For most NJ residents driving our cars is a reflexive action. We do not so much enter and drive our cars as we put on an extension of ourselves—as we put on our shoes. From infancy most of us have ridden in cars before we ever walked or had shoes on our feet.
In NJ a DWI defense practice is not a criminal practice. Most clients are quite nice people—ordinary citizens that were socializing and simply intended to drive home. Although DUI risks causing great harm, most people decide to drive thoughtlessly and without intending to do anything wrong. Necessarily though, a driver is responsible for safe vehicle operation no less than a captain of a ship is responsible for his fitness and the safety of his vessel.
Attorney Baffuto never quits on his clients. Read further to see an actual case where Lawyer Baffuto fought for 16 months to keep a client out of jail—employing vigorous representation including the most sophisticated and cutting edge legal arguments and defenses.
It is an extraordinary example of a NJ DWI Lawyer’s work.
Return to us again to read point (II) of this dramatic and innovative legal argument by NJ DWI Lawyer Baffuto.
A. ZINGIS DIRECTS THAT SENTENCINGS BE STAYED OR CAPPED AT FIRST-OFFENDER PENALTIES
Somehow the State has formulated an argument whereby the Appellate Division in State v. Zingis, 471 N.J.Super. 590 (App.Div. 2022) decided, as a matter of first impression, that the State has a burden of production and proof beyond-a-reasonable-doubt of enhancing factors at sentencing, and that the Supreme Court in State v. Zingis, 251 N.J. 502 (2022) imposed a stay on this requirement and its application under U.S. Constitution Article IV, section 4 and the Fifth, Sixth, Eighth and Fourteenth Amendments. This is incoherent to the point of absurdity. That the State has a burden of proof at sentencing was not the issue in controversy: the State’s burden has been defined since at least 1791. Zingis does not–Zingis could not—litigate the State’s burden of proof. That burden exists by definition. Zingis is a procedural holding in which the question presented is how to minimally satisfy the State’s Constitutional burden–not whether that burden can ever be stayed or dispensed with.
“There is, therefore, reasonable doubt with respect to whether defendant’s 2012 DWI conviction was based on false calibration records executed by Dennis. . . .
Where the State seeks to impose an enhanced sentence, it cannot escape on the grounds of convenience and expediency its obligation to prove that the prior conviction on which that enhanced sentence is predicated was not tainted by the previously established misconduct of a police officer.”
State v. Zingis, 471 N.J.Super. 590, 607 (App.Div. 2022).
In their Order filed on July 28, 2022, the Supreme Court announced that it has granted review of the Zingis decision and that the question presented on review is “[W]hat evidence is the State required to present to prove that a prior conviction for DWI was not based on Alcotest breath sample test results deemed inadmissible in State v. Cassidy, 235 N.J. 482 (2018).
In the case at bar, the State likewise presented no evidence at sentencing in the Law Division despite its affirmative burden to prove enhancement of sentencing level was not reliant on prior conviction(s) based on Alcotest breath sample test results deemed inadmissible in State v. Cassidy, 235 N.J. 482 (2018). Zingis cited the State’s Constitutional burden of proof—it did not create it. Mr. Xxxxxx was jailed on nothing. At sentencing in Law Division the State produced and proved nothing justifying enhancement, and somehow the prosecutor argues that a guilty plea at the trial phase of the prosecution in municipal court impliedly waived all due process at sentencing in Law Division.
Mr. Xxxxxx is identically situated to Zingis. The Supreme Court Order filed on July 28, 2022 by its terms frames the issue as one of adequacy or quantum of proof. Enhancement of sentencing level in the absence of any proof is per se unconstitutional. At a minimum, the jail sentence in the case at bar is to be stayed pending the Supreme Court’s final decision. How could it be otherwise? The Appellate Division published a case holding that no defendant could be sentenced to more than first-offender level penalties, and the Supreme Court stayed that decision pending review. “Stayed” is not a synonym for “overruled”. C.f. the Chun Stay Order, State v. Chun, et al., 194 N.J. 54, 67-68 (2008).
B. THE STATE’S BURDEN IS DEFINED AND LOCATED IN THE CONSTITUTION, AND WOULD BE SO EVEN WERE ZINGIS NEVER DECIDED
The imperative of Constitutional due process is binding on all Courts. Zingis cited the State’s Constitutional burden of proof—it did not create it—and Mr. Xxxxxx did not receive it.
C. IN FAILING TO DISTINGUISH BETWEEN THE GUILT AND SENTENCING PHASES OF A PROSECUTION, THE STATE AGAIN SEEKS TO LEAD THE COURT INTO ERROR
Page 5 of the State’s Brief sets forth a burlesque of a legal argument wherein the words “trial” and “sentencing” become interchangeable synonyms. Further down that rabbit hole, “Defendant understood that he was pleading guilty [in municipal court and so dispensing with the concept of de novo] to a third DWI and that, by pleading guilty, he was waiving his right to have a trial.”
Risibly, this is argument in support of the State’s Point Heading: “DEFENDANT ERRONEOUSLY CLAIMS THAT JUDGE SNYDER FAILED TO DISTINGUISH BETWEEN THE GUILT AND SENTENCING PHASES OF A PROSECUTION.”
The prosecutor further argues that the State is relieved of its burden to prove beyond a reasonable doubt any and all enhancement factors at sentencing because “the State was not required to prove the underlying facts of the offense to which Defendant had pled guilty prior to the [municipal] court sentencing him to a 180-day prison term [sic].