Mandatory Minimum Prison Term for Driving With a License Suspended After Multiple DWI’s is Constitutional

State v. Pimentel, ___ N.J. Super. ___ (App. Div. 2019). N.J.S.A. 2C:40-26 prohibits driving with a license suspended due to a second or subsequent conviction for driving while intoxicated. The statute imposes a mandatory minimum term of imprisonment of 180 days. Defendant in this appeal attacked the statute as imposing an unconstitutional cruel and unusual punishment, and as violating his rights to due process and equal protection. Writing for the Appellate Division, and applying the de novo standard of review to the legal issues raised, Judge Sabatino rejected those arguments and affirmed defendant’s conviction.

The cruel and unusual punishment argument, Judge Sabatino said, implicated a three-part test that the Supreme Court had previously articulated. “We consider, first, whether the punishment conforms with contemporary standards of decency; second, whether the punishment is grossly disproportionate to the offense; and third, whether the punishment goes beyond what is necessary to accomplish any legitimate penological objective.” Defendant did not meet any of those criteria.

Defendant’s “contemporary standards of decency” argument was based on the contention that the majority of other states either did not criminalize this conduct or imposed lesser penalties than New Jersey does. But Judge Sabatino cited statutes of other states that “they reflect that courts in those other jurisdictions are empowered to impose harsh custodial sentences upon motorists who drive with a license that has been revoked because of one or more previous DWI offenses. Depending upon the defendant’s prior history, the allowable jail time in some of those states can exceed the 180-day minimum prescribed by N.J.S.A. 2C:40-26.” The Appellate Division found that “the approaches of a majority of other states do not comprise a litmus test for what transgresses ‘contemporary standards of decency.'”

Nor was the mandatory minimum sentence grossly disproportionate. Judge Sabatino found defendant’s “selective comparisons” to other New Jersey criminal statutes wanting. He cited the “certain persons” weapons offense contained in N.J.S.A. 2C:39-7. The Legislature had “wide authority to enact mandatory minimum sentences to deter and punish specified criminal behavior,” and its decision here did not constitute gross disproportionality.

Likewise, defendant did not show that the mandatory minimum sentence went beyond “what is necessary to accomplish a legitimate penological objective.” The Legislature’s choice of sentence does not go beyond what was necessary to advance “the State’s strong policy objective of deterring repeat drunk driving offenders, and our courts’ long-standing acceptance of this legitimate objective.”

Judge Sabatino found that defendant’s due process and equal protection claims both failed, under either the federal “rational basis” test or New Jersey’s balancing test. Driving is not a fundamental right, and persons whose licenses have been suspended due to multiple convictions for driving while intoxicated are not a “suspect class.” It was not unfair for the Legislature to treat them more harshly than motorists caught driving without a valid driver’s license.

Finally, the court rejected defendant’s argument that the statute contemplated allowing trial judges “to abate the 180-day minimum jail sentence mandated by the terms of the statute.” The plain language of the statute foreclosed that argument, and the Supreme Court’s recent decision in State v. Rodriguez, 238 N.J. 105 (2019), which stated that the statute imposes a mandatory “fixed” period of incarceration, reconfirmed that.