SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0952-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL J. REILLY,

Defendant-Appellant.

_______________________

Argued November 16, 2020 – Decided March 3, 2021

Before Judges Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Burlington County, Municipal Appeal 

No. 08-19.

Thomas Cannavo argued the cause for appellant (The 

Hernandez Law Firm, PC, attorneys; Thomas Cannavo, 

of counsel and on the brief). 

Alexis R. Agre, Assistant Prosecutor, argued the cause 

for respondent (Scott A. Coffina, Burlington County 

Prosecutor, attorney; Alexis R. Agre, of counsel and on 

the brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Defendant appeals from the Law Division's order entered after a de novo 

trial on the record. The Law Division found defendant guilty of driving while 

intoxicated (DWI), N.J.S.A. 39:4-50, DWI with a minor in the motor vehicle, 

N.J.S.A. 39:4-50.15; possessing an open container of an alcoholic beverage in a 

motor vehicle, N.J.S.A. 39:4-51b; and delaying traffic, N.J.S.A. 39:4-56. We 

affirm.

We derive our facts from the testimony elicited at trial. On November 22, 

2017, at approximately 10:37 p.m., Medford Township police officer John 

Sabados was on duty as a patrolman when he received a call reporting a car 

parked in an intersection "for a long period of time with loud music." Sabados 

responded to the scene and saw an SUV parked in an intersection, approximately 

ten feet past a stop sign. The engine was running, its lights were on, and there 

was loud music coming from the vehicle. Sabados could see the driver, later 

identified as defendant, "looking down or slouched down." 

Sabados parked his police car behind the SUV and activated the 

emergency lights on his vehicle.1 The officer got out of his car and approached 

the driver's side of defendant's car. As he stood at the driver's side window, 

1

 This also activated the Motor Vehicle Recording (MVR) in Sabados's car. The 

MVR was part of the record reviewed by this court. 
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Sabados observed defendant looking down at his cell phone in his lap. Sabados 

knocked on the window several times before defendant noticed him. The officer 

described defendant as "shocked" and then he lowered his window a few inches. 

Sabados saw a "small child" in a car seat in the backseat of defendant's 

car, and a "half empty" "pint-size, 750 milliliter" bottle of Fireball whisky was 

in the front center console. Sabados stated he "detected the odor of alcoholic 

beverage emanating from the vehicle." Defendant said the whisky belonged to 

his fiancée, who he had recently dropped off at their home after an argument. 

Afterwards, defendant stated he went for a drive with his daughter to cool off. 

When Sabados asked defendant for certain documents, defendant

"fumbled" to remove his license, taking a period of time to produce it. He 

eventually gave the officer the registration for a different vehicle and an expired 

insurance card. Defendant told Sabados he had gone to dinner with his fiancée 

earlier in the evening where he consumed two or three drinks. Sabados noted 

defendant's slurred speech and bloodshot eyes. 

Sabados then asked defendant to exit his car and walk to the front of the 

police car to perform standardized field sobriety tests. To perform a horizontal 

gaze nystagmus test, Sabados instructed defendant to follow a pen using only 

his eyes and not to move his head. Sabados said defendant moved his head to 
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follow the pen several times. Sabados also detected the odor of alcohol 

emanating from defendant's mouth as he stood next to him. 

Before conducting a walk-and-turn test, Sabados asked defendant if he 

had any issues with his legs which would affect his ability to walk or stand in a 

straight line. Defendant responded that he had no cartilage in his right leg,

which affected his ability to both bend and walk. 

The officer instructed defendant to put his left foot in front of his right 

foot with his hands down at his sides, demonstrating the position for him. He 

also asked defendant to take nine heel-to-toe steps forwards and nine steps 

backwards along an imaginary line. Defendant failed to keep his hands down at 

his side, failed to walk heel-to-toe, failed to properly turn, and stepped off the 

imaginary line multiple times.2 

Prior to conducting the one-leg stand test, Sabados again inquired whether 

defendant had any injuries that would affect his ability to stand on one leg. 

When defendant indicated he had a bad leg, Sabados asked whether standing on 

the other leg would help defendant and defendant replied "yes". Sabados then 

instructed defendant to stand with his feet together with his arms down at his 

2

 A review of the MVR shows defendant unable to maintain his balance while 

performing this test. 
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sides. Sabados told defendant to lift the leg of his choice, directly in front of 

him, six inches above the ground, and, while staring at his raised foot, to count 

out loud until the officer instructed him to stop. Sabados again demonstrated 

the proper position. 

Defendant attempted to perform the test by lifting his right leg. In doing 

so, he swayed, put his foot down several times, failed to keep his arms at his 

sides, failed to look at his raised foot, and slurred his speech while counting. At 

one point, defendant stated he had a bad knee. In light of his observations and 

defendant's inability to perform the field sobriety tests, Sabados concluded 

defendant was unfit to operate a motor vehicle and arrested him for DWI. 

Once defendant was seated in the back of the police car, Sabados noted

the strong odor of alcohol. He also detected the odor of alcohol emanating from 

defendant's mouth once he was brought to the police station. 

Defendant was tried on the DWI and other related charges in municipal 

court on two days in January and March 2019. The Alcotest results were ruled 

inadmissible because of a break in the officers' direct observation of defendant 

prior to the administration of the test. The State presented Sabados as its 

witness.
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Kevin Flanagan, a former State Trooper, was qualified as an expert in the 

administration of field sobriety tests. Flanagan opined that Sabados did not 

instruct defendant properly regarding the tests. He also stated that defendant's 

orthopedic condition with his knee would cause him pain and his obesity might 

cause him difficulty in performing the tests. On cross-examination, Flanagan 

conceded that defendant failed the tests and it was only possible that his physical 

condition affected his performance.

Defendant also introduced testimony from Dr. Lawrence Guzzardi, M.D., 

qualified as an expert in the areas of emergency medicine, medical toxicology,

and orthopedic trauma. Dr. Guzzardi testified that he reviewed a medical record 

that indicated defendant had sustained a metatarsal fracture in his right foot in

2011. In addition, Dr. Guzzardi stated he reviewed chiropractic records from 

March 2014 in which defendant complained of back pain and stiffness, and hip 

and rib cage discomfort. An MRI of the lower spine in 2014 revealed bulging 

discs. 

Dr. Guzzardi also testified regarding his review of additional records in 

2014 in which defendant was diagnosed with a degenerative condition – a 

meniscal tear in his right knee. Although the meniscus was repaired, Dr. 

Guzzardi stated defendant continued to have recurring pain and swelling in the 
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knee. Dr. Guzzardi opined that defendant's orthopedic issues and obesity

adversely impacted his ability to complete the field tests. 

Dr. Guzzardi also stated that the video footage of defendant's arrest did 

not conclusively establish defendant's intoxication. He opined that defendant's 

initial slurring was not due to intoxication because defendant's speech returned 

to normal at a rate faster than alcohol dissipates. Guzzardi expressed his belief 

that defendant's slurred speech was due to being suddenly awakened by Sabados. 

On cross-examination, Dr. Guzzardi admitted he did not examine 

defendant at any time. He also conceded he did not know the condition of 

defendant's knee or back at the time of defendant's arrest. Although the doctor 

agreed defendant exhibited signs of impairment on the MVR, he found there 

were other explanations for his demeanor and behavior other than alcohol 

intoxication. 

On May 1, 2019, the municipal court judge issued an oral decision. He 

initially advised that he found all of the witnesses to be credible. Having

reviewed the videotape, the judge noted that when Sabados arrived at the scene, 

defendant's car was parked in the middle of an intersection. There was very loud 

music coming from the interior of the car and defendant did not respond to the 

police car's overhead lights or the initial knocks on the window. 
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The judge found defendant was unable to maintain his balance and had 

"significant slurring" of his speech. Although the judge noted defendant told 

Sabados he had orthopedic issues with his right knee, he nevertheless had 

trouble performing the field sobriety tests that appeared unrelated to any 

problems with his knee. The judge concluded that "given the totality of the 

circumstances, [and] all of the observations," defendant was guilty of DWI, DWI

with a minor in the car, possessing an open container of alcohol in the car, and 

delaying traffic. 

The court sentenced defendant as a third DWI offender3to 180 days in the 

county jail, ten years' loss of driver's license with eleven years of ignition 

interlock to run concurrently, forty-eight hours at the Intoxicated Driver 

Resource Center, as well as a $1006 fine, and various fines and surcharges. For 

the DWI with a minor in the car conviction, the judge imposed an additional six 

months' loss of driving privileges to run consecutively with the suspension for 

defendant's DWI conviction, as well as an additional fine and court costs. The 

court stayed the jail sentence pending the outcome of the appeal. 

3

 This was defendant's fourth DWI offense. Defendant was convicted of two 

DWIs in the 1990s and when he was convicted a third time more than ten years 

later, he was given the benefit of the "step down" provision in N.J.S.A. 39:4-

50(a)(3). 
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Defendant appealed to the Law Division where the court conducted a trial 

de novo on the record. On October 9, 2019, the Law Division judge issued an 

oral decision, finding defendant guilty of the four charges. The judge stated: 

[A]fter fully reviewing . . . several times all of the 

evidence, I find the State has met the burden of proof 

and I find beyond a reasonable doubt, and I am firmly 

convinced that on November 22nd at 10:37 and 

thereafter, [defendant] was operating a motor vehicle 

while under the influence of alcohol. I find from the 

totality of the evidence and circumstances that I am 

firmly convinced that [defendant] had a substantial 

deterioration of his physical capabilities from alcohol. 

And as a result, it was improper and illegal for him to 

operate a motor vehicle.

The Law Division judge explained his reasoning based on the officer's 

observations and his own review of the MVR: 

The motor vehicle, where it was and how it was stopped 

at the -- the amount of time[] it was stopped at an 

intersection, very strange. Bloodshot eyes, yes, not 

proof maybe, but they were noted. The odor of alcohol 

was clear, there was an opened container of alcohol in 

the motor vehicle, which [] defendant was operating.

There was slurred speech, there was some problems 

retrieving correct documents. There was the result of 

the field sobriety test, there was the video and what 

could be observed in that. There was a child in the car 

after an argument with the other member of the family.

There was blaring music. . . . And [] defendant 

apparently was either somewhat asleep and nodding out 

there when awakened by the officer or he was, in fact, 

operating a cell phone down by his legs while seated.
10 A-0952-19

In addressing the charge for delaying traffic, the judge found: 

As far as delaying traffic, I mean, it's all part of the 

[c]ourt's decision as to DUI and, I mean, I didn't see any 

traffic delay, frankly, as a fact in here, but he had the 

capability of doing it. But certainly, there were cars 

that passed by that I saw and although the [c]ourt below 

found him guilty of that, I find it's really part and parcel 

to driving under the influence.

The court imposed a similar sentence as the municipal court with three 

exceptions. First, on defendant's DWI conviction, the judge offered defendant 

the right to apply for a ninety-day inpatient rehabilitation program in lieu of 

ninety days of incarceration. The judge also ran the six-month license 

suspension for the conviction of DWI with a minor in the car concurrent, rather 

than consecutive, with the ten-year license suspension under the third DWI 

conviction. Finally, the judge merged defendant's delaying traffic conviction 

into his DWI conviction for sentencing purposes. 

Defendant argued he should be sentenced under the recently amended, but 

not yet effective, DWI law.4 In denying the application, the judge stated: 

4

 On August 23, 2019, N.J.S.A. 39:4-50 was amended to expand the use of 

ignition interlock devices and reduce the duration of license forfeitures. See

DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS—IGNITION 

INTERLOCK DEVICES (L. 2019, c. 248); see also Administrative Directive 

#25-19, "Implementation of New DWI Law (L. 2019, c. 248) – Includes 

Expanded Use of Ignition Interlock Devices for First-Time Offenders" (Dec. 4, 
11 A-0952-19

With all due respect to the various arguments, I would 

just say that I happen to agree that this law that is being 

asked to be applied is not even in effect. This is a case 

that goes back for two years as to the date of the 

allegations of the violation. I can't agree that he should 

be sentenced under a new law that is not in effect yet 

. . . .

The Law Division judge stayed defendant's jail sentence pending appeal to this 

court.

Defendant presents the following issues on appeal:

I. THE LAW DIVISION ERRED IN FINDING 

DEFENDANT GUILTY OF THE OBSERVATIONAL 

PRONG OF THE DWI OFFENSE 

II. ONCE ACQUITTED OF DWI, THEN THE 

N.J.S.[A.] 39:4-50.15 CONVICTION MUST ALSO 

RESULT IN AN ACQUITTAL 

III. THERE IS INSUFFICIENT EVIDENCE IN THE 

RECORD OF DELAYING TRAFFIC. THUS, THE 

LAW DIVISION ERRED IN FINDING DEFENDANT 

GUILTY OF N.J.S.[A.] 39:4-56 AND DEFENDANT 

SHOULD THEREFOR[E] BE ACQUITTED OF THIS 

OFFENSE 

2019). Relevant to this appeal is the reduction of license forfeiture for third 

DWI offenders from ten to eight years. These amendments became effective 

and "shall apply to any offense occurring on or after" December 1, 2019, 

approximately four months after enactment so that "[t]he Chief Administrator 

of the New Jersey Motor Vehicle Commission may take any anticipatory 

administrative action in advance of that date as shall be necessary to implement 

the provisions of this act." L. 2019, c. 248.
12 A-0952-19

IV. THE LAW DIVISION ERRED IN FAILING TO 

SENTENCE DEFENDANT PURSUANT TO LAWS 

OF 2019, C. 248 AS A THIRD DWI OFFENDER 

SENTENCED DE NOVO AFTER THE PASSAGE OF 

THE ACT. THUS, IF NOT ACQUITTED OF DWI, [] 

DEFENDANT'S SENTENCE SHOULD BE 

CORRECTED TO AN EIGHT-YEAR LICENSE 

FORFEITURE INSTEAD OF A TEN-YEAR 

LICENSE SUSPENSION 

A. FAILURE TO APPLY THE NEW DWI 

SENTENCING LAW TO THIS DEFENDANT AND 

ANY THIRD OFFENDER SENTENCED AFTER ITS 

AUGUST 23, 2019 PASSAGE[] VIOLATES 

DEFENDANT'S CONSTITUTIONAL EQUAL 

PROTECTION RIGHTS

B. EVEN IF THE EFFECTIVE DATE PROVISION 

OF THE NEW DWI SENTENCING LAW IS UPHELD 

AS CONSTITUTIONAL, AS A MATTER OF 

FUNDAMENTAL FAIRNESS AND INHERENT 

AUTHORITY OF OUR COURTS TO 

RETROACTIVELY SENTENCE TO 

AMELIORATIVE TERMS, THIS DEFENDANT AND 

ALL THIRD DWI AND REFUSAL OFFENDERS 

SENTENCED AFTER AUGUST 23, 2019 SHOULD 

BE SO SENTENCED UNDER THE PROVISIONS OF 

LAWS OF 2019, C. 248.

Defendant contends the Law Division erred in finding him guilty of DWI

because there was insufficient evidence to satisfy the required observational 

prong under N.J.S.A. 39:4-50. We disagree.

Our review is "limited to determining whether the Law Division's de novo 

findings 'could reasonably have been reached on sufficient credible evidence 
13 A-0952-19

present in the record.'" State v. Palma, 426 N.J. Super. 510, 514 (App. Div. 

2012) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

[We] defer to trial courts' credibility findings that are often 

influenced by matters such as observations of the character 

and demeanor of witnesses and common human 

experience that are not transmitted by the record. [T]he 

rule of deference is more compelling where . . . two lower 

courts have entered concurrent judgments on purely 

factual issues. Under the two-court rule, appellate courts 

ordinarily should not undertake to alter concurrent 

findings of facts and credibility determinations made by 

two lower courts absent a very obvious and exceptional 

showing of error.

[State v. Locurto, 157 N.J. 463, 474 (1999) (citations 

omitted).]

In reviewing a trial judge's conclusions in a non-jury case, substantial 

deference is given to the trial court's findings of fact. Cesare v. Cesare, 154 N.J.

394, 411-12 (1998) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 

483-84 (1974)). These findings should only be disturbed when there is no doubt 

that they are inconsistent with the relevant, credible evidence presented below, 

such that a manifest denial of justice would result from their preservation. Id.

at 412. We owe no deference to the trial judge's legal conclusions. Manalapan 

Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995).

N.J.S.A. 39-4:50 prohibits the operation of a motor vehicle while under 

the influence of intoxicating liquor or drugs. This offense may be proven in 
14 A-0952-19

either of two alternative methods: (1) proof of a defendant's blood alcohol level; 

or (2) proof of a defendant's physical condition. State v. Kashi, 360 N.J. Super. 

538, 545 (App. Div. 2003). "The statute does not require as a prerequisite to 

conviction that the accused be absolutely 'drunk' in the sense of being sodden 

with alcohol. It is sufficient if the presumed offender has imbibed to the extent 

that his physical coordination or mental faculties are deleteriously affected." 

State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988) (citing State v. 

Emery, 27 N.J. 348, 355 (1958)).

In State v. Morris, 262 N.J. Super. 413, 416, 421 (App. Div. 1993), this 

court upheld a DWI conviction, finding that slurred speech, disheveled 

appearance, bloodshot eyes, alcoholic odor on breath, and abrasive demeanor 

were evidence of the defendant's intoxication. See also State v. Buglione, 233 

N.J. Super. 110, 112 (App. Div. 1989) (upholding DWI conviction based on the 

defendant's conduct in driving his car, demeanor, bloodshot eyes, swaying, and 

odor of alcohol). 

Here, in his de novo review, the Law Division judge found Sabados's 

testimony credible. The judge noted the officer's observations of defendant's

bloodshot eyes, the odor of alcohol in the vehicle and on defendant's breath,

defendant's slurred speech and his difficulty in retrieving documents, the blaring 
15 A-0952-19

music and defendant's failure to notice the police car's overhead lights or the

officer's knocking on the window. 

Moreover, the judge viewed the MVR himself and corroborated 

defendant's slurred speech, difficulty retrieving his documents and his inability 

to perform the field sobriety tests. In addition, there was an open container of 

alcohol in the vehicle. And, the car was stopped in an intersection for a long 

period of time. 

We discern no basis to disturb the Law Division judge's decision. His 

findings are supported by the substantial credible evidence. He determined 

under all of the circumstances that defendant was under the influence of alcohol 

while driving his vehicle. Therefore, we affirm the convictions under N.J.S.A.

39:4-50 and 39:4-50.15.

Defendant also contends the Law Division erred in finding him guilty of 

N.J.S.A. 39:4-56, delaying traffic. We are unconvinced.

The statute provides: "No person shall drive or conduct a vehicle in such 

condition . . . as to be likely to cause delay in traffic . . . ." N.J.S.A. 39:4-56. A 

reading of the plain language clearly indicates that the State need not establish 

defendant's operation of his vehicle caused an actual delay in traffic, rather, only

that such operation was likely to cause a delay. See Marino v. Marino, 200 N.J.
16 A-0952-19

315, 329 (2009) (alteration in original) (quoting O'Connell v. State, 171 N.J.

484, 488 (2002)) (noting "[Courts] will not 'rewrite a plainly-written enactment 

of the Legislature [or] presume that the Legislature intended something other 

than that expressed by way of the plain language.'"). 

Here, the Law Division judge convicted defendant under the statute 

because the way he operated his car "had the capability of [delaying traffic]." 

The judge's conclusion was supported by the evidence in the record showing 

defendant's car was parked, with the lights on and engine running, in an 

intersection approximately ten feet beyond a stop sign. The MVR also shows 

several cars driving through the intersection and around defendant's car. We are 

satisfied there is sufficient and credible evidence in the record to support the 

judge's finding that defendant's conduct was likely to delay traffic. 

In challenging his sentence, defendant contends the Law Division judge 

erred by not sentencing him under the amended DWI law. Again, we disagree. 

On August 23, 2019, the Legislature amended N.J.S.A. 39:4-50 to expand 

the use of ignition interlock devices and reduce the duration of license 

forfeitures. Applicable to defendant, the amendment reduced the period of 

license forfeiture for third DWI offenders from ten years to eight years. 
17 A-0952-19

However, the law did not become effective until December 1, 2019 so that 

"[t]he Chief Administrator of the New Jersey Motor Vehicle Commission 

m[ight] take any anticipatory administrative action in advance of that date as 

shall be necessary to implement the provisions of this act." L. 2019, c. 248. In 

addition, the statute indicated it was applicable only to offenses that occurred 

after that date. 

Our Supreme Court has established "well-settled" principles governing 

statutory interpretation. In re Kollman, 210 N.J. 557, 568 (2012). Under these 

principles, a court's "primary goal when interpreting a statute is to determine 

and carry out the Legislature's intent." Ibid. (citing Allen v. V. & A Bros., Inc., 

208 N.J. 114, 127 (2011)). This process begins with the statutory language. 

Ibid. "[Courts] ascribe to the statutory words their ordinary meaning and 

significance, and read them in context with related provisions so as to give sense 

to the legislation as a whole." DiProspero v. Penn, 183 N.J. 477, 492 (2005) 

(citations omitted). If the plain language is clear, the court's task is complete. 

N. J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 549 (2012) (citation 

omitted). Under the plain language of the statute, because the offense of which 

defendant was convicted occurred in November 2017, he was not entitled to the 

benefit of the amended law.
18 A-0952-19

We are not persuaded by defendant's argument that the trial court violated 

his equal protection rights in not retroactively applying the amended law. 

Specifically, defendant contends the four-month period between the law's 

passage and its effective date was imposed without a rational basis. 

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. 

City of Cleburne v. Cleburne Living Ctr., 473 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)). 

Within the New Jersey Constitution, the principle of equal protection

derives from 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 term "equal 

protection." However, "it is well settled law that the expansive language of that 
19 A-0952-19

provision" is the source for this "fundamental [state] constitutional guarantee[]." 

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)).

An equal protection analysis under the New Jersey Constitution slightly 

differs from analysis of this fundamental right under the United States

Constitution. Greenberg v. Kimmelman, 99 N.J. 552, 567 (1985). In Robinson 

v. Cahill, 62 N.J. 473, 491-92 (1973), our Supreme 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, 43

(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 
20 A-0952-19

'rational basis' analysis." State v. Lagares, 127 N.J. 20, 34 (1992) (citing 

Dandridge v. Williams, 397 U.S. 471 (1970)). Under this analysis, the 

government action 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. N.J. Dep't of Human Servs., 107 N.J. 355, 368 (1987)). 

Here, the four-month period between the adoption and effective date of 

the new DWI law need only pass rational basis review. The revocation of an 

individual's driver's license no doubt constitutes a serious penalty; however, it 

does not rise to the level of the deprivation of a fundamental right. See State v.

Hamm, 121 N.J. 109, 125 (1990). Moreover, individuals such as defendant, who 

will have their licenses revoked for ten years rather than eight years for their 

third DWI offense, do not constitute a "suspect" class. See Barone, 107 N.J. at 

365 (citing San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973))

(defining a suspect class as one "saddled with such disabilities, or subjected to 
21 A-0952-19

such a history of purposeful unequal treatment or relegated to such a position of 

political powerlessness as to command extraordinary protection from the 

majoritarian political process."). 

In amending the DWI statute, the Legislature provided the required 

rational basis for the four-month delay from the passage date until the December 

1, 2019 effective date. The Legislature expressly stated the delay was imposed 

so that "[t]he Chief Administrator of the New Jersey Motor Vehicle Commission 

may take any anticipatory administrative action in advance of that date as shall 

be necessary to implement the provisions of this act." L. 2019, c. 248. 

Defendant has not established the Legislature's proffered justification for 

the four-month delay was "wholly unrelated to the legislative objective." Acuna 

v. Turkish, 354 N.J. Super. 500, 512 (App. Div. 2002) (citation omitted). 

Therefore, defendant's equal protection argument fails. 

Defendant also argues the trial court erred in not using its inherent 

authority to retroactively apply the amended DWI law. He contends the 

amendments to the existing DWI law were curative and/or ameliorative and thus 

justify retroactive application. 

Generally, the law favors prospective, rather than retroactive, application 

of new legislation unless a recognized exception applies. James v. N.J. Mfrs. 
22 A-0952-19

Ins. Co., 216 N.J. 552, 563 (2014). Courts must apply a two-part test to 

determine if a statute should be applied retroactively: (1) whether the 

Legislature intended to give the statute retroactive application; and (2) whether 

retroactive application "will result in either an unconstitutional interference with 

vested rights or a manifest injustice." Ibid. (citation omitted). Under the first 

prong of the James test, there are three circumstances that will justify the 

retroactive application of a statute: (1) where the Legislature has declared such 

an intent, either explicitly or implicitly; (2) where the expectations of the parties 

warrant retroactive application; and (3) where the statute is curative or 

ameliorative. Matter of D.C., 146 N.J. 31, 51 (1996). 

A curative law is one which "amends a previous law which is unclear or 

which does not effectuate the actual intent of the Legislature in adopting the 

original act." Schiavo v. John F. Kennedy Hosp., 258 N.J. Super. 380, 386 (App. 

Div. 1992). The purpose of a curative amendment is merely to "remedy a 

perceived imperfection in or misapplication of a statute." Ibid. The amendment 

explains or clarifies existing law and brings it into "harmony with what the 

Legislature originally intended." Ibid. 

The term "ameliorative" "refers only to criminal laws that effect a 

reduction in a criminal penalty." Street v. Universal Mar., 300 N.J. Super. 578, 
23 A-0952-19

582 (App. Div.1997) (quoting Kendall v. Snedeker, 219 N.J. Super. 283, 286

(App. Div. 1987)). Further, "[e]very statutory amendment which ameliorates or 

mitigates a penalty for a crime is not automatically subject to a presumption of 

retroactivity. The ameliorative amendment must be aimed at mitigating a 

legislatively perceived undue severity in the existing criminal law." Kendall, 

219 N.J. Super. at 286 n.1. 

Here, there is no evidence that the Legislature intended the amended DWI 

law to apply retroactively. To the contrary, the statute clearly provided, "[t]his 

act shall take effect on the first day of the fourth month after enactment and shall 

apply to any offense occurring on or after that date[.]" L. 2019, c. 248. In 

addition, a directive from the Administrative Office of the Courts dated 

December 4, 2019 stated, "the new sentencing provisions apply only to 

defendants charged with a DWI or refusal on or after December 1, 2019."5 

Moreover, this court has previously considered this argument and rejected 

it on several occasions. In State v. Chambers, 377 N.J. Super. 365 (App. Div. 

2005), the State appealed the court's retroactive application of N.J.S.A. 39:4-50 

which imposed a DWI sentence enacted after the date of the offense and after 

5

 AOC directives are "unquestionably binding on all trial courts." State v. 

Morales, 390 N.J. Super. 470, 472 (App. Div. 2007). 
24 A-0952-19

the municipal sentence. We reversed, finding N.J.S.A. 1:1-15 prohibited the 

retroactive application of a statutory amendment reducing a criminal penalty 

unless the amendment expressly stated it applied retroactively. Id. at 372. We 

held the amended statute was not ameliorative because the defendant incurred 

the penalty under the former version of the statute at the time of the municipal 

sentencing, prior to the amendment's effective date. Id. at 374-75. See also

State v. Kostev, 396 N.J. Super. 389, 391 (App. Div. 2007) (stating a defendant 

is subject to the sentencing options available at the time of his or her DWI 

offense); State v. Luthe, 383 N.J. Super. 512, 514 (App. Div. 2006) (stating 

where the statutory mandate is clear, "we need not resort to extrinsic evidence 

to discern the Legislature's intent in enacting this amendment."). Defendant has 

not met the James test to apply the amended statute retroactively. 

Defendant also has not demonstrated the Legislature amended the DWI 

law because it was unclear or failed to effectuate the legislative intent behind 

the law. Rather, the legislative findings at the beginning of the amendments 

indicate the Legislature implemented the change to expand the use of ignition 

interlock devices because such devices "are more effective in deterring drunk 

driving than license suspension." L. 2019, c. 248. Given the absence of any 
25 A-0952-19

indication that the amendment was meant to clarify the existing DWI law, it 

cannot be said that the amendment was curative in nature. 

Nor can the amendment be classified as ameliorative. The new law 

"significantly expands" the use of ignition interlock devices. While this 

expansion is accompanied by a lessening of the period of license forfeiture, 

including a reduction from ten to eight years for third DWI offenders, there is 

no indication that the law was amended because the Legislature perceived an 

undue severity in the existing penalties for DWI convictions. There is no 

suggestion that the Legislature found the previous license forfeiture period was 

unduly harsh. Rather, the amendment was intended to introduce more effective 

penalties. Defendant has not established any error in the trial court's decision to 

decline sentencing him under the amended law.

Affirmed.