State v. James Denelsbeck(075170) ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State of New Jersey v. James R. Denelsbeck (A-42-14) (075170)
Argued October 26, 2015 – Decided May 12, 2016
CUFF, P.J.A.D. (temporarily assigned), writing for a majority of the Court.
In this appeal, the Court considers whether a defendant is entitled to a jury trial when facing a third or
subsequent driving while intoxicated (DWI) charge pursuant to N.J.S.A. 39:4-50.
Defendant James R. Denelsbeck was stopped by police for failing to stop at a red light. When defendant
did not satisfactorily perform field sobriety tests, he was arrested. An Alcotest machine later indicated that
defendant’s blood alcohol content was .12 percent. Defendant was issued a motor-vehicle summons for DWI,
careless driving, and failure to observe a traffic signal.
Defendant, who had three prior DWI convictions, filed a demand for a jury trial in municipal court. The
prosecutor advised that the State would not seek more than 180 days’ incarceration. The court denied defendant’s
request, and, after a bench trial, found him guilty of DWI and failure to observe a traffic signal. In light of
defendant’s prior convictions, he was sentenced, on the DWI conviction, to a mandatory 180-day jail term, as well
as a ten-year driver’s license suspension followed by two years of using an ignition interlock device, twelve hours in
the Intoxicated Driver Resource Center (IDRC), $1006 in fines, and over $350 in surcharges, costs, and fees.
Defendant appealed, and the Law Division affirmed the denial of his request for a jury trial, as well as his
convictions and sentence. Defendant then appealed solely on the issue of his right to a jury trial. The Appellate
Division affirmed. Relying on this Court’s decision in State v. Hamm, 121 N.J. 109 (1990), cert. denied, 499 U.S.
947 (1991), the panel concluded that DWI in New Jersey is not a criminal offense. Based on “well-settled
authority,” it further noted that DWI offenders facing a prison term of six months or less are not entitled to a jury
trial. The panel found that defendant did not face any real risk of receiving a prison term greater than 180 days, and
that the other penalties and fines he faced were not sufficiently onerous to trigger his right to a jury trial. This Court
granted defendant’s petition for certification. 220 N.J. 575 (2015).
HELD: Third or subsequent DWI offenders are not entitled to a jury trial, and defendant’s conviction procured by a
bench trial did not violate his Sixth Amendment right to a jury trial.
1. The Sixth Amendment of the United States Constitution, which is applicable to the states by the Fourteenth
Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury[.]” U.S. Const. amend. VI. Despite the amendment’s broad language, it has long been
held that “petty” offenses may be tried without a jury. In order to determine whether the right to a jury trial attaches
in a particular case, the relevant inquiry is whether the case involves a “petty” or “serious” offense. The United
States Supreme Court has held that no offense can be considered “petty” if imprisonment for more than six months
is authorized. Where a defendant faces less than six months’ incarceration, the Court advised that it would look to
both the nature of the offense, as well as the maximum potential sentence, in determining whether a jury trial was
warranted, with the most relevant information being the severity of the maximum authorized sentence. In Blanton v.
North Las Vegas, 489 U.S. 538 (1989), the Court explained that, in rare cases, a defendant facing a prison term of
six months or less will be entitled to a jury trial if able to demonstrate that additional statutory penalties are so
onerous as to indicate a legislative determination that the offense is “serious.” (pp. 8-12)
2. The New Jersey Constitution also provides a right to trial by jury. Given the similar language in the state and
federal constitutions, the Supreme Court of New Jersey has long looked to the federal standard to determine the
scope of this right. In Hamm, supra, the Court explained that federal principles provide the framework for analyzing
the question of whether the Legislature has rendered the offense of DWI “serious” for Sixth amendment purposes.
At the time the Court decided Hamm, a third or subsequent DWI offender was subject to 180 days’ incarceration,
which could be served by completing a 90-day community service sentence and a combination of inpatient and
outpatient treatment. The offender also faced a ten-year license suspension and various fines and surcharges. In
determining that this penalty scheme did not trigger the right to trial by jury, the Court noted that the law focused on
prevention over punishment, carried a shorter sentence than that imposed in many other states, and did not require a
sentence in excess of six months’ incarceration. The Court determined that the additional penalties beyond
incarceration did not indicate that the Legislature considered the offense “serious.” (pp. 12-16)
3. Following a series of amendments in 2004, third or subsequent DWI offenders now face a mandatory
imprisonment term of not less than 180 days, with no allowance for noncustodial alternatives. N.J.S.A. 39:4-
50(a)(3). In addition to the ten-year license suspension, which was part of the penalty scheme considered in Hamm,
offenders also are now required to install an ignition interlock device following the conclusion of the suspension
period and must pay an additional $251 in fines, fees, assessments, and surcharges. Offenders also may be subject
to penalties, including confinement, for failing to meet obligations arising from a DWI conviction, such as up to 90
days’ imprisonment for driving on a suspended license. (pp. 16-21)
4. As in Hamm, the Court applies the federal standard to this case. It begins its inquiry with the most relevant
indication of the seriousness of an offense – the severity of the authorized penalty. While the current mandatory
nature of the term of imprisonment, emphasizing confinement rather than treatment, is a modification of the penal
aspect arising from a third or subsequent DWI conviction, it does not lengthen the potential term of confinement
beyond 180 days. Here, despite the two 15-day jail terms carried by defendant’s other offenses, the Court is not
persuaded that he faced more than 180 days’ incarceration since he was assured that he would not be sentenced to a
longer term. Any related sentences for failure to meet obligations arising from the DWI conviction are too
attenuated to affect an offender’s direct exposure to incarceration. (pp. 21-25)
5. Because defendant did not face over six months of confinement, the Court presumes the DWI offense to be
“petty.” It next turns to the question of whether this is, under Blanton, the rare situation where a legislature has so
packed an offense with additional penalties that it is deemed “serious.” Although deprivation of a license to drive is
clearly a significant consequence, the Court reaffirms its conclusion in Hamm that the ten-year license suspension
does not reflect a significant escalation of the seriousness with which the Legislature regards this offense, but rather
a shifting social conclusion about what works best with DWI offenders. Likewise, the new requirement of
installation of an ignition interlock device, while an inconvenience, is preventative rather than punitive and not so
onerous as to escalate the offense to a “serious” one. With respect to the fees, fines, and assessments facing a repeat
DWI offender, only $1050 can be attributed to criminal penalties, an amount which would constitute a “petty” fee
under Blanton. While the remaining civil penalties amount to $5931, more than the $5000 penalty deemed “petty”
under federal law, this is not dispositive in regard to the right to a jury trial. Strict adherence to a set amount would
overlook the context of a monetary penalty, including that it is subject to inflation. The remaining penalties and
fees, including those to which an offender is subject for failure to meet obligations arising from the DWI conviction,
are too attenuated to be relevant to the issue before the Court. (pp. 25-30)
6. The Court acknowledges that every other state appears to afford jury trials for at least some DWI offenses, but
explains that the significance of any apparent uniformity in state practices can be belied by the context and nuances
of each jurisdiction. Unlike many other states, the New Jersey Legislature has resisted criminalizing DWI offenses,
opting instead to increase the severity of the penalties focused on prevention and deterrence. That being said, the
Legislature has reached the outer limit in subjecting third and subsequent DWI offenders to confinement without a
jury trial, and any additional direct penalties will render such offenses “serious” offenses for the purpose of
triggering the right to a jury trial. Until that time, particularly given that the total term of potential confinement does
not exceed six months, the Court is satisfied that the current penalty scheme is within the confines of Sixth
Amendment precedent. Thus, third or subsequent DWI offenders are not entitled to a jury trial, and defendant’s
conviction procured by a bench trial did not violate his Sixth Amendment right to a jury trial. (pp. 30-34)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE ALBIN, DISSENTING, expresses the view that the additional penalties for third and
subsequent DWI offenders imposed by the Legislature since Hamm, including a mandatory custodial term, have
breached the constitutional threshold, thereby requiring the Court to confer on these offenders the fundamental right
to a jury trial that is guaranteed by the Sixth Amendment and guaranteed in every other state and the District of
Columbia.
CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, PATTERSON, and SOLOMON join in
JUDGE CUFF’s opinion. JUSTICE ALBIN filed a separate dissenting opinion. JUSTICE FERNANDEZ-
VINA did not participate.
2
SUPREME COURT OF NEW JERSEY
A-42 September Term 2014
075170
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES R. DENELSBECK,
Defendant-Appellant.
Argued October 26, 2015 – Decided May 12, 2016
On certification to the Superior Court,
Appellate Division.
John Menzel argued the cause for appellant.
Brett Yore, Assistant Prosecutor, argued the
cause for respondent (James P. McClain,
Atlantic County Prosecutor, attorney;
Deborah A. Hay, Assistant County Prosecutor,
on the letter brief).
Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Edward L. Barocas, Legal
Director, attorney).
Jeffrey Evan Gold argued the cause for
amicus curiae New Jersey State Bar
Association (Miles S. Winder III, President,
attorney;(Paris P. Eliades, of counsel; Mr.
Gold, Barbara E. Ungar, and Justin M. Moles,
on the brief).
Sarah Lichter, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).
1
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
In this appeal, we consider whether a defendant is entitled
to a jury trial when facing a third or subsequent driving while
intoxicated (DWI) charge pursuant to N.J.S.A. 39:4-50. This
Court previously answered that question in the negative, over
twenty-five years ago, in State v. Hamm, 121 N.J. 109, 130
(1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed.
2d 466 (1991). Since then, however, the Legislature has amended
the DWI statute to include additional penalties. As such, we
now apply our analysis from Hamm to determine whether the
current version of the law requires a different outcome.
At the time Hamm was decided, third or subsequent DWI
offenses were punishable by several thousand dollars in fees,
surcharges, and assessments, a ten-year driver’s license
suspension, and 180 days’ confinement, which could be served
through community service and outpatient treatment. Today, a
third or subsequent offender faces an additional $251 in fees,
is subject to the same license suspension, must be confined for
180 days, and must install an ignition interlock device1 in his
1 An ignition interlock device is “a blood alcohol equivalence
measuring device which will prevent a motor vehicle from
starting if the operator’s blood alcohol content exceeds a
predetermined level when the operator blows into the device.”
N.J.S.A. 39:4-50.17(d).
2
vehicle for one to three years. The municipal court in this
case held that this new scheme did not implicate the right to a
jury trial, and the Law and Appellate Divisions agreed.
The critical issue in resolving this case is whether the
DWI offense is “serious” or “petty” for purposes of the Sixth
Amendment. In answering that question, the primary focus is on
the potential term of incarceration; specifically, whether it
exceeds six months. A secondary consideration, but one which
may render an offense “serious” regardless of the term of
confinement, is the additional penalties imposed, including
fines and fees.
In weighing those factors, we conclude that third or
subsequent DWI offenders do not face more than six months’
incarceration and that the additional penalties, although
significant, are not sufficiently serious to trigger the right
to a jury trial. At the same time, we emphasize that the
Legislature has reached the outer limit of what is permitted
without a jury trial and that any additional penalties would
cause this Court to reach a different conclusion. Under the
current law, however, we hold that the need for a jury trial is
outweighed by the State’s interest in promoting efficiency
through non-jury trials.
I.
In the early morning hours of October 5, 2011, defendant
3
James R. Denelsbeck’s vehicle was stopped by an officer of the
Ventnor City Police Department for failing to stop at a red
light. Defendant was arrested when he did not satisfactorily
perform field sobriety tests. An Alcotest machine later
indicated that defendant’s blood alcohol content (BAC) was .12
percent.
Defendant was issued a motor-vehicle summons for DWI,
N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; and
failure to observe a traffic signal, N.J.S.A. 39:4-81.
Defendant had three prior DWI convictions and therefore faced a
mandatory term of 180 days’ confinement, years of driving
restrictions, and numerous fees, fines, and assessments. He
also faced a maximum term of 15 days’ confinement on each of the
other driving offenses.
Defendant filed a demand for a jury trial in municipal
court. In response, the prosecutor advised the court that the
State would not seek more than 180 days’ incarceration. After
argument, the court denied the jury trial request. A bench
trial commenced and the municipal court found defendant guilty
of DWI and failure to observe a traffic signal. Defendant was
acquitted of the careless driving charge.
Given defendant’s prior convictions, he was sentenced to a
mandatory term of 180 days in the Atlantic County Jail, pursuant
to N.J.S.A. 39:4-50(a)(3). Defendant was also sentenced to a
4
ten-year driver’s license suspension followed by two years of
using an ignition interlock device, twelve hours in the
Intoxicated Driver Resource Center (IDRC), $1006 in fines, and
over $350 in applicable surcharges, costs, and fees. He was
also charged $89 in fines and costs for failing to observe a
traffic signal.
Defendant filed an appeal in the Law Division. After a de
novo review, the Law Division affirmed the denial of defendant’s
request for a jury trial, as well as defendant’s convictions and
sentence. Defendant appealed solely on the issue of his right
to a jury trial.
The Appellate Division affirmed in an unpublished opinion
based on “well-settled authority” holding that DWI offenders
facing a prison term of six months or less are not entitled to a
jury trial. The panel specifically relied on this Court’s
decision in Hamm to conclude that DWI in New Jersey is
“considered a motor-vehicle offense rather than a criminal
offense.” The panel also found that there was “nothing in the
record to suggest that defendant faced any real risk of
receiving a prison term greater than 180 days” and that “the
additional fines, penalties, and surcharges defendant faced were
not ‘onerous’ penalties triggering a right to a jury trial.”
We granted defendant’s petition for certification. State
v. Denelsbeck, 220 N.J. 575 (2015).
5
II.
A.
Defendant’s primary argument is that the Legislature has
increased the severity of the penalties for third or subsequent
DWI offenses since this Court’s opinion in Hamm to the point
that the right to a jury trial now applies. Specifically,
defendant argues that the “packing” by the Legislature of
numerous financial penalties, the ten-year driving privilege
suspension, the ignition interlock device requirement, and the
mandatory 180 days’ confinement demonstrate that it now views
third or subsequent DWI offenses as “serious” for purposes of
the Sixth Amendment. Defendant also submits that he should have
been granted a jury trial under the New Jersey Constitution.
The State argues that the amendments to N.J.S.A. 39:4-50(a)
have not converted a third or subsequent DWI offense from a
quasi-criminal motor-vehicle charge into a “serious” offense
requiring a jury trial. The State emphasizes that the DWI
offense remains classified as a motor-vehicle violation and that
the maximum jail term has not changed since Hamm was decided.
The State also contends that many of the penalties pre-date Hamm
and that the few new penalties are either collateral or
insufficiently onerous.
In addition, the State argues that the right to a jury
trial was not triggered by defendant’s offenses carrying an
6
aggregate term of imprisonment exceeding 180 days because the
total penalty was limited to six months’ incarceration under
State v. Owens, 54 N.J. 153 (1969), cert. denied, 396 U.S. 1021,
90 S. Ct. 593, 24 L. Ed. 2d 514 (1970). Lastly, the State
offers a detailed rebuttal to defendant’s argument that this
case should be resolved under the New Jersey Constitution.
B.
Amicus curiae New Jersey State Bar Association (NJSBA)
argues that the amended DWI statute requires a jury trial and
notes that the vast majority of states currently allow jury
trials for repeat DWI offenses. In addition, the NJSBA argues
that current precedent allowing a defendant to be tried without
a jury on multiple “petty” offenses with aggregate sentences
exceeding six months, as long as no more than six months’
incarceration will be imposed, “improperly empowers the
municipal prosecutor and judge to abrogate the defendant’s right
to a jury trial while still subjecting him to multiple charges.”
Lastly, the NJSBA provides practical guidance for applying the
right to a jury trial to DWI offenses.
Amicus curiae American Civil Liberties Union of New Jersey
(ACLU) also argues that the amended DWI statute triggers the
right to a jury trial. The ACLU cites many of the same factors
and penalties as defendant, but also states that the IDRC
requirements create an additional period of incarceration
7
because courts may sentence a defendant to a particular period
of treatment and because failure to satisfy the IDRC
requirements results in a two-day term of imprisonment. Thus,
the ACLU argues that the maximum penalty for third or subsequent
DWI offenses is actually 182 days of confinement.
The Attorney General, appearing as amicus curiae,
reiterates many of the arguments made by the State, including
that DWI is not a criminal offense in New Jersey and that
defendant has not offered a justification for departing from
federal precedent. In addition, the Attorney General argues
that fines and collateral consequences do not factor into the
Sixth Amendment analysis and that the principles of stare
decisis weigh in favor of reaffirming Hamm. The Attorney
General also emphasizes that New Jersey has a legitimate
interest in pursuing non-jury trials in DWI cases, and has
submitted two charts detailing how other states treat DWI
offenses and the right to a jury trial.
III.
A.
The Sixth Amendment of the United States Constitution
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial
jury[.]” U.S. Const. amend. VI. That provision is applicable
to the states by virtue of the Fourteenth Amendment. See
8
Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1067-68, 13
L. Ed. 2d 923, 926 (1965).
Despite the broad language of the amendment, “it has long
been the rule that so-called ‘petty’ offenses may be tried
without a jury.” Frank v. United States, 395 U.S. 147, 148, 89
S. Ct. 1503, 1505, 23 L. Ed. 2d 162, 166 (1969) (citations
omitted). As such, to determine whether the right to a jury
trial attaches, the relevant inquiry is whether the case
involves a “petty” or “serious” offense. Baldwin v. New York,
399 U.S. 66, 68, 90 S. Ct. 1886, 1887-88, 26 L. Ed. 2d 437, 440
(1970).
The single bright-line rule that the United States Supreme
Court has articulated in making this determination is that “no
offense can be deemed ‘petty’ for purposes of the right to trial
by jury where imprisonment for more than six months is
authorized.” Id. at 69, 90 S. Ct. at 1888, 26 L. Ed. 2d at 440.
The Supreme Court has declined, however, to articulate a similar
per se rule for cases involving a lesser period of confinement.
See id. at 69 n.6, 90 S. Ct. at 1888 n.6, 26 L. Ed. 2d at 440
n.6 (“In this case, we decide only that a potential sentence in
excess of six months’ imprisonment is sufficiently severe by
itself to take the offense out of the category of ‘petty.’”).
Rather, the Supreme Court has stated that when a defendant
faces less than six months’ incarceration, it will look to “both
9
the nature of the offense itself, as well as the maximum
potential sentence, in determining whether [the] . . . offense
was so serious as to require a jury trial.” Ibid. (internal
citations omitted). The “most relevant” information is the
“severity of the maximum authorized penalty.” Id. at 68, 90 S.
Ct. at 1888, 26 L. Ed. 2d at 440.
At the same time, the Supreme Court has cautioned that “the
prospect of imprisonment for however short a time will seldom be
viewed by the accused as a trivial or ‘petty’ matter and may
well result in quite serious repercussions affecting his career
and his reputation.” Id. at 73, 90 S. Ct. at 1890, 26 L. Ed. 2d
at 443. Unlike in cases where the penalty exceeds six months’
imprisonment, however, such “disadvantages, onerous though they
may be, may be outweighed by the benefits that result from
speedy and inexpensive nonjury adjudications.” Ibid.In Blanton v. North Las Vegas, the Supreme Court applied
this analysis to conclude that a first-time DWI offense was
“petty” for purposes of the Sixth Amendment. 489 U.S. 538, 539-
40, 109 S. Ct. 1289, 1291-92, 103 L. Ed. 2d 550, 554-55 (1989).
In doing so, the Supreme Court first explained that there was a
presumption that the state legislature viewed the offense as
“petty” because it authorized a maximum prison sentence of only
six months. Id. at 544, 109 S. Ct. at 1293, 103 L. Ed. 2d at
557.
10
It also found that the inclusion of other penalties did not
“clearly indicate[] that [DWI] is a ‘serious’ offense.” Ibid.Specifically, the Supreme Court found a 90-day license
suspension and completion of an alcohol abuse education course
to be insignificant, id. at 544 n.9, 109 S. Ct. at 1294 n.9, 103
L. Ed. 2d at 557 n.9, and that a $1000 fine was “well below the
$5,000 level set by Congress in its most recent definition of a
petty offense[,]” id. at 544, 109 S. Ct. at 1293-1294, 103 L.
Ed. 2d at 557. Nonetheless, the Supreme Court explained that
relevant penalties are not limited “solely to the maximum prison
term authorized for a particular offense” and that “[a]
legislature’s view of the seriousness of an offense also is
reflected in the other penalties that it attaches[.]” Id. at
542, 109 S. Ct. at 1292, 103 L. Ed. 2d at 555.
As such, a defendant facing a prison term of six months or
less will be entitled to a jury trial “if he can demonstrate
that any additional statutory penalties, viewed in conjunction
with the maximum authorized period of incarceration, are so
severe that they clearly reflect a legislative determination
that the offense in question is a ‘serious’ one.” Id. at 544,
109 S. Ct. at 1293, 103 L. Ed. 2d at 556. Such a finding will
occur only “in the rare situation where a legislature packs an
offense it deems ‘serious’ with onerous penalties that
nonetheless ‘do not puncture the 6-month incarceration line.’”
11
Id. at 544, 109 S. Ct. at 1293, 103 L. Ed. 2d at 556-57(citation omitted). Such situations are rare because although
“[p]enalties such as probation or a fine may engender a
significant infringement of personal freedom, . . . they cannot
approximate in severity the loss of liberty that a prison term
entails.” Id. at 542, 109 S. Ct. at 1292, 103 L. Ed. 2d at 556(internal quotations and citations omitted).
B.
“A similar right to trial by jury is guaranteed under the
New Jersey Constitution.” State v. Stanton, 176 N.J. 75, 88,
cert. denied, 540 U.S. 903, 124 S. Ct. 259, 157 L. Ed. 2d 187(2003); see N.J. Const. art. I, ¶ 9 (“The right of a trial by
jury shall remain inviolate[.]”); see also N.J. Const. art. I, ¶
10 (“In all criminal prosecutions the accused shall have the
right to a speedy and public trial by an impartial jury[.]”).
Due to the similar language in the federal and state
constitutions, we have long looked to the federal standard to
determine the scope of the right to a jury trial. See Owens,
supra, 54 N.J. at 159-60 (citing Frank, supra, 395 U.S. at 147,
89 S. Ct. at 1503, 23 L. Ed. 2d at 162).
Indeed, in Hamm, supra, we described the issue of whether a
DWI defendant has a right to a jury trial as primarily a
question of federal constitutional law “because New Jersey has
never recognized a right to trial by jury for the motor-vehicle
12
offense of DWI.” 121 N.J. at 112. Thus, this Court explained
that the federal principles “provide the analytical framework”
for resolving the question of “whether the Legislature has so
‘packed’ the offense of DWI that it must be regarded as
‘serious’ for sixth-amendment purposes.” Id. at 114-15.
We have also made clear, however, that trial by jury is
relevant when a defendant faces several petty offenses that are
factually related and arise out of a single event. Owens,
supra, 54 N.J. at 163. “In such circumstances, the prosecutor
(or the municipal court if there is no prosecutor) should offer
the defendant a jury trial, and if such offer is not made, then
the sentences may not total more than the maximum authorized for
a petty offense.” Ibid.Applying the federal standard, this Court determined that
the penalty scheme in effect when Hamm was charged with a third
incident of DWI did not require a jury trial. Hamm, supra, 121
N.J. at 111. At that time, a third or subsequent DWI offender
was subject to 180 days’ incarceration that could be served by
completing a 90-day community service sentence and a combination
of inpatient and outpatient treatment. See L. 1986, c. 126, §
1. In addition, a third or subsequent DWI offender faced a ten-
year driver’s license suspension, ibid.; a fine of $1000, ibid.;
an annual $1500 insurance surcharge for three years, L. 1988, c.
156, § 9; and $180 in other fees and charges, L. 1984, c. 126, §
13
1. The sentence imposed on Hamm, which consisted of ninety
days’ community service, twenty-eight days in an inpatient
treatment program, and sixty days in an outpatient program, as
well as the prescribed driver’s license suspension, surcharges,
and other financial assessments, fell well within the discretion
afforded to a court at that time to craft a sentence that
minimized the time of incarceration. Hamm, supra, 121 N.J. at
111.
In response to Hamm’s argument that this penalty scheme
classified a third DWI offense as “serious” rather than “petty,”
we noted that “when the New Jersey Legislature wants to treat an
offense as ‘serious,’ there will be no mistaking it.” Id. at
117. By way of example, we noted that the Legislature had
imposed mandatory prison sentences of a year or more to address
certain gun and drug offenses. Id. at 117-18. In contrast, we
stated that for DWI, the Legislature “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.” Id. at 116. Specifically, we noted
that the law focused on prevention over punishment, carried
shorter sentences than those in many other states, and had “yet
to require a sentence in excess of six months, or even to
require a mandatory six months of incarceration.” Ibid.We then turned to the additional penalties, noting that the
14
$1000 fine would be regarded as “petty” under Blanton and that
the other fees were civil in nature and therefore should be
discounted. Id. at 117. The Court explained that “[t]he
various rehabilitation and enforcement surcharges are reasonable
in themselves” and that the increased insurance premiums were
not specific to DWI offenses. Id. at 125. We also found that
the insurance surcharge “was totally unrelated to any
legislative intent to ‘pack’ the DWI offense” and that the
collateral consequences attendant to DWI convictions are
limited. Id. at 125-26.
We further stated in Hamm, that a license to drive is a
necessity but that other licenses, including those to practice
certain professions, may be lost without a jury trial. Id. at
124 (citation omitted). We also noted that the suspension,
which previously existed, did not “reflect a significant
escalation of the seriousness with which New Jersey’s
Legislature regards this offense, but rather a shifting social
conclusion about what works best with DWI offenders.” Id. at
124-25.
Finally, in Hamm, we discussed the Legislature’s
rehabilitative focus and described its decision to set a maximum
penalty of 180 days’ confinement as demonstrating “the undoubted
legislative intention to continue to treat DWI as a motor-
vehicle offense, not a crime.” Id. at 127. We also stated that
15
“the provision of jury trial on a DWI charge by the majority of
other states does not suggest the same result in New Jersey” due
to the differences in offense structures and classification.
Ibid.We thus concluded that third or subsequent DWI offenses
were not “serious” and did not require the option of a jury
trial. Id. at 128-29. At the same time, however, we emphasized
that this was “not an easy question” and that Blanton appears to
suggest that “the closer the DWI system actually comes to the
six-month incarceration line, the less room there may be for
other penalties.” Id. at 130.
IV.
N.J.S.A. 39:4-50(a) currently “prohibits the operation of a
motor vehicle ‘while under the influence of intoxicating
liquor,’ or ‘with a [BAC] of 0.08% or more by weight of alcohol
in the defendant’s blood.” State v. Revie, 220 N.J. 126, 133
(2014) (quoting N.J.S.A. 39:4-50(a)). The statutory scheme
provides a tiered penalty structure for first, second, and
“third or subsequent” DWI offenses, with increasing penalties
for each additional offense. N.J.S.A. 39:4-50(a).
Following a series of amendments in 2004, a third or
subsequent violator currently
shall be sentenced to imprisonment for a term
of not less than 180 days in a county jail or
workhouse, except that the court may lower
16
such term for each day, not exceeding 90 days,
served participating in a drug or alcohol
inpatient rehabilitation program approved by
the [IDRC.]
[N.J.S.A. 39:4-50(a)(3) (emphasis added).]
Thus, unlike the pre-2004 statute, the current law requires a
third or subsequent DWI offender to be confined “either entirely
in jail or partially in jail and partially in an inpatient
facility” with “no allowance for noncustodial alternatives.”
State v. Luthe, 383 N.J. Super. 512, 514 (App. Div. 2006). The
mandatory sentence of 180 days, however, has remained the same.
A third or subsequent DWI offender continues to face a
driver’s license suspension of ten years. N.J.S.A. 39:4-
50(a)(3). That requirement has been in place since 1986 and was
part of the penalty scheme considered by the Court in Hamm.
Since Hamm, the Legislature has added an additional restriction
in that third or subsequent DWI offenders “shall be required to
install an ignition interlock device under the provisions of
P.L. 1999, c. 417[.]” N.J.S.A. 39:4-50(a)(3). The device must
be installed “in the motor vehicle principally operated by the
offender during and following the expiration of the period of
license suspension imposed[.]” N.J.S.A. 39:4-50.17(b). After
the period of license suspension has ended, “the device shall
remain installed for not less than one year or more than three
years, commencing immediately upon the return of the offender’s
17
driver’s license after the required period of suspension has
been served.” Ibid.Several financial penalties and assessments also apply to
DWI offenders. Initially, there is a $1000 fine for a third or
subsequent violation. N.J.S.A. 39:4-50(a)(3). There is also a
$100 surcharge to support the Drunk Driving Enforcement Fund,
N.J.S.A. 39:4-50.8; a $100 fee payable to the Alcohol Education,
Rehabilitation and Enforcement Fund, N.J.S.A. 39:4-50(b); a $75
assessment for the Safe Neighborhoods Services Fund, N.J.S.A.
2C:43-3.2; a $50 assessment under N.J.S.A. 2C:43-3.1(c); a $100
DWI surcharge under N.J.S.A. 39:4-50(i);2 and an insurance
surcharge of $1500 per year for three years for third or
subsequent DWI offenses occurring within a three-year period,
N.J.S.A. 17:29A-35(b)(2)(b). A total of $6 is also added to
every motor-vehicle violation fine. N.J.S.A. 39:5-41(d)-(h).
The $1000 fine, L. 1986, c. 126, § 1; the $100 surcharge
for the Drunk Driving Enforcement Fund, L. 1984, c. 4, § 1; and
the annual $1500 insurance surcharge, L. 1988, c. 156, § 9;
existed at the time Hamm was decided. Since Hamm, the Alcohol
Education Fund fee has increased from $80 to $100, L. 1986, c.
126, § 1. In contrast, the $75 assessment fee was not put in
place until August 1993, L. 1993, c. 220, § 11; the $100 DWI
2 This surcharge was increased to $125 effective March 1, 2015.
L. 2014, c. 54, § 2.
18
surcharge did not apply until 2002, L. 2002, c. 34, § 17; and
the $50 assessment under N.J.S.A. 2C:43-3.1(c) and the $6 in
fines under N.J.S.A. 39:5-41(d)-(h) were not enacted until after
Hamm was argued, L. 1990, c. 64, § 1; L. 1990, c. 95, § 2. In
other words, an additional $251 in fines, fees, assessments, and
surcharges have been imposed since Hamm.
DWI offenders also may be subject to penalties, including
confinement, for failing to meet obligations arising from a DWI
conviction. For example, an offender who does not install an
ignition interlock device “in a motor vehicle owned, leased or
regularly operated by him shall have his driver’s license
suspended for one year . . . unless the court determines a valid
reason exists for the failure to comply.” N.J.S.A. 39:4-
50.19(a). The offender also will be subject to a one-year
license suspension for driving an ignition interlock-equipped
vehicle that “has been started by any means other than his own
blowing into the device” or for driving “a vehicle that is not
equipped with such a device[.]” Ibid.
N.J.S.A. 39:4-50(b) provides that any person convicted of
DWI “must satisfy the screening, evaluation, referral, program
and fee requirements of the Division of Alcoholism and Drug
Abuses’ Intoxicated Driving Program Unit, and of the Intoxicated
Driver Resource Centers and a program of alcohol and drug
education and highway safety, as prescribed by the chief
19
administrator.” Failure to comply “shall result in a mandatory
two-day term of imprisonment in a county jail and a driver
license revocation or suspension and continuation of revocation
or suspension until such requirements are satisfied, unless
stayed by court order[.]” Ibid. That requirement existed when
Hamm was decided.
N.J.S.A. 39:3-40 states that no person whose driver’s
license has been suspended or revoked “shall personally operate
a motor vehicle” during the period of suspension or revocation.
An offender whose license has been suspended due to a DWI
conviction will be fined $500 and will have his driver’s license
“suspended for an additional period of not less than one year or
more than two years, and shall be imprisoned in the county jail
for not less than 10 days or more than 90 days.” N.J.S.A. 39:3-
40(f)(2). The DWI offender’s motor-vehicle registration
privilege will also be revoked. N.J.S.A. 39:3-40(a). This
penalty existed when Hamm was decided, except that the statute
did not include a minimum 10-day term of imprisonment and did
not require revocation of the offender’s registration. L. 1994,
c. 286, § 1.
Lastly, under N.J.S.A. 39:5-36(a), a court may incarcerate
“any person upon whom a penalty or surcharge . . . has been
imposed for a violation of [a motor-vehicle offense] where the
court finds that the person defaulted . . . without good cause
20
and the default was willful.” Such incarceration cannot “exceed
one day for each $50 of the penalty or surcharge so imposed” or
“a period of 90 consecutive days.” Ibid. The earlier version
of this law, in effect when Hamm was decided, was substantially
identical, other than that incarceration could not exceed “1 day
for each $20.00 of the fine so imposed[.]” L. 1975 c. 144, § 4.
V.
As an initial matter, we decline defendant’s request to
resolve this case on independent principles of the New Jersey
Constitution. As was true when Hamm was decided, “New Jersey
has never recognized a right to trial by jury for the motor-
vehicle offense of DWI” and DWI is “not a crime under New Jersey
law.” 121 N.J. at 112. Those facts have not changed and we
remain satisfied that the protections guaranteed by the Sixth
Amendment are consonant with those found in our State
Constitution. We therefore apply the federal standard.
A.
We begin our inquiry with “[t]he most relevant indication
of the seriousness” of an offense -- the severity of the penalty
authorized for third or subsequent DWI offenses. Frank, supra,
395 U.S. at 148, 89 S. Ct. at 1505, 23 L. Ed. 2d at 166. In
doing so, we keep in mind that “no offense can be deemed ‘petty’
for purposes of the right to trial by jury where imprisonment
for more than six months is authorized.” Baldwin, supra, 399
21
U.S. at 69, 90 S. Ct. at 1888, 26 L. Ed. 2d at 440. On the
other hand, if the offense is punishable by six months or less,
it is “appropriate to presume . . . that society views such an
offense as ‘petty.’” Blanton, supra, 489 U.S. at 543-44, 109 S.
Ct. at 1293, 103 L. Ed. at 556.
N.J.S.A. 39:4-50(a), the provision of the Motor Vehicle
Code addressing third or subsequent DWI offenses, does not
authorize a penalty of over six months’ confinement. The
current mandatory nature of the term of imprisonment, while a
modification of the penal aspect arising from a third or
subsequent DWI conviction, does not lengthen the potential term
of confinement or alter our analysis. Indeed, the 180-day
sentence is the same as that addressed in Hamm, with the only
difference being in how the 180 days must be served.
Under the 1986 version of N.J.S.A. 39:4-50(a) addressed in
Hamm, a DWI offender could potentially serve 90 days through
community service and the remaining 90 days through outpatient
treatment. In contrast, a person sentenced under the current
law is required to spend the entire 180-day sentence
incarcerated, unless the defendant enrolls in up to 90 days of
inpatient treatment. Such treatment may not be available to
some individuals due to their financial situation or insurance
coverage, and they will forego this alternative.
Therefore, regardless of its intent, the Legislature has
22
effectively replaced a largely non-custodial and treatment-based
approach with one that more heavily emphasizes confinement.
This increased emphasis on incarceration represents an
alteration of the Legislature’s view of the penal consequences
needed to address the scourge of intoxicated driving by third
and subsequent offenders. This modification also marks the
limit the Sixth Amendment will permit in terms of confinement
without triggering the right to a jury trial. It does not,
however, alter the guiding factor in our analysis: the amount
of confinement to which a defendant is exposed.
We are not persuaded that defendant faced more than 180
days’ incarceration in this case. To start, we reaffirm our
holding in Owens, supra, that trial by jury is relevant when a
defendant faces “several petty offenses [that] are factually
related and arise out of a single event” but that the failure to
offer the defendant a jury trial in such a case is cured by
limiting the total sentence to no more “than the maximum
authorized for a petty offense.” 54 N.J. at 163. As noted, the
primary focus of the right to a jury trial is on the penal
exposure. Thus, in terms of the right to a jury trial, it is
immaterial whether a defendant is tried on several factually
related “petty” offenses or on a single “petty” offense as long
as the total period of incarceration does not exceed six months.
As such, defendant was not entitled to a jury trial based
23
on the 15-day jail terms that his other two offenses carried.
Defendant was assured that he would not be sentenced to more
than 180 days’ imprisonment and, more importantly, was
constitutionally guaranteed a sentence of no more than six
months.
We also decline to find that the IDRC requirements under
N.J.S.A. 39:4-50(b) bring a third or subsequent DWI offender’s
maximum sentence to over 180 days’ confinement. To be sure,
those requirements have some relevance in determining whether
the Legislature has “packed” the statute to the point of
elevating it to a “serious” offense. At the same time, however,
we find that the two-day sentence for failure to fulfill the
requirements of the Intoxicated Driving Program Unit and the
IDRC, a sentence dependent on an independent and not necessarily
inevitable event, is too attenuated to affect a DWI offender’s
direct exposure to incarceration.
The two-day term of imprisonment is not part of the
sentence for the DWI offense. Rather, the DWI statute merely
requires the sentencing court to “inform the person convicted
that failure to satisfy [the] requirements shall result in a
mandatory two-day term of imprisonment[.]” Ibid. The
sentencing court is not involved in imposing the penalty, and
the conduct giving rise to the sentence is distinct from that
underlying the DWI offense. In other words, the two-day
24
sentence is imposed for the separate act of not complying with
the Intoxicated Driving Program Unit and IDRC requirements, not
the original DWI offense.
In addition, the statute makes clear that the sentencing
judge’s only role in this process is to “inform the person
convicted” that he must comply with the requirements. Ibid. It
does not instruct the judge to craft those requirements or to
include them in the sentence.
B.
Because defendant did not face over six months of
confinement, we presume the DWI offense to be “petty,” Hamm,
supra, 121 N.J. at 112-13, and address the question whether this
is a “rare situation where a legislature packs an offense it
deems ‘serious’ with onerous penalties that nonetheless ‘do not
puncture the 6-month incarceration line,’” Blanton, supra, 489
U.S. at 544, 109 S. Ct. at 1293, 103 L. Ed. 2d at 556-57(citation omitted). In making this determination, we consider
“only penalties resulting from state action[.]” Id. at 544 n.8,
109 S. Ct. at 1293 n.8, 103 L. Ed. 2d at 557 n.8.
To begin with, as in Hamm, supra, we find that the
deprivation of a license to drive “is clearly a ‘consequence of
magnitude.’” 121 N.J. at 124 (citation omitted). We also
reaffirm that the ten-year license suspension, which is not new,
“does not in any sense reflect a significant escalation of the
25
seriousness with which New Jersey’s Legislature regards this
offense, but rather a shifting social conclusion about what
works best with DWI offenders.” Ibid. The history and analysis
regarding this suspension remain the same, and we see no reason
to repeat our analysis from Hamm on this point. See id. at 118-
22.
The license suspension, however, is no longer the only
driving restriction included in the statute. The requirement
under N.J.S.A. 39:4-50.17(b) that an offender facing a second or
subsequent DWI conviction install an ignition interlock device
did not exist in 1990, and we now recognize it as relevant to
our analysis. That mandate places a restriction on the
offender’s ability to drive his vehicle, and also prevents him
from operating any vehicle lacking an ignition interlock device.
N.J.S.A. 39:4-50.17(a)-(c).
Those limitations, however, are far less burdensome than a
license suspension. As a practical matter, an offender need not
install an ignition interlock device during the suspension
period if he sells the vehicle or transfers ownership to another
person. Indeed, the New Jersey Motor Vehicle Commission advises
that installing an ignition interlock device is not necessary if
the individual “do[es] not have access to or plan[s] to operate
any vehicle[.]” N.J. Motor Vehicle Commission, Ignition
Interlock Device FAQs 2 (2016), http://www.state.nj.us/mvc/pdf/
26
Violations/interlock-faq.pdf.
Moreover, even when the ignition interlock device is
installed, the burden is not so onerous as to indicate that the
Legislature views repeat DWI offenses as “serious.”
Specifically, the ignition interlock device merely limits the
vehicles an offender can operate, and prevents the offender from
driving with a certain BAC level. Thus, while perhaps an
inconvenience, the requirement, like the license suspension, is
preventative rather than punitive.
The preventative nature of the ignition interlock device
requirement is also reflected in the provision that individuals
with family income not exceeding 149 percent of the federal
poverty level are entitled to pay a reduced leasing fee for the
ignition interlock device, and need not pay anything for the
installation, monitoring, calibration, or removal of said
device. N.J.S.A. 39:4-50.17a. Similarly, the one-year license
suspension for failure to install an ignition interlock device
will not be applied if “the court determines a valid reason
exists for the failure to comply.” N.J.S.A. 4-50.19(a).
The costs associated with the device, however, likely
represent the greatest burden imposed by this requirement. The
ACLU estimates the cost of having an ignition interlock device
as approximately $1050 for one year and $2850 for three years.
Such an expense is significant, but is spread over a period of
27
time and, as noted, can be reduced based on income.
In addition, that cost is not the result of fees paid to
the State. Rather, it simply represents the price of satisfying
a court order based on market rates. In that way, the expenses
are no different from any other cost of complying with a court
order, such as finding alternate means of transportation when
one’s driver’s license is suspended. A prime distinction here,
ironically, would appear to be that, unlike with other
attenuated costs, the Legislature has attempted to lessen the
cost of compliance for low-income offenders. Thus, although we
consider this a financial burden, we do so to a limited extent.
More directly, DWI offenders on their third or subsequent
conviction face $5931 in fees, fines, and assessments. Of that
amount, only the $1000 fine in the DWI statute and the $50
assessment under N.J.S.A. 2C:43-3.1(c) can be considered
criminal penalties. As in Hamm, we note that $1050 would
constitute a “petty” fee under Blanton, supra, which cited $5000
as the amount associated with federal “petty” offenses. 489
U.S. at 544-45, 109 S. Ct. at 1294, 103 L. Ed. 2d at 557 (citing
18 U.S.C.A. § 1 (1982 ed., Supp. IV)). The remaining fees are
civil penalties which “we do not disregard,” but we note that
“they are not the penalties associated with crimes.” Hamm,
supra, 121 N.J. at 117.
While the use of civil penalties tends to show that the
28
Legislature does not view the offense as “serious,” $5931 in
civil fines is significant. It is $251 more than the amount
imposed in 1990 and exceeds the $5000 penalty mentioned in
Blanton and federal law. 18 U.S.C.A. § 3571(b).
We do not, however, view the $5000 amount as dispositive in
regard to the right to a jury trial. The Supreme Court in
Blanton, supra, did not treat it as such and instead simply
noted that it had “frequently looked to the federal
classification scheme in determining when a jury trial must be
provided.” 489 U.S. at 545 n.11, 109 S. Ct. at 1294 n.11, 103
L. Ed. 2d at 557 n.11. It is also worth noting that the fines
associated with “petty” federal offenses have changed in the
past. See 18 U.S.C.A. § 1 (1964 ed.) (stating that petty
offense was “any misdemeanor, the penalty of which does not
exceed imprisonment for a period of six months or a fine of not
more than $500, or both”).
In addition, strict adherence to a set amount would
overlook the context of a monetary penalty, including that
money, as opposed to a term of confinement, is subject to
inflation. As such, while the amount of any surcharges, fines,
or assessments is an essential factor in determining the right
to a jury trial, and while we are not inclined to approve of
fees larger than those present here, our inquiry does not end
simply because the total amount due exceeds $5000.
29
The remaining penalties and fees, including the penalties
for failing to install an ignition interlock device, N.J.S.A.
39:4-50.19(a); driving on a suspended license, N.J.S.A. 39:3-40;
and failing to pay a penalty or surcharge, N.J.S.A. 39:5-36; are
too attenuated to be relevant to the current issue before the
Court. As with the two-day term of incarceration for not
satisfying the IDRC requirements, those penalties are for
conduct separate and distinct from the DWI offense. Although
being convicted of a third or subsequent DWI offense makes it
possible for the individual to receive additional penalties,
such penalties are in no way preordained. Their applicability
depends entirely on the subsequent conduct and choices of that
person. Those penalties are therefore too removed from the DWI
statute to enter into our analysis.
VI.
Given that the total term of potential confinement does not
exceed six months, we presume the DWI offense to be “petty” for
purposes of the Sixth Amendment. The Legislature has, however,
reached the outer limit in subjecting third and subsequent DWI
offenders to confinement without a jury trial. Defendant faced
a mandatory term of six months’ confinement, the constitutional
maximum. To reiterate, “the closer the DWI system actually
comes to the six-month incarceration line, the less room there
may be for other penalties.” Hamm, supra, 121 N.J. at 130.
30
In light of that fact, the State has also reached the outer
limit of additional penalties that may be added for a third or
subsequent DWI offense without triggering the right to a jury
trial. Along with increasing the severity of the sentence in
terms of confinement, it has added another $251 in fines,
bringing the total to nearly $6000, and has enacted new driving
limitations through the ignition interlock device requirement.
Although not all aspects of those changes are equally relevant,
the offense is teetering between classifications, and any
additional penalties will demonstrate that the Legislature views
a third or subsequent DWI as a “serious” offense requiring a
trial by jury. Until that day arrives, however, we believe that
the penal consequences of the offense do not tip the balance to
classify it as “serious.” As a result, the State’s interest in
the efficiency and cost-saving benefits of non-jury trials can
still prevail.
VII.
In reaching this conclusion, we note that the NJSBA and the
Attorney General have provided information about how other
jurisdictions treat DWI offenses3 and approach the right to a
jury trial. This Court has also conducted its own review –- the
3 For clarity and consistency, we use the terms “driving while
intoxicated” and “DWI” regardless of the labels employed by each
state.
31
results of which are set forth at Appendix A -- which shows that
every other state appears to afford jury trials for at least
some DWI offenses. Such information, although not dispositive,
can be helpful in guiding our decisions, particularly as they
relate to important constitutional rights. See State v. Witt,
223 N.J. 409, 425-27 (2015).
We acknowledge, however, that the significance of any
apparent uniformity in state practices can be belied by the
context and nuances of each jurisdiction. For example, every
other jurisdiction exposes at least some DWI offenders to over
six months of confinement. Eighteen do so for the first
offense, while the remaining thirty-two, including the District
of Columbia, take that approach for second or subsequent
offenses. The vast majority of those jurisdictions have also
recognized a broader right to jury trials through statute, rule,
or their individual constitutions, or have, unlike New Jersey,
classified all or some DWI offenses as crimes.
Thus, while other states may provide jury trials in at
least some DWI cases, this fact provides minimal guidance for
what is appropriate in our State. New Jersey has historically
addressed DWI as a motor-vehicle offense. A motor-vehicle
offense is not included in an individual’s criminal history
record, N.J.A.C. 13:59-1.1, and is not subject to expungement as
a criminal record, N.J.S.A. 2C:52-28. The Legislature has not
32
enacted a statute guaranteeing a right to a jury trial for DWI
offenses. Rather, the legislative response to repeat DWI
conduct has been to increase the severity of the penalties
focused on prevention and deterrence, thereby creating a law
that is far less punitive than those found in many other states.
It has resisted criminalizing this conduct except in separate
criminal statutes addressing cases where a DWI offense results
in bodily injury or death.4 That approach reveals a legislative
intent to blend punishment with deterrence, which runs counter
to concluding that the current penalties assessed for third and
subsequent DWI offenses have transformed DWI from a “petty”
offense, or a quasi-criminal offense as we classify such
conduct, to a “serious” offense requiring a jury trial.
VIII.
In sum, we believe that the Legislature has increased the
severity of penalties associated with repeat DWI offenses to the
point where any additional direct penalties, whether involving
incarceration, fees, or driving limitations, will render third
or subsequent DWI offenses “serious” offenses for the purpose of
4 For example, while intoxication is not an element of the crime
of death by auto, DWI “shall give rise to an inference that the
defendant was driving recklessly” for the purpose of proving
that offense. N.J.S.A. 2C:11-5(a). The same is true of assault
by auto. N.J.S.A. 2C:12-1(c)(1); see also State v. Mara, 253
N.J. Super. 204, 213 (App. Div. 1992). A DWI violation may also
lead to increased penalties for death by auto, N.J.S.A. 2C:11-
5(b)(1)-(3), and assault by auto, N.J.S.A. 2C:12-1(c).
33
triggering the right to a jury trial. At that point, the
balance will shift and the State’s interest in efficiency will
be outweighed by the magnitude of the consequences facing the
defendant. In such an event, the constitutional right to a jury
trial will apply, regardless of how the offense is categorized
or labeled by the Legislature.
Until that time, however, we are satisfied that the current
penalty scheme is within the confines of Sixth Amendment
precedent and that the Legislature has managed to strike a
minimally acceptable balance in weighing the various interests
at play. As such, third or subsequent DWI offenders are not
entitled to a jury trial, and defendant’s conviction procured by
a bench trial did not violate his Sixth Amendment right to a
jury trial.
IX.
The judgment of the Appellate Division is affirmed.
34
Appendix A
This Court’s review of the DWI laws and jury trial rights
in the other forty-nine states and the District of Columbia
appears to establish that New Jersey is unique in not providing
the right to a jury trial to any DWI offenders. However, the
review also reveals key distinctions between the other
jurisdictions and this State, based on the punishments and
classifications of DWI and the rights guaranteed by individual
state legislatures and constitutions, that explain this result.
I.
Eighteen states expose first-time DWI offenders to over six
months’ confinement, thereby implicating the right to a jury
trial under the Sixth Amendment:
1. Alabama authorizes up to a year in prison for a first
offense. Ala. Code § 32-5A-191(e).
2. Arkansas authorizes up to a year in prison for a first
offense. Ark. Code Ann. § 5-65-111(a)(1)(A).
3. Colorado authorizes up to a year in prison for a first
offense. Colo. Rev. Stat. § 42-4-1307(3)(a)(I).
4. Delaware authorizes up to a year in prison for a first
offense. Del. Code Ann. tit. 21, § 4177(d)(1).
5. Georgia authorizes up to a year in prison for a first
offense. Ga. Code Ann. § 40-6-391(c)(1)(B).
6. Illinois classifies a first offense as a misdemeanor, 625
Ill. Comp. Stat. 5/11-501(c)(1), punishable by less than a
year in prison, 730 Ill. Comp. Stat. 5/5-4.5-55(a).
7. Iowa authorizes up to a year in prison for a first
offense. Iowa Code § 321J.2(3)(a).
8. Maryland authorizes up to a year in prison for a first
offense. Md. Code Ann., Transp. § 27-101(k)(1)(i).
9. Massachusetts authorizes up to two-and-one-half years in
prison for a first offense. Mass. Gen. Laws ch. 90, §
24(1)(a)(1).
10. New York authorizes up to a year in prison for a first
offense. N.Y. Veh. & Traf. Law § 1193(1)(b)(i).
11. Oklahoma authorizes up to a year in prison for a first
offense. Okla. Stat. tit. 47, § 11-902(C)(b).
12. Oregon classifies a first offense as a misdemeanor, Or.
Rev. Stat. § 813.010(4), punishable by up to a year in
prison, Or. Rev. Stat. § 161.615(1).
35
13. Rhode Island authorizes up to a year in prison for a first
offense. R.I. Gen. Laws § 31-27-2(d)(1)(i).
14. South Dakota classifies a first offense as a misdemeanor,
S.D. Codified Laws § 32-23-2, punishable by up to a year
in prison, S.D. Codified Laws § 22-6-2(1).
15. Tennessee authorizes up to eleven months and twenty-nine
days in prison for a first offense. Tenn. Code Ann. § 55-
10-402(a)(1)(A).
16. Vermont authorizes up to two years in prison for a first
offense. Vt. Stat. Ann. tit. 23, § 1210(b).
17. Virginia classifies a first offense as a misdemeanor, Va.
Code Ann. § 18.2-270(A), punishable by up to a year in
prison, Va. Code Ann. § 18.2-11(a).
18. Washington authorizes up to 364 days in prison for a first
offense. Wash. Rev. Code § 46.61.5055(1)(a)(i).
II.
The remaining thirty-two jurisdictions, including the District
of Columbia, expose second or subsequent DWI offenders to over
six months’ confinement, thereby applying the federal right to a
jury trial to those offenses:
1. Alaska authorizes not less than 240 days in prison for a
fifth offense. Alaska Stat. § 28.35.030(b)(1)(E).
2. Arizona classifies a third or subsequent offense within
eighty-four months as a felony, Ariz. Rev. Stat. Ann. §
28-1383(A)(2), (L)(1), punishable by up to three years in
prison, Ariz. Rev. Stat. Ann. § 13-702(D).
3. California authorizes up to a year in prison for a second
offense within ten years. Cal. Veh. Code § 23540(a).
4. Connecticut authorizes up to two years in prison for a
second offense within ten years. Conn. Gen. Stat. § 14-
227a(g)(2)(B).
5. District of Columbia authorizes up to a year in prison for
a second offense. D.C. Code § 50-2206.13(b).
6. Florida authorizes up to nine months in prison for a
second offense. Fla. Stat. § 316.193(2)(a)(2)(b).
7. Hawaii authorizes an “indeterminate term of imprisonment
of five years” for a fourth or subsequent offense within
ten years. Haw. Rev. Stat. § 291E-61.5(a)(1), (b)(1),
(b)(3)(A), (d)(1).
8. Idaho authorizes up to a year in prison for a second
offense within ten years. Idaho Code § 18-8005(4)(a).
36
9. Indiana classifies a second offense within five years as a
felony, Ind. Code § 9-30-5-3(a)(1), punishable by up to
two-and-one-half years in prison, Ind. Code § 35-50-2-
7(b).
10. Kansas authorizes up to a year in prison for a second
offense. Kan. Stat. Ann. § 8-1567(b)(1)(B).
11. Kentucky authorizes up to a year in prison for a third
offense within five years. Ky. Rev. Stat. Ann. §
189A.010(5)(c).
12. Louisiana authorizes one to five years in prison for a
third offense. La. Stat. Ann. § 14:98.3(A)(1).
13. Maine authorizes not less than six months in prison for a
fourth offense within ten years. Me. Stat. tit. 29-A, §
2411(5)(D)(2).
14. Michigan authorizes up to a year in prison for a second
offense within seven years. Mich. Comp. Laws §
257.625(9)(b)(i).
15. Minnesota mandates at least 180 days in prison for a
fourth offense within ten years, Minn. Stat. §
169A.275(3)(a)(1), and at least a year in prison for a
fifth offense within ten years, Minn. Stat. §
169A.275(4)(a)(1).
16. Mississippi authorizes up to a year in prison for a second
offense within five years. Miss. Code Ann. § 63-11-
30(2)(b)(i).
17. Missouri classifies a second offense as a misdemeanor, Mo.
Rev. Stat. § 577.023(2), punishable by up to a year in
prison, Mo. Rev. Stat. § 558.011(1)(5).
18. Montana authorizes up to a year in prison for a second
offense. Mont. Code Ann. § 61-8-714(2)(a).
19. Nebraska classifies a fourth offense as a felony, Neb.
Rev. Stat. § 60-6,197.03(7), punishable by up to three
years in prison, Neb. Rev. Stat. § 28-105(1).
20. Nevada authorizes one year to six years in prison for a
third offense within seven years. Nev. Rev. Stat. §
484C.400(1)(c).
21. New Hampshire classifies a second offense within ten years
as a misdemeanor, N.H. Rev. Stat. Ann. § 265-A:18(IV)(a),
punishable by up to a year in prison, N.H. Rev. Stat. Ann.
§ 625:9(IV)(a).
22. New Mexico authorizes up to 364 days in prison for a
second offense. N.M. Stat. Ann. § 66-8-102(F).
37
23. North Carolina authorizes up to a year in prison for a
second offense within seven years. N.C. Gen. Stat. § 20-
179(c)(1)(a), (h).
24. North Dakota classifies a third offense within seven years
as a misdemeanor, N.D. Cent. Code § 39-08-01(3),
punishable by up to a year in prison, N.D. Cent. Code §
12.1-32-01(5).
25. Ohio authorizes up to a year in prison for a third offense
within six years. Ohio Rev. Code Ann. §
4511.19(G)(1)(c)(i).
26. Pennsylvania classifies a third or subsequent offense as a
misdemeanor, 75 Pa. Cons. Stat. § 3803(a)(2), punishable
by up to two years in prison, 18 Pa. Cons. Stat. §
1104(2).
27. South Carolina authorizes up to a year in prison for a
second offense. S.C. Code Ann. § 56-5-2930(A)(2).
28. Texas classifies a second offense as a misdemeanor, Tex.
Penal Code Ann. § 49.09(a), punishable by up to a year in
prison, Tex. Penal Code Ann. § 12.21(2).
29. Utah classifies a third or subsequent offense within ten
years as a felony, Utah Code Ann. § 41-6a-503(2)(b)(i),
punishable by up to five years in prison, Utah Code Ann. §
76-3-203(3).
30. West Virginia authorizes six months to a year in prison
for a second offense. W. Va. Code § 17C-5-2(l).
31. Wisconsin authorizes up to a year in prison for a third
offense. Wis. Stat. § 346.65(2)(am)(3).
32. Wyoming authorizes up to seven years in prison for a
fourth or subsequent offense within ten years. Wyo. Stat.
Ann. § 31-5-233(e).
III.
In addition, at least thirty-nine states have established a
broader right to jury trials by statute, rule, or under their
state constitutions, or have applied the right to DWI offenses,
at least in part, by classifying DWI as a crime even when the
attached penalty is for six months’ confinement or less:
1. Alabama provides that “[d]efendants in all criminal cases
shall have the right to be tried by a jury[,]” Ala. R.
Crim. P. 18.1(a), and classifies DWI as a misdemeanor or
felony, Ex parte Marshall, 25 So. 3d 1190, 1194 (Ala.
2009).
38
2. Alaska applies the right to a jury trial to all “offenses
in which a direct penalty may be incarceration,” State v.
Dutch Harbor Seafoods, Ltd., 965 P.2d 738, 741 (Alaska
1998), and authorizes not less than seventy-two hours in
prison for a first offense, Alaska Stat. §
28.35.030(b)(1)(A).
3. Arizona applies the right to a jury trial to DWI
defendants, Ariz. Rev. Stat. Ann. § 28-1381(F), even
though a first offense is punishable by no less than ten
days in jail, Ariz. Rev. Stat. Ann. § 28-1381(I)(1).
4. Arkansas applies the right to a jury trial “to all cases
at law, without regard to the amount in controversy[,]”
Ark. Const. art. II, § 7, including misdemeanors, Winkle
v. State, 841 S.W.2d 589, 590 (Ark. 1992), and classifies
a first offense as a misdemeanor, Ark. Code Ann. § 5-65-
111(a)(1)(A).
5. California provides that “[n]o person can be convicted of
a public offense unless by verdict of a jury,” Cal. Penal
Code § 689, and classifies DWI as a public offense, Cal.
Veh. Code § 23152, punishable for a first offense by up to
six months in prison, Cal. Veh. Code § 23536(a).
6. Colorado defines a petty offense as one not punishable by
more than six months in prison or $500 in fines, and
provides that “[a] defendant charged with a petty offense
shall be entitled to a jury trial[.]” Colo. Rev. Stat. §
16-10-109(1), (2).
7. Connecticut provides that a “party accused in a criminal
action in the Superior Court may demand a trial by jury”
unless the maximum penalty is a fine of $199, Conn. Gen.
Stat. § 54-82b(a), and classifies a first offense, which
is punishable by up to six months in prison, Conn. Gen.
Stat. § 14-227a(g)(1)(B)(i), as a misdemeanor, McCoy v.
Comm’r of Pub. Safety, 12 A.3d 948, 957-59 (Conn. 2011).
8. Florida provides that, “[i]n each prosecution for a
violation of a state law or a municipal or county
ordinance punishable by imprisonment, the defendant shall
have, upon demand, the right to a trial by an impartial
jury[,]” Fla. Stat. § 918.0157, and authorizes up to six
months in prison for a first offense, Fla. Stat. §
316.193(2)(a)(2)(a). Florida also explicitly applies the
right to a jury trial to all DWI offenses. Fla. Stat. §
316.1934(4).
9. Georgia provides that criminal defendants “shall have a
public and speedy trial by an impartial jury[,]” Ga.
39
Const. art. I, § I, ¶ XI(a), and classifies a first
offense as a misdemeanor, Ga. Code Ann. § 40-6-391(c).
10. Hawaii applies the right to a jury trial when a defendant
“may be imprisoned for six months or more.” Haw. Rev.
Stat. § 806-60.
11. Idaho “provides a trial by jury for all public offenses
which are potentially punishable by imprisonment[,]”
State v. Wheeler, 753 P.2d 833, 836 (Idaho 1988), and
authorizes up to six months in prison for a first offense,
Idaho Code § 18-8005(1)(a).
12. Illinois provides that “[e]very person accused of an
offense shall have the right to a trial by jury” unless
waived or for an “ordinance violation punishable by fine
only[,]” 725 Ill. Comp. Stat. 5/103-6, and classifies DWI
as a misdemeanor, 625 Ill. Comp. Stat. 5/11-501(c)(1),
punishable for a first offense by less than a year in
prison, 730 Ill. Comp. Stat. 5/5-4.5-55(a).
13. Indiana provides that “[a] defendant charged with a
misdemeanor may demand trial by jury[,]” Ind. R. Crim. P.
22, and classifies a first offense as a misdemeanor, Ind.
Code § 9-30-5-2(a), punishable by up to sixty days in
prison, Ind. Code § 35-50-3-4.
14. Iowa provides the right to a jury trial “[i]n all criminal
prosecutions, and in cases involving the life, or liberty
of an individual[,]” Iowa Const. art. I, § 10, and
classifies a first offense as a misdemeanor punishable by
up to a year in prison, Iowa Code § 321J.2(2)(a), (3)(a).
15. Kansas provides that “[t]he trial of misdemeanor cases
shall be to the court unless a jury trial is requested in
writing by the defendant[,]” Kan. Stat. Ann. § 22-3404(1),
and classifies first offense as a misdemeanor punishable
by up to a six months in prison, Kan. Stat. Ann. § 8-
1567(b)(1)(A).
16. Kentucky provides that “[d]efendants shall have the right
to a jury trial in all criminal prosecutions, including
prosecutions for violations of traffic laws,” Ky. Rev.
Stat. Ann. § 29A.270(1), and classifies DWI as a crime,
Commonwealth v. Ramsey, 920 S.W.2d 526, 529 (Ky. 1996),
punishable by up to thirty days in prison for a first
offense, Ky. Rev. Stat. Ann. § 189A.010(5)(a).
17. Maine “guarantees all criminal defendants, even those
charged with petty crimes, the right to trial by jury[,]”
State v. Lenfestey, 557 A.2d 1327, 1327-28 (Me. 1989)
(citing Me. Const. art. I, § 6), and classifies DWI as a
40
crime, even though a first offense may not result in
confinement, Me. Stat. tit. 29-A, § 2411(5)(A)(3).
18. Maryland applies the right to a jury trial to criminal
cases exposing a defendant to “a penalty of
imprisonment[,]” Md. Code Ann., Crim. Proc. § 6-101(1),
and classifies a first offense as a misdemeanor punishable
by up to a year in prison, Md. Code Ann., Transp. § 27-
101(a), (k)(1)(i).
19. Michigan has “largely extended the right to a jury trial
to petty offenses, without precisely addressing whether
Sixth Amendment analysis applies[,]” People v. Antkoviak,
619 N.W.2d 18, 41 (Mich. Ct. App. 2000), and classifies a
first offense as a misdemeanor punishable by up to ninety-
three days in jail, Mich. Comp. Laws § 257.625(9)(a)(ii).
20. Minnesota provides that “[a] defendant has a right to a
jury trial for any offense punishable by incarceration[,]”
Minn. R. Crim. P. 26.01(1)(1)(a), and classifies a first
offense as a misdemeanor, Minn. Stat. § 169A.27,
punishable by up to ninety days in prison, Minn. Stat. §
609.02(3).
21. Missouri applies the right to a jury trial to all
misdemeanor cases, Mo. Rev. Stat. § 543.200, and
classifies a first offense as a misdemeanor, Mo. Rev.
Stat. § 577.010(2).
22. Montana provides that “[t]he parties in a misdemeanor case
are entitled to a jury[,]” Mont. Code Ann. § 46-17-201(1),
and classifies DWI as a felony or misdemeanor, State v.
Anderson, 182 P.3d 80, 84 (Mont. 2008), with a first
offense punishable by up to six months in prison, Mont.
Code Ann. § 61-8-714(1)(a).
23. Nebraska provides that “[e]ither party to any case in
county court, except criminal cases arising under city or
village ordinances, traffic infractions, other
infractions, and any matter arising under the Nebraska
Probate Code or the Nebraska Uniform Trust Code, may
demand a trial by jury[,]” Neb. Rev. Stat. § 25-2705(1),
and classifies DWI as a felony or misdemeanor under state
law, Neb. Rev. Stat. § 60-6,197.03, with a first offense
punishable by up to sixty days in prison, Neb. Rev. Stat.
§ 28-106(1).
24. New Hampshire guarantees “a jury trial to all criminal
defendants facing the possibility of incarceration[,]” In
re Senate, 608 A.2d 202, 204-05 (N.H. 1992), and
41
classifies DWIs as misdemeanors or felonies, N.H. Rev.
Stat. Ann. § 265-A:18(I).
25. North Carolina provides that “[n]o person shall be
convicted of any crime but by the unanimous verdict of a
jury in open court,” N.C. Const. art. I, § 24, and
classifies a first offense as a misdemeanor, N.C. Gen.
Stat. § 20-138.1(d), even though it may only expose a
defendant to up to sixty days in jail, N.C. Gen. Stat. §
20-179(f)(3), (k).
26. North Dakota provides that misdemeanor cases will be tried
before at least six jurors, N.D.R. Crim. P. 23(b)(2), and
classifies DWI as felony or misdemeanor, N.D. Cent. Code §
39-08-01(3), with a first offense punishable by up to
thirty days in prison, N.D. Cent. Code § 12.1-32-01(6).
27. Ohio applies the right to a jury trial to any case
involving the violation of a statute, except for minor
misdemeanors or cases that do not involve “the possibility
of a prison term or jail term and for which the possible
fine does not exceed one thousand dollars[,]” Ohio Rev.
Code Ann. § 2945.17(A), (B), and classifies a first
offense as a misdemeanor punishable by up to six months in
prison, Ohio Rev. Code Ann. § 4511.19(G)(1)(a)(i).
28. Oklahoma applies the right to a jury trial “except in
civil cases wherein the amount in controversy does not
exceed [$1500], or in criminal cases wherein punishment
for the offense charged is by fine only, not exceeding
[$1500][,]” Okla. Const. art. II, § 19, and classifies a
first offense as a misdemeanor punishable by up to a year
in prison, Okla. Stat. tit. 47, § 11-902(C)(b).
29. Oregon provides that, “[i]n all criminal prosecutions, the
accused shall have the right to public trial by an
impartial jury[,]” Or. Const. art. I, § 11, and classifies
a first offense as a misdemeanor, Or. Rev. Stat. §
813.010(4), punishable by up to a year in prison, Or. Rev.
Stat. § 161.615(1).
30. South Carolina applies the right to a jury trial to all
DWI defendants, S.C. Code Ann. § 56-5-2935, even though a
first offense is punishable by no more than thirty days in
prison, S.C. Code Ann. § 56-5-2930(A)(1).
31. South Dakota applies the right to a jury trial to “any
criminal prosecution, whether for violation of state law
or city ordinance, in which a direct penalty of
incarceration for any period of time could be imposed,”
State v. Wikle, 291 N.W.2d 792, 794 (S.D. 1980), and
42
classifies a first offense as a misdemeanor, S.D. Codified
Laws § 32-23-2, punishable by up to a year in prison, S.D.
Codified Laws § 22-6-2(1).
32. Texas applies the right to a jury trial “to all criminal
prosecutions,” including misdemeanors, Chaouachi v. State,
870 S.W.2d 88, 90 (Tex. App. 1993), and classifies a first
offense as a misdemeanor, Tex. Penal Code Ann. § 49.04(b),
punishable by up to 180 days in jail, Tex. Penal Code Ann.
§ 12.22(2).
33. Utah provides that, “[i]n criminal prosecutions the
accused shall have the right . . . to have a speedy public
trial by an impartial jury[,]” Utah Const. art. I, § 12,
and has applied that right to DWI, State v. Nuttall, 611
P.2d 722, 725 (Utah 1980), a misdemeanor, Utah Code Ann. §
41-6a-503(1)(a), punishable by up to six months for a
first offense, Utah Code Ann. § 76-3-204(2).
34. Vermont law does not “provide that certain classes of
offenses shall be tried without a jury or authorize the
legislature to make such provision by statutory
enactment.” State v. Becker, 287 A.2d 580, 582 (Vt.
1972).
35. Virginia applies the right to a jury trial to misdemeanor
offenses, Va. Code Ann. § 19.2-258, and classifies a first
offense as a misdemeanor, Va. Code Ann. § 18.2-270(A).
36. Washington provides that, when an offense carries a
possible term of imprisonment, “the constitution requires
that a jury trial be afforded unless waived[,]” Pasco v.
Mace, 653 P.2d 618, 625 (Wash. 1982), and authorizes up to
364 days in prison for a first offense, Wash. Rev. Code §
46.61.5055(1)(a)(i).
37. West Virginia applies the right to a jury trial to “both
felonies and misdemeanors where the penalty imposed
involves any period of incarceration[,]” Hendershot v.
Hendershot, 263 S.E.2d 90, 95 (W. Va. 1980), and
classifies a first offense as a misdemeanor punishable by
up to six months in prison, W. Va. Code § 17C-5-2(e).
38. Wisconsin applies the right to a jury trial to misdemeanor
crimes, State v. Slowe, 284 N.W. 4, 5-6 (Wis. 1939), and
classifies a second or subsequent offense as a crime,
State v. Verhagen, 827 N.W.2d 891, 896 (Wis. Ct. App.),
review denied, 839 N.W.2d 866 (Wis. 2013), cert. denied,
134 S. Ct. 927, 187 L. Ed. 2d 783 (2014), punishable by up
to six months in prison, Wis. Stat. § 346.65(2)(2).
43
39. Wyoming applies the right to a jury trial to crimes
“punishable by any jail term, regardless of length,”
Brenner v. Casper, 723 P.2d 558, 561 (Wyo. 1986), and
classifies a first offense as a misdemeanor punishable by
up to six months in prison, Wyo. Stat. Ann. § 31-5-233(e).
CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, PATTERSON,
and SOLOMON join in JUDGE CUFF’s opinion. JUSTICE ALBIN filed a
separate dissenting opinion. JUSTICE FERNANDEZ-VINA did not
participate.
44
SUPREME COURT OF NEW JERSEY
A-42 September Term 2014
075170
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES R. DENELSBECK,
Defendant-Appellant.
JUSTICE ALBIN, dissenting.
A person facing a fourth conviction for driving while
intoxicated (DWI) has a right to a jury trial in every state
except one –- New Jersey. Our state holds this dubious
distinction because, in the case of third and subsequent DWI
offenses, the majority elevates “the State’s interest in the
efficiency and cost-saving benefits of non-jury trials,” State
v. Denelsbeck, __ N.J. __, __ (2016) (slip op. at 31), above the
Sixth Amendment guarantee of the right to a jury trial. However
inefficient and costly a jury trial may be, the right to one is
enshrined in the Federal Bill of Rights.1 “A jury trial is self-
government at work in our constitutional system,” and in our
1 The right to trial by jury also has been guaranteed by the New
Jersey Constitution, beginning in 1776. Allstate New Jersey v.
Lajara, 222 N.J. 129, 140-41 (2015).
1
democratic society a jury verdict is the ultimate validation of
the guilt or innocence of a defendant. Allstate New Jersey v.
Lajara, 222 N.J. 129, 134 (2015).
In this case, a municipal court judge denied defendant
James Denelsbeck’s request for a jury trial despite the array of
severe penalties he faced for a fourth DWI conviction. After a
bench trial, the judge convicted defendant of DWI and imposed
the following sentence: a mandatory 180-day jail term; an
additional twelve hours of participation at an Intoxicated
Driver Resource Center (IDRC); ten-year’s loss of license
privileges; fines, penalties, costs, and surcharges totaling
about $6500; and the installment of an ignition interlock device
in defendant’s automobile for a period of two years after
completing his license suspension.
In Blanton v. North Las Vegas, the United States Supreme
Court held that although a potential sentence exceeding 180 days
in jail automatically triggers the right to a jury trial, the
right is still guaranteed when a sentence of less than six
months is packed with additional “onerous penalties.” 489 U.S.
538, 542-44, 109 S. Ct. 1289, 1293, 103 L. Ed. 2d 550, 556-57
(1989). In light of Blanton, this Court declared in State v.
Hamm that “the closer the DWI system actually comes to the six-
month incarceration line, the less room there may be for other
penalties” without offending the Sixth Amendment’s jury trial
2
right. 121 N.J. 109, 130 (1990), cert. denied, 499 U.S. 947,
111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991).
We have crossed the red line set in Blanton and Hamm. We
justified withholding the right to a jury trial for a third-time
DWI offense in Hamm based on the “rehabilitative emphasis in New
Jersey’s DWI laws” at the time. Ibid. Indeed, in Hamm, the
defendant was not imprisoned, but ordered to perform community
service and undergo inpatient and outpatient therapy. Ibid.The primary focus of New Jersey’s DWI laws today is not
rehabilitation, but rather punishment and deterrence.
Defendant’s mandatory 180-day jail term, standing alone, was at
the outermost constitutional limit without triggering the right
to a jury trial. Surely, the packing of an additional twelve
hour IDRC requirement and extremely onerous licensure and
financial penalties breached the constitutional threshold.
This case is not the time to draw another red line. This
case is the time for the Court to honor the promise it made
twenty-five years ago in Hamm. This case is the time for the
Court to confer on third and subsequent DWI offenders the
fundamental right guaranteed by the Sixth Amendment and
guaranteed in every other state and the District of Columbia --
the right to a jury trial. Because the enforced bench trial
denied defendant a basic right protected by the United States
Constitution, I respectfully dissent.
3
I.
A.
“[A] defendant is entitled to a jury trial whenever the
offense for which he is charged carries a maximum authorized
prison term of greater than six months.” Blanton, supra, 489
U.S. at 542, 109 S. Ct. at 1293, 103 L. Ed. 2d at 556. However,
even when a defendant is not facing a sentence of more than six
months, he is still entitled to a jury trial if “additional
statutory penalties, viewed in conjunction with the maximum
authorized period of incarceration, are so severe that they
clearly reflect a legislative determination that the offense in
question is a ‘serious’ one.” Id. at 543, 109 S. Ct. at 1293,
103 L. Ed. 2d at 556. The right to a jury trial cannot be
denied “where a legislature packs an offense it deems ‘serious’
with onerous penalties that nonetheless ‘do not puncture the 6-
month incarceration line.’” Id. at 543, 109 S. Ct. at 1293, 103
L. Ed. 2d at 556-57. Therefore, the nature of the penalties,
not how the Legislature classifies the offense, ultimately
determines when a defendant is entitled to a jury trial.
At the time this Court decided Hamm, supra, in 1990, the
statutory penalties for a third or subsequent DWI offense were
“not so severe as to clearly reflect a legislative determination
of a constitutionally ‘serious’ offense requiring jury trial.”
121 N.J. at 111. Then, an offender faced a non-mandatory 180-
4
day jail term. State v. Laurick, 120 N.J. 1, 5, cert. denied,
498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990). The
municipal court was authorized to commute the sentence to ninety
days’ community service and a combination of ninety days of
inpatient and outpatient alcohol rehabilitation therapy. Ibid.Indeed, the defendant in Hamm was sentenced “to ninety days of
community service, twenty-eight days in an inpatient program and
sixty days in an outpatient program.” Hamm, supra, 121 N.J. at
111. Additionally, “[t]he court fined defendant $1,000; imposed
a surcharge of $100 and $15 court costs; and suspended his
license for ten years.” Ibid. (citation omitted). Furthermore,
offenders were required to pay a $3000 to $4500 insurance
surcharge and a $100 Drunk Driving Enforcement Fund surcharge.
Laurick, supra, 120 N.J. at 5-6.
The Court in Hamm concluded by noting that
Blanton now appears to embrace a spectrum of
values, a continuum rather than a clear
contrast: the closer the DWI system actually
comes to the six-month incarceration line, the
less room there may be for other penalties.
For now, given the rehabilitative emphasis in
New Jersey’s DWI laws (Hamm will serve no
county-jail time; his sentence is split
between community service and
rehabilitation), we find the Blanton criteria
not to be violated.
[121 N.J. at 130.]
B.
5
After Hamm, the Legislature steadily imposed more severe
penalties for a third or subsequent DWI offense, including a
mandatory custodial term. In 2004, the Legislature provided
that a defendant convicted of a third or subsequent DWI offense
“shall be sentenced to imprisonment for a term of not less than
180 days,” with the sole exception that “the court may lower
such term for each day, not exceeding 90 days, served
participating in a drug or alcohol inpatient rehabilitation
program.” See L. 2003, c. 315 (emphasis added). Importantly,
only defendants with the financial resources to pay for an
inpatient program will receive such treatment if the option is
offered by the court. Here, defendant was sentenced to serve
the entirety of his custodial term in the county jail.
In 1999, the Legislature passed N.J.S.A. 39:4-50.17, which
required second or subsequent DWI offenders to install an
ignition interlock device on vehicles they owned during the
period of their license suspension and for one to three years
thereafter. See L. 1999, c. 417. The cost of an ignition
interlock device for just the three-year period after completion
of the ten-year license suspension is approximately $3000.
Additional penalties added since Hamm are the $100 Alcohol
Education, Rehabilitation and Enforcement Fund fee, see L. 1995,
c. 243 (raised to $100 from $80); $100 DWI surcharge, see L.
2002, c. 34; $75 Safe Neighborhoods Services Fund assessment,
6
see L. 1993, c. 220; $50 violent crime assessment, see L. 1990,
c. 64, L. 1991, c. 329; and $6 motor vehicle offense fine
supplement, see L. 1997, c. 177, L. 2007, c. 174.
The jail term, license suspension, and financial and other
penalties imposed on defendant far exceed those imposed in Hamm
-- and Hamm was a close call in deciding whether the jury-trial
right attached. See Hamm, supra, 121 N.J. at 130. Here,
defendant must serve the entirety of his 180-day county jail
sentence. The court, moreover, imposed a ten-year license
suspension, twelve-hour participation in an IDRC, a two-year
post-suspension ignition interlock device costing approximately
$2000, a $3000 insurance surcharge, a $1000 fine, and $431 in
other penalties and assessments.
II.
A.
Under the statutory regime in place when this Court decided
Hamm, the Court held that the Legislature did not consider third
and subsequent DWI offenses “serious” because “[t]he law allows
for various alternatives to incarceration, with a strong
emphasis on community service and rehabilitative alternatives.”
Id. at 126-28. It is now clear that “the Legislature has so
‘packed’ the offense of DWI that it must be regarded as
‘serious’ for sixth-amendment purposes.” See id. at 114-15.
7
The most significant statutory change since Hamm is the
180-day mandatory custodial period. See Blanton, supra, 489
U.S. at 542, 109 S. Ct. at 1292, 103 L. Ed. 2d at 556(“[B]ecause incarceration is an ‘intrinsically different’ form
of punishment, it is the most powerful indication of whether an
offense is ‘serious.’” (citation omitted)). As we stated in
Hamm, supra, “the closer the DWI system actually comes to the
six-month incarceration line, the less room there may be for
other penalties.” 121 N.J. at 130. New Jersey’s DWI statutory
scheme is now at the 180-day demarcation line. The statutory
packing of other “onerous penalties” to accompany the 180-day
mandatory jail term clearly reflects a legislative determination
that a fourth-time DWI is a “serious” offense, thereby
triggering the right to a jury trial. See Blanton, supra, 489
U.S. at 543, 109 S. Ct. at 1293, 103 L. Ed. 2d at 556-57.
The Legislature’s failure to classify a third or
subsequent DWI as a crime cannot be determinative. Defendant’s
DWI sentence exceeded the custodial term and penalties
customarily imposed for a fourth-degree crime under N.J.S.A.
2C:43-1(a) for which there is a jury-trial right. A first-time
fourth-degree offender, although exposed to a sentence not to
exceed eighteen months in jail, N.J.S.A. 2C:43-6(a)(4), benefits
from a presumption of non-incarceration. N.J.S.A. 2C:44-1(d),
(e). No custodial term is required of a fourth-degree offender.
8
Moreover, although a fourth-degree offender faces a potential
$10,000 fine, N.J.S.A. 2C:43-3(b)(2), no fine is required. In
short, a third or subsequent DWI offender typically not only
will serve a longer custodial sentence and pay a greater fine
than a person convicted of a fourth-degree crime, but also will
face the additional penalty of a ten-year license suspension.
Yet, a fourth DWI offense will be tried before a judge.
The majority’s position also is at odds with Richter v.
Fairbanks, 903 F.2d 1202 (8th Cir. 1990), which is substantially
similar to the case before us. In Richter, the defendant was
convicted of his third DWI and sentenced to six months’
imprisonment, a fifteen-year license suspension, and a $500
fine. Id. at 1203. The court held “that adding the 15-year
license revocation to the six month prison term resulted in a
penalty severe enough to warrant a jury trial” under Blanton.
Id. at 1205. While, here, defendant’s license suspension is ten
years rather than fifteen, his fines, fees, and costs are
approximately fifteen times those imposed on the defendant in
Richter.
B.
Had defendant been charged with a fourth DWI in any other
state or in the District of Columbia, he would be entitled to a
jury trial. New Jersey alone denies him this right. Indeed, a
national survey reveals how far out of the mainstream our laws
9
and jurisprudence are concerning the jury-trial right of those
charged with DWI offenses.
In forty states, a defendant has a right to a jury trial
for a first DWI offense. See Dissent Appendix. In five states
and the District of Columbia, the right attaches for a second
offense. Ibid. In three, a defendant has a right to a jury
trial beginning with his third offense. Ibid. In only one
state -- Hawaii -- does a defendant not gain the right to a jury
until his fourth offense. Ibid.Additionally, many states grant the right to a jury trial
to DWI offenders facing much less severe penalties than those
found in New Jersey’s statutory scheme for third-time DWI
offenders. For example, Wisconsin provides a jury trial to
second-time offenders, who face imprisonment of five days to six
months, a fine of $350 to $1100, a one-year license suspension,
and an ignition interlock device for at least one year. See
Wis. Stat. §§ 343.30(1q), 343.301, 343.307, 346.63, 346.65,
939.12; State v. Slowe, 284 N.W. 4, 5-6 (Wis. 1939). California
provides a jury trial to first-time offenders, who face ninety-
six hours to six months’ imprisonment, an ignition interlock
device for up to three years, a fine of $390 to $1000, and a
six-month license suspension. See Cal. Penal Code § 689; Cal.
Veh. Code §§ 13352(a)(1), 23152, 23536(a), 23536(c),
23575(a)(1). Idaho also provides a jury trial for first-time
10
DWI offenders, who face imprisonment of up to six months and up
to a $1000 fine, a thirty-day mandatory license suspension, and
an additional sixty to 150-day license suspension or restricted
driving privileges. See Idaho Code § 18-8004, 18-8005(1), 19-
1902; State v. Wheeler, 753 P.2d 833, 836 (Idaho 1988). Last,
Texas grants a jury-trial right to first-time offenders, who
face seventy-two hours to 180 days’ imprisonment, a fine of up
to $2000, and a license suspension of ninety days. See Tex.
Penal Code Ann. §§ 12.22, 49.04; Tex. Transp. Code Ann. §§
524.012, 524.022(a)(1); Chaouachi v. State, 870 S.W.2d 88, 90
(Tex. Ct. App. 1993).
Last, according to the majority, any additional penalty
will tip the balance in favor of a jury trial. In light of the
extremity of the majority’s position, that stand is reasonable.
However, going forward, we will have the absurd scenario in
which a third-time DWI offender who refuses to take a
breathalyzer test, and therefore faces a mandatory twenty-year
license suspension, will be entitled to a jury trial, see
N.J.S.A. 39:4-50.4a(a), whereas the motorist who takes the
breathalyzer will be consigned to a bench trial.
III.
Oftentimes, this Court has construed the New Jersey
Constitution to provide greater rights than those granted under
the United States Constitution. See, e.g., State v. Earls, 214
11
N.J. 564, 568-69, 584-85 (2013) (noting that New Jersey
Constitution provides greater privacy rights to cell phone users
than does Federal Constitution); State v. McAllister, 184 N.J.
17, 26, 32-33 (2005) (concluding that New Jersey Constitution,
unlike Federal Constitution, protects interest in privacy of
bank records); N.J. Coalition Against War in the Middle E. v.
J.M.B. Realty Corp., 138 N.J. 326, 353 (1994) (providing broader
free speech rights in shopping malls under New Jersey
Constitution than provided by Federal Constitution), cert.
denied sub nom., Short Hills Assocs. v. N.J. Coalition Against
War in the Middle E., 516 U.S. 812, 116 S. Ct. 62, 133 L. Ed. 2d
25 (1995). Here, in contrast, the majority will not honor one
of the most basic of rights in our Federal Constitution -- the
right of this defendant to have a jury trial. A similarly
situated defendant in any other state would not have been
compelled to stand trial before a judge.
A jury trial may be inefficient and costly, but it is the
embodiment of our democratic ethos and the process chosen by the
Founders for the resolution of serious offenses. By any
measure, under Blanton, a third or subsequent DWI conviction
results in the imposition of a jail term and onerous license and
financial penalties that trigger the Sixth Amendment right to a
jury trial. Because defendant was denied his right to a jury
trial, I respectfully dissent.
12
Dissent Appendix
State Number of Citations3
DWI2
Offenses
Needed to
Trigger
Right to
Jury Trial
Alabama 1 See Ala. Code §§ 32-5A-3, 32-5A-
191; Ala. R. Crim. P. 18.1.
Alaska 1 See Alaska Const. art. 1, § 11;
Alaska Stat. § 28.35.030.
Arizona 1 See Ariz. Rev. Stat. 28-1381(A),
(F).
Arkansas 1 See Ark. Const. art. 2, § 7; Ark.
Code Ann. 5-65-103; 5-65-111.
California 1 See Cal. Const. Art. 1, § 16; Cal.
Penal Code § 689; Cal. Veh. Code §
23152.
Colorado 1 See Colo. Rev. Stat. 16-10-109, 42-
4-1301.
Connecticut 2 See Conn. Const. art. 1, § 19;
Conn. Gen. Stat. § 14-227a.
Delaware 1 See Del. Code Ann. tit. 21, §
4177(a), (d)(1).
Florida 1 See Fla. Stat. §§ 316.193,
316.1934(4).
Georgia 1 See Ga. Code Ann. §§ 16-1-3(9), 17-
9-2, 40-6-391.
Hawaii 4 See Haw. Rev. Stat. Ann. §§ 291E-
61, 291E.61.5.
Idaho 1 See Idaho Code Ann. §§ 18-8004, 18-
8005, 19-1902; State v. Wheeler,
753 P.2d 833, 836-37 (Idaho 1988).
Illinois 1 See 625 Ill. Comp. Stat. Ann. §
5/11-501, 725 Ill. Comp. Stat. Ann.
§ 5/103-6.
2 As mentioned by the majority, states vary in the exact name
given to the offense of driving while under the influence of
alcohol. I use “DWI” for the sake of simplicity.
3 In those states where the statutory scheme imposes a penalty of
greater than six months’ imprisonment, the state is required to
provide a jury trial. Blanton, supra, 489 U.S. at 542, 109 S.
Ct. at 1293, 103 L. Ed. 2d at 556.
13
Indiana 1 See Ind. Code Ann. §§ 9-30-5-2, 35-
31.5-2-75, 35-37-1-2; Ind. R. Crim
P. 22.
Iowa 1 See Iowa Code § 321J.2.
Kansas 1 See Kan. Stat. Ann. §§ 8-1567, 22-
3404.
Kentucky 1 See Ky. Rev. Stat. §§ 29A.270(1),
189A.010.
Louisiana 3 See La. Rev. Stat. Ann. §
14:98.3(A)(1); State v. Montgomery,
195 So. 2d 285, 287 (La. 1967).
Maine 1 See Me. Const. art. 1, § 6; Me.
Rev. Stat. tit. 29-A § 2411.
Maryland 1 See Md. Crim. Pra. Code Ann. § 6-
101; Md. Transp. Code Ann. §§ 21-
902; 27-101(c)(22).
Massachusetts 1 See Mass. Ann. Laws ch. 90, §
24(1)(a)(1).
Michigan 1 See Mich. Comp. Laws Serv. §
257.625(1), (18).
Minnesota 1 See Minn. Stat. §§ 169A.20,
169A.27, 609.02(3); Minn. R. Crim.
P. 26.01.
Mississippi 2 See Miss. Code Ann. § 63-11-30;
Harkins v. State, 735 So. 2d 317,
318-19 (Miss. 1999).
Missouri 1 See Mo. Rev. Stat. §§ 543.200,
558.011(1)(5), 577.010, 577.023(2).
Montana 1 See Mont. Code Ann. §§ 46-17-201,
61-8-104, 61-8-401.
Nebraska 1 See Neb. Rev. Stat. Ann. §§ 25-
2705, 28-106(1), 60-6,196, 60-
6.196.03.
Nevada 3 See Nev. Rev. State Ann. §
484C.400; State v. Smith, 672 P.2d
631 (Nev. 1983).
New Hampshire 2 See N.H. Rev. Stat. Ann. § 265-
A:18, 625:9(IV)(6); In re Senate,
608 A.2d 202, 204-05 (N.H. 1992).
New Mexico 2 See N.M. Stat. Ann. § 66-8-102;
State v. Grace, 993 P.2d 93, 95
(N.M. Ct. App. 1999).
New York 1 See N.Y. Veh. & Traf. Law §§ 1192,
1193.
North 1 See N.C. Gen Stat. §§ 15A-1201, 20-
Carolina 138.1, 20-179.
14
North Dakota 1 See N.D. Cent. Code §§ 29-01-06,
39-08-01; N.D.R. Crim. P. Rule
23(b)(2).
Ohio 1 See Ohio Rev. Code Ann. §§ 2901.02,
2945.17, 4511.19.
Oklahoma 1 See Okla. Const. art. II, § 19;
Okla. St. tit. 47, § 11-902.
Oregon 1 See Ore. Rev. Stat. §§ 161.615(1),
813.010; Brown v. Multnomah Cnty.
Dist. Court, 570 P.2d 52 (Ore.
1977).
Pennsylvania 3 See 18 Pa. Cons. Stat. § 1104; 75
Pa. Cons. Stat. §§ 3802, 3803,
3804.
Rhode Island 1 See R.I. Gen Law § 31-27-
2(d)(1)(i).
South 1 See S.C. Code Ann. §§ 56-5-2930,
Carolina 56-5-2935.
South Dakota 1 See Parham v. Municipal Court, 199
N.W.2d 501, 505 (S.D. 1972).
Tennessee 1 See Tenn. Code Ann. §§ 55-10-401,
55-10-402.
Texas 1 See Tex. Penal Code Ann. § 49.04;
Chaouachi v. State, 870 S.W.2d 88,
90 (Tex. Ct. App. 1993).
Utah 1 See State v. Nuttall, 611 P.2d 722,
725 (Utah 1980).
Vermont 1 See Vt. Stat. Ann. tit. 23, §§
1201, 1210.
Virginia 1 See Va. Code Ann. §§ 18.2-270,
19.2-258.
Washington 1 See Wash. Rev. Code §§
46.61.502(1), 46.61.502(5),
46.61.5055(1); Pasco v. Mace, 653
P.2d 618, 625 (Wash. 1982).
West Virginia 1 See W. Va. Code § 17C:5-2(e);
Hendershot v. Hendershot, 263
S.E.2d 90, 95 (W. Va. 1980).
Wisconsin 2 See Wis. Stat. §§ 346.63, 346.65,
939.12; State v. Slowe, 284 N.W. 4,
5-6 (Wis. 1939).
Wyoming 1 See Casper v. Cheatham, 739 P.2d
1222, 1223 (Wyo. 1987).
District of 2 D.C. Code §§ 16-705, 50-2206.11,
Columbia 50-2206.13.
15
SUPREME COURT OF NEW JERSEY
NO. A-42 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES R. DENELSBECK,
Defendant-Appellant.
DECIDED May 12, 2016
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY Justice Albin
CHECKLIST AFFIRM DISSENT
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA ------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 5 1