State v. Zeikel
30 A.3d 339
| N.J. Super. Ct. App. Div. | 2011Background
- Defendant Zeikel arrested for DWI in Bedminster on 12/6/2009; BAC 0.29%.
- Pleaded guilty to DWI on 6/15/2010.
- Certified driver’s abstract shows three prior drinking-and-driving convictions (1981 NY DWAI, 1984 NY DWAI and refusal, 1994 NJ DWI and refusal).
- Bedminster Municipal Court sentenced him as a third-time offender; imposed jail, license suspension, fines, and penalties.
- Law Division affirmed; held the same sentence for third-time offender.
- Defendant argues retroactivity, evidentiary burden to exclude out-of-state BAC, and substantial similarity issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactivity of 39:4-50(a)(3) to out-of-state convictions | Ex post facto violation argued by Zeikel. | Amendment applies retroactively to enhance sentences for repeat offenders. | Not an ex post facto violation; statute validly applied. |
| Burden to exclude out-of-state conviction based on BAC <0.08% | Zeikel’s certification shows BAC 0.06% for 1981 NY DWAI; should exclude. | Clear and convincing evidence required; lacking in record. | No clear and convincing proof; out-of-state convictions counted. |
| Substantially similar nature of NY DWAI convictions to NJ DWI | New York DWAI not substantially similar to NJ DWI. | Convictions should be excluded if not substantially similar. | NY DWAI convictions are of substantially similar nature to NJ DWI; count valid. |
| Due process and notice regarding enhanced sentences for repeat offenses | Lack of notice regarding potential defenses for future offenses. | Recidivist statutes require no future-notice right; governed by statute. | No due process violation; no vesting right to prior notice of defense. |
Key Cases Cited
- State v. Nicolai, 287 N.J. Super. 528 (App.Div.1996) (notice of enhanced sentences not required to bar imposition)
- State v. Petrello, 251 N.J. Super. 476 (App.Div.1991) (recidivist penalties valid without prior notice)
- State v. Culbertson, 156 N.J. Super. 167 (App.Div.1978) (prior OUI convictions treated as same offense for enhancement)
- State v. Ripley, 364 N.J. Super. 343 (App.Div.2003) (Utah law not substantially similar to NJ DWI due to lack of impairment link)
- State v. Ciancaglini, 204 N.J. 597 (2011) (refusal to submit to chemical test cannot be counted as prior DWI conviction)