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Because defendant seeks review only of the standard for a

stay, we recount the underlying facts briefly. They are taken

from testimony presented at a motion to suppress and other parts

of the record.

On August 11, 2012, a police officer in Wall Township

pulled over a car after the officer watched it cross the “fog

line” -- a solid white line on the “right most portion of the

roadway” -- three times. As the officer approached the stopped

car, a convertible with the top down, he smelled alcohol. The

driver, defendant Scott Robertson, admitted that he drank “a

small number of beers” but denied that he was intoxicated.

Defendant agreed to submit to three field sobriety tests. Based

on his performance, the officer believed that defendant was

impaired.

The officer arrested defendant and took him to police

headquarters to administer a breath test. The results of the

Alcotest revealed that defendant had a blood alcohol

concentration (BAC) of .13 percent, which is above the legal

limit. See N.J.S.A. 39:4-50. As a result, the officer issued

summonses for DWI, ibid., failure to maintain a lane, N.J.S.A.

39:4-88(b), and reckless driving, N.J.S.A. 39:4-96.

Before trial, defendant challenged the legality of his

arrest and moved to exclude the results of the breath test. At

the center of defendant’s motion to suppress was his claim that

he was entitled to additional discovery, namely, more detailed

repair records of the Alcotest device used in the case and “data

downloads” of certain diagnostic tests. See State v. Robertson,

438 N.J. Super. 47, 56-59 (App. Div. 2014). The State had

provided hard copies of those test results. Id. at 56.

The municipal court judge found probable cause for the

arrest and rejected defendant’s discovery arguments. After a

trial based on stipulated facts, the court found defendant

guilty of DWI. The State, in turn, dismissed the other charges.

The court sentenced defendant to a total of $714 in fines and

penalties, ordered him to serve twelve hours in the Intoxicated

Driver Resource Center, and revoked his driving privileges for

seven months, the minimum period for a first offender under

N.J.S.A. 39:4-50(a)(1)(ii).

Defense counsel asked the court to stay the sentence

pending appeal, and the State did not object. The judge stayed

only the license suspension for twenty days to allow defendant

time to file an appeal.

At a trial de novo before the Law Division, defendant again

argued that the State failed to provide adequate discovery. The

trial court rejected the claim and found defendant guilty. It

noted that the officer’s observations independently supported a

conviction. The court then imposed the same sentence.

Defense counsel immediately moved to continue the stay of

defendant’s license suspension, which the State opposed. The

trial judge granted the request on the condition that defendant

file an appeal within ten days. The court added that it would

revoke the stay immediately if defendant “g[o]t arrested on a

DWI in the future.”

On appeal, defendant renewed his discovery argument. In a

published opinion, the Appellate Division reviewed and rejected

defendant’s position. Robertson, supra, 438 N.J. Super. at 54,

64-73.

At the end of its opinion, the Appellate Division addressed

an issue that the parties had not raised. It noted “that both

the municipal court and the Law Division stayed defendant’s

license suspension pending appeal in this matter without

providing any statement of reasons.” Id. at 74. The panel

recognized the courts’ authority to grant a stay and added that

“an application for a stay pending appeal is governed by the

three-part standard in Crowe v. De Gioia, 90 N.J. 126 (1982).”

Ibid. The panel reviewed aspects of the Crowe standard in the

context of DWI cases and noted that, when “a stay is otherwise

warranted,” a court may condition the stay and limit driving for

purposes of employment, or require “the verified installation of

an ignition interlock device,” among other appropriate

conditions. Id. at 76.

Defendant filed a petition for certification that does not

challenge his conviction or sentence. He seeks review only of

6



the Appellate Division’s ruling on the standard for a stay in

DWI cases. We granted the petition. 221 N.J. 287 (2015).

After a first round of oral argument, the Court invited

various amici to weigh in on the appropriate standard. We

received responses from the Attorney General, the New Jersey

State Bar Association, and the Association of Criminal Defense

Lawyers of New Jersey, as well as a joint submission from the

American Civil Liberties Union of New Jersey and the Office of

the Public Defender.

II.

The parties and amici commented on the differences among

proceedings in the municipal court, Law Division, and Appellate

Division, and on the finality of the rulings at each of those

stages. Counsel also submitted proposed tests for a stay of

judgment in the municipal court pending a trial de novo, and in

the Law Division pending an appeal.

The proposals share common features and also differ from

one another. Without attempting to summarize the presentations

one by one, we note that all of them inform our ruling. We

thank amici in particular for their helpful responses to the

Court’s request for assistance.

III.

Defendant has already completed his license suspension,

which renders this case moot. The appeal, however, raises an

7



issue of “significant public importance” about the appropriate

standards for a stay of judgment in a DWI case, which is

“capable of repetition, yet evade[s] review.” Mistrick v. Div.

of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998);

see also Nini v. Mercer Cty. Cmty. Coll., 202 N.J. 98, 105 n.4

(2010). We therefore address the question presented.

IV.

DWI cases start in municipal court, which has jurisdiction

over motor vehicle offenses and traffic laws. N.J.S.A. 2B:12

17(b). The State must present sufficient evidence to prove the

defendant’s guilt beyond a reasonable doubt. State v.

Kuropchak, 221 N.J. 368, 382 (2015). The defendant, in turn,

may appeal a conviction to the Law Division and is entitled to a

trial de novo. R. 3:23-1 to -9.

In the Law Division, the trial judge “may reverse and

remand for a new trial or may conduct a trial de novo on the

record below.” R. 3:23-8(a)(2). At a trial de novo, the court

makes its own findings of fact and conclusions of law but defers

to the municipal court’s credibility findings. See State v.

Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95

N.J. 197 (1983). It is well-settled that the trial judge

“giv[es] due, although not necessarily controlling, regard to

the opportunity of the” municipal court judge to assess “the

credibility of the witnesses.” State v. Johnson, 42 N.J. 146,

8



157 (1964). Once again, the State must carry the burden of

proof under N.J.S.A. 39:4-50 beyond a reasonable doubt. See

Kuropchak, supra, 221 N.J. at 382; State v. Snyder, 337 N.J.

Super. 59, 61-62 (App. Div. 2001).

If convicted at the Law Division, defendants stand on a

different footing. They may of course appeal to the Appellate

Division and press for a conviction to be reversed. But the

State no longer has the burden of proof. Appellate review

instead focuses on whether there is “sufficient credible

evidence . . . in the record” to support the trial court’s

findings. Johnson, supra, 42 N.J. at 162. “[A]ppellate courts

ordinarily should not undertake to alter concurrent findings of

facts and credibility determinations made by two lower courts

absent a very obvious and exceptional showing of error.” State

v. Locurto, 157 N.J. 463, 474 (1999). The trial court’s legal

rulings are considered de novo. Kuropchak, supra, 221 N.J. at

383.

The differences between DWI convictions in municipal court

and the Law Division matter. After the first conviction, the

stage is set for a new trial, where the defendant retains the

presumption of innocence; after the second, a defendant loses

the cloak of innocence and stands convicted -- ready to

challenge that determination on appeal. Those basic

9



distinctions call for different standards for stay applications

at the two levels of the court system.

V.

The municipal court and the Law Division both stayed

defendant’s license suspension pending appeal. Neither court

explained its ruling. On appeal, the Appellate Division

concluded that, to obtain a stay, a defendant must satisfy the

standard outlined in Crowe, supra, 90 N.J. 126. Robertson,

supra, 438 N.J. Super. at 74. Under that test,

[a] party seeking a stay must demonstrate that (1) relief is needed to prevent irreparable harm; (2) the applicant’s claim rests on settled law and has a reasonable probability of succeeding on the merits; and (3) balancing the “relative hardship to the parties reveals that greater harm would occur if a stay is not granted than if it were.”



[Garden State Equal. v. Dow, 216 N.J. 314, 320 (2013) (quoting McNeil v. Legislative Apportionment Comm’n, 176 N.J. 484, 486 (2003) (LaVecchia, J., dissenting)).]



The appellate panel added that, “[w]ith respect to the second

Crowe factor, the Court should consider whether the appeal

involves a substantial question, and whether there is a

reasonable prospect that defendant may prevail and avoid license

suspension.” Robertson, supra, 438 N.J. Super. at 74.

Crowe’s three-part test, however, has not been the

prevailing standard for stays in DWI cases in municipal court.

DWI cases are quasi-criminal matters. State v. Gibson, 219 N.J.

10



227, 240 (2014). Crowe was a civil palimony case in which the

trial court ordered temporary relief. Crowe, supra, 90 N.J. at

129-30.

The Crowe factors are not a good fit to assess license

suspensions in DWI cases for a number of reasons. The first

prong would almost always be met because defendants who face a

temporary loss of driving privileges will suffer harm that

cannot be restored later. The second factor conflicts with the

nature of a trial de novo, at which the State carries the burden

of proof beyond a reasonable doubt. And the balancing of

hardships that the third prong invites does not squarely address

the core concerns present in a DWI case, which we discuss below.

We therefore look elsewhere for guidance and turn to statutory

and court rules that authorize judges to stay a sentence.

When a license is revoked for DWI and the defendant appeals

the judgment, “the appeal shall not operate to restore the

license during the pendency of the appeal, however, the license

may be restored either by the trial court or the appellate court

pending disposition of the appeal.” N.J.S.A. 39:5-22. Rule

7:13-2 provides that, “[n]otwithstanding R. 3:23-5, a sentence

or a portion of a sentence may be stayed by the court in which

the conviction was had or to which the appeal is taken on such

terms as the court deems appropriate.” Rule 3:23-5(b), in turn,

11



states that a court may stay a fine, costs, or a forfeiture “as

the court deems appropriate.”

Two other rules offer additional guidance. When a

defendant is sentenced in the Law Division, “[a] sentence of

imprisonment shall not be stayed by the taking of an appeal or

by the filing of a notice of petition for certification, but the

defendant may be admitted to bail as provided in R. 2:9-4.” R.

2:9-3(b). Rule 2:9-4 provides more substantive direction. It

states that a defendant in a criminal case shall be admitted to

bail

only if it appears that the case involves a substantial question that should be determined by the appellate court, that the safety of any person or of the community will not be seriously threatened if the defendant remains on bail and that there is no significant risk of defendant’s flight. [R. 2:9-4.]



Those sources -- in particular, Rule 2:9-4 -- highlight the

issues judges should consider when they evaluate an application

to stay the suspension of a driver’s license. The proper

approach, though, differs from the municipal court to the Law

Division in light of the finality of the proceedings in each

court.





12



A.

To reiterate, a conviction in municipal court is subject to

a trial de novo, at which the State must again prove a

defendant’s guilt beyond a reasonable doubt. See Snyder, supra,

337 N.J. Super. at 61-62. For that reason, defendants who seek

a new trial before the Law Division should be presumptively

eligible for a stay of a driver’s license suspension. The State

has the burden to overcome that presumption. It can do so by

showing that a stay of defendant’s license suspension would

present a serious threat to the safety of any person or the

community. If no conditions would mitigate that risk, the court

should not stay the sentence. Practically, when no stay is

granted, defendants may have served the full period of

suspension by the time the trial de novo takes place. See,

e.g., N.J.S.A. 39:4-50(a)(1)(i) (imposing license suspension of

three months on first offenders with BAC of .08 percent or

higher but less than .10 percent).

Judges may consider a defendant’s entire criminal past and

history of motor vehicle offenses to assess the risk a defendant

poses. The more extensive the history, the more likely it is

that a defendant presents a threat to public safety. According

to the National Highway Traffic Safety Administration,

“[d]rivers with BACs of .08 . . . or higher involved in fatal

crashes were 4.5 times more likely to have prior convictions for

13



driving while impaired (DWI) than were drivers with no alcohol

in their blood.” Nat’l Ctr. for Statistics and Analysis, Nat’l

Highway Traffic Safety Admin., Traffic Safety Facts 2015 Data:

Alcohol-Impaired Driving 4 (2016), https://crashstats.nhtsa.

dot.gov/Api/Public/ViewPublication/812350.

Other relevant factors include a defendant’s history of

drug and alcohol abuse and dependency, evidence of

rehabilitation and relapse, the egregiousness of the particular

offense, and any evidence in general of a defendant’s disregard

for the law.

To militate against risk and protect the public, a judge

may stay a license suspension subject to conditions. See R.

7:13-2 (noting that court may stay sentence “on such terms as

the court deems appropriate”). In that regard, the court may

impose conditions or limits on driving. For example, a court

could order that a defendant be allowed to travel only to and

from work or a doctor’s office, within certain hours.1 The court

could also condition a stay upon the installation of an ignition

interlock device.2 The conditions imposed should be no more

onerous than necessary to protect the public.



1 Some states have laws that allow for a restricted license. See, e.g., Conn. Gen. Stat. § 14-37a.



2 An ignition interlock device (IID) is a “blood alcohol equivalence measuring device which will prevent a motor vehicle from starting if the operator’s blood alcohol content exceeds a

14



To facilitate review, municipal court judges should set

forth reasons on the record when they rule on a stay motion.

B.

If a defendant is convicted of DWI by the Law Division,

Rule 2:9-4 applies. At this stage, the defendant has the burden

to justify a stay of a driver’s license suspension pending

appeal to the Appellate Division. Courts may grant a stay only

if the defendant demonstrates that (1) “it appears that the case

involves a substantial question that should be determined” on

appeal, (2) the safety of any person or the community “will not

be seriously threatened” if defendant’s license is not

suspended, and (3) “there is no significant risk of defendant’s

flight.” R. 2:9-4.

Federal case law offers guidance on the meaning of

“substantial question.” The same phrase is used in the Bail

Reform Act of 1984. In particular, Title 18, United States



predetermined level when the operator blows into the device.” N.J.S.A. 39:4-50.17(d). Because defendants bear the cost of an IID, judges should be mindful of an individual defendant’s ability to pay for the device. Cf. Bearden v. Georgia, 461 U.S. 660, 672, 103 S. Ct. 2064, 2073, 76 L. Ed. 2d 221, 233 (1983) (holding that in revocation proceedings for failure to pay fine or restitution, sentencing courts must inquire into reasons for failure to pay and consider bona fide efforts defendant has made to acquire resources).



Defendant argues that the Motor Vehicle Commission oversees the use of an IID. We ask the Director of the Administrative Office of the Courts to coordinate with the Chief Administrator of the Motor Vehicle Commission about any issues that may arise.

15



Code, Section 3143(b) directs that a defendant found guilty of

an offense and sentenced to imprisonment shall be detained

unless the judge finds, among other things, that the appeal

raises a substantial question of law or fact likely to result in (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.



A majority of Circuits follows the Eleventh Circuit and

defines “substantial question” as “a ‘close’ question or one

that very well could be decided the other way.” United States

v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985) (per curiam),

cert. denied, 479 U.S. 1018, 107 S. Ct. 669, 93 L. Ed. 2d 721

(1986); see also United States v. Pollard, 778 F.2d 1177, 1182

(6th Cir. 1985); United States v. Bayko, 774 F.2d 516, 523 (1st

Cir. 1985); United States v. Bilanzich, 771 F.2d 292, 298-99

(7th Cir. 1985); United States v. Affleck, 765 F.2d 944, 952

(10th Cir. 1985) (en banc); United States v. Valera-Elizondo,

761 F.2d 1020, 1024 (5th Cir. 1985); United States v. Randell,

761 F.2d 122, 125 (2d Cir.), cert. denied, 474 U.S. 1008, 106 S.

Ct. 533, 88 L. Ed. 2d 464 (1985); United States v. Powell, 761

F.2d 1227, 1231-32 (8th Cir. 1985) (en banc), cert. denied, 475

U.S. 1015, 106 S. Ct. 1196, 89 L. Ed. 2d 311 (1986), and 476

U.S. 1104, 106 S. Ct. 1947, 90 L. Ed. 2d 357 (1986). In Powell,

16



the Eighth Circuit elaborated on the overall standard and held

that, to be released on bail after a sentence of imprisonment, a

defendant must show that the question presented is substantial

- “that it is a close question or one that could go either way”

-- and that the substantial question “is so integral to the

merits of the conviction that it is more probable than not that

reversal or a new trial will occur if the question is decided in

the defendant’s favor.” Powell, supra, 761 F.2d at 1233-34.

The Third Circuit defines the term “substantial question”

as “one which is either novel, which has not been decided by

controlling precedent, or which is fairly doubtful.” United

States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985). The Ninth

Circuit uses a “fairly debatable” standard. United States v.

Handy, 761 F.2d 1279, 1283 (9th Cir. 1985).

Under any of those approaches, a defendant must satisfy an

onerous standard to obtain a stay of a license suspension by the

Law Division. Substantial questions can involve reasonably

debatable questions of law or fact that are likely to result in

reversal. But it would be rare for a debate about questions of

fact alone to present a substantial question that warrants a

stay.

To demonstrate that he or she does not pose a risk to

public safety, a defendant can propose conditions that would

mitigate that risk. If a stay is granted, the court may impose

appropriate conditions similar to those available after a

defendant’s conviction in municipal court. Once again, those

conditions should be the least restrictive ones needed to

protect the public.

Finally, in only a rare case would the third factor under

Rule 2:9-4 -- significant risk of flight -- be relevant in

connection with a license suspension.

Trial judges, like municipal court judges, should set forth

reasons when they resolve a stay application.

Because defendant has completed his license suspension, we do not apply the above standards to his case. The standards

govern future requests for a stay of a license suspension by the

municipal court and the Law Division.