Drunken drivers include a broad cross-section of society. Individuals who would not otherwise come into contact with the criminal justice system do so because of driving while intoxicated. It is important for the public as a whole to see that a drunk driver will not be shielded from the sanction of lengthy imprisonment should that driver kill or injure another while intoxicated, even if she or he previously led a blameless life.
In December 1995, the Legislature amended N.J.S.A. 2C:11-5 to upgrade vehicular homicide to a second-degree crime and to impose a mandatory minimum term of imprisonment for vehicular homicide while intoxicated. In 2001, it amended NERA, to include vehicular homicide in the list of offenses that carry an eighty-five percent parole bar. With respect to assault by auto, the Legislature designated it a third-degree crime when a driver causes serious bodily injury while intoxicated. In 2011, the Legislature even made driving with a license suspended under N.J.S.A. 39:4-50, a fourth-degree offense under certain circumstances, and imposed a mandatory 180-day jail sentence for the crime. These legislative enactments speak loudly to the ongoing public interest in general deterrence. Thus, the court should have found aggravating factor nine.
The February 1, 2017 judgment states the judge found mitigating factor two (“The defendant did not contemplate that her conduct would cause or threaten serious harm.” The record does not support this finding. It is unwarranted in light of the facts and inconsistent with New Jersey’s strong commitment to rid our roadways of drunk drivers.
See State v. Bieniek, (2010) (affirming the sentencing court’s rejection of mitigation factor two on the ground that drunk driving is intolerable and a defendant’s failure to understand this will not inure to his or her benefit in the form of a finding of that factor).
The Court overlooks the fact that it is the role of the judiciary to temper the public’s and politicians’ unreasonable actions in always pushing for stiffer criminal penalties. It is easy for politicians to pander for votes by being “tough on crime” when they have the political clout to protect their loved ones from the harsh punishments that they proscribe. It is easy for the public to push for tougher penalties in all cases except for those in which their loved ones are defendants. Instead of recognizing the need for an objective analysis to temper the trend of always making punishments harsher, the Court cites the trend in support of ignoring mitigating circumstances.
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