Every driver is aware, when sober, of the responsibility to never drive while intoxicated. That defendant voluntarily became intoxicated, knowing she would drive, means she ignored the possibility of harm her behavior would cause. The factor should not have been accorded any weight whatsoever.
The judge also found mitigating factor six, that defendant will compensate the victim. The Seeman family had a pending civil suit against defendant and the hosts of the party at which defendant became inebriated. The judge found that factor because of the anticipated resolution of the civil action. That civil settlement alone should not have been the basis for a finding of mitigating factor six.
Restitution, authorized generally by N.J.S.A. 2C:44-2, implicates the interests of the State and the judicial system. The State’s interest is in the rehabilitation of the offender, and the court’s interest is rehabilitation of the offender as well as compensation to the victim for the loss. Although a victim may recover an amount in a civil lawsuit, that does not abrogate the separate responsibility of the defendant, where relevant, to pay restitution directly to the victim. Requiring a defendant to pay restitution to a victim not only compensates the victim, but rehabilitates the wrongdoer. Id. at 186. Indeed, as has been long established, rehabilitation payments have a “correctional worth,” whether by requiring disgorgement or compensation for losses.
To give factor six weight when the compensation comes from insurance–both defendant’s and that of another–is not consistent with the rehabilitative goals expressed in the Code. That defendant and the hosts of the social event at which she became intoxicated had coverage available was mere happenstance.
The Appellate panel seems to go out of their way to pick on the trial judge who, unlike them, had the benefit of gaining a first-hand feel for the case and actors. They also have an unrealistic view of the nature of the intoxication process by suggesting that a conscious decision is made to put others at risk right before the point of intoxication is reached. None of this meant to suggest that the defendant should not have served jail time. The idea is that the several years that she served without the possibility of parole should suffice under the circumstances.