How Should A Person Charged With DWI Before December 1, 2019, Be Sentenced If Convicted After That Date?

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Thousands of defendants charged with operating a motor vehicle while under the influence of alcohol [“DWI”] are being deprived of their right to drive because of an illegal interpretation of amendments to New Jersey’s drunk driving statute, induced by an incorrect interpretation of the new law by the acting director of the Administrative Office of the Courts [“AOC”]. Attorney John Menzel is challenging this incorrect interpretation of the law by asking the New Jersey Supreme Court to address the question quickly before more people are harmed.

QUESTION PRESENTED

Amendments to N.J.S.A. 39:4-50 changed DWI sentencing perimeters for driving privilege forfeiture [“DPF”] and alcohol ignition interlock device [“AIID”] requirements. L.2019, c.248. Signed by the governor on August 23, 2019, the new law states in its last paragraph that it “shall take effect on the first day of the fourth month after enactment and shall apply to any offense occurring on or after that date”–i.e., December 1, 2019. In its preamble, the law states, “The Legislature finds and declares that…. [b]ecause a majority of drunk drivers, including first time offenders, often continue to drive with suspended licenses, ignition interlock devices are more effective in deterring drunk driving than license suspension,” prevent future costly alcohol-related fatal crashes, and are, therefore, more effective in protecting the public safety. N.J.S.A. 39:4-50.16a.

Thus, should defendants charged before December 1, 2019, but convicted after that date be given the option of being sentenced under either the old law or the new? That is, as some might phrase it, should the new DPF and AIID provisions be applied prospectively only from December 1, 2019, or given pipeline retroactivity? The question revolves around (a) the meaning of the words “offense” and “offender” and the dates to which those terms are relevant and (b) the absurdity of eliminating a disposition “more effective in deterring drunk driving than license suspension,” checked only by (c) constitutional ex post facto prohibitions implicated to the extent that the new statute mandates AIID for certain first offenders not required before. Also implicated is the degree of authority and persuasiveness to be given recent AOC Directive 25-19.

I.

Use of the Terms “Offense” and “Offender” in the Legislation Are Not Ambiguous and Should Be Interpreted So as to Permit Defendants in Cases Open and Pending at the Time of the Bill’s Effective Date to Elect Whether to Be Sentenced to Penalties as They Existed Before or After the Date of Adjudication

“The Legislature directs that the words and phrases of its statutes ‘shall be read and construed in their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language.’” State v. Regis, 208 N.J. 439, 447 (2011), quoting N.J.S.A. 1:1-1. “The Court’s objective is to determine the meaning of the statute to the extent possible by looking to the Legislature’s plain language.” State v. Regis, supra at 439 (citations omitted). “If a statute’s language is unambiguous, then the Court’s ‘interpretive process is over.’” Id., quoting State v. Gandi, 201 N.J. 161, 177 (2010); DiProspero v. Penn, 183 N.J. 477, 492-93 (2005). “It is only when a statute’s language is ambiguous that the Court should resort to extrinsic aids, such as ‘legislative history, committee reports, and contemporaneous construction.’” State v. Regis, supra at 447, quoting DiProspero v. Penn, supra at 492-93.

Here, the language of the new law applies it to “any offense occurring on or after” its effective date–December 1, 2019 (emphasis added). “Our focus…is not on the elements of the offense but on the penalty to be imposed.” State ex rel. C.F., 444 N.J.Super. 179, 190 (App.Div. 2016). Thus, without an adjudication, there is no “offense.” According to common practice as applied by the New Jersey Motor Vehicle Commission [“NJMVC”] and understood by most attorneys practicing in municipal courts, offenses do not appear on a driver history until adjudication. However, AOC Directive 25-19 from the Hon. Glenn A. Grant, J.A.D., acting Administrative Director of the Courts, equates time of “offense” as the date on which charges are “filed” or when defendants are “charged.”

Also, the new law refers to “offenders,” not “defendants.” See, e.g., N.J.S.A. 39:4-50.17(a) defining AIID penalties and N.J.S.A. 39:4-50.17(c) imposing an obligation on offenders to provide certain information to the municipal court. One is a “defendant” when charges are filed. One does not become an “offender” until adjudicated as such. Nonetheless, Judge Grant made a substantive interpretation of sentencing law under N.J.S.A. 39:4-50 and when it should be applied rather than limiting his directive to management, administrative, and strictly procedural matters. Acting as the agent of the Chief Justice and Supreme Court, “[a]dministrative directives issued from his office are…not only entitled to great respect but have binding effect with reference to management matters in the court system.” State v. Paris, 214 N.J.Super. 220, 224-25 (Law Div. 1986) (emphasis added). “Neither he nor the Supreme Court, however, can direct the exercise of judicial discretion. In our system of justice, judges act independently. They must if the court system is to maintain integrity.” Id. at 225.

The issue of independence usually arises in a setting involving an encroachment by one branch of government upon the powers of another. Here, the question is one of encroachment upon judicial independence by the administrative arm of the court system itself, but the rule can be no different. Destruction from within is as unacceptable as destruction from without.

[Id.]

As for how defendants should be sentenced under N.J.S.A. 39:4-50, Directive 25-19 attempts to dictate how judges should interpret substantive law rather than merely direct, manage, or administer court procedures. Thus, AOC Directive 25-19, like the “Bulletin Letter” discussed in Paris, “trespassed upon judicial territory [and] must be disregarded.” Id. at 225. In this sense, Judge Grant’s trespasses on judicial independence and disregards the plain meaning of the words “offense” and “offender” in N.J.S.A. 39:4-50.

The best way to effectuate the Legislature’s meaning is to recognize that the word “offense” includes adjudication and the word “offender” includes persons adjudicated as such. Indeed, the only way to properly understand these terms in context and avoid an incorrect interpretation is to clarify that the offense does not come into being until there is a conviction, and the defendant does not become an offender until he or she is convicted. This Court’s view of what is just and consonant with public policy in this particular situation should not be that of Judge Grant’s simply because he issued an ultra vires directive that is contrary to the Legislature’s will. Rather, this Court should correct Judge Grant’s misinterpretation and provide guidance to trial courts to follow the plain meaning of the new statutory provisions and permit defendants who were charged before December 1, 2019, but adjudicated thereafter to opt for sentencing in accordance with the new sentencing scheme.

II.

Punishments Required by Ameliorative Statutes May Apply to Offenses Committed Before but Adjudicated After a Statute’s Effective Date

Judge Grant’s trespasses highlight a disagreement about whether the word “offense” applies to commission, filing, or adjudication. To the extent there may be any ambiguity, one can resort to various principles of statutory construction–e.g., the rule of lenity: “[I]f a statutory ambiguity cannot be resolved by analysis of the relevant text and the use of extrinsic aids, the rule requires that the ambiguity be resolved in favor of the defendant.” State v. Regis, supra at 451 (citations omitted). Applying the rule of lenity here, this Court should resolve any ambiguity in the new statute by permitting an offender, if conviction after December 1, 2019, to elect whether to be sentenced under the new law or the old.

Interpretation is also affected be so-called “savings statutes.” This State’s savings statute is N.J.S.A. 1:1-15. “As a general principle, in criminal as well as other statutes, ‘the law favors prospective, rather than retroactive, application of new legislation unless a recognized exception applies.’” State ex rel. J.F., 446 N.J.Super. 39, 53 (App.Div. 2016), quoting Ardan v. Board of Review, 444 N.J.Super. 576, 587 (2016); State v. Parolin, 171 N.J. 223, 233 (2002). N.J.S.A. 1:1-15 states:

No offense committed, and no liability, penalty or forfeiture, either civil or criminal, incurred, previous to the time of the repeal or alteration of any act or part of any act, by the enactment of the Revised Statutes or by any act heretofore or hereafter enacted, shall be discharged, released or affected by the repeal or alteration of the statute under which such offense, liability, penalty or forfeiture was incurred, unless it is expressly declared in the act by which such repeal or alteration is effectuated, that an offense, liability, penalty or forfeiture already committed or incurred shall be thereby discharged, released or affected….

Thus, N.J.S.A. 1:1-15 links “offenses committed…and… liability, penalty or forfeiture…” (emphasis added):

Consequently, we look to the date an offense was committed in determining whether a new law, which discharges, releases or affects an offense, should be applied to that offense, but we look to the date a penalty was incurred to determine whether a new law should discharge, release or affect the penalty for the offense….

[State ex rel C.F., supra at 188-89 (emphasis in original).]

While “legislation is to have prospective application only unless a contrary intention is expressed or unavoidably implied…[,] when a statute is ameliorative, as this one can be considered to be, it may be applied retroactively.” In re Smigelski, 30 N.J. 513, 527 (1959); State ex rel. J.F., supra at 58. While State v. Chambers, 377 N.J.Super. 365, 372-73 (App.Div. 2005), “expressly prohibits the retroactive application of a statutory amendment reducing a criminal penalty unless the amendment contains a declaration that it shall apply retroactively…,” id. at 372, this only applies when commission and adjudication occur before a statute’s effective date. There was, until recently, “no decision in this State that has discussed the background of N.J.S.A. 1:1-15 or the precise circumstances that trigger its application.” Id. at 372-73.

In C.F., supra, the Appellate Division considered the case of a juvenile who was convicted of murder many years after he committed the murder. At commission, the maximum authorized penalty was life in prison. At adjudication, the maximum authorized penalty was ten years in prison. The Appellate Division held that “a refusal to apply a newer, ameliorative law serves only a vengeful purpose that does no honor to an enlightened society….” Id. at 190, citing People v. Oliver, 1 N.Y.2d 182, 151 N.Y.S. 367, 134 N.E.2d 197 (1956). In J.F., supra, the Appellate Division considered a murder case concerning whether a 14-year-old juvenile’s case should be transferred to Superior Court, where he would be treated as an adult offender. While recognizing the general rule of prospective application, the Appellate Division noted the exception for when the statute is ameliorative or curative, id. at 53, holding that the “legislative determination to ameliorate an unduly harsh penalty for fourteen-year-old juveniles supports the retroactive application of the revised waiver statute.” Id. at 56.

The new penalty scheme is ameliorative in that it shortens DPF periods and curative in that it introduces and lengthens AIID restrictions. Also, offenders are better able to care for their families while their drinking-and-driving behavior is checked. Given the ameliorative and curative purposes of the N.J.S.A. 39:4-50 revisions, this Court should direct trial courts to permit defendants charged before December 1, 2019, but adjudicated thereafter the option of sentencing to DWI penalties effective as of that date. “The choice should rest, though, with the affected party, and applicability should not be compellable by the State.” In re Smigelski, supra at 527.

III.

Interpreting the Term “Offense” to Apply Only to Incidents Committed on or after December 1, 2019, Leads to an Absurd Result, Given the Legislature’s Finding and Declaration that Alcohol Ignition Interlock Devices Are More Effective that Driving Privilege Forfeiture

Another exception to the general rule of prospective application occurs “when the Legislature intended retroactive application of the statute either expressly, as ‘stated in the language of the statute or in the pertinent legislative history,’ or implicitly, requiring retroactive application to ‘make the statute workable or to give it the most sensible interpretation….’” State ex rel. J.F., supra at 54, quoting Gibbons v. Gibbons, 86 N.J. 515, 522-23 (1981). Even if one were to construe the last sentence of the new version of N.J.S.A. 39:4-50 as permitting sentencing only to offenses committed after December 1, 2019, “the rule of strict construction does not mean that the ‘manifestations of the Legislature’s intention should be disregarded.’” State v. Anicama, 455 N.J.Super. 365, 385 (2018), quoting State v. Carreker, 172 N.J. 100, 115 (2002). “[C]onsiderations of public policy are highly relevant in confirming the proper understanding to be accorded a statute.” State v. Tischio, 107 N.J. 504, 519 (1987). As stated in State v. Anicama, supra:

The goal of all statutory interpretation is to give effect to the intent of the Legislature. In doing so, we must construe the statute sensibly and consistent with the objectives that the Legislature sought to achieve. We will not adopt an interpretation of the statutory language that leads to an absurd result or one that is distinctly at odds with the public-policy objectives of a statutory scheme.

[Id. at 385 (citations and internal quotation marks omitted), citing State v. Morrison, 227 N.J. 295, 308 (2016).]

The Legislature found and declared certain public policy objectives leading to amendments to N.J.S.A. 39:4-50. It stated that “ignition interlock devices are more effective in deterring drunk driving than license suspension.” N.J.S.A. 39:4-50.16a(b). It lauded an AIID program as a low-cost solution to “prevent alcohol-involved driving and alcohol-related crashes” and thereby “protect the public safety….” N.J.S.A. 39:4-50.16a(c). It cited a study, data, and the support of AIID programs by various well-recognized organizations. N.J.S.A. 39:4-50.16a(d), (e), and (f). It concluded, “Therefore, it is fitting and proper to require all first time offenders in this State, not just high BAC offenders, to install an ignition interlock device.” N.J.S.A. 39:4-50.16a(g). (“BAC” means “blood alcohol concentration.” See N.J.S.A. 39:4-50.16a(a).) As the Legislature explained:

Ignition interlock devices are paid for by the offender and constitute a low cost solution to a dangerous and often fatal activity that imposes large social and economic costs on society. Studies indicate that the potential for interlock device programs to prevent alcohol-involved driving and alcohol-related crashes is most significant when the program is applied to a broader cross-section of offenders and a higher proportion of offenders are required to install the devices. To protect the public safety, states that currently do not require mandatory participation for all first time offenders should adopt strong interlock device programs to prevent future costly alcohol-related fatal crashes.

[N.J.S.A. 39:4-50.16a(c).]

N.J.S.A. 39:4-50.18(c), also effective December 1, 2019, introduces a requirement that DWI offenders identify, under penalty of perjury, the vehicle into which the AIID is to be installed. See N.J.S.A. 39:4-50.17(c). This serves only to fortify the AIID requirement in the offender’s mind. The new law also requires post-conviction monitoring by the AIID vendor and vendor reporting requirements that did not exist previously. Specifically, the vendor must provide a certificate to the defendant that:

(1) during the final 30 days of the installation period there was not more than one failure to take or pass a test with a blood alcohol concentration of 0.08% or higher unless a re-test conducted within five minutes of the initial test indicates a blood alcohol concentration of less than 0.08%; and

(2) the person complied with all required maintenance, repair, calibration, monitoring, and inspection requirements related to the device.

[N.J.S.A. 39:4-50.18(c).]

The vendor must withhold such a certificate if there are two or more violations of these requirements and report this withholding to NJMVC and the municipal court, which may extend the AIID requirement for up to 90 days. N.J.S.A. 39:4-50.18(d). Such monitoring requirements, of course, enhance AIID effectiveness and are part and parcel of a scheme which the Legislature still characterizes as a “penalty….” N.J.S.A. 39:4-50.17.

In signing Senate Bill S824, the governor stated:

Expanding the use of ignition interlock devices is just common sense…. We must deter drunk driving without negatively impacting individuals’ ability to take care of themselves or their families. License suspensions are an imperfect tool for accomplishing both aims, as they do not stop drunk drivers from getting behind the wheel and they can prevent ex-offenders from supporting their livelihoods. In contrast, ignition interlock devices prevent drunk driving while allowing ex-offenders to support themselves and their families.

[Office of the Governor, Governor Murphy signs legislation expanding use of ignition interlock devices, https://www.nj.gov/governor/news/news/562019 /approved/20190823b.shtml (Dec. 4, 2019); Richard Cowan, NJ to impose new penalties for drunken driving starting Dec. 1: What you need to know., www.NorthJersey.com (Nov. 27, 2019), https://www.north jersey.com/story/news/2019/11/27/nj-new-drunk-driving-law-take-effect-dec-1-heres-what-know/4275332002].

Senator Nicholas Scutari, a municipal prosecutor for 16 years and sponsor of the new law, observed that AIID use “is the best way to safeguard our roads while also allowing minor offenders to continue their employment.” Id. Senator Joseph Lagana, a co-sponsor, stated,

The numbers show that requiring the installation of an ignition interlock device is the most effective way to prevent repeat offenses and ultimately reduce deaths caused by drunk driving. You simply cannot drive drunk with one in your vehicle because the engine will not even start if you are intoxicated. This law will make our roads safer to travel for all of our residents.

[Id.]

This Court once declared that “the Legislature, working in tandem with the courts, has consistently sought to streamline the implementation of these laws and to remove the obstacles impeding the efficient and successful prosecution of those who drink and drive.” State v. Tischio, supra at 514.

Also, fundamental fairness–the “doctrine under New Jersey law that serves to protect citizens generally against unjust and arbitrary governmental action, and specifically against governmental procedures that tend to operate arbitrarily” (State v. Ramseur, 106 N.J. 123, 377 (1987) (emphasis in original))–is in play. Fundamental fairness is considered part of the right to due process and other constitutional protections; it is the Court’s obligation to protect individuals against arbitrary government action and to hold the State to “commonly accepted standards of decency” when dealing with individuals in the criminal justice system. Id. If this Court were to condone Judge Grant’s interpretation, the government and courts would be trumpeting the triumph of public safety while becoming complicit in the continued shortfall of prior law.

Given the clear expressions of legislative and executive intent regarding the new DPF and AIID sentencing provisions, this Court should make plain that these new provisions should be applicable to sentences imposed after December 1, 2019, and streamline their implementation.

IV.

Given the Ex Post Facto Implications the New Penalties, Defendant’s Charged Before December 1, 2019, Should Be Given the Opportunity to Choose Whether to Be Sentenced in Accordance with Penalties in Effect Either Before or After December 1, 2019

This Court has addressed whether new rules of law should be given effect prospectively only, with complete retroactivity, or with “pipeline” retroactivity. See State v. Cummings, 184 N.J. 84, 98 (2005). While Cummings dealt with a new rule of law enunciated in a judicial decision, the concepts can be applied just as well to changes enacted by legislation. A new “rule of law” is one that “breaks new ground or imposes a new obligation on the State[ ]…[or] if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Id. at 97 (emphasis, brackets, and ellipses in original), quoting State v. Knight, 145 N.J. 233, 250-51 (1996). We can certainly view the amendments to our DWI laws made effective as of December 1, 2019, as a new rules of law. As this Court stated in State v. Cummings, supra:

If a decision indeed sets forth a “new rule,” three factors generally are considered to determine whether the rule is to be applied retroactively: “(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice.” Although those three factors have received detailed attention in our retroactivity case law, our cases also indicate that the retroactivity determination often turns more generally on “the court’s view of what is just and consonant with public policy in the particular situation presented.”

[Id. at 97, quoting State v. Knight, supra at 251; see State v. Earls, 214 N.J. 564, 590 (2013).]

As for the first factor, the Legislature has extolled the advantages of AIID restrictions over DPF and a strong preference for the new AIID scheme, including post-conviction monitoring. It is absurd to construe application of that scheme only to those charged after December 1, 2019. If the new scheme is so much better than the old, why should it not be implemented in such a way so as to expand its effectiveness across a broader class of offenders? It is clear that this new preferable scheme would be furthered by retroactive application.

As for the second factor, no one can claim any reliance placed on the old sentencing scheme. Most of those sentences have either been executed or completed soon. Given the lack of any reliance on the old scheme, except to the extent induced by AOC Directive 25-19, this factor has little relevance.

Finally, pipeline retroactivity would have little impact on the administration of justice. Other than Judge Grant’s arbitrary legal determination, there is no precedent to be overturned, no decision to be reversed, no conviction to be vacated. The Legislature has determined that requiring DWI offenders to install an AIID and be monitored before de-installation is preferable to DPF as a way to enhance public safety, reduce DWI recidivism, and permit offenders to provide for their families.

While the new sentencing scheme exchanging AIID and monitoring for DFP may be considered ameliorative to most people, there are likely some who would prefer the old scheme of DFP with no AIID or monitoring. Requiring an AIID and monitoring would impose a new penalty not in existence for a DWI committed before December 1, 2019. Thus, absent an election by the offender, such requirements would violate constitutional ex post facto prohibitions.

In Calder v. Bull, 3 U.S. 386, 3 Dall. 386 (1798), the U.S. Supreme Court decried exercises of legislative judgment and judicial power that, inter alia, “inflicted punishments, where the party was not, by law, liable to any punishment….” Id., 3 U.S. at 389. The Court reminded us that the U.S. constitution “prohibits the Legislature of the United States from passing any ex post facto law” (id., citing U.S.Const. Art.1, sec.9) and “lays several restrictions on the authority of the Legislatures of the several states; and, among them, ‘that no state shall pass any ex post facto law’” (id., citing U.S.Const. Art.1, sec.10). Thus, “a law shall not be passed concerning, and after the fact, or thing done, or action committed.” Id., 3 U.S. at 390. This includes “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Id., 3 U.S. at 391.

“We are…enjoined to give our drunk-driving statutes the pragmatic and flexible interpretations necessary to effectuate the Legislature’s regulatory aims, while honoring the due process limitations necessarily attendant upon the law’s penal sanctions.” State v. Tischio, supra at 512. Consequently, while the new DWI sentencing scheme is ameliorative for most, the option whether to embrace the old scheme or the new must remain with the defendant when adjudicated an offender.

CONCLUSION

Thousands of defendants have cases that arose before December 1, 2019, but are still pending. Also, many first offenders who have been improperly sentenced and denied the opportunity to elect treatment under sentencing provisions in effect as of December 1, 2019, which our Legislature considers more effective that the old provisions.

John Menzel is representing eight people who were charged with DWI before December 1, 2019, but found guilty after that date. He has not only filed appeals to Superior Court, Law Division, but also moved for direct certification of the question to the New Jersey Supreme Court. Menzel believes the Supreme Court should grant this motion as soon as practicable, given the undue reliance of municipal court judges generally of Directive 25-19, which has substantially undermined judicial independence and harmed many ordinary citizens.

Menzel has asked the Supreme Court to permit such defendants to elect whether to be sentenced according to the penalty provisions effective December 1, 2019.