State v. Bischoff
State v. Bischoff
Opinion of the Court
The opinion of the Court was delivered by
Defendant Robert S. Bischoff was convicted in the Parsippany Municipal Court and again after a trial de novo in the Law Division of driving while under the influence of alcohol, contrary to N.J.S.A. 39:4-50. Defendant was sentenced as a second offender to a custodial term of 48 consecutive hours to be served at an Intoxicated Driver Resource Center. He was also required to perform 30 days community service, his license was suspended for two years, and he was fined $750 and assessed a $100 surcharge.
Defendant suffered his first conviction for driving while under the influence on September 29, 1977. The present offense occurred on July 1, 1987 resulting in his conviction in the municipal court on October 27, 1987.
The pertinent language of N.J.S.A. 39:4-50 is as follows:
A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section on a second or subsequent offender, but 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 and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.
Defendant contends that the statutory reference to the ten-year period between “offenses,” is intended to mean “convictions” because, as he argued in the Law Division, “an offense does not become an offense until the judgment of conviction has been entered on the books.” Thus, defendant argues, since his prior conviction on September 27, 1977 occurred more than ten years prior to his present October 27, 1987 conviction, he is not a second offender.
We agree with both the municipal court and Law Division that the date of the second offense, rather than the second conviction, is the critical date in establishing second-offender status. In so concluding, we need only look to the plain language of the statute. See Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 128 (1987); Renz v. Penn Central Corp., 87 N.J. 437, 440 (1981). N.J.S.A. 39:4-50 provides in applicable part:
... but 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____ [Emphasis added].
Clearly, the statute focuses on the date of the subsequent offense, not the date of the subsequent conviction.
Moreover, the most significant factor in construing N.J.S.A. 39:4-50 is the Legislature’s intent. See State v. Tischio, 107 N.J. 504, 510-511 (1987), app. dis. — U.S. —, 108 S.Ct. 768, 98 L.Ed.2d 855 (1988). While it is true that the statute is penal in nature and, therefore, should be strictly construed, “the goal
Defendant's interpretation of the statute would lead to disparate and unfair results. The defendant with a prior conviction who has his subsequent drunk-driving charge tried expeditiously and consequently is convicted within ten years of his prior offense would pay the price by being sentenced as a second offender. The subsequent offender whose trial is delayed because of either defense counsel’s pretrial tactics or calendar inefficiency until after ten years from his prior offense would be rewarded with a first-offender sentence. Such a result frustrates the legislative will.
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.