according to court documents.
Denelsbeck's attorney, Point Pleasant solo John Menzel, told the justices during arguments that New Jersey has become unlike other states, which he said routinely allow for jury trials for multiple drunken driving offenses.
New Jersey, he said, has done away with allowing third-time offenders to serve anything less than a 180-day sentence, and he argued that the option of in-patient rehab should not be considered a reduction in jail time.
"It's nothing more than a venue change," he said. "It's still confinement."
Menzel said the Legislature purposefully designed the mandatory 180-day DWI sentence to butt up against the threshold for triggering a jury trial.
The U.S. Supreme Court ruled in the 1968 case Duncan v. Louisiana that the 14th Amendment presumed that defendants facing six months or more in jail would be entitled to jury trials.
"Does legislative intent matter?" Justice Lee Solomon asked.
"You always have to look at legislative intent," Menzel said, adding that the DWI statutes now require "not less than" a 180-day term of incarceration.
"You don't get that kind of sentence with a third- or fourth-degree crime," he said.
Menzel said the court also should consider the requirement for third-time offenders to spend two days at an Intoxicated Driver Resource Center. In some cases, offenders are required to spend the full 48 hours on-site.
"That's 182 days," he said. "The Legislature has pushed confinement to its limits."
Justice Barry Albin asked whether any other state has enacted such stiff DWI penalties for multiple offenders without allowing for jury trials.
"I can't think of one," Menzel said. "The Legislature has laid on penalty after penalty, consequence after consequence. In terms of penalties, we are at the top of the food chain."
Chief Justice Stuart Rabner noted that if jury trials are allowed in such cases, there will be an impact on the court system. He asked Menzel how the cases should be handled.
Those cases should not be assigned to an "already-overburdened" Superior Court, Menzel replied. Instead, he said, the jury trials should be conducted by presiding municipal court judges, who have the expertise, and the physical facilities, to handle DWI jury trials.
"They have the specialized knowledge and training," he said.
Alexander Shalom, a staff attorney for the ACLU-NJ, urged the court to allow for jury trials because of the seriousness of the penalties.
"There are real-time consequences," Shalom said. "There is the current view of mandatory minimums" and there is the real-world effect of financial penalties.
Cherry Hill solo Jeffrey Evan Gold represented the bar association.
Even defendants charged with fourth-degree crimes, which carry the presumption of non-incarceration, are allowed jury trials, he said.
The realities of DWI cases have dramatically been altered in recent years, Gold said.
"There used to be a no-jail option. Today that's not possible," he said. "And I'm not even talking about the financial side of it."
Rabner asked what Gold thought the Legislature might do if the court rules in Denelsbeck's favor.
Gold said he believed the Legislature would move to make later DWI charges indictable offenses so that jail time can be increased.
"They might ratchet up the penalties, too," Albin said.
"The Legislature should not be able to rob [DWI defendants] of the right to a jury trial," Gold said.
The court rejected the push for jury trials in DWI cases in its 1990 ruling in State v. Hamm. There, the court reasoned that the Legislature, in enacting the statutes setting forth DWI penalties, said driving while intoxicated was a motor vehicle violation and not a criminal offense, even though an offender may face time behind bars.
That ruling came a year after the U.S. Supreme Court ruled in Blanton v. Las Vegas that DWI offenders facing jail terms of six months or less are not guaranteed jury trials.
Assistant Atlantic County prosecutor Brett Yore said during oral arguments in Denelsbeck that Hamm remains good law since jail time for DWI offenses has not passed the 180-day mark.
He urged the court to reject the idea that the ignition interlock requirement be considered because of the associated costs.
"Ignition interlock is remedial, not punitive," Yore said. "The requirement has never been to punish, but to protect the public."
But Albin challenged that notion.
"Do you think the word 'remedial' takes out the sting?" he asked. "You can argue that anything is remedial."
Yore said the DWI statutes are still remedial because of a defendant's option of spending 90 days in an in-patient facility.
Not if the person can't pay for it, Albin said.
Deputy Attorney General Sarah Lichter also urged the court to avoid creating a right to jury trials for multiple offenders.
Lichter said prosecutors have strictly adhered to the 180-day sentencing limit in DWI cases.
"We've never pushed over that line," Lichter said, adding that the Legislature has never seriously considered increasing that maximum jail time.
"It's still considered a petty offense," she said. "I'm not trivializing the penalties, but the state hasn't crossed the line."
Denelsbeck demanded a jury trial on the grounds that his aggregate term could exceed 180 days, despite the assertion by the municipal prosecutor that no additional jail time would be sought.
The Appellate Division rejected Denelsbeck's appeal in an eight-paragraph ruling.
"Despite the fact that the Legislature regards DWI as a profound social problem, it has yet to impose the full force of law on that offense that would denote a social evaluation that DWI is a 'crime' or an offense that equates with the need of trial by jury," Judges Carmen Alvarez and Harry Carroll said.
The state has long opposed any efforts to move DWI cases out of municipal court, where cases are decided by a judge, to the Superior Court, in large part to avoid the expenses associated with jury trials.
The state Administrative Office of the Courts has not studied the potential impact that a ruling in Denelsbeck's favor could carry, said AOC spokeswoman Winnie Comfort.
Lichter estimated that a ruling for Denelsbeck could lead to several hundred new trials per year statewide.
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