State v. PavaoState v. Pavao
- Reporters:
- ,
- Before:
- Havey J.A.D., O'Brien, Stern
Defendant appeals from his conviction in the Wall Township Municipal Court and again in the Law Division after his trial de novo of refusing to take a breathalyzer test,
On appeal, defendant raises the following points:
Point I — Where the trooper‘s stop of defendant‘s automobile was pretextual, lacking probable cause and constituting an unjustified investigatory stop, defendant‘s convictions for refusal and driving while suspended must be reversed.
Point II — The sentence of one day imprisonment must be set aside because such sentence was founded upon the trial court‘s erroneous legal conclusion that such a sentence was mandatory.
We affirm.
The State‘s proofs established that State Trooper David Meyer observed defendant‘s vehicle traveling southbound on State Highway 35 in Wall Township. The vehicle was traveling at low rate of speed, was weaving and, on at least two occasions, crossed over the fog line separating the traveled portion of the highway from the shoulder. When the trooper stopped the vehicle, he detected an odor of alcoholic beverage on defendant‘s breath. When defendant recited the alphabet, he did so in a slow, slurred voice. After defendant had difficulty performing coordination tests at the scene, he was placed under arrest for driving while intoxicated and was transported to the State Police barracks.
We are satisfied that Trooper Meyer had an objectively reasonable basis to stop defendant‘s vehicle. See Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660, 672 (1979); State v. Weber, 220 N.J. Super. 420, 423, 532 A.2d 733 (App.Div.), certif. den. 109 N.J. 39, 532 A.2d 1107 (1987). The erratic nature of the vehicle‘s movement provided an articulable and reasonable suspicion that defendant was driving carelessly,
After defendant‘s vehicle was stopped, the trooper properly asked defendant to alight from the vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331, 337 (1977). When asked for credentials, defendant was unable to produce his driver‘s license. As stated, his speech was slurred, he had alcohol on his breath and he had difficulty performing roadside physical tests. The State establishes a failure to submit violation by proving “by a preponderance of the evidence” that the “arresting officer had probable cause to believe the [defendant] had been driving . . . while
The next question is whether the one-day jail term imposed for driving while revoked is sustainable. The Law Division judge concluded that a jail term is mandated for second offenders under
A person violating this section shall be subject to the following penalties:
........
b. Upon conviction for a second offense, a fine of $750.00 and imprisonment in the county jail for not more than five days[.]
In so holding, the Law Division judge followed State v. Duva, 192 N.J. Super. 418, 421-422, 470 A.2d 53 (Law.Div. 1983), which construed the pertinent language to mean that imprisonment in the county jail is mandatory.
Defendant asks us not to follow Duva. He reminds us that the statute, being penal in nature, must be strictly construed, and hence the term “shall be subject to” should be interpreted to mean that imposition of a custodial term is discretionary. We do not agree.
Even if a statute is penal in nature, all rules of construction are subordinate to the interpretive goal of ascertaining the intent of the Legislature. State v. Tischio, 107 N.J. 504, 511, 527 A.2d 388, app. dis. 484 U.S. 1038, 108 S.Ct. 768, 98 L.Ed.2d 855 (1988). In that quest, we must consider the policy behind the statute, concepts of reasonableness and legislative history. Coletti v. Union Cty. Bd. of Freeholders, 217 N.J. Super. 31, 35, 524 A.2d 1270 (App.Div. 1987).
Prior to L. 1982, c. 45,
A person violating this section shall be subject to the following penalties:
a. Upon conviction for a first offense, a fine of $500.00;
b. Upon conviction of a second offense, a fine of $750.00 and imprisonment in the county jail for not more than five days;
c. Upon conviction of a third offense, a fine of $1,000.00 and imprisonment in the county jail for 10 days;
d. Upon conviction, the court shall impose or extend a period of suspension not to exceed six months;
e. Upon conviction, the court shall impose a period of imprisonment for not less than 45 days, if while operating a vehicle in violation of this section a person is involved in an accident resulting in personal injury to another person. [
N.J.S.A. 39:3-40 ].
Thus, the present statute provides for a fine for a first offense, but upon conviction for a second offense, the violator “shall be subject to . . . a fine of $750.00 and imprisonment in the county jail for not more than five days[.]” [Emphasis added]. In our view, by so mandating, the Legislature intended to divest the sentencing court of its discretion as to whether or not a custodial term should be imposed. Duva so held, and we agree. We note, for example, that
This interpretation is supported by legislative history. According to the Senate Law, Public Safety and Defense Committee Statement, Senate, No. 904 — L. 1982, c. 45, the bill ”increases the general penalties for the offense of driving” while revoked. The Statement also declares:
For a first offense, the penalty would be a $500.00 fine and a suspension of license for up to 6 months; for a second offense, a $750.00 fine, a jail sentence of up to 5 days, and a mandatory suspension of license for up to 6 months; for a third offense, a $1,000.00 fine, a jail sentence of up to 10 days, and a
mandatory suspension for up to 6 months. [See Senate Statement L. 1982, c. 45 following N.J.S.A. 39:3-10 ; emphasis added].
The statement clearly states that a fine and jail sentence shall be imposed for a second offense.
We cannot accept defendant‘s argument that the language “subject to” was intended to make a custodial term discretionary. Black‘s Law Dictionary 1278 (5th ed. 1979) defines the term “subject to” as being “[l]iable, . . . answerable for.” Hence, the language “shall be subject to . . . imprisonment in the county jail for not more than 5 days,”
In support of his argument, defendant also points to
Defendant ignores the fact that subparagraph e. is also prefaced with the same “shall be subject to” language that prefaces subparagraph b., and therefore can be read to mean “subject to . . . a period of imprisonment for not less than 45
Finally, we note that since Duva‘s holding, which we here follow, the Legislature has amended
Affirmed.