(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 interests of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. Florence Hessen (A-49-94)
Argued November 28, 1994 -- Decided July 22, 1996
PER CURIAM
The issue on appeal is whether the prohibition against plea bargaining in municipal court drunk-driving cases includes the offense of allowing or permitting an intoxicated person to drive one's car.
Florence Hessen allowed a clearly intoxicated person to drive her car, in which she was a passenger.
The intoxicated driver caused a head-on collision with another car, killing the other driver and seriously
injuring four other persons, including Hessen.
Hessen was charged with the municipal court offense of permitting an intoxicated person to drive
her vehicle. The State negotiated a plea bargain, enabling Hessen to plead guilty to the lesser charge of
allowing an unlicensed driver to operate a motor vehicle. The estate of the deceased victim opposed the plea
bargain.
The municipal court ruled that the prohibition in the Guideline 4 under Rule 7:4-8 barring any plea
bargaining in drunk-driving cases applied to the offense of permitting an intoxicated person to drive one's
car. Accordingly, the municipal court rejected the plea bargain. The Superior Court, Law Division,
affirmed.
The Supreme Court directly certified the case and requested that the Attorney General participate in
the appeal.
HELD: The imposition of a ban on plea bargaining in cases involving violations of N.J.S.A. 39:4-50 does not
violate the constitutional separation of powers and does not impermissibly infringe on the powers of
the municipal prosecutor to dispose of cases. The prohibition against plea bargaining in municipal
court drunk-driving cases includes the offense of allowing or permitting an intoxicated person to
drive one's car.
1. Rule 7:4-8, adopted in June 1980, authorizes plea bargaining in municipal court subject to specific
standards. Prior to the adoption of that rule, specifically since 1974, all plea bargaining in municipal courts
had been expressly prohibited, pursuant to a directive issued by the Supreme Court. The policy underlying
that prohibition was the strong concern over the possibility of abuse in the disposition of municipal court
offenses. The Court specifically and emphatically extended the prohibition on plea bargaining to drunk-driving offenses. (pp. 4-6)
2. Following a one-year experiment permitting plea agreements in municipal courts, the October 1989 Final
Report of the Supreme Court Committee to Implement Plea Agreements In Municipal Courts recommended
the authorization of plea bargaining in the municipal courts. The Committee believed that the availability of
plea bargaining in municipal courts was necessary to sustain the institution of municipal courts as presently
constituted. The Committee's report recommended, however, that the prohibition on plea agreements in
drunk-driving offenses should continue. In 1990, the Court approved the institution of a regulated system of
plea agreements in municipal courts. The Court allowed plea bargaining pursuant to Rule 7:4-8, in
conformity with the Guidelines. However, Guideline 4 adopted the recommendation of the Committee that
plea bargaining not be allowed in drunk-driving cases. (pp. 6-8)
3. The Supreme Court has the prerogative and the power to limit plea bargaining in the municipal courts.
The limited ban on plea bargaining is one aspect of the Supreme Court's authority to use plea bargaining in
the exercise of its supervening responsibility and authority over the administration of the criminal justice
system. The plea bargaining process is based on the need to improve efficiency and to reduce and enhance
the management of the heavy case load in municipal courts, and the need to assure the sound, fair and just
supervision of the justice system at the municipal level. Although any regulation imposed on the process of
plea bargaining will condition and restrain the discretionary authority of the prosecutor, the Court has
previously imposed such limits on prosecutorial discretion in order to foster legislative or executive goals. In
addition, the Court's decision to implement regulated plea bargaining in municipal courts was motivated by
the recognition that plea bargains had been conducted informally in the municipal courts, even though
formally prohibited. Furthermore, the imposition of a ban on plea bargaining in drunk-driving cases is
intended to support the policy decisions of the legislative and executive branches in their commitment to
eliminate drunk driving. (pp. 8-15)
4. The prefatory description of the offenses covered by the Guideline was not intended to be a definitive
substantive description of each of the offenses subject to the plea bargain prohibition; this general description
is designed to identify the source of the substantive provisions that constitute the specific subject matter of
the regulation. The meaning of the scope of the ban on plea bargaining in drunk-driving cases is indicated
by the considerations of public policy that motivated its promulgation. The Court's intention in upholding
the ban effectuates the strong legislative and public policy to eliminate drunk driving. The commitment to
eliminating drinking and driving can be accomplished only through consistent, uniform and vigorous
enforcement of the plea bargaining ban in drunk-driving cases. To carve out an exception for the offense of
permitting an intoxicated person to drive undermines the important policy behind the prohibition. Moreover,
the Legislature clearly views one who allows an intoxicated person to drive equal in offender status to the
actual drunk driver. Thus, these two types of offenders should be subject to the identical restrictions in plea
bargaining. (pp. 15-23)
Judgment of the Law Division is AFFIRMED.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in this opinion.
CHIEF JUSTICE WILENTZ did not participate.
SUPREME COURT OF NEW JERSEY
A-
49 September Term 1994
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FLORENCE HESSEN,
Defendant-Appellant.
Argued November 28, 1994 -- Decided July 22, 1996
On certification to the Superior Court, Law
Division, Bergen County.
Ronny J.G. Siegal argued the cause for
appellant (Hellring, Lindeman, Goldstein &
Siegal, attorneys; Mr. Siegal and Peter H.
Stoma, of counsel and on the briefs).
John J. Scaliti, Assistant Prosecutor, argued
the cause for respondent (John J. Fahy,
Bergen County Prosecutor, attorney).
Boris Moczula, Deputy Attorney General,
argued the cause for intervenor, Attorney
General of New Jersey (Deborah T. Poritz,
Attorney General, attorney).
Robert Ramsey argued the cause for amicus
curiae, Burbage & Ramsey, Attorneys-at-Law
(Burbage & Ramsey, attorneys).
PER CURIAM.
In this case, the defendant allowed a clearly intoxicated
person to drive her car, in which she was a passenger. The
driver caused a head-on collision with another car, killing the
other driver and seriously injuring four other persons, including
the defendant. The defendant was charged with the municipal
court offense of "permitting" an intoxicated person to drive her
vehicle. The State negotiated a plea bargain, enabling the
defendant to plead guilty to the lesser charge of allowing an
unlicensed driver to operate a motor vehicle.
Plea agreements are currently authorized under the rules of
the Supreme Court governing practice and procedures in the
municipal courts. There is an exception for "drunken driving
offenses." This case requires the Court to determine whether the
prohibition against plea bargaining in municipal court drunk-driving cases includes the offense of allowing or permitting an
intoxicated person to drive one's car.
Florence Hessen was involved in a car accident on the Palisades Interstate Parkway on May 11, 1990, while riding as a passenger in her own automobile. Ms. Hessen had allowed Gerald Scher to drive her Mercedes-Benz automobile. While driving on the Palisades Interstate Highway, Scher swerved to avoid a car that he was attempting to pass, and fishtailed into the lane of oncoming traffic. Hessen's Mercedes crashed into a Mercury Lynx driven by Wayne Commins, and a van driven by Alexander Arbit.
Wayne Commins was killed instantly. Arbit and the two passengers
in his van were seriously injured. Ms. Hessen suffered a
fractured right pelvis, lacerations and contusions.
Blood taken from Scher after the accident revealed a blood
alcohol level of .163 and .175, which is considered sufficient to
indicate severe intoxication. Subsequent investigation of the
accident scene revealed evidence that Scher was travelling at a
speed of about 80 m.p.h. Scher was convicted of reckless
manslaughter, death by auto, aggravated assault, and three counts
of assault by auto. The State declined to charge Hessen as an
accomplice to Scher's crimes.
Hessen was charged with the offense of allowing an
intoxicated person to operate her motor vehicle, in violation of
N.J.S.A. 39:4-50 (hereinafter referred to as an "allowing" or
"permitting" offense). The matter was not placed on the trial
calendar until January 1993. On June 15, 1993, defendant and the
Bergen County Prosecutor and Palisades Police presented to the
municipal court an application to dismiss the pending charge
against defendant and institute the lesser charge of allowing an
unlicensed driver to operate a motor vehicle, in violation of
N.J.S.A. 39:3-39(b), to which defendant agreed to plead guilty.
The estate of Commins, the victim of the car crash, opposed the
plea bargain.
The municipal court ruled that the prohibition in Guideline
4 under Rule 7:4-8 barring any plea bargaining in drunk-driving
cases applied to the defendant's offense of permitting an
intoxicated person to drive one's car. Accordingly, it rejected
the plea bargain. The Superior Court, Law Division, affirmed.
This Court then certified the case and requested that the
Attorney General participate in the appeal.
Rule 7:4-8 was adopted on June 29, 1990. The rule authorized generally plea bargaining in municipal courts subject to specific standards. Prior to the adoption of that rule, specifically since 1974, all plea bargaining in municipal courts had been expressly prohibited, pursuant to a directive issued by the Supreme Court. Municipal Court Bulletin Letter #3-74, at 2.
The policy underlying that prohibition was the strong concern over the possibility of abuse in the disposition of municipal court offenses, a concern attributable to the part-time nature of the municipal courts and the lack of professionalism in those courts. Supreme Court Committee to Implement Plea Agreements in Municipal Courts, Final Report (hereinafter "Final Report"), Exhibit F at 26 (Oct. 31, 1989) (noting that municipal courts were not required to maintain stenographic record or audio recording of proceedings and "most municipal courts did not have a prosecutor and even fewer had a public defender"). See State v. Gallegan, 117 N.J. 345, 347 (1989) (considering administrative problems arising from "current governmental structure of part-time municipal courts and prosecutors and the ever-increasing importance of municipal court cases").
Inadequate supervision and accountability were also perceived as
a serious problem militating against the disposition of municipal
court cases through plea agreements.
Although never fully stated or explained, the
reasons for the "no plea bargaining" edict in
the municipal courts included the potential
for abuses when there was no direct
supervision over an extensive number of
municipal courts.
Indeed, the municipal court in this case noted that plea
bargaining in municipal courts is particularly vulnerable to
allegations of "backroom deals." See, e.g., In re Kress,
128 N.J. 520 (1992) (disciplining municipal prosector for remaining
silent and allowing municipal judge to dismiss drunk-driving
charge). Those concerns over the abuses arising from unregulated
plea bargaining outweighed any potential benefits to the justice
system that might be realized from the more efficient and
expeditious disposition of municipal court charges through plea
agreements.
When the Court determined to ban plea bargaining in
municipal courts, it was especially emphatic that it should
extend the prohibition to intoxicated-driving offenses. The
initial Supreme Court directive to the municipal courts contained
this instruction:
[T]here should be no plea bargaining in the
municipal courts on non-indictable offenses.
This means also that the judge should not
accept a plea of guilty to a lesser charge
when a defendant is charged with a violation
of either N.J.S.A. 39:4-50(a) or (b).
[Municipal Court Bulletin Letter
#3-74, at 2].
In 1975, the Supreme Court reaffirmed its policy against
plea bargaining in municipal courts. In 1983, Chief Justice
Wilentz issued a reminder to Assignment Judges that "without in
any way affecting the generality of [the plea bargaining]
prohibition, I suggest that you emphasize the particular
importance of not allowing plea bargaining in drunken driving
cases." Memorandum from Robert N. Wilentz, Chief Justice,
Supreme Court of New Jersey, to Assignment Judges (July 5, 1984)
in Final Report, supra, at Exhibit C.
In 1988, in response to Reports from the Supreme Court
Committee on Municipal Courts and the Supreme Court Task Force on
the Improvement of Municipal Courts, this Court authorized a one-year experiment permitting plea agreements in municipal courts.
The experiment was extended into 1989. Final Report, supra, at
Exhibit G and H. Significantly, although the Court authorized
the provisional removal of the general ban on plea bargaining, it
did not relax the prohibition of plea bargaining in drunk-driving
cases, viz:
No plea agreements whatsoever will be allowed in
drunken driving or certain drug offenses. These
offenses are:
A. Driving while under the influence of
liquor or drugs (N.J.S.A. 39:4-50). . . .
The results of this experiment were considered by the Supreme Court in 1989. The Final Report of the Supreme Court
Committee to Implement Plea Agreements in Municipal Courts
recommended the authorization of plea bargaining in the municipal
courts:
The existence of a regulated plea agreement
process is viewed as being essential to serve
both the ends of justice and the effective
response to burgeoning municipal court
caseloads. It will foster increases in the
productivity and professionalism of the
municipal court bench, administrators, clerks
and staff. The process provides for the
certainty and fairness of punishment to
better protect the rights of the defendants,
victims and the interests of society.
Moreover, the Committee believed the availability of plea
bargaining in municipal courts was necessary to sustain the
institution of the municipal courts as constituted.
The municipal courts have a volume of cases
in excess of 6 million that must be processed
and resolved in an expeditious and summary
manner. The Committee has been advised and
is of the opinion that unless plea agreements
are permitted in the carefully defined
fashion being proposed, they will certainly
take place in an unregulated fashion.
Certainly, in the absence of some form of
expeditious disposition, these courts would
not be able to cope with their heavy
calendars at least not given the part-time
nature of the courts and the part-time nature
of the judges, most of whom have full-time
law practices.
Nevertheless, the Committee, while acknowledging the feasibility of plea bargaining in general in the municipal courts, determined that drunk-driving offenses posed special problems. It noted the extraordinary emotional and fiscal costs
of drunk driving, and "the public's concern that the process of
plea bargaining, as applied to alcohol and drug offenses, might
undermine the deterrent thrust of New Jersey's tough laws in
these areas." Final Report at 28. Accordingly, the Committee's
report recommended that though the ban on municipal court plea
bargaining should be lifted, the prohibition on plea agreements
in drunk-driving offenses should continue. Id. at 27.
In 1990, the Court approved the institution of a regulated
system of plea agreements in municipal courts. It allowed plea
bargaining pursuant to Rule 7:4-8, in conformity with the
Guidelines. The Guidelines specified that their purpose was "to
allow for flexibility in the definitions and exclusions relating
to the plea agreement process as that process evolves and certain
offenses come to demand lesser or greater scrutiny." Pressler,
Current N.J. Court Rules, Guideline 1 to R. 7:4-8 (1995).
Guideline 4 adopted the recommendation of the Committee that plea
bargaining not be allowed in drunk-driving cases. Id. at
Guideline 4.
We address initially the arguments of defendant that the Court's absolute ban of plea negotiations in all N.J.S.A. 39:4-50 offenses through its Court Rules violates the separation of powers provisions of the New Jersey Constitution and impermissibly infringes on the discretion of the prosecutor.
In assessing this constitutional issue, the frame of
reference must encompass the special status of municipal courts.
"In many respects, the municipal court is the most important in
our judicial system." In re Mattera,
34 N.J. 259, 275 (1961).
For many citizens, it is their only exposure to the courts and
judges of this State. Ibid. Accordingly, the entire system is
measured by their experience in the municipal court. Ibid.
Over forty years ago, Chief Justice Vanderbilt wrote:
"On [the municipal courts] rests the primary
responsibility for the maintenance of peace
in the various communities of the state, for
safety on our streets and highways, and most
important of all, for the development of
respect for law on the part of our citizenry,
on which in the last analysis all of our
democratic institutions depend.
[Arthur T. Vanderbilt, The
Municipal Court - The Most
Important Court in New Jersey,
10
Rutgers L. Rev. 647, 650
(1956)(cited in State v. Storm,
141 N.J. 245, 251 (1994).]
This Court has the prerogative and the power to limit plea
bargaining in the municipal courts. The limited ban on plea
bargaining must be understood as one aspect of the Supreme
Court's authority to use plea bargaining in the exercise of its
supervening responsibility and authority over the administration
of the criminal justice system. E.g., State v. Warren,
115 N.J. 433 (1989); State v. Taylor,
80 N.J. 353 (1979). As noted in
Taylor,
Plea bargaining has become firmly
institutionalized in this State as a
legitimate, respectable and pragmatic tool in
the efficient and fair administration of
criminal justice. * * * Courts across the
country have adopted plea bargaining as an
appropriate accommodation of the conflicting
interests of society and persons accused of
crime and as a needed response to an ever-burgeoning case load.
The plea bargaining process is born of a need for judicial efficiency and economy consistent with the interests of justice. We are ever mindful of the enormous volume of cases that impact the municipal courts. In 1961, municipal courts disposed of 1½ million cases. In re Mattera, supra, 34 N.J. at 275. They handled 3.8 million cases in 1977. In re Yengo, 72 N.J. 425, 430 n.1 (1977). We noted in State v. Storm, supra, 141 N.J. at 251, that in 1994, 5.6 million cases were concluded in the municipal courts.
Such considerations prompted the recommendation for the removal of the ban on plea bargaining in the municipal courts. The Final Report predicted that
a regulated plea agreement process * * * will foster increases in the productivity and professionalism of the municipal court bench, administrators, clerks and staff. * * * The establishment of the process will also support case management techniques that facilitate the speedy and efficient disposition of cases.
Thus, the plea bargaining process is based on both concerns of judicial administration: the need to improve efficiency and to reduce and enhance the management of the heavy case load in municipal courts; and to assure the sound, fair and just
supervision of the justice system at the municipal court level.
The judicial authorization of plea bargaining subject to strict
standards and the regulation of the process are well within the
Court's rule-making authority over plea-bargaining practice in
the courts as contemplated by the Constitution. N.J. Const.
(1947), Art. VI, § 2, para. 3.
It is clear that any regulation this Court imposes on the
process of plea bargaining will condition and restrain the
discretionary authority of the prosecutor. However, the fact
that the actions of one branch will affect the exercise of power
in another branch does not invalidate those actions as violative
of the principles of separation of powers. We have determined
that "the separation of powers doctrine should not be construed
to prevent the Court from adopting rules which have some effect
on matters which involve executive and legislative functions."
State v. Leonardis (II),
73 N.J. 360, 370 (1977). See State v.
Lagares,
127 N.J. 20 (1992).
We have previously imposed limits on prosecutorial
discretion in order to foster legislative or executive goals.
For instance, we have discouraged plea bargaining, dismissals and
downgrading of charges that would circumvent the mandatory
sentencing scheme of the Graves Act, N.J.S.A. 2C:43-6. See
Memorandum from Robert N. Wilentz, Chief Justice, Supreme Court
of New Jersey, to All Judges of the State of New Jersey (April
27, 1981) in Final Report at Exhibit P. Similarly, we have
limited prosecutorial power by imposing standards for
prosecutorial decisionmaking in certain areas. See State v.
Leonardis (I),
71 N.J. 85, 121 (1976) (instituting guidelines for
determining admission to pretrial intervention programs); State
v. Lagares, supra, 127 N.J. at 32-33 (instituting guidelines for
selection of defendants in repeat-drug-offender sentencing
applications). Moreover, our courts have recognized that:
Plea bargaining is not a right of a defendant
or the prosecution. It is an accommodation
which the judiciary system is free to
institute or reject. Therefore, [the
judiciary] can modify the plea bargaining
structure at any time. . . .
[State v. Brimage,
271 N.J. Super. 369, 379 (App. Div. 1994).]
A prosecutor has important discretionary authority in the
enforcement of the criminal laws. In re Investigation Regarding
Ringwood Fact Finding Comm.,
65 N.J. 512, 526 (1974) (noting that
the prosecutor is a "representative of the executive branch of
government in the enforcement of the criminal law") (citation
omitted). The decision not to prosecute or to offer a plea
bargain to a lesser included offense certainly implicates
prosecutorial authority and discretion. State v. Winne,
12 N.J. 152, 171 (1953).
The regulation governing the practice of plea bargaining in
municipal courts recognizes the fundamental role of the
prosecution in the enforcement of penal laws and accommodates
prosecutorial discretion. Guideline 3 specifies that
prosecutorial discretion should be preserved:
Guideline 3. Prosecutor's Responsibilities.
Nothing in these Guidelines should be
construed to affect in any way the
prosecutor's discretion in any case to move
unilaterally for an amendment to the original
charge or a dismissal of the charges pending
against a defendant if the prosecutor
determines and represents on the record the
reasons in support of the motion.
[Pressler, Current N.J. Court
Rules, Guideline 3 to R. 7:4-8
(1995).]
This Court's comment to the Guidelines for Rule 7:4-8
acknowledges the discretion accorded to a prosecutor, and
emphasizes the importance of that independent decision-making
authority:
It is recognized that it is not the municipal
prosecutor's function merely to seek
convictions in all cases. The prosecutor is
not an ordinary advocate. Rather the
prosecutor has an obligation to defendants,
the State and the public to see that justice
is done, and truth is revealed in each
individual case. The goal should be to
achieve individual justice in individual
cases.
In discharging the diverse responsi
bilities of that office, a prosecutor must
have some latitude to exercise the
prosecutorial discretion demanded of that
position.
[Pressler, Current N.J. Court
Rules, comment to Guidelines for R.
7:4-8 (1995).]
Nevertheless, the prosecutor's discretion may, "in appropriate circumstances, be reviewed for arbitrariness or abuse." In re Investigation Regarding Ringwood Fact Finding Comm., supra, 65 N.J. at 516. Courts have the authority to review prosecutorial acts to "curb[] governmental improprieties
and excesses." Id. at 520. The Court's decision to implement
regulated plea bargaining in municipal courts was motivated by
the recognition that plea bargains had been conducted informally
in the municipal courts, even though they were formally
prohibited. Thus, the Final Report hoped that
[b]y legitimating plea agreements, these
devices [informal case disposition
techniques] would become recognized and
"legalized" and in every case placed on the
record. They would thus become regulated
practices and promote needed uniformity of
practice and procedure.
Hence, influenced by the history of plea bargaining in municipal
courts, this Court's concern over the formerly unstructured and
unsupervised plea bargaining process in municipal courts led to
its emphasis on the implementation of a "regularized" system and
the need for limitations and exceptions to those regulations.
We note further, that this State's executive, judicial and
legislative branches are unanimous in their pronouncements that
deterrence of drunk driving is a paramount goal of this State.
See discussion, infra at __ (slip op. at 18-22). The Court
understands that drunk driving represents a profound social
problem that requires a flexible, pragmatic and purposeful
enforcement of the policy against drunk driving. State v.
Tischio,
107 N.J. 504, 512-514 (1987), appeal dismissed,
404 U.S. 1038,
108 S. Ct. 768,
98 L. Ed.2d 855 (1988). We have
recognized that:
In construing N.J.S.A. 39:4-50(a), we must
also consider the entire gamut of statutory
and regulatory law dealing with the societal
dilemma of drunk-driving. . . . To this end,
the Legislature, working in tandem with the
courts, has consistently sought to streamline
the implementation of these laws and to
remove the obstacles impeding the efficient
and successful prosecution of those who drink
and drive.
Subsisting under the separation of powers constraint of the
Constitution is the need for cooperation among the branches of
government. Governmental cooperation as a dimension of the
separation of powers applies to the administration of justice at
the municipal court level. See Knight v. Margate,
86 N.J. 374,
388-89 (1981). The imposition of a ban on plea bargaining in
drinking and driving cases is intended to support the policy
decisions of the legislative and the executive branches, in their
commitment to eradicate drunk driving.
Accordingly, we conclude that the imposition of a ban on
plea bargaining in cases involving violations of N.J.S.A. 39:4-50
does not violate the constitutional separation of powers and does
not impermissibly infringe on the powers of the municipal
prosecutor to dispose of cases.
The main issue in this case is whether the ban on plea bargaining in drunk-driving cases applies to the offense of permitting or allowing an intoxicated person to drive one's car. That issue arises because the language of Guideline 4 that continues the ban on plea bargaining in drunk-driving cases
characterizes such cases as "driving while under the influence of
liquor or drugs." Guideline 4 also refers specifically to the
statute dealing with drunk-driving offenses, N.J.S.A. 39:4-50.
That statute includes four specific offenses, two of which do not
involve "driving" as such. The Guideline states:
GUIDELINE 4. Limitation: No plea agreements
whatsoever will be allowed in drunken driving
or certain drug offenses. Those offenses
are:
A . Driving while under the influence of
liquor or drugs (N.J.S.A. 39:4-50) and
refusal to provide a breath sample (N.J.S.A.
39:4-50.2) and,
B. Possession of marijuana or hashish
(N.J.S.A. 2C:35-10a(4)); being under the
influence of a controlled dangerous substance
or its analog (N.J.S.A. 2C:35-10b); and use,
possession or intent to use or possess drug
paraphernalia, etc. (N.J.S.A. 2C:36-2).
The offenses enumerated in N.J.S.A. 39:4-50 are:
[1] Operating a motor vehicle while under
the influence of intoxicating liquor or
drugs;
[2] Operating a motor vehicle with a blood
alcohol concentration of 0.10" or more;
[3] Permitting another person who is under
the influence of intoxicating liquor or drugs
to operate a motor vehicle which one owns or
has in one's custody or control;
[4] Permitting another person with a blood
alcohol concentration of 0.10" or more to
operate a motor vehicle which one owns or has
in one's custody or control.
[Pressler, Current N.J. Court
Rules, Guideline 4 to R. 7:4-8
(1995).]
Defendant argues that the general description in the
Guideline "driving while under the influence of liquor or drugs"
was meant as limiting language to define the proscription on plea
bargaining, and thus to restrict the ban only to cases of
defendants who are intoxicated "drivers," and not to cases of
defendants who are "permitters of intoxicated drivers."
The municipal court noted that the literal interpretation of
the Guideline would lead to anomalous results. The municipal
court determined that the "drunken driving" and "driving under
the influence" language in the Guideline could not be read as a
limit on the types of drinking and driving offenses listed in
N.J.S.A. 39:4-50 that were subject to the ban on plea bargaining.
Accordingly, the court ruled that the authorization of plea
agreements did not extend to the "permitting" offense.
The Superior Court affirmed the decision, observing that the
"lead-in language in Guideline 4 of Rule 7:4-8" was "meant to be
no more than [a] shorthand reference to the entire statute." The
Superior Court based its conclusion on the fact that when the
Guideline later referred to specific sections of the penal laws,
it did so precisely and with the proper and accurate citation to
the subsection of the statute. For instance, later sections of
the Guideline prohibit plea bargaining in the case of possession
of 50 grams or less of marijuana, or five grams or less of
hashish, citing to N.J.S.A. 2C:35-10a(4). Thus the trial court
concluded that when this Court "meant to refer to only a portion
of a statute, they knew exactly how to do it, and [how to] cite a
particular statute by correct and appropriate cite."
Additionally, the court found it logically necessary to
assume that the ban against plea bargaining was intended to
encompass all charges involving drunken driving, whether the
defendant was the intoxicated driver or the owner of the car who
allowed such an intoxicated person to drive. The trial court
found it "hard to believe that the Supreme Court would prohibit
plea bargaining in the case where a defendant possessed a small
amount of marijuana, but would allow a bargain when the owner of
a vehicle knowingly allowed a drunk person to drive their
automobile."
The prefatory description of the offenses covered by the
Guideline was not intended to be a definitive substantive
description of each of the offenses subject to the plea bargain
prohibition. Like the title of a statute, this general
description is designed to identify the source of the substantive
provisions that constitute the specific subject matter of the
regulation. The title or general description of a statute need
not replicate each subject included within the statute. See
Howard Savings Inst. v. Kielb,
38 N.J. 186, 200 (1962) (holding
that "[t]he title of an act is not an index, [but is] merely a
label); State v. Greene,
33 N.J. Super. 497, 500 (App. Div. 1955)
(stating that a title to a statute "like the inscription on a
tombstone, serves only to indicate what lies below"); N.J.S.A.
1:1-7. The same understanding of the principles of statutory
construction apply to the interpretation of court regulations.
The meaning of the scope of the ban on plea bargaining in
drunk-driving cases is indicated by the considerations of public
policy that motivated its promulgation. That policy has been
expressed in this Court's firmly-established commitment to
eradicate drunk driving. In State v. Tischio, supra,
107 N.J. 512, we noted that:
the primary purpose behind New Jersey's
drunk-driving statutes is to curb the
senseless havoc and destruction caused by
intoxicated drivers . . . [and] to eliminate
intoxicated drivers from the roadways of this
state.
The Court stated in State v. Hamm,
121 N.J. 109, 115-16
(1990), cert. denied,
499 U.S. 947,
111 S. Ct. 1413,
113 L. Ed.2d 466 (1991):
Our judicial doctrines have reinforced these
legislative changes at each step in the DWI-litigation process: the validation of the
breathalyzer as the critical scientific test
of blood alcohol (BAT) in establishing the
offense, Romano v. Kimmelman,
96 N.J. 66,
474 A.2d 1 (1984); the rejection of
individualized evidence that would undermine
the BAT in trying such cases, State v.
Tischio,
107 N.J. 504,
527 A.2d 388 (1987),
appeal dismissed,
484 U.S. 1038,
108 S. Ct. 768,
98 L. Ed.2d 855 (1988), and State v.
Downie,
117 N.J. 450,
569 A.2d 242 (1990);
and the elimination of a mental-state
requirement for the offense, State v.
Hammond,
118 N.J. 306,
571 A.2d 942 (1990).
In each of those cases we have recognized the
social significance of DWI.
In State v. Downie,
117 N.J. 450, 464-469, cert. denied
498 U.S. 819,
111 S. Ct. 63,
112 L. Ed.2d 38 (1990), the Court reiterated
its position that the clear legislative and public policy
mandated a strict interpretation and rigorous application of the
drunk-driving laws. More recently, the Court has asserted: "We
firmly endorse the governmental commitment to the eradication of
drunk driving as one of the judiciary's own highest priorities."
In re Collester,
126 N.J. 468, 473 (1992).
The Final Report underscored the importance of maintaining
the State's present anti-drunk driving policy, as evidenced in
the proscription against plea bargaining in drunk-driving cases.
The Final Report explained:
In making this recommendation, the
Committee is mindful of the nature and scope
of the State's drug and drunk driving
reduction initiatives, supported by the
Legislature through the codification of
N.J.S.A. 39:4-50, N.J.S.A. 39:4-50.2,
N.J.S.A. 2C:35-1 et seq. and N.J.S.A. 2C:36-1
et seq.. Those enactments are designed to
hold substance abusers, including alcohol and
drug users, accountable for their illegal
conduct. . . .
The Committee also appreciates the
public's concern that the process of plea
bargaining, as applied to alcohol and drug
offenses, might undermine the deterrent
thrust of New Jersey's though laws in these
areas.
[T]here was a strong sense among members of the Committee that the deterrent value of the State's drunk driving laws could be . . . affected if the current exclusion of drunk driving cases were to be eliminated. Thus, the clear consensus of the Committee was that the present exclusion should continue, subject only to the unilateral actions of the
municipal prosecutor with regard to
dismissals and amendments. . . .
The Court's intention in upholding this ban can therefore be
seen as an effectuation of the strong legislative and public
policy to eliminate drunk driving, by refusing to allow drunk
drivers to escape responsibility for their actions, by ensuring
accountability of those who cause drunk driving, and by
penalizing drinking-and-driving offenses to the fullest extent of
the law. The ban is an essential element of a strongly-endorsed
and well-articulated policy to eliminate drunk driving by
affording offenders "zero tolerance" in the prosecution of their
offenses.
This Court has a commitment to eliminating intoxicated
drivers from our highways and has supported that commitment with
a ban on plea bargaining in drunk-driving cases. The aims of
this broad policy can be accomplished only through consistent,
uniform, and vigorous enforcement of the ban. To carve out from
that ban an exception in cases of "permitting an intoxicated
person to drive" undermines the important policy behind the
prohibition. The person who allows an intoxicated person to
drive may be as, or even more, culpable than the driver. See,
e.g., Lee v. Kiku Restaurant,
127 N.J. 170 (1992) (holding that
tavern will be held liable for serving alcohol to visibly
intoxicated patron who then foreseeably becomes involved in a
motor vehicle accident); Kelly v. Gwinnell,
96 N.J. 538 (1984)
(holding a social host liable for serving a visibly intoxicated
guest who foreseeably becomes involved in motor vehicle
accident); N.J.S.A. 2A:15-5.6 (codifying law imposing liability
on social host).
Moreover, the Legislature clearly viewed a person who allows
an intoxicated person to drive as one who contributes to the
awful consequences of drunk driving and, therefore, shares the
responsibility for those consequences. That person is as
blameworthy as the drunk driver -- her conduct is included in the
drunk-driving statute, N.J.S.A. 39:4-50; it is an offense of
equal magnitude to drunk driving; and it is subject to the same
punishment that is applicable to an intoxicated driver. The act
of unleashing a drunk driver onto the highways creates the very
risk to the safety of other drivers and the public that is posed
by the intoxicated driver. E.g. Kelly v. Gwinnell, supra, 96
N.J. at 544, 548. The Legislature has seen fit to define the
offense as one of the same gravity as drunk driving itself and to
prescribe identical punishments for both offenses. Those
considerations impelled this Court to treat these two types of
offenders consistently, subjecting them to identical restrictions
in plea bargaining.
The policies behind our prohibition on plea agreements are
as readily applicable to those who allow an intoxicated person to
drive as they are to the driver. Both are responsible for the
"senseless havoc" of drunk driving. In the eyes of the law there
is no distinction in culpability or punishment between drunk
drivers and those who allow the drunk to drive. The Guideline
that prohibits plea bargaining in all drunk-driving cases
recognizes no distinction between the two offenders.
We affirm the judgment below.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in this opinion. CHIEF JUSTICE WILENTZ did not participate.
NO. A-49 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Law Division, Superior Court, Bergen County
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FLORENCE HESSEN,
Defendant-Appellant.
DECIDED July 22, 1996
Justice Handler PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY