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New Jersey Division of Motor Vehicles v. Ripley11/26/2003
ea of guilty or no contest to a charge of a violation of Section 41-6-45... in satisfaction of, or as a substitute for, an original charge of a violation of this section [Section 41-6-44], the prosecution shall state for the record a factual basis for the plea, including whether or not there had been consumption of alcohol, drugs, or a combination of both, by the defendant in connection with the violation.
(ii) The statement is an offer of proof of the facts that shows whether there was consumption of alcohol, drugs, or a combination of both, by the defendant, in connection with the violation. [U.C.A. 41-6-44] (emphasis added).
We conclude that the offense of alcohol-related reckless driving, for purposes of Ripley's guilty plea to U.C.A. 41-6-45(1)(a), and in the context of U.C.A. 41-6-44-9(a)(i) and (ii), is not substantially similar to New Jersey's offense of driving while under the influence. Reckless driving under the Utah statute is similar to our reckless driving statute, N.J.S.A. 39:4-96, which proscribes driving a vehicle"heedlessly, in willful or wanton disregard of the rights or safety of others, in manner so as to endanger... a person or property."
Where a defendant is initially charged with DWI, a prosecutor in Utah is permitted to downgrade to the alcohol-related reckless charge by providing a factual basis,"including whether or not there had been consumption of alcohol... in connection with the violation." U.C.A. 41-6-44(9)(a)(i) (emphasis added). The elements of this lesser offense do not include any specific or minimum level of intoxication or blood alcohol, but merely require some consumption of alcohol in connection with the reckless driving. The statutory terms comport with Ripley's position that the consumption of any alcohol would suffice, whether or not it rendered the driver"under the influence" and thus unfit to drive, as defined in our case law. In our view, this is not an equivalent offense to our DWI.
The Director's reliance on Div. of Motor Vehicles v. Lawrence, 194 N.J. Super. 1 (App. Div. 1983), is unpersuasive. There, we concluded that New York's lesser-included offense of driving while impaired (defendant was initially charged with the greater offense of driving while under the influence), is substantially similar in nature to our DWI. Id. at 3. The statutory provision, as interpreted by the New York courts, defined that lesser offense in substantially the same manner as we have defined our DWI offense [.arrowhorizex] driving an automobile after the consumption of sufficient alcohol to lessen or impair physical and mental control to any significant degree. Ibid.*fn1 That is not the case with the Utah statute, where the offense of which Ripley was convicted contains no element of impaired driving ability, but simply requires the consumption of alcohol in connection with the violation.
We also observe that the Director acted precipitously here. The notice of the proposed 720-day suspension was issued on February 1, 2001, stating that Ripley had been convicted of operating under the influence in Utah. However, this charge was only pending at that time. The plea agreement occurred and his guilty plea and sentencing on the lesser offense later took place on July 2, 2001.
The Utah reckless driving statute does not require any impairment. Nor does it require that alcohol caused the reckless driving. There is nothing in the guilty plea record which supports a finding that defendant was impaired by the consumption of alcohol. Indeed, there is no transcript of the plea hearing. There is no concession or adjudicatory finding about the accuracy of the Utah BAC test of.089 or the reliability of the field sobriety test. All we have is a guil
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