State of New Jersey v. James R. Denelsbeck

In this appeal, we consider whether a defendant is entitled

to a jury trial when facing a third or subsequent driving while

intoxicated (DWI) charge pursuant to N.J.S.A. 39:4-50. This

Court previously answered that question in the negative, over

twenty-five years ago, in State v. Hamm, 121 N.J. 109, 130

(1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed.

2d 466 (1991). Since then, however, the Legislature has amended

the DWI statute to include additional penalties. As such, we

now apply our analysis from Hamm to determine whether the

current version of the law requires a different outcome.

At the time Hamm was decided, third or subsequent DWI

offenses were punishable by several thousand dollars in fees,

surcharges, and assessments, a ten-year driver’s license

suspension, and 180 days’ confinement, which could be served

through community service and outpatient treatment. Today, a

third or subsequent offender faces an additional $251 in fees,

is subject to the same license suspension, must be confined for

180 days, and must install an ignition interlock device1 in his

vehicle for one to three years. The municipal court in this

case held that this new scheme did not implicate the right to a

jury trial, and the Law and Appellate Divisions agreed.

The critical issue in resolving this case is whether the

DWI offense is “serious” or “petty” for purposes of the Sixth

Amendment. In answering that question, the primary focus is on

the potential term of incarceration; specifically, whether it

exceeds six months. A secondary consideration, but one which

may render an offense “serious” regardless of the term of

confinement, is the additional penalties imposed, including

fines and fees.

In weighing those factors, we conclude that third or

subsequent DWI offenders do not face more than six months’

incarceration and that the additional penalties, although

significant, are not sufficiently serious to trigger the right

to a jury trial. At the same time, we emphasize that the

Legislature has reached the outer limit of what is permitted

without a jury trial and that any additional penalties would

cause this Court to reach a different conclusion. Under the

current law, however, we hold that the need for a jury trial is

outweighed by the State’s interest in promoting efficiency

through non-jury trials.

I.

In the early morning hours of October 5, 2011, defendant



4

James R. Denelsbeck’s vehicle was stopped by an officer of the

Ventnor City Police Department for failing to stop at a red

light. Defendant was arrested when he did not satisfactorily

perform field sobriety tests. An Alcotest machine later

indicated that defendant’s blood alcohol content (BAC) was .12

percent.

Defendant was issued a motor-vehicle summons for DWI,

N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; and

failure to observe a traffic signal, N.J.S.A. 39:4-81.

Defendant had three prior DWI convictions and therefore faced a

mandatory term of 180 days’ confinement, years of driving

restrictions, and numerous fees, fines, and assessments. He

also faced a maximum term of 15 days’ confinement on each of the

other driving offenses.

Defendant filed a demand for a jury trial in municipal

court. In response, the prosecutor advised the court that the

State would not seek more than 180 days’ incarceration. After

argument, the court denied the jury trial request. A bench

trial commenced and the municipal court found defendant guilty

of DWI and failure to observe a traffic signal. Defendant was

acquitted of the careless driving charge.

Given defendant’s prior convictions, he was sentenced to a

mandatory term of 180 days in the Atlantic County Jail, pursuant

to N.J.S.A. 39:4-50(a)(3). Defendant was also sentenced to a



5

ten-year driver’s license suspension followed by two years of

using an ignition interlock device, twelve hours in the

Intoxicated Driver Resource Center (IDRC), $1006 in fines, and

over $350 in applicable surcharges, costs, and fees. He was

also charged $89 in fines and costs for failing to observe a

traffic signal.

Defendant filed an appeal in the Law Division. After a de

novo review, the Law Division affirmed the denial of defendant’s

request for a jury trial, as well as defendant’s convictions and

sentence. Defendant appealed solely on the issue of his right

to a jury trial.

The Appellate Division affirmed in an unpublished opinion

based on “well-settled authority” holding that DWI offenders

facing a prison term of six months or less are not entitled to a

jury trial. The panel specifically relied on this Court’s

decision in Hamm to conclude that DWI in New Jersey is

“considered a motor-vehicle offense rather than a criminal

offense.” The panel also found that there was “nothing in the

record to suggest that defendant faced any real risk of

receiving a prison term greater than 180 days” and that “the

additional fines, penalties, and surcharges defendant faced were

not ‘onerous’ penalties triggering a right to a jury trial.”

We granted defendant’s petition for certification. State

v. Denelsbeck, 220 N.J. 575 (2015).



6

II.

A.

Defendant’s primary argument is that the Legislature has

increased the severity of the penalties for third or subsequent

DWI offenses since this Court’s opinion in Hamm to the point

that the right to a jury trial now applies. Specifically,

defendant argues that the “packing” by the Legislature of

numerous financial penalties, the ten-year driving privilege

suspension, the ignition interlock device requirement, and the

mandatory 180 days’ confinement demonstrate that it now views

third or subsequent DWI offenses as “serious” for purposes of

the Sixth Amendment. Defendant also submits that he should have

been granted a jury trial under the New Jersey Constitution.

The State argues that the amendments to N.J.S.A. 39:4-50(a)

have not converted a third or subsequent DWI offense from a

quasi-criminal motor-vehicle charge into a “serious” offense

requiring a jury trial. The State emphasizes that the DWI

offense remains classified as a motor-vehicle violation and that

the maximum jail term has not changed since Hamm was decided.

The State also contends that many of the penalties pre-date Hamm

and that the few new penalties are either collateral or

insufficiently onerous.

In addition, the State argues that the right to a jury

trial was not triggered by defendant’s offenses carrying an



7

aggregate term of imprisonment exceeding 180 days because the

total penalty was limited to six months’ incarceration under

State v. Owens, 54 N.J. 153 (1969), cert. denied, 396 U.S. 1021,

90 S. Ct. 593, 24 L. Ed. 2d 514 (1970). Lastly, the State

offers a detailed rebuttal to defendant’s argument that this

case should be resolved under the New Jersey Constitution.

B.

Amicus curiae New Jersey State Bar Association (NJSBA)

argues that the amended DWI statute requires a jury trial and

notes that the vast majority of states currently allow jury

trials for repeat DWI offenses. In addition, the NJSBA argues

that current precedent allowing a defendant to be tried without

a jury on multiple “petty” offenses with aggregate sentences

exceeding six months, as long as no more than six months’

incarceration will be imposed, “improperly empowers the

municipal prosecutor and judge to abrogate the defendant’s right

to a jury trial while still subjecting him to multiple charges.”

Lastly, the NJSBA provides practical guidance for applying the

right to a jury trial to DWI offenses.

Amicus curiae American Civil Liberties Union of New Jersey

(ACLU) also argues that the amended DWI statute triggers the

right to a jury trial. The ACLU cites many of the same factors

and penalties as defendant, but also states that the IDRC

requirements create an additional period of incarceration



8

because courts may sentence a defendant to a particular period

of treatment and because failure to satisfy the IDRC

requirements results in a two-day term of imprisonment. Thus,

the ACLU argues that the maximum penalty for third or subsequent

DWI offenses is actually 182 days of confinement.

The Attorney General, appearing as amicus curiae,

reiterates many of the arguments made by the State, including

that DWI is not a criminal offense in New Jersey and that

defendant has not offered a justification for departing from

federal precedent. In addition, the Attorney General argues

that fines and collateral consequences do not factor into the

Sixth Amendment analysis and that the principles of stare

decisis weigh in favor of reaffirming Hamm. The Attorney

General also emphasizes that New Jersey has a legitimate

interest in pursuing non-jury trials in DWI cases, and has

submitted two charts detailing how other states treat DWI

offenses and the right to a jury trial.

III.

A.

The Sixth Amendment of the United States Constitution

provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial

jury[.]” U.S. Const. amend. VI. That provision is applicable

to the states by virtue of the Fourteenth Amendment. See



9

Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1067-68, 13

L. Ed. 2d 923, 926 (1965).

Despite the broad language of the amendment, “it has long

been the rule that so-called ‘petty’ offenses may be tried

without a jury.” Frank v. United States, 395 U.S. 147, 148, 89

S. Ct. 1503, 1505, 23 L. Ed. 2d 162, 166 (1969) (citations

omitted). As such, to determine whether the right to a jury

trial attaches, the relevant inquiry is whether the case

involves a “petty” or “serious” offense. Baldwin v. New York,

399 U.S. 66, 68, 90 S. Ct. 1886, 1887-88, 26 L. Ed. 2d 437, 440

(1970).

The single bright-line rule that the United States Supreme

Court has articulated in making this determination is that “no

offense can be deemed ‘petty’ for purposes of the right to trial

by jury where imprisonment for more than six months is

authorized.” Id. at 69, 90 S. Ct. at 1888, 26 L. Ed. 2d at 440.

The Supreme Court has declined, however, to articulate a similar

per se rule for cases involving a lesser period of confinement.

See id. at 69 n.6, 90 S. Ct. at 1888 n.6, 26 L. Ed. 2d at 440

n.6 (“In this case, we decide only that a potential sentence in

excess of six months’ imprisonment is sufficiently severe by

itself to take the offense out of the category of ‘petty.’”).

Rather, the Supreme Court has stated that when a defendant

faces less than six months’ incarceration, it will look to “both



10

the nature of the offense itself, as well as the maximum

potential sentence, in determining whether [the] . . . offense

was so serious as to require a jury trial.” Ibid. (internal

citations omitted). The “most relevant” information is the

“severity of the maximum authorized penalty.” Id. at 68, 90 S.

Ct. at 1888, 26 L. Ed. 2d at 440.

At the same time, the Supreme Court has cautioned that “the

prospect of imprisonment for however short a time will seldom be

viewed by the accused as a trivial or ‘petty’ matter and may

well result in quite serious repercussions affecting his career

and his reputation.” Id. at 73, 90 S. Ct. at 1890, 26 L. Ed. 2d

at 443. Unlike in cases where the penalty exceeds six months’

imprisonment, however, such “disadvantages, onerous though they

may be, may be outweighed by the benefits that result from

speedy and inexpensive nonjury adjudications.” Ibid.

In Blanton v. North Las Vegas, the Supreme Court applied

this analysis to conclude that a first-time DWI offense was

“petty” for purposes of the Sixth Amendment. 489 U.S. 538, 539

40, 109 S. Ct. 1289, 1291-92, 103 L. Ed. 2d 550, 554-55 (1989).

In doing so, the Supreme Court first explained that there was a

presumption that the state legislature viewed the offense as

“petty” because it authorized a maximum prison sentence of only

six months. Id. at 544, 109 S. Ct. at 1293, 103 L. Ed. 2d at

557.



11

It also found that the inclusion of other penalties did not

“clearly indicate[] that [DWI] is a ‘serious’ offense.” Ibid.

Specifically, the Supreme Court found a 90-day license

suspension and completion of an alcohol abuse education course

to be insignificant, id. at 544 n.9, 109 S. Ct. at 1294 n.9, 103

L. Ed. 2d at 557 n.9, and that a $1000 fine was “well below the

$5,000 level set by Congress in its most recent definition of a

petty offense[,]” id. at 544, 109 S. Ct. at 1293-1294, 103 L.

Ed. 2d at 557. Nonetheless, the Supreme Court explained that

relevant penalties are not limited “solely to the maximum prison

term authorized for a particular offense” and that “[a]

legislature’s view of the seriousness of an offense also is

reflected in the other penalties that it attaches[.]” Id. at

542, 109 S. Ct. at 1292, 103 L. Ed. 2d at 555.

As such, a defendant facing a prison term of six months or

less will be entitled to a jury trial “if he can demonstrate

that any additional statutory penalties, viewed in conjunction

with the maximum authorized period of incarceration, are so

severe that they clearly reflect a legislative determination

that the offense in question is a ‘serious’ one.” Id. at 544,

109 S. Ct. at 1293, 103 L. Ed. 2d at 556. Such a finding will

occur only “in the rare situation where a legislature packs an

offense it deems ‘serious’ with onerous penalties that

nonetheless ‘do not puncture the 6-month incarceration line.’”



12

Id. at 544, 109 S. Ct. at 1293, 103 L. Ed. 2d at 556-57

(citation omitted). Such situations are rare because although

“[p]enalties such as probation or a fine may engender a

significant infringement of personal freedom, . . . they cannot

approximate in severity the loss of liberty that a prison term

entails.” Id. at 542, 109 S. Ct. at 1292, 103 L. Ed. 2d at 556

(internal quotations and citations omitted).

B.

“A similar right to trial by jury is guaranteed under the

New Jersey Constitution.” State v. Stanton, 176 N.J. 75, 88,

cert. denied, 540 U.S. 903, 124 S. Ct. 259, 157 L. Ed. 2d 187

(2003); see N.J. Const. art. I, ¶ 9 (“The right of a trial by

jury shall remain inviolate[.]”); see also N.J. Const. art. I, ¶

10 (“In all criminal prosecutions the accused shall have the

right to a speedy and public trial by an impartial jury[.]”).

Due to the similar language in the federal and state

constitutions, we have long looked to the federal standard to

determine the scope of the right to a jury trial. See Owens,

supra, 54 N.J. at 159-60 (citing Frank, supra, 395 U.S. at 147,

89 S. Ct. at 1503, 23 L. Ed. 2d at 162).

Indeed, in Hamm, supra, we described the issue of whether a

DWI defendant has a right to a jury trial as primarily a

question of federal constitutional law “because New Jersey has

never recognized a right to trial by jury for the motor-vehicle



13

offense of DWI.” 121 N.J. at 112. Thus, this Court explained

that the federal principles “provide the analytical framework”

for resolving the question of “whether the Legislature has so

‘packed’ the offense of DWI that it must be regarded as

‘serious’ for sixth-amendment purposes.” Id. at 114-15.

We have also made clear, however, that trial by jury is

relevant when a defendant faces several petty offenses that are

factually related and arise out of a single event. Owens,

supra, 54 N.J. at 163. “In such circumstances, the prosecutor

(or the municipal court if there is no prosecutor) should offer

the defendant a jury trial, and if such offer is not made, then

the sentences may not total more than the maximum authorized for

a petty offense.” Ibid.

Applying the federal standard, this Court determined that

the penalty scheme in effect when Hamm was charged with a third

incident of DWI did not require a jury trial. Hamm, supra, 121

N.J. at 111. At that time, a third or subsequent DWI offender

was subject to 180 days’ incarceration that could be served by

completing a 90-day community service sentence and a combination

of inpatient and outpatient treatment. See L. 1986, c. 126, §

1. In addition, a third or subsequent DWI offender faced a ten

year driver’s license suspension, ibid.; a fine of $1000, ibid.;

an annual $1500 insurance surcharge for three years, L. 1988, c.

156, § 9; and $180 in other fees and charges, L. 1984, c. 126, §



14

1. The sentence imposed on Hamm, which consisted of ninety

days’ community service, twenty-eight days in an inpatient

treatment program, and sixty days in an outpatient program, as

well as the prescribed driver’s license suspension, surcharges,

and other financial assessments, fell well within the discretion

afforded to a court at that time to craft a sentence that

minimized the time of incarceration. Hamm, supra, 121 N.J. at

111.

In response to Hamm’s argument that this penalty scheme

classified a third DWI offense as “serious” rather than “petty,”

we noted that “when the New Jersey Legislature wants to treat an

offense as ‘serious,’ there will be no mistaking it.” Id. at

117. By way of example, we noted that the Legislature had

imposed mandatory prison sentences of a year or more to address

certain gun and drug offenses. Id. at 117-18. In contrast, we

stated that for DWI, the Legislature “has yet to impose the full

force of law on that offense that would denote a social

evaluation that DWI is a ‘crime’ or an offense that equates with

the need of trial by jury.” Id. at 116. Specifically, we noted

that the law focused on prevention over punishment, carried

shorter sentences than those in many other states, and had “yet

to require a sentence in excess of six months, or even to

require a mandatory six months of incarceration.” Ibid.

We then turned to the additional penalties, noting that the



15

$1000 fine would be regarded as “petty” under Blanton and that

the other fees were civil in nature and therefore should be

discounted. Id. at 117. The Court explained that “[t]he

various rehabilitation and enforcement surcharges are reasonable

in themselves” and that the increased insurance premiums were

not specific to DWI offenses. Id. at 125. We also found that

the insurance surcharge “was totally unrelated to any

legislative intent to ‘pack’ the DWI offense” and that the

collateral consequences attendant to DWI convictions are

limited. Id. at 125-26.

We further stated in Hamm, that a license to drive is a

necessity but that other licenses, including those to practice

certain professions, may be lost without a jury trial. Id. at

124 (citation omitted). We also noted that the suspension,

which previously existed, did not “reflect a significant

escalation of the seriousness with which New Jersey’s

Legislature regards this offense, but rather a shifting social

conclusion about what works best with DWI offenders.” Id. at

124-25.

Finally, in Hamm, we discussed the Legislature’s

rehabilitative focus and described its decision to set a maximum

penalty of 180 days’ confinement as demonstrating “the undoubted

legislative intention to continue to treat DWI as a motor

vehicle offense, not a crime.” Id. at 127. We also stated that



16

“the provision of jury trial on a DWI charge by the majority of

other states does not suggest the same result in New Jersey” due

to the differences in offense structures and classification.

Ibid.

We thus concluded that third or subsequent DWI offenses

were not “serious” and did not require the option of a jury

trial. Id. at 128-29. At the same time, however, we emphasized

that this was “not an easy question” and that Blanton appears to

suggest that “the closer the DWI system actually comes to the

six-month incarceration line, the less room there may be for

other penalties.” Id. at 130.

IV.

N.J.S.A. 39:4-50(a) currently “prohibits the operation of a

motor vehicle ‘while under the influence of intoxicating

liquor,’ or ‘with a [BAC] of 0.08% or more by weight of alcohol

in the defendant’s blood.” State v. Revie, 220 N.J. 126, 133

(2014) (quoting N.J.S.A. 39:4-50(a)). The statutory scheme

provides a tiered penalty structure for first, second, and

“third or subsequent” DWI offenses, with increasing penalties

for each additional offense. N.J.S.A. 39:4-50(a).

Following a series of amendments in 2004, a third or

subsequent violator currently

shall be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse, except that the court may lower



17

such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the [IDRC.]

[N.J.S.A. 39:4-50(a)(3) (emphasis added).]

Thus, unlike the pre-2004 statute, the current law requires a

third or subsequent DWI offender to be confined “either entirely

in jail or partially in jail and partially in an inpatient

facility” with “no allowance for noncustodial alternatives.”

State v. Luthe, 383 N.J. Super. 512, 514 (App. Div. 2006). The

mandatory sentence of 180 days, however, has remained the same.

A third or subsequent DWI offender continues to face a

driver’s license suspension of ten years. N.J.S.A. 39:4

50(a)(3). That requirement has been in place since 1986 and was

part of the penalty scheme considered by the Court in Hamm.

Since Hamm, the Legislature has added an additional restriction

in that third or subsequent DWI offenders “shall be required to

install an ignition interlock device under the provisions of

P.L. 1999, c. 417[.]” N.J.S.A. 39:4-50(a)(3). The device must

be installed “in the motor vehicle principally operated by the

offender during and following the expiration of the period of

license suspension imposed[.]” N.J.S.A. 39:4-50.17(b). After

the period of license suspension has ended, “the device shall

remain installed for not less than one year or more than three

years, commencing immediately upon the return of the offender’s



18

driver’s license after the required period of suspension has

been served.” Ibid.

Several financial penalties and assessments also apply to

DWI offenders. Initially, there is a $1000 fine for a third or

subsequent violation. N.J.S.A. 39:4-50(a)(3). There is also a

$100 surcharge to support the Drunk Driving Enforcement Fund,

N.J.S.A. 39:4-50.8; a $100 fee payable to the Alcohol Education,

Rehabilitation and Enforcement Fund, N.J.S.A. 39:4-50(b); a $75

assessment for the Safe Neighborhoods Services Fund, N.J.S.A.

2C:43-3.2; a $50 assessment under N.J.S.A. 2C:43-3.1(c); a $100

DWI surcharge under N.J.S.A. 39:4-50(i);2 and an insurance

surcharge of $1500 per year for three years for third or

subsequent DWI offenses occurring within a three-year period,

N.J.S.A. 17:29A-35(b)(2)(b). A total of $6 is also added to

every motor-vehicle violation fine. N.J.S.A. 39:5-41(d)-(h).

The $1000 fine, L. 1986, c. 126, § 1; the $100 surcharge

for the Drunk Driving Enforcement Fund, L. 1984, c. 4, § 1; and

the annual $1500 insurance surcharge, L. 1988, c. 156, § 9;

existed at the time Hamm was decided. Since Hamm, the Alcohol

Education Fund fee has increased from $80 to $100, L. 1986, c.

126, § 1. In contrast, the $75 assessment fee was not put in

place until August 1993, L. 1993, c. 220, § 11; the $100 DWI

surcharge did not apply until 2002, L. 2002, c. 34, § 17; and

the $50 assessment under N.J.S.A. 2C:43-3.1(c) and the $6 in

fines under N.J.S.A. 39:5-41(d)-(h) were not enacted until after

Hamm was argued, L. 1990, c. 64, § 1; L. 1990, c. 95, § 2. In

other words, an additional $251 in fines, fees, assessments, and

surcharges have been imposed since Hamm.

DWI offenders also may be subject to penalties, including

confinement, for failing to meet obligations arising from a DWI

conviction. For example, an offender who does not install an

ignition interlock device “in a motor vehicle owned, leased or

regularly operated by him shall have his driver’s license

suspended for one year . . . unless the court determines a valid

reason exists for the failure to comply.” N.J.S.A. 39:4

50.19(a). The offender also will be subject to a one-year

license suspension for driving an ignition interlock-equipped

vehicle that “has been started by any means other than his own

blowing into the device” or for driving “a vehicle that is not

equipped with such a device[.]” Ibid.

N.J.S.A. 39:4-50(b) provides that any person convicted of

DWI “must satisfy the screening, evaluation, referral, program

and fee requirements of the Division of Alcoholism and Drug

Abuses’ Intoxicated Driving Program Unit, and of the Intoxicated

Driver Resource Centers and a program of alcohol and drug

education and highway safety, as prescribed by the chief



20

administrator.” Failure to comply “shall result in a mandatory

two-day term of imprisonment in a county jail and a driver

license revocation or suspension and continuation of revocation

or suspension until such requirements are satisfied, unless

stayed by court order[.]” Ibid. That requirement existed when

Hamm was decided.

N.J.S.A. 39:3-40 states that no person whose driver’s

license has been suspended or revoked “shall personally operate

a motor vehicle” during the period of suspension or revocation.

An offender whose license has been suspended due to a DWI

conviction will be fined $500 and will have his driver’s license

“suspended for an additional period of not less than one year or

more than two years, and shall be imprisoned in the county jail

for not less than 10 days or more than 90 days.” N.J.S.A. 39:3

40(f)(2). The DWI offender’s motor-vehicle registration

privilege will also be revoked. N.J.S.A. 39:3-40(a). This

penalty existed when Hamm was decided, except that the statute

did not include a minimum 10-day term of imprisonment and did

not require revocation of the offender’s registration. L. 1994,

c. 286, § 1.

Lastly, under N.J.S.A. 39:5-36(a), a court may incarcerate

“any person upon whom a penalty or surcharge . . . has been

imposed for a violation of [a motor-vehicle offense] where the

court finds that the person defaulted . . . without good cause



21

and the default was willful.” Such incarceration cannot “exceed

one day for each $50 of the penalty or surcharge so imposed” or

“a period of 90 consecutive days.” Ibid. The earlier version

of this law, in effect when Hamm was decided, was substantially

identical, other than that incarceration could not exceed “1 day

for each $20.00 of the fine so imposed[.]” L. 1975 c. 144, § 4.

V.

As an initial matter, we decline defendant’s request to

resolve this case on independent principles of the New Jersey

Constitution. As was true when Hamm was decided, “New Jersey

has never recognized a right to trial by jury for the motor

vehicle offense of DWI” and DWI is “not a crime under New Jersey

law.” 121 N.J. at 112. Those facts have not changed and we

remain satisfied that the protections guaranteed by the Sixth

Amendment are consonant with those found in our State

Constitution. We therefore apply the federal standard.

A.

We begin our inquiry with “[t]he most relevant indication

of the seriousness” of an offense -- the severity of the penalty

authorized for third or subsequent DWI offenses. Frank, supra,

395 U.S. at 148, 89 S. Ct. at 1505, 23 L. Ed. 2d at 166. In

doing so, we keep in mind that “no offense can be deemed ‘petty’

for purposes of the right to trial by jury where imprisonment

for more than six months is authorized.” Baldwin, supra, 399



22

U.S. at 69, 90 S. Ct. at 1888, 26 L. Ed. 2d at 440. On the

other hand, if the offense is punishable by six months or less,

it is “appropriate to presume . . . that society views such an

offense as ‘petty.’” Blanton, supra, 489 U.S. at 543-44, 109 S.

Ct. at 1293, 103 L. Ed. at 556.

N.J.S.A. 39:4-50(a), the provision of the Motor Vehicle

Code addressing third or subsequent DWI offenses, does not

authorize a penalty of over six months’ confinement. The

current mandatory nature of the term of imprisonment, while a

modification of the penal aspect arising from a third or

subsequent DWI conviction, does not lengthen the potential term

of confinement or alter our analysis. Indeed, the 180-day

sentence is the same as that addressed in Hamm, with the only

difference being in how the 180 days must be served.

Under the 1986 version of N.J.S.A. 39:4-50(a) addressed in

Hamm, a DWI offender could potentially serve 90 days through

community service and the remaining 90 days through outpatient

treatment. In contrast, a person sentenced under the current

law is required to spend the entire 180-day sentence

incarcerated, unless the defendant enrolls in up to 90 days of

inpatient treatment. Such treatment may not be available to

some individuals due to their financial situation or insurance

coverage, and they will forego this alternative.

Therefore, regardless of its intent, the Legislature has



23

effectively replaced a largely non-custodial and treatment-based

approach with one that more heavily emphasizes confinement.

This increased emphasis on incarceration represents an

alteration of the Legislature’s view of the penal consequences

needed to address the scourge of intoxicated driving by third

and subsequent offenders. This modification also marks the

limit the Sixth Amendment will permit in terms of confinement

without triggering the right to a jury trial. It does not,

however, alter the guiding factor in our analysis: the amount

of confinement to which a defendant is exposed.

We are not persuaded that defendant faced more than 180

days’ incarceration in this case. To start, we reaffirm our

holding in Owens, supra, that trial by jury is relevant when a

defendant faces “several petty offenses [that] are factually

related and arise out of a single event” but that the failure to

offer the defendant a jury trial in such a case is cured by

limiting the total sentence to no more “than the maximum

authorized for a petty offense.” 54 N.J. at 163. As noted, the

primary focus of the right to a jury trial is on the penal

exposure. Thus, in terms of the right to a jury trial, it is

immaterial whether a defendant is tried on several factually

related “petty” offenses or on a single “petty” offense as long

as the total period of incarceration does not exceed six months.

As such, defendant was not entitled to a jury trial based



24

on the 15-day jail terms that his other two offenses carried.

Defendant was assured that he would not be sentenced to more

than 180 days’ imprisonment and, more importantly, was

constitutionally guaranteed a sentence of no more than six

months.

We also decline to find that the IDRC requirements under

N.J.S.A. 39:4-50(b) bring a third or subsequent DWI offender’s

maximum sentence to over 180 days’ confinement. To be sure,

those requirements have some relevance in determining whether

the Legislature has “packed” the statute to the point of

elevating it to a “serious” offense. At the same time, however,

we find that the two-day sentence for failure to fulfill the

requirements of the Intoxicated Driving Program Unit and the

IDRC, a sentence dependent on an independent and not necessarily

inevitable event, is too attenuated to affect a DWI offender’s

direct exposure to incarceration.

The two-day term of imprisonment is not part of the

sentence for the DWI offense. Rather, the DWI statute merely

requires the sentencing court to “inform the person convicted

that failure to satisfy [the] requirements shall result in a

mandatory two-day term of imprisonment[.]” Ibid. The

sentencing court is not involved in imposing the penalty, and

the conduct giving rise to the sentence is distinct from that

underlying the DWI offense. In other words, the two-day



25

sentence is imposed for the separate act of not complying with

the Intoxicated Driving Program Unit and IDRC requirements, not

the original DWI offense.

In addition, the statute makes clear that the sentencing

judge’s only role in this process is to “inform the person

convicted” that he must comply with the requirements. Ibid. It

does not instruct the judge to craft those requirements or to

include them in the sentence.

B.

Because defendant did not face over six months of

confinement, we presume the DWI offense to be “petty,” Hamm,

supra, 121 N.J. at 112-13, and address the question whether this

is a “rare situation where a legislature packs an offense it

deems ‘serious’ with onerous penalties that nonetheless ‘do not

puncture the 6-month incarceration line,’” Blanton, supra, 489

U.S. at 544, 109 S. Ct. at 1293, 103 L. Ed. 2d at 556-57

(citation omitted). In making this determination, we consider

“only penalties resulting from state action[.]” Id. at 544 n.8,

109 S. Ct. at 1293 n.8, 103 L. Ed. 2d at 557 n.8.

To begin with, as in Hamm, supra, we find that the

deprivation of a license to drive “is clearly a ‘consequence of

magnitude.’” 121 N.J. at 124 (citation omitted). We also

reaffirm that the ten-year license suspension, which is not new,

“does not in any sense reflect a significant escalation of the



26

seriousness with which New Jersey’s Legislature regards this

offense, but rather a shifting social conclusion about what

works best with DWI offenders.” Ibid. The history and analysis

regarding this suspension remain the same, and we see no reason

to repeat our analysis from Hamm on this point. See id. at 118

22.

The license suspension, however, is no longer the only

driving restriction included in the statute. The requirement

under N.J.S.A. 39:4-50.17(b) that an offender facing a second or

subsequent DWI conviction install an ignition interlock device

did not exist in 1990, and we now recognize it as relevant to

our analysis. That mandate places a restriction on the

offender’s ability to drive his vehicle, and also prevents him

from operating any vehicle lacking an ignition interlock device.

N.J.S.A. 39:4-50.17(a)-(c).

Those limitations, however, are far less burdensome than a

license suspension. As a practical matter, an offender need not

install an ignition interlock device during the suspension

period if he sells the vehicle or transfers ownership to another

person. Indeed, the New Jersey Motor Vehicle Commission advises

that installing an ignition interlock device is not necessary if

the individual “do[es] not have access to or plan[s] to operate

any vehicle[.]” N.J. Motor Vehicle Commission, Ignition

Interlock Device FAQs 2 (2016), http://www.state.nj.us/mvc/pdf/



27

Violations/interlock-faq.pdf.

Moreover, even when the ignition interlock device is

installed, the burden is not so onerous as to indicate that the

Legislature views repeat DWI offenses as “serious.”

Specifically, the ignition interlock device merely limits the

vehicles an offender can operate, and prevents the offender from

driving with a certain BAC level. Thus, while perhaps an

inconvenience, the requirement, like the license suspension, is

preventative rather than punitive.

The preventative nature of the ignition interlock device

requirement is also reflected in the provision that individuals

with family income not exceeding 149 percent of the federal

poverty level are entitled to pay a reduced leasing fee for the

ignition interlock device, and need not pay anything for the

installation, monitoring, calibration, or removal of said

device. N.J.S.A. 39:4-50.17a. Similarly, the one-year license

suspension for failure to install an ignition interlock device

will not be applied if “the court determines a valid reason

exists for the failure to comply.” N.J.S.A. 4-50.19(a).

The costs associated with the device, however, likely

represent the greatest burden imposed by this requirement. The

ACLU estimates the cost of having an ignition interlock device

as approximately $1050 for one year and $2850 for three years.

Such an expense is significant, but is spread over a period of



28

time and, as noted, can be reduced based on income.

In addition, that cost is not the result of fees paid to

the State. Rather, it simply represents the price of satisfying

a court order based on market rates. In that way, the expenses

are no different from any other cost of complying with a court

order, such as finding alternate means of transportation when

one’s driver’s license is suspended. A prime distinction here,

ironically, would appear to be that, unlike with other

attenuated costs, the Legislature has attempted to lessen the

cost of compliance for low-income offenders. Thus, although we

consider this a financial burden, we do so to a limited extent.

More directly, DWI offenders on their third or subsequent

conviction face $5931 in fees, fines, and assessments. Of that

amount, only the $1000 fine in the DWI statute and the $50

assessment under N.J.S.A. 2C:43-3.1(c) can be considered

criminal penalties. As in Hamm, we note that $1050 would

constitute a “petty” fee under Blanton, supra, which cited $5000

as the amount associated with federal “petty” offenses. 489

U.S. at 544-45, 109 S. Ct. at 1294, 103 L. Ed. 2d at 557 (citing

18 U.S.C.A. § 1 (1982 ed., Supp. IV)). The remaining fees are

civil penalties which “we do not disregard,” but we note that

“they are not the penalties associated with crimes.” Hamm,

supra, 121 N.J. at 117.

While the use of civil penalties tends to show that the



29

Legislature does not view the offense as “serious,” $5931 in

civil fines is significant. It is $251 more than the amount

imposed in 1990 and exceeds the $5000 penalty mentioned in

Blanton and federal law. 18 U.S.C.A. § 3571(b).

We do not, however, view the $5000 amount as dispositive in

regard to the right to a jury trial. The Supreme Court in

Blanton, supra, did not treat it as such and instead simply

noted that it had “frequently looked to the federal

classification scheme in determining when a jury trial must be

provided.” 489 U.S. at 545 n.11, 109 S. Ct. at 1294 n.11, 103

L. Ed. 2d at 557 n.11. It is also worth noting that the fines

associated with “petty” federal offenses have changed in the

past. See 18 U.S.C.A. § 1 (1964 ed.) (stating that petty

offense was “any misdemeanor, the penalty of which does not

exceed imprisonment for a period of six months or a fine of not

more than $500, or both”).

In addition, strict adherence to a set amount would

overlook the context of a monetary penalty, including that

money, as opposed to a term of confinement, is subject to

inflation. As such, while the amount of any surcharges, fines,

or assessments is an essential factor in determining the right

to a jury trial, and while we are not inclined to approve of

fees larger than those present here, our inquiry does not end

simply because the total amount due exceeds $5000.



30

The remaining penalties and fees, including the penalties

for failing to install an ignition interlock device, N.J.S.A.

39:4-50.19(a); driving on a suspended license, N.J.S.A. 39:3-40;

and failing to pay a penalty or surcharge, N.J.S.A. 39:5-36; are

too attenuated to be relevant to the current issue before the

Court. As with the two-day term of incarceration for not

satisfying the IDRC requirements, those penalties are for

conduct separate and distinct from the DWI offense. Although

being convicted of a third or subsequent DWI offense makes it

possible for the individual to receive additional penalties,

such penalties are in no way preordained. Their applicability

depends entirely on the subsequent conduct and choices of that

person. Those penalties are therefore too removed from the DWI

statute to enter into our analysis.

VI.

Given that the total term of potential confinement does not

exceed six months, we presume the DWI offense to be “petty” for

purposes of the Sixth Amendment. The Legislature has, however,

reached the outer limit in subjecting third and subsequent DWI

offenders to confinement without a jury trial. Defendant faced

a mandatory term of six months’ confinement, the constitutional

maximum. To reiterate, “the closer the DWI system actually

comes to the six-month incarceration line, the less room there

may be for other penalties.” Hamm, supra, 121 N.J. at 130.



31

In light of that fact, the State has also reached the outer

limit of additional penalties that may be added for a third or

subsequent DWI offense without triggering the right to a jury

trial. Along with increasing the severity of the sentence in

terms of confinement, it has added another $251 in fines,

bringing the total to nearly $6000, and has enacted new driving

limitations through the ignition interlock device requirement.

Although not all aspects of those changes are equally relevant,

the offense is teetering between classifications, and any

additional penalties will demonstrate that the Legislature views

a third or subsequent DWI as a “serious” offense requiring a

trial by jury. Until that day arrives, however, we believe that

the penal consequences of the offense do not tip the balance to

classify it as “serious.” As a result, the State’s interest in

the efficiency and cost-saving benefits of non-jury trials can

still prevail.

VII.

In reaching this conclusion, we note that the NJSBA and the

Attorney General have provided information about how other

jurisdictions treat DWI offenses3 and approach the right to a

jury trial. This Court has also conducted its own review –- the

results of which are set forth at Appendix A -- which shows that

every other state appears to afford jury trials for at least

some DWI offenses. Such information, although not dispositive,

can be helpful in guiding our decisions, particularly as they

relate to important constitutional rights. See State v. Witt,

223 N.J. 409, 425-27 (2015).

We acknowledge, however, that the significance of any

apparent uniformity in state practices can be belied by the

context and nuances of each jurisdiction. For example, every

other jurisdiction exposes at least some DWI offenders to over

six months of confinement. Eighteen do so for the first

offense, while the remaining thirty-two, including the District

of Columbia, take that approach for second or subsequent

offenses. The vast majority of those jurisdictions have also

recognized a broader right to jury trials through statute, rule,

or their individual constitutions, or have, unlike New Jersey,

classified all or some DWI offenses as crimes.

Thus, while other states may provide jury trials in at

least some DWI cases, this fact provides minimal guidance for

what is appropriate in our State. New Jersey has historically

addressed DWI as a motor-vehicle offense. A motor-vehicle

offense is not included in an individual’s criminal history

record, N.J.A.C. 13:59-1.1, and is not subject to expungement as

a criminal record, N.J.S.A. 2C:52-28. The Legislature has not



33

enacted a statute guaranteeing a right to a jury trial for DWI

offenses. Rather, the legislative response to repeat DWI

conduct has been to increase the severity of the penalties

focused on prevention and deterrence, thereby creating a law

that is far less punitive than those found in many other states.

It has resisted criminalizing this conduct except in separate

criminal statutes addressing cases where a DWI offense results

in bodily injury or death.4 That approach reveals a legislative

intent to blend punishment with deterrence, which runs counter

to concluding that the current penalties assessed for third and

subsequent DWI offenses have transformed DWI from a “petty”

offense, or a quasi-criminal offense as we classify such

conduct, to a “serious” offense requiring a jury trial.

VIII.

In sum, we believe that the Legislature has increased the

severity of penalties associated with repeat DWI offenses to the

point where any additional direct penalties, whether involving

incarceration, fees, or driving limitations, will render third

or subsequent DWI offenses “serious” offenses for the purpose of

4 For example, while intoxication is not an element of the crime of death by auto, DWI “shall give rise to an inference that the defendant was driving recklessly” for the purpose of proving that offense. N.J.S.A. 2C:11-5(a). The same is true of assault by auto. N.J.S.A. 2C:12-1(c)(1); see also State v. Mara, 253 N.J. Super. 204, 213 (App. Div. 1992). A DWI violation may also lead to increased penalties for death by auto, N.J.S.A. 2C:115(b)(1)-(3), and assault by auto, N.J.S.A. 2C:12-1(c).



34

triggering the right to a jury trial. At that point, the

balance will shift and the State’s interest in efficiency will

be outweighed by the magnitude of the consequences facing the

defendant. In such an event, the constitutional right to a jury

trial will apply, regardless of how the offense is categorized

or labeled by the Legislature.

Until that time, however, we are satisfied that the current

penalty scheme is within the confines of Sixth Amendment

precedent and that the Legislature has managed to strike a

minimally acceptable balance in weighing the various interests

at play. As such, third or subsequent DWI offenders are not

entitled to a jury trial, and defendant’s conviction procured by

a bench trial did not violate his Sixth Amendment right to a

jury trial.



The judgment of the Appellate Division is affirmed.