The Appellate panel continued in relevant part: 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 (1985). Starting with the New Jersey Supreme Court’s decision in Robinson v. Cahill (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.” Taxpayers Ass’n of Weymouth Twp. v. Weymouth Twp. (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.
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.” Dandridge v. Williams (1970). Under this analysis, the government action only must be “rationally related to the achievement of a legitimate state interest.” Ibid. 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. Barone v. Dep’t of Human Servs. (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 (1973).
This “concession” by the defendant was likely made by the appellate attorney during oral argument. While some facts should be conceded to avoid undermining other stronger points, concessions should otherwise be avoided at all costs. Concessions can be avoided by anticipating the questions that judges will pose during oral argument.