In State v. Henry (Approved for Publication 02-09-2011), the Court held that a Municipal Court should weigh mitigating and aggravating factors pursuant to N.J.S. 2C:44-1 in determining whether to impose a discretionary jail sentence in a DWI case.
The Relevant Statute (2C:44-1 Criteria for Withholding or Imposing Sentence of Imprisonment) sets forth criteria used by a Judge to determine an appropriate sentence for a “criminal” offense. A DWI is not a criminal offense; but the Court chose to employ this statutory scheme given the lack of clarity in the context of a DWI.
Most Courts before State v. Henry, weighed mitigating and aggravating factors in DWI cases, but without a state-wide specific standard. The ruling provides some guidance for Courts in DWI cases where a jail term is discretionary (1st and 2nd offenses).
In State v. Henry, the Defendant had two prior DWI convictions in 1997. He was convicted again in 2009. Because the gap between the 2nd and 3rd convictions was more than ten years, Henry was eligible (pursuant to the NJ DWI Statute) to be treated as a 2nd DWI offender (called a “step-down”). He was sentenced to 30 days in jail, which was reduced to 14 days on Appeal.
It was particularly significant that the Court viewed Henry’s high blood alcohol reading (.30%) which they called “extraordinarily high”, as an “aggregating” factor. The Court found that such a high reading “posed a significantly greater risk of harm to the public.” The Court also found as aggravating that the defendant was “an untreated alcoholic”, and that he had a criminal record (for possessing a gun which involved intoxication).
The Court also found that despite the “step-down”, that Court could consider that Henry was a third offender because he “poses a greater risk of re-offending than a person with two offenses.” Last, the Court found as an aggravating “the need to deter.”
In contrast, the Court found as mitigating factors “the defendant’s persistent alcoholism” (while pointing out that he “has the responsibility to seek treatment diligently and consistently”), and his “willingness to cooperate” (e.g. he was cooperative when arrested, and he cooperated by entering a plea), that he will perform community service, and lastly, that jail would adversely impact the defendant’s mother who he cares for.
Mercer County Superior Court Judge Mitchel Ostrer who wrote the opinion, is a diligent judge. I have appeared before Judge Ostrer and have respect for him. The opinion reflects obvious thought and deliberation. However, I respectfully disagree with some of the tenets of the ruling.
When I was interviewed by the New Jersey Law Journal regarding the opinion, I expressed some concerns with the ruling. The DWI Statute regarded Henry as a 2nd offender (“stepped down” because his 2nd was more than ten years from his 3rd). It is troubling that the Court would therefore find as an aggravating factor, that he was a 3rd offender. This seems to be at odds with the Statute – and simply unjust because he should be treated the same as any other “2nd offender.” As an aside, the Court also found as a mitigating factor, Henry’s plea. This is in direct conflict with 2C:44-1 which provides that “A plea of guilty by a defendant or failure to so plead shall not be considered in withholding or imposing a sentence of imprisonment.” The ruling in this regard tends to force a defendant to enter a plea – not exercise his constitutional right to a trial in exchange for favored treatment. There is a body of law (starting with the statute) that prohibits a court from imposing a greater sentence to a defendant who chooses to go to trial (a so-called “trial tax” – as opposed to plead guilty. While the ruling provides some needed standards to be followed, the ruling has the capacity to create injustice for DWI Defendants.