               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2814-17T2

STATE OF NEW JERSEY,

     Plaintiff-Respondent,
                                       APPROVED FOR PUBLICATION

v.                                          November 22, 2019

                                          APPELLATE DIVISION
ENOC PIMENTEL, a/k/a
ENOCH PIMEANTEL,

     Defendant-Appellant.
__________________________

           Argued November 4, 2019 – Decided November 22, 2019

           Before Judges Sabatino, Geiger and Natali.

           On appeal from the Superior Court of New Jersey, Law
           Division, Passaic County, Indictment No. 15-06-0517.

           Kevin G. Roe argued the cause for appellant.

           Valeria Dominguez, Deputy Attorney General, argued
           the cause for respondent (Gurbir S. Grewal, Attorney
           General, attorney; Valeria Dominguez, of counsel and
           on the brief).

     The opinion of the court was delivered by

SABATINO, P.J.A.D.

     After a motor vehicle stop, the State charged defendant with, among other

things, the fourth-degree criminal offense under N.J.S.A. 2C:40-26, which
prohibits driving with a license suspended due to a second or subsequent driving

while intoxicated ("DWI") conviction.          The statute prescribes a mandatory

minimum jail sentence of 180 days.

      Defendant moved to dismiss the indictment, arguing that N.J.S.A. 2C:40-

26 is invalid under the United States and New Jersey State Constitutions.

Specifically, he argued the statute violates constitutional principles disallowing

cruel and unusual punishment, and also denies him and other similarly-situated

motorists due process and equal protection. He separately argued the statute

was intended to repose discretion in trial judges to withhold imposition of the

180-day jail term. The trial court rejected these constitutional challenges and

defendant's interpretation of the statute.

      For the reasons that follow, we concur with the trial court and likewise

conclude that N.J.S.A. 2C:40-26 does not violate the constitutional principles

invoked by defendant. We also reject defendant's interpretation of the statute,

as it is contrary to settled precedent.

                                          I.

      The factual background is largely undisputed.

      On September 4, 2014, a Clifton police officer pulled over defendant Enoc

Pimentel for driving his car without wearing a seatbelt. Defendant claimed he

was on his way to pick up his child from school. According to representations


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of his counsel, defendant's significant other ordinarily picks up his child, but

was unavailable to do so that day.

      Defendant initially told the officer who pulled him over that his name was

that of another person. He presented the officer with a driver's license bearing

that other person's name and photograph. Defendant eventually admitted the

license he produced was not his, but rather belonged to a friend, and advised the

officer of his correct name. The officer then discovered that defendant's driver's

license was suspended.

      Defendant was arrested and issued two motor vehicle summonses for

violations of Title 39: (1) failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f), and

(2) driving with a suspended license, N.J.S.A. 39:3-40.

      In June 2015, a Passaic County Grand Jury returned Indictment No. 15-

06-0517, charging defendant with: (1) fourth-degree false reporting, N.J.S.A.

2C:28-4(a); (2) fourth-degree identity theft, N.J.S.A. 2C:21-17(a)(4); and (3)

fourth-degree driving with a suspended license during a period of license

suspension pursuant to a second or subsequent DWI, N.J.S.A. 2C:40-26(b).

      Defendant's driving record is woefully non-exemplary.          His driver's

abstract reveals two prior DWI offenses.       The first violation occurred on

September 1, 2007, and the second violation occurred on May 5, 2008.

Defendant also has two prior Title 39 violations for driving with a suspended


                                        3
                                                                         A-2814-17T2
license. The first violation occurred on December 6, 2008, and the second

occurred on May 20, 2009. Between 2008 and 2014, defendant's license has

been suspended eight times for various offenses.

      Defendant moved to dismiss the suspended license count of the indictment

by challenging the constitutionality of N.J.S.A. 2C:40-26. He did not, however,

challenge the sufficiency of this count on proof grounds.

      Defendant made three separate arguments of unconstitutionality. First, he

argued the six-month mandatory minimum sentence imposed by N.J.S.A. 2C:40-

26(c) constitutes cruel and unusual punishment under the Eighth Amendment of

the United States Constitution and Article I, Paragraph 12 of the New Jersey

Constitution. Second, he argued the statute violates equal protection principles

under the Fourteenth Amendment and Article I, Paragraph 1 of the New Jersey

Constitution.    Third, he argued the statute violates federal and state

constitutional principles of substantive due process.

      As a separate non-constitutional point, defendant asserted the Legislature

intended for courts to have the discretion to employ an alternative sentencing

scheme instead of the mandatory minimum of six months in prison.

Additionally, he argued the Legislature did not intend for the mandatory six-

month confinement period to apply to offenders who were sober at the time of

the driving offense.


                                       4
                                                                        A-2814-17T2
      On December 19, 2016, Judge Adam E. Jacobs issued a written opinion

denying defendant's motion to dismiss.       Judge Jacobs rejected defendant's

various arguments, and declined to hold the statute unconstitutional.

      First, Judge Jacobs found the mandatory six-month prison sentence does

not amount to cruel and unusual punishment. As the judge reasoned:

            The punishment of 180 days in a county jail facility
            conforms to contemporary standards of decency
            proportionate to deter the conduct in question and is
            consistent with the statute's overall penological
            objective to keep the public safe for a substantial period
            of time from those who have exercised exceedingly
            poor judgment vis a vis conduct with potentially lethal
            consequences. . . .

                  Further with respect to proportionality, as the
            Appellate Division noted in [State v.]French, [437 N.J.
            Super. 333 (App. Div. 2014)], there exist other fourth-
            degree crimes, such as N.J.S.A. 2C:12-2(b)(2) Reckless
            Endangerment, that require a mandatory minimum
            incarceration of six months. French, 437 N.J. Super. at
            338. It is also well-settled that incarceration in county
            jail is not violative of the presumption against
            incarceration, even for first offenders. State v. Hartye,
            105 N.J. 411, 420 (1987).

      Judge Jacobs also rejected defendant's due process and equal protection

arguments, observing:

            This Court is mindful that the Legislature enacted
            N.J.S.A. 2C:40-26(b) to combat the increasing number
            of fatalities caused by intoxicated drivers, and to
            supplement preexisting measures as a deterrent to those
            who ignore orders to refrain from driving while their
            licenses are under suspension. To that end, this Court
                                        5
                                                                         A-2814-17T2
             finds that the statute as it stands is not unreasonably
             arbitrary and is substantially related to achieving the
             Legislature's ultimate public policy objective of
             safeguarding society. This Court, therefore, rejects
             Pimentel's contention that the statute at issue deprives
             him of his rights to Due Process and Equal Protection.

      Lastly, Judge Jacobs found this court's decisions in French, 437 N.J.

Super. at 336, and State v. Harris, 439 N.J. Super. 150, 160 (App. Div. 2015),

repudiated defendant's argument of legislative intent, and determined the 180 -

day custodial term is clearly mandatory.

      Following the denial of his motion to dismiss, defendant conditionally

pled guilty to fourth-degree driving during a period of license suspension due to

a second or subsequent DWI. The false reporting and identity theft counts were

dismissed.

      Judge Jacobs sentenced defendant to one year of probation, conditioned

upon six months in Passaic County Jail. In calibrating the non-mandatory facets

of the sentence, the judge found applicable aggravating factors three, N.J.S.A.

2C:44-1(a)(3), six, N.J.S.A. 2C:44-1(a)(6), and nine, N.J.S.A. 2C:44-1(a)(9).

Aggravating factor three applied "based upon just the sheer volume—number of

[defendant's] contacts and adjudications in the Criminal Justice System."

Aggravating factor six was based on "the extent of those contacts." Aggravating

factor nine was based on "the need to deter [defendant] and others from violating

the law."
                                        6
                                                                         A-2814-17T2
      The judge also found mitigating factors seven, N.J.S.A. 2C:44-1(b)(7),

and ten, N.J.S.A. 2C:44-1(b)(10), applied because defendant had shown, "a

substantial period of law-abiding activity . . . [and], the likelihood that

[defendant] will make a good probationer." Although he commented favorably

on defendant's cooperation and "exceptional work history," Judge Jacobs

nonetheless found that "the aggravating factors outweigh[ed] the mitigating

factors justifying [a] sentence in the fourth-degree range."

      The judge stayed the sentence until defendant's appeal as to the

constitutionality of N.J.S.A. 2C:40-26 was heard by this court.

      This appeal followed.      In his brief, defendant makes the following

arguments:

             I. N.J.S.A. 2C:40-26 FAILS TO REFLECT THE
             LEGISLATURE'S       INTENT  BY   REMOVING
             JUDICIAL      DISCRETION,    WHICH   THEY
             EXPRESSLY BELIEVED COURTS WOULD
             RETAIN TO AVOID UNJUST RESULTS.

             II. THE MANDATORY SIX-MONTH SENTENCE
             UNDER N.J.S.A. 2C:40-26 CONSTITUTES CRUEL
             AND UNUSUAL PUNISHMENT IN VIOLATION OF
             THE EIGHTH AMENDMENT AND THE NEW
             JERSEY CONSTITUTION.

             III. THE MANDATORY SIX-MONTH SENTENCE
             UNDER      N.J.S.A. 2C:40-26   IS BOTH
             FUNDAMENTALLY           UNFAIR     AND
             DISCRIMINATORY IN VIOLATION OF EQUAL
             PROTECTION AND THE FUNDAMENTAL RIGHT


                                        7
                                                                    A-2814-17T2
            TO LIBERTY ENSHRINED IN THE DUE PROCESS
            CLAUSE.

                   A. The Fundamental Right To Liberty Currently
                   Does Not Mandate Heightened Review For
                   Criminal Statutes That Mandate Incarceration,
                   As The Liberty Right Is Deemed Forfeited Upon
                   A Valid Conviction.

                   B. Strict Scrutiny Should Apply To Statutes That
                   Impose Harsh, Mandatory Sentences That
                   Prohibit The Exercise Of Judicial Discretion At
                   Sentencing.

                   C. The Six-Month Sentence Violates The
                   Principle Of Fundamental Fairness Encompassed
                   Within The Due Process Clause.

As we explain in this opinion, these contentions all lack merit.

                                       II.

      In 2009 the Legislature adopted N.J.S.A. 2C:40-26. As the Supreme Court

recently noted in State v. Rodriguez, 238 N.J. 105, 115 (2019), the law was

"enacted to 'create[] criminal penalties for persons whose driver's licenses are

suspended for certain drunk driving offenses and who, while under suspension

for those offenses, unlawfully operate a motor vehicle.'" (quoting Sponsor's

Statement to S. 2939 2 (L. 2009, c. 333; Sponsor's Statement to A. 4303 2 (L.

2009, c. 333) (identical)).

      To effectuate this goal of criminalization, "N.J.S.A. 2C:40-26 makes it a

crime of the fourth-degree to either: (a) operate a motor vehicle, for the second


                                       8
                                                                         A-2814-17T2
time, during a period of suspension for a DWI; or (b) operate a motor vehicle

with a suspended license for a second or subsequent DWI." Rodriguez, 238 N.J.

at 115.

      The focus of the present case is upon the statute's mandatory minimum

custodial sentence. "Consistent with N.J.S.A. 2C:40-26's stated purpose, it

specifically provides that an individual convicted under either N.J.S.A. 2C:40 -

26(a) or (b) shall be sentenced to a 'fixed minimum sentence of not less than 180

days during which the defendant shall not be eligible for parole.'"            Ibid.

(alteration in original) (emphasis added) (quoting N.J.S.A. 2C:40-26(c)).

      In Rodriguez, the Court concluded the "plain language" of the mandatory

sentencing provision in N.J.S.A. 2C:40-26(c), id. at 115, disallows drivers

convicted under the statute to serve any of their jail time intermittently on nights

or weekends, despite generic language in the Criminal Code at N.J.S.A. 2C:43-

2 allowing intermittent sentencing on a discretionary basis for certain offenses.

      As this court previously observed in State v. Carrigan, 428 N.J. Super.

609, 614 (App. Div. 2012), "the strengthened penalty [of N.J.S.A. 2C:40 -26]

was legislatively prompted, at least in part, by reports of fatal or serious

accidents that had been caused by recidivist offenders with multiple prior DWI

violations, who nevertheless were driving with a suspended license." (quoted

with approval in Rodriguez, 238 N.J. at 116).


                                         9
                                                                           A-2814-17T2
      In Carrigan, we rejected a different claim of unconstitutionality than the

ones defendant now advances here – a claim the statute is an invalid ex post

facto law that allegedly punishes past conduct. We explained in Carrigan that

"a violation of N.J.S.A. 2C:40-26(b) comprises a new offense based on new

conduct, and that the statute does not impose retrospective punishment for a

prior offense." Id. at 617. The new proscribed conduct is the defendant's act of

"getting behind the wheel after August 1, 2011 [the effective date of the statute]

while still under [a second or subsequent DWI] suspension." Id. at 622.

      The arguments of unconstitutionality raised by defendant concerning

N.J.S.A. 2C:40-26 present questions of first impression.        We review those

questions de novo because they concern issues of law. State v. Robinson, 217

N.J. 594, 602 (2014); State v. Galicia, 210 N.J. 364, 381 (2012).

      Similarly, we review de novo defendant's separate argument that the

statute should be interpreted to allow judges to have discretion to not impose the

180-day minimum custodial sentence.            "Questions related to statutory

interpretations are legal ones." State v. S.B., 230 N.J. 62, 67 (2017). Thus, "[w]e

review such decisions de novo . . . ." Ibid. (quoting State v. Grate, 220 N.J. 317,

329 (2015)).

      We address the substance of defendant's arguments in a slightly different

sequence than presented in his brief.


                                        10
                                                                          A-2814-17T2
                                          A.

      We begin with defendant's claim that the 180-day minimum custodial

sentence called for under N.J.S.A. 2C:40-26 unconstitutionally inflicts upon

persons who violate the statute a cruel and unusual punishment. We agree with

the trial judge this claim fails.

      The Eighth Amendment of the United States Constitution provides that

"[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted." U.S. Const. amend. VIII. The provision

applies to the States through the Fourteenth Amendment. Roper v. Simmons,

543 U.S. 551, 560 (2005).           The Eighth Amendment's prohibition against

punishment "flows from the basic 'precept of justice that punishment for crime

should be graduated and proportioned to the offense.'" Ibid. (quoting Atkins v.

Virginia, 536 U.S. 304, 311 (2002)).

      Courts generally "interpret the Eighth Amendment 'according to its text,

by considering history, tradition, and precedent, and with due regard for its

purpose and function in the constitutional design.'" State v. Zuber, 227 N.J. 422,

438 (2017) (quoting Roper, 543 U.S. at 560). The analysis commonly involves

"refer[ence] to 'the evolving standards of decency that mark the progress of a

maturing society.'" Roper, 543 U.S. at 561 (quoting Trop v. Dulles, 356 U.S.

86, 100-01 (1958) (plurality opinion)). Similarly, Article I, Paragraph 12 of the


                                          11
                                                                         A-2814-17T2
New Jersey Constitution also bars "cruel and unusual punishments." N.J. Const.

art. I, ¶ 12.

       Our State Supreme Court has developed a three-part test for determining

whether a criminal penalty imposes an unconstitutional cruel and unusual

punishment. State v. Maldonado, 137 N.J. 536, 556 (1994). "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." State v. Johnson, 166 N.J. 523, 548 (2001)

(citing the three Maldonado factors). In the absence of "a substantial showing

that the statute violates those principles, the judiciary must respect the

legislative will and enforce the punishment." Ibid. (citing State v. Hampton, 61

N.J. 250, 274 (1972)).

       Defendant has not established any of the prongs of this three-part test.

                                        1.

       First, with respect to "contemporary standards of decency," defendant

argues that a majority of other states do not criminalize the conduct proscribed

by N.J.S.A. 2C:40-26, and the minority of states that do make the conduct a

criminal offense mostly call for less severe or discretionary punishment. This




                                        12
                                                                          A-2814-17T2
comparison is flawed, and does not prove that our New Jersey law is so punitive

as to go beyond what contemporary standards of decency allow.

      Our own research reveals that several other states authorize harsh

penalties, including jail time, that can be imposed upon motorists who drive with

a license that has been suspended due to one or more previous DWIs. Some of

those states authorize jail time, depending on the circumstances and defendant's

offense history, that matches or exceeds the 180-day sentence mandated by

N.J.S.A. 2C:40-26.

      For example, West Virginia law mandates that a motorist who commits a

second offense of driving with a license that has been revoked because of a

previous DWI "shall be confined in jail for a period of not less than six months

nor more than one year." W. Va. Code § 17B-4-3(b) (2017). For a third or

subsequent offense, the person is guilty of a felony, and "shall be imp risoned . .

. for not less than one year nor more than three years." Ibid.

      Rhode Island comparably imposes a minimum six-month prison sentence

for driving with a suspended license due to a second DWI offense within a five-

year period. 31 R.I. Gen. Laws § 31-11-18.1(c)(2) (1956). The penalty is

increased to a one-year minimum for driving with a suspended license due to a

third DWI within a five-year period. Id. at § 31-11-18.1(c)(3).




                                        13
                                                                          A-2814-17T2
      Connecticut, meanwhile, mandates a thirty-day minimum and one-year

maximum jail sentence for first-time offenders who operate a motor vehicle

during a period of license suspension pursuant to a DWI. Conn. Gen. Stat. § 14-

215(c)(1) (2016). Any person who operates a motor vehicle during such a period

of license suspension due to a second DWI faces a minimum sentence of 120

days in jail, and a maximum sentence of two years. Id. at § 14-215(c)(2). The

120-day minimum "may not be suspended or reduced in any manner . . . in the

absence of any mitigating circumstances as determined by the court." Ibid.

Even more severely, driving with a suspended license pursuant to a third or

subsequent DWI in Connecticut carries a minimum custodial term of one year,

and a maximum term of three years. Id. at § 14-215(c)(3). That minimum

sentence also may not be suspended or reduced, absent any mitigating

circumstances as determined by the court. Ibid.

      Pennsylvania imposes a mandatory sixty-day minimum sentence for

driving without a license pursuant to a single DWI. 75 Pa. Cons. Stat. § 1543

(2018).   A ninety-day minimum attaches to a second violation of the

Pennsylvania statute, and a third or subsequent driving with a suspended license

for reason of a DWI carries a minimum of six months in prison.             Id. at

§1543(b)(1).




                                       14
                                                                        A-2814-17T2
      In South Carolina, a person who drives a motor vehicle on a public

highway of the state when that person's license has been suspended for a third

or subsequent DWI faces a mandatory prison sentence of "not less than six

months nor more than three years." S.C. Code Ann. § 56-1-460(A)(2)(c).

      Hawaii likewise imposes mandatory minimum custodial terms for driving

with a suspended license because of a previous DWI. Haw. Rev. Stat. § 291E -

62(c) (2019). A defendant must serve a minimum of three days in prison for a

first offense. Ibid. If a defendant drives with a suspended license when that

license suspension was due to second DWI offense within a five-year period,

the Hawaii statute imposes a minimum sentence of thirty days in prison. Ibid.

For a third offense occurring within a five-year period, there is a mandatory

minimum of one year in prison. Ibid. Any person convicted of violating the

statute "shall be sentenced . . . without possibility of probation or suspension of

[the] sentence." Ibid.1


1
  Other states have statutes with mandatory jail provisions, although shorter
than 180 days. See, e.g., Colo. Rev. Stat. § 42-2-138 (2017) (imposing minimum
sentences of thirty days in prison for a first violation of operating a motor vehicle
on a suspended license due to a DWI; and ninety days for a second or subsequent
conviction. Such sentences are mandatory and the court does not have the
discretion to suspend the sentence unless the defendant can "establish that he or
she had to drive the motor vehicle . . . because of an emergency . . . [.]"); Kan.
Stat. Ann. § 8-262(a)(4) (imposing a minimum ninety-day jail term for driving
with a suspended license due to two or more DWIs, and not allowing for a
suspension of the mandatory minimum).

                                         15
                                                                            A-2814-17T2
      Although the laws of these other states are not identical in all respects to

New Jersey's statute, 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.

And, in several of those other states, the penalties are mandatory, or the

sentencing court's discretion is greatly curtailed.

      We recognize that more than half of the states do not impose equivalent

or comparable custodial sanctions for this kind of wrongful behavior. Even so,

the approaches of a majority of other states do not comprise a litmus test for

what transgresses "contemporary standards of decency." The laws of New

Jersey, West Virginia, Rhode Island, and the other states we have cited may be

at the harsher end of the penological spectrum, but their stringent approaches

are not unconstitutionally punitive.


      Still others have laws that authorize but do not mandate jail time. See Fla.
Stat. § 322.34(c) (2019) (prescribing that a defendant can be convicted of a
felony in the third degree and sentenced to a maximum of five years in prison
upon a third or subsequent conviction of driving with a suspended license, if the
current or most recent prior violation of driving with a suspended license
resulted from the license being suspended for driving under the influence); Mo.
Rev. Stat. §302.321 (2017) (driving while revoked because of a second or
subsequent DWI is a "class E felony," and the judge has the discretion to impose
the maximum sentence of four years).
                                        16
                                                                         A-2814-17T2
                                       2.

      Defendant also fails to demonstrate the second Maldonado factor of gross

disproportionality. He argues that since the prohibited conduct at issue here is

non-violent, the mandatory six-month minimum is grossly disproportionate.

Because N.J.S.A. 2C:40-26(c) overrides the general presumption against

imprisonment for first time offenders of fourth-degree crimes codified in

N.J.S.A. 2C:44-1, defendant argues that the statute's mandatory 180-day jail

term produces extreme sentencing disparities.

      For example, defendant posits that a first-time offender of reckless

aggravated assault, who causes bodily injury to another with a deadly weapon

under N.J.S.A. 2C:12-1(b)(3), conceivably could receive no jail time due to this

presumption, while a defendant who is found guilty of driving with a suspended

license due to multiple previous DWIs must serve a minimum of six months in

prison.   Defendant also emphasizes that six months in prison is the same

mandatory sentence reserved for a third or subsequent DWI offense under

N.J.S.A. 39:4-50. He asserts these sentencing inconsistencies demonstrate the

disproportionality of N.J.S.A. 2C:40-26, because what he characterizes as a

"harmless traffic offense" can be punished more harshly than a first or second

drunk driving offense or a violent crime.




                                       17
                                                                        A-2814-17T2
      Defendant also contends disproportionality is shown by the fact that,

absent multiple previous DWIs, the maximum custodial penalty for driving with

a suspended license on the third or subsequent occasion is only ten days.

N.J.S.A. 39:4-40. He argues that N.J.S.A. 2C:40-26, which calls for a minimum

jail sentence that is "eighteen times" that ten-day period, imposes a

disproportionate sanction for what he construes to involve the same conduct.

      We reject these claims of disproportionality. For starters, it is well settled

that the Legislature has wide authority to enact mandatory minimum sentences

to deter and punish specified criminal behavior.         "The [L]egislature may

constitutionally enact mandatory minimum sentence laws when necessary [to

protect] the public interest." State v. Brown, 227 N.J. Super. 429, 440 (Law.

Div. 1988) (citing State v. Des Marets, 92 N.J. 62, 80-81 (1983)).

      In Des Marets, the Supreme Court upheld the constitutionality of the

mandatory three-year minimum required by the Graves Act for someone who

uses or possesses a firearm while "committing, attempting to commit, or fleeing

after the commission of, certain serious offenses specified in that Act." Des

Marets, 92 N.J. at 64. See also State v. Oliver, 162 N.J. 580 (2000) (upholding

as constitutional a life-sentence without the possibility of parole imposed under

the Persistent Offender Accountability Act (otherwise known as the Three

Strikes Law), N.J.S.A. 2C:43-7.1(a)); State v. Hampton, 61 N.J. 250, 274 (1972)


                                        18
                                                                           A-2814-17T2
(upholding a statute providing for a minimum sentence of [thirty] years and

maximum of life imprisonment for kidnaping does not constitute cruel and

unusual punishment); State v. Fearick, 69 N.J. 32 (1976) (upholding the

constitutionality of a statute imposing a mandatory sentence of forty -five days

imprisonment when a person whose license has been suspended is involved in

an accident resulting in injury).

      The selective comparisons drawn by defendant to other New Jersey

criminal statutes do not establish that the minimum 180-day jail sentence

mandated by N.J.S.A. 2C:40-26 is "grossly" disproportionate.

      A useful counter-example is the "certain persons" weapons offense set

forth in N.J.S.A. 2C:39-7.      That statute increases criminal penalties by a

significant amount, based on the defendant's status, due to prior conduct. The

statute makes it a crime punishable by a minimum term of five years in prison

for "certain persons" previously convicted of an enumerated crime to be in

possession of a weapon. Ibid. The rationale is that the class of people who fall

under the "certain persons" statute pose a greater risk to society, based on their

propensity to commit crimes, and therefore should not possess a weapon. It is

not "grossly disproportionate" to expose such "certain persons" to mandatory

custodial sanctions greater than the lesser punishment they might receive for

violating other weapons-possession laws.


                                        19
                                                                         A-2814-17T2
      Comparable to the "certain persons" statute, N.J.S.A. 2C:40-26 penalizes

a distinctive class of defendants (i.e., drivers who are convicted of driving with

a suspended license due to multiple DWIs) more harshly than it penalizes drivers

who are caught driving with a license suspended for another reason. The

Legislature seeks to keep recidivist drunk drivers off the road because they are

a class of drivers posing a greater danger to other motorists or pedestrians. As

Judge Jacobs aptly stated, such stringent punishment is "consistent with the

statute's overall penological objective to keep the public safe for a substantial

period of time from those who have exercised exceedingly poor judgment vis a

vis conduct with potentially lethal consequences."

      Although the 180-day jail term equals the mandatory minimum jail term

for a third DWI offense, that equivalence does not make the coexistence of the

two penalties constitutionally intolerable.    The Legislature had the policy

prerogative to treat both forms of wrongdoing with comparable severity. The

sentences are not grossly disproportionate.

                                        3.

      As to the third Maldonado factor, we reject defendant's claim that the 180-

day custodial minimum goes beyond "what is necessary to accomplish a

legitimate penological objective."




                                        20
                                                                         A-2814-17T2
      This court has acknowledged the escalating penalties imposed by the

Legislature in an attempt to deter chronic drunk drivers. For instance, in State

v. Rizzitello, 447 N.J. Super. 301, 315 (App. Div. 2016), we observed that,

historically, "the penalties for driving while intoxicated have consistently

increased in severity as a means of deterring 'the senseless carnage on our

highways' caused by those who drive drunk.'"             Ibid. (quoting State v.

D'Agostino, 203 N.J. Super. 69, 72 (Law Div. 1984)).           "The Legislature's

decision to criminalize the act of driving while one's license is suspended for a

second or subsequent DWI conviction is the latest addition to this arsenal of

deterrence." Ibid.

      In Harris, 439 N.J. Super. at 160, we reinforced that point:

            The Legislature's purpose in requiring a mandatory
            period of 'imprisonment' for this offense, with no
            possibility of parole, is also clear. Alternatives to jail,
            like the . . . home detention and community service
            programs at issue here, do not protect the public in the
            same way as incarceration. This public safety
            consideration is especially relevant in the case of a
            defendant who loses his or her driving privileges for [a]
            DWI, but then continues to drive despite the license
            suspension.

      Given the State's strong policy objective of deterring repeat drunk driving

offenders, and our courts' long-standing acceptance of this legitimate objective,

the six-month minimum jail term prescribed by N.J.S.A. 2C:40-26 does not go

beyond what is necessary to achieve that goal. Although a driver need not be
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under the influence of alcohol to violate N.J.S.A. 2C:40-26, the predicate

conduct that puts him or her in a position to do so is his or her multiple previous

instances of drunk driving. The stiff penalty imposed serves as a permissible

deterrent.

      In sum, defendant fails to establish that the 180-day mandatory custodial

sentence imposed upon him amounts to "cruel and unusual" unconstitutional

punishment.

                                        B.

      We next turn to defendant's related arguments that the statute's mandatory

minimum jail term violates constitutional principles of due process and equal

protection. Like the trial judge, we conclude these arguments have no merit.

      Defendant argues the mandatory sentence imposed by N.J.S.A. 2C:40-26

violates equal protection and due process principles because increasing

"eighteen-fold" the length of a sentence normally imposed for driving with a

suspended license leads to what defendant contends is an "unconscionable"

outcome and a "capricious" disregard for his fundamental right to liberty. We

disagree.

      The Equal Protection Clause of the Fourteenth Amendment commands

that no State shall "deny to any person within its jurisdiction the equal protection

of the laws," meaning that all persons similarly situated should be treated alike.


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City of Cleburne, Tex. v. Cleburne Living Center, 472 U.S. 432, 439 (1985)

(citing Plyer v. Doe, 457 U.S. 202, 216 (1982)). The general rule is that

legislation is presumed to be valid if the statute's classification is rationally

related to a legitimate state interest. Id. at 440 (citing Schweiker v. Wilson, 450

U.S. 221, 230 (1981)). However, when a statute classifies by race, alienage,

national origin, or imposes upon a fundamental right, the law is subject to strict

scrutiny review, and will be sustained under the Equal Protection Clause only if

it is narrowly tailored to serve a compelling state interest.         Ibid. (citing

McLaughlin v. Florida, 379 U.S. 184, 192 (1964)). When a Legislature makes

classifications based on gender, review of the statute also calls for a heightened

standard of review. Ibid. Otherwise, the rational basis standard applies to the

classification.

      Defendant also claims a violation of substantive due process under the

Fourteenth Amendment. The doctrine forbids the government from infringing

upon "certain 'fundamental' liberty interests, no matter what process is provided,

unless the infringement is narrowly tailored to serve a compelling state interest."

Reno v. Flores, 507 U.S. 292, 302 (1993). A right is fundamental when it is

"rooted in the traditions and conscience of our people." Id. at 303. However,

where no fundamental right is implicated, it is sufficient that the regulation is

rationally related to the government's legitimate interest. Ibid.


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                                                                          A-2814-17T2
      In sum, the federal equal protection and due process doctrines both require

heightened scrutiny only where a deprivation of a fundamental right is at stake

or a suspect class is involved. Otherwise, a mere rational basis standard applies.

      Defendant acknowledges the fundamental right to liberty is extinguished

by a valid conviction. He nonetheless requests this court adopt a new, more

demanding standard of judicial scrutiny for situations like this, where a

defendant's liberty interest allegedly is at stake. We reject that invitation.

      Defendant's brief essentially blends together his due process and equal

protection arguments. To advance his contentions, defendant invokes not only

the United States Constitution but also cognate aspects of the New Jersey

Constitution.

      Within the New Jersey Constitution, the principles of both equal

protection and due process derive from the same constitutional language, which

states: "All persons are by nature free and independent, and have certain natural

and unalienable rights, among which are those of enjoying and defending life

and liberty, of acquiring, possessing, and protecting property, and of pursuing

and obtaining safety and happiness." N.J. Const. art. I, ¶ 1.

      Article I does not contain the terms "equal protection" or "due process."

However, "it is well settled that the expansive language of that provision is the

source for both of those fundamental [state] constitutional guarantees."


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Sojourner A. v. N.J. Dep't of Human Servs., 177 N.J. 318, 332 (2003) (quoting

Planned Parenthood of Cent. N.J. v. Farmer, 165 N.J. 609, 629 (2000)).

      The analysis of due process and equal protection under the New Jersey

Constitution slightly differs from analysis of those fundamental rights under the

United States Constitution. Greenberg v. Kimmelman, 99 N.J. 552, 567 (1985).

Starting with the New Jersey Supreme Court's decision in Robinson v. Cahill,

62 N.J. 473, 491-92 (1973), the Court began to develop an independent analysis

of state constitutional rights under Article I, Paragraph 1, that "rejected two -

tiered equal protection analysis . . . and employed a balancing test in analyzing

claims under the state constitution." Greenberg, 99 N.J. at 567 (quoting

Taxpayers Ass'n of Weymouth Twp. v. Weymouth Twp., 80 N.J. 6 (1976)). That

balancing test considers "the nature of the affected right, the extent to which the

governmental restriction intrudes upon it, and the public need for the

restriction." Ibid. (citing Right to Choose v. Byrne, 91 N.J. 287, 308-09 (1982)).

      In later cases, the Court at times has applied traditional federal tiers of

scrutiny to an equal protection analysis, instead of a balancing test. "Where a

statute does not treat a 'suspect' or 'semi-suspect' class disparately, nor affect a

fundamental right [including a liberty interest], the provision is subject to a

'rational basis' analysis." State v. Lagares, 127 N.J. 20, 34 (citing Dandridge v.

Williams, 397 U.S. 471 (1970)). Under this analysis, the government action


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only must be "rationally related to the achievement of a legitimate state interest."

Ibid. (citing Byrne, 91 N.J. at 305); see also Lewis v. Harris, 188 N.J. 415, 443

(2006).

      Although the terms of the balancing test and the tiered-scrutiny test differ,

the Court in Sojourner, pointed out that "although our mode of analysis [under

the New Jersey Constitution] differs in form from the federal tiered approach,

the tests weigh the same factors and often produce the same result." 177 N.J. at

333 (citing Barone v. Dep't of Human Servs., 107 N.J. 355, 368 (1987)).

      Bearing in mind these various doctrinal tests, we are satisfied the 180-day

mandatory minimum jail term prescribed by N.J.S.A. 2C:40-26 does not violate

due process or equal protection principles under either the United States or New

Jersey Constitutions. As defendant concedes, driving on public roadways, while

an important privilege for eligible persons, is not a "fundamental" right. Under

the federal constitution, strict scrutiny review does not apply here. See San

Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).

      Nor are persons such as defendant who have had their driving privileges

revoked due to multiple previous DWIs offenses a "suspect" class. Ibid. To the

contrary, their classification by the Legislature as a distinctive group of

wrongdoers is rational and manifestly justified. It is not fundamentally unfair

to treat them differently than other motorists who are caught driving without a


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valid driver's license. Their recidivist behavior can be punished more severely,

no matter which "tier" of federal scrutiny is applied to the statute. Likewise, we

discern no grounds to afford such motorists greater protection under our State

Constitution.

      In sum, we concur with the trial judge in rejecting defendant's due process

and equal protection arguments, under both federal and state law.

                                        C.

      Lastly, we briefly consider defendant's claim that the Legislature intended

N.J.S.A. 2C:40-26 to repose judges with discretion to abate the 180-day

minimum jail sentence mandated by the terms of the statute. Defendant cites to

audio portions of the legislative hearings, arguing they reflect a desire on the

part of individual legislators to afford such sentencing discretion.

      This argument of statutory interpretation is unavailing. The terms of the

statute are clear on their face, and there is no reason to consult extrinsic sources

to divine their meaning. State v. Harper, 229 N.J. 228, 237-38 (2017).

      Further, defendant's claims about the non-discretionary nature of the 180-

day minimum penalty are dispelled by the Court's recent opinion in Rodriguez,

238 N.J. at 105, which strictly enforced the 180-day jail requirement and held

the sentence cannot be served in intermittent stretches. As the Court highlighted

in Rodriguez, the statute calls for a mandatory "fixed" period of incarceration.


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Id. at 116-17. There is simply no interpretative basis for a sentencing judge to

have the discretion to impose a lesser sanction.

                                       III.

      For all of these reasons, defendant's arguments to avoid the mandatory

180-day custodial sentence under N.J.S.A. 2C:40-26 are rejected. The trial

court's sound decision is affirmed.

      To the extent we have not mentioned them explicitly, defendant's

remaining contentions lack sufficient merit worthy of discussion.      R. 2:11-

3(e)(2).

      The stay of defendant's sentence is vacated, effective in twenty days,

during which time counsel and the trial court shall make arrangements for

defendant to begin serving his mandated sentence.

      Affirmed.




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