SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0229-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY RUST,

Defendant-Appellant.

_________________________

Argued January 5, 2022 – Decided January 20, 2022

Before Judges Mayer and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Municipal Docket No. 6262.

James A. Abate argued the cause for appellant.

Milton S. Liebowitz, Special Deputy Attorney General/ 

Acting Assistant Prosecutor, argued the cause for 

respondent (William A. Daniel, Union County 

Prosecutor, attorney; Milton S. Leibowitz, 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NOT FOR PUBLICATION WITHOUT THE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 Jeffrey Rust appeals from an August 25, 2020 order of the 

Superior Court, Law Division, finding him guilty of driving while intoxicated 

(DWI), N.J.S.A. 39:4-50. We affirm. 

The facts are undisputed. In accordance with a plea agreement in 

municipal court, defendant admitted operating a motor vehicle within Winfield 

Township while under the influence of alcohol on April 20, 2019. The 

municipal court judge sentenced defendant to a two-year suspension of his 

driving privileges, forty-eight hours at the Intoxicated Driver's Resource Center

(IDRC), thirty-days community service, and payment of monetary fines and 

other assessments. The municipal court judge granted a stay of the sentence 

pending defendant's appeal to the Superior Court, Law Division. 

On appeal to the Law Division judge, defendant argued the new 

sentencing provisions under N.J.S.A. 39:4-50 should be applied retroactively so 

he could be sentenced to installation of an ignition interlock device rather than 

suspension of his driver's license. Defendant also argued "an offense does not 

come into existence until there is a conviction, and a defendant does not become 

an offender until they are convicted." 

In an August 25, 2020 order and written decision, the Law Division judge 

rejected defendant's arguments. He found defendant committed the DWI 
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offense on April 20, 2019 and the revised penalties under the DWI statute

applied prospectively to offenses occurring after December 1, 2019. Because 

defendant committed the offense nearly seven months prior to the effective date 

of the revised DWI statute, the Law Division judge concluded suspension of 

defendant's license was mandated. 

The Law Division judge also held defendant's interpretation of the 

language in the revised DWI sentencing statute distorted the common definition 

and application of the terms "offense" and "offender." He concluded "[u]nder 

plain usage, an 'offense' is distinct from an 'offender.' An offense consists of 

the transactions and occurrences comprising the acts violative of the statute. In 

contrast, an offender under N.J.S.A, 39:4-50.17 is a person who has been 

convicted of the offense." 

At the sentencing hearing, the Law Division judge suspended defendant's 

driving privileges for two years. He also sentenced defendant to forty-eight 

hours at the IDRC, thirty hours of community service, installation of an ignition 

interlock device for two years after completion of the license suspension period, 

and payment of a $1000 fine and other monetary assessments. The Law Division 

judge denied defendant's request for a stay of the sentence pending appeal to 

this court. 
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On appeal, defendant raises the following arguments:

POINT I

USE OF THE TERMS "OFFENSE" AND 

"OFFENDER" IN THE LEGISLATION ARE NOT 

AMBIGUOUS AND SHOULD BE INTERPRETED 

SO AS TO PERMIT DEFENDANTS IN CASES OPEN 

AND PENDING AT THE TIME OF THE BILL'S 

EFFECTIVE DATE TO ELECT WHETHER TO BE 

SENTENCED TO PENALTIES AS THEY EXISTED 

BEFORE OR AFTER THE DATE OF 

ADJUDICATION. 

POINT II

PUNISHMENTS REQUIRED BY AMELIORATIVE 

STATUTES MAY APPLY TO OFFENSES 

COMMITTED BEFORE BUT ADJUDICATED 

AFTER A STATUTE’S EFFECTIVE DATE.

POINT III

INTERPRETING THE TERM "OFFENSE" TO 

APPLY ONLY TO INCIDENTS COMMITTED ON 

OR AFTER DECEMBER 1, 2019, LEADS TO AN 

ABSURD RESULT, GIVEN THE LEGISLATURE’S 

FINDING AND DECLARATION THAT ALCOHOL 

IGNITION INTERLOCK DEVICES ARE MORE 

EFFECTIVE THA[N] DRIVING PRIVILEGE 

FORFEITURE.

POINT IV

GIVEN THE EX POST FACTO IMPLICATIONS 

WITH THE ENACTMENT OF NEW PENALTIES, 

DEFENDANTS CHARGED BEFORE DECEMBER 1, 

2019, SHOULD BE GIVEN THE OPPORTUNITY TO 
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CHOOSE WHETHER TO BE SENTENCED IN 

ACCORDANCE WITH PENALTIES IN EFFECT 

EITHER BEFORE OR AFTER DECEMBER 1, 2019.

After the Law Division judge issued his decision in this matter, we 

published our opinion in State v. Scudieri, A-0352-20 (App. Div. November 1, 

2021) disposing of the same arguments raised by defendant in this appeal. To 

the extent defendant suggests his arguments are more nuanced than the 

arguments we reviewed and rejected in Scudieri, we disagree. 

Here, defendant argues the four-month delay between adoption of the 

revised DWI statute and its effective date supports application of the ignition 

interlock device penalty to offenses occurring prior to December 1, 2019. We 

addressed this argument in Scudieri, "observ[ing] the four-month gap between 

the law's passing and the effective date was hardly an arbitrary or random 

decision. Rather, the law granted the New Jersey Motor Vehicle Commission 

time to 'take any anticipatory administrative action in advance of that date as 

shall be necessary to implement the provisions of this act.'" Id. slip op. at 5.

We also noted the potential for adverse consequences stemming from 

acceptance of the defendant's argument seeking "application of the new [DWI] 

sentencing laws to defendants . . . who committed offenses prior to the new law's 

enactment, but who are sentenced afterward." Id. slip op. at 6. We commented 
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such a position would likely result in manipulation of sentencing dates, cause 

defendants in similar situations to be sentenced dissimilarly, and foster

impermissible "judge shopping" by defendants seeking a purportedly more 

sympathetic judge for sentencing.

1

 Ibid.

Additionally, defendant argues the revised DWI statute's use of the word 

"offense" and "offender" is clear and unambiguous, and the term "offender" is 

synonymous with the term "conviction." However, we rejected that argument 

in Scudieri. Id. slip op. at 8.

Contrary to defendant's argument, "offense" and "conviction" are not 

synonymous. The revised DWI statute applies specifically "to any offense 

occurring on or after [December 1, 2019]." N.J.S.A. 39:4-50. If the Legislature 

intended to apply the revised DWI statute for any conviction occurring after 

December 1, 2019, it would, and could, have so stated. See DiProspero v. Penn, 

183 N.J. 477, 494 (2005) (quoting N.J. Democratic Party, Inc. v. Samson, 175 

N.J. 178, 195 n. 6 (2002)) ("[T]he Legislature is presumed to be aware of judicial 

construction of its enactments."). 

1

 Judge-shopping is "an attorney's attempt to have a particular judge try his or 

her case . . . ." Goldfarb v. Solimine, 460 N.J. Super. 22, 32 (App. Div. 2019), 

aff'd as modified and remanded, 245 N.J. 326 (2021). In Goldfarb, we held 

judge-shopping "may undermine public confidence in the impartial 

administration of justice." Ibid.
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We affirm the sentence imposed for defendant's DWI conviction based on 

our decision in Scudieri. The Law Division judge's application of the DWI 

statute in effect as of April 20, 2019, the date defendant admitted operating his 

car while intoxicated, was both proper and prescient.

Affirmed.