Opinion
DOCKET NO. A-2415-13T4
10-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH A. VIRGINIA, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and Hoffman. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 12-05-1108 and 12-06-1110. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief). PER CURIAM
Defendant was charged by two separate indictments with two counts of fourth-degree operating a motor vehicle during a period of license suspension, N.J.S.A. 2C:40-26(b). Defendant entered a guilty plea on both indictments and was sentenced to two 180-day jail sentences without parole, to run concurrently. The terms of defendant's guilty plea reserved his right to appeal an adverse ruling on a prior motion to dismiss both indictments.
Defendant appeals and raises the following argument:
DEFENDANT'S MOTION TO DISMISS THE INDICTMENTS SHOULD HAVE BEEN GRANTED BECAUSE DEFENDANT CANNOT BE FOUND GUILTY OF VIOLATING N.J.S.A. 2C:40-26(b) FOR DRIVING WITH A SUSPENDED LICENSE WHERE THE UNDERLYING DWI OFFFENSE WAS TREATED AS A FIRST OFFENSE PURSUANT TO N.J.S.A. 39:4-50(a)(3).
We have considered this argument in light of the record and applicable law and we affirm.
I.
Defendant was convicted of driving while under the influence (DWI) on April 30, 2000. On August 9, 2011, defendant was convicted of a second DWI. As a result of the passage of time between the offenses, defendant was sentenced as a first-time offender for the second DWI pursuant to the step-down provision of N.J.S.A. 39:4-50(a)(3), and defendant's license was suspended for seven months.
During this seven-month license-suspension period, defendant drove his car on two separate occasions and, as previously mentioned, was charged by two separate indictments with one count each of fourth-degree operating a motor vehicle during a period of license suspension under N.J.S.A. 2C:40-26(b).
On March 25, 2013, defendant moved to dismiss both indictments, arguing that because he was sentenced as a first-time offender for the DWI, he had not committed a second or subsequent DWI offense and could not be charged under N.J.S.A. 2C:40-26(b). Denying defendant's motion, the trial court opined:
[A]ny leniency in sentencing for this defendant only applies to allowing for the reduction of DWI penalties for his August 9, 2011 second DWI under the DWI statute (N.J.S.A. 39:4-50(a)(3)). Therefore, he was properly allowed to have that August 9, 2011 second DWI violation treated as a first DWI "for sentencing purposes."
The defendant cannot use N.J.S.A. 39:4-50(a)(3) to negate the applicability under these facts of N.J.S.A. 2C:40-26(b).
II.
Defendant argues that his qualification for lenient sentencing under the step-down provision of N.J.S.A. 39:4-50(a)(3) essentially dissolves his prior DWI conviction and renders him a first-time offender. As a result, defendant maintains he cannot be charged under N.J.S.A. 2C:40-26(b) because it applies only to second or subsequent DWI offenders. This reading is contrary to the unambiguous language of N.J.S.A. 39:4-50(a)(3) and creates a false connection between N.J.S.A. 39:4-50(a)(3) and N.J.S.A. 2C:40-26(b).
N.J.S.A. 39:4-50(a)(3) provides that:
A person who has been convicted of a previous violation of this section . . . if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes.
A person is chargeable with fourth-degree operating a motor vehicle during a period of license suspension "if the actor's license was suspended or revoked for a second or subsequent violation of [N.J.S.A. 39:4-50, DWI]." N.J.S.A. 2C:40-26(b). Violation of this statute carries a mandatory 180-day term of imprisonment. Ibid.
"In interpreting a statute, the overriding goal is to give effect to the legislature's intent." State v. D.A., 191 N.J. 158, 164 (2007). First, the "'best indicator of [legislative] intent is the statutory language,' thus it is the first place to look." Ibid. (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). "If the plain language leads to a clear and unambiguous result, then the interpretive process should end, without resort to extrinsic sources." Ibid. If "the language is ambiguous or 'admits more than one reasonable interpretation, we may look to sources outside the language to ascertain the Legislature's intent.'" State v. Drury, 190 N.J. 197, 209 (2007) (quoting State v. Reiner, 180 N.J. 307, 311 (2004)).
N.J.S.A. 39:4-50(a)(3) prohibits driving while under the influence. N.J.S.A. 39:4-50(a)(3) unambiguously states that the leniency in sentencing afforded a second-time offender is "for sentencing purposes" only, and that the second offense is otherwise considered just that, a "second offense." Ibid. Common sense dictates that the step-down provision does not serve to rewrite history and reduce the total number of DWIs committed by defendant to one. We also find it obvious that "for sentencing purposes" means sentencing for subsequent violations of that provision of the DWI statute only.
N.J.S.A. 2C:40-26(b) punishes the crime of driving on a suspended license and prescribes a mandatory 180-day period of incarceration for second-time DWI offenders. Despite the fact that a second DWI offense is prerequisite to the mandatory 180-day incarceration period, it is important to note that "[d]efendant is not being punished under N.J.S.A. 2C:40-26(b) for his prior DWI . . . offenses; he is being punished for driving without a license." State v. Carrigan, 428 N.J. Super. 609, 624 (App. Div. 2012) (finding that N.J.S.A. 2C:40-26(b) applies to recidivist DWI offenders driving during a period of license suspension irrespective of whether the DWI offenses occurred before the effective date of N.J.S.A. 2C:40-26(b)).
Defendant was convicted of driving while intoxicated once in 2000 and for a second time in 2011. Even though he was sentenced as a first-time offender, defendant's 2011 DWI constitutes his second DWI offense. During the period of license suspension following defendant's second DWI, he drove, giving rise to criminal charges under the statute that prohibits driving during a period of license suspension. We agree with the trial court that "[i]n this case we are dealing with a completely separate statute than N.J.S.A. 39:4-50 and consequently it is even more apparent that the defendant in this matter should not be allowed to receive a reward previously given in a prior case."
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION