State v. McDonald – Motor Vehicle Accident within 1,000 Feet of a School

Submitted by: Vehicle Accident Attorney, Jeffrey Hark.

In its recent decision in State v. McDonald, A-118-10, N.J. (July 23, 2012), the New Jersey Supreme Court clearly annunciated the standards for determining whether a motor vehicle accident occurred within 1000 feet of a school for the purposes of N.J.S.A. 2C:12-1(c)(3)(a) (the DWI assault by auto statute). The factual background of McDonald is as follows. At 2:18 a.m. on January 14, 2007McDonald struck and severely injured a pedestrian outside of the Tropicana Casino in Atlantic City, NJ. McDonald, Slip. Op. at 5. Following the accident, police determined that McDonald had been driving in excess of the speed limit and had a blood alcohol concentration of .19. Id. Police also determined that McDonald’s NJ license had been suspended since 1994, and his out of state license had expired prior to the accident. Id.

The central fact to this appeal, however, is that the accident occurred within two blocks of a property owned by the Our Lady Star of The Sea Church. Id. That property, approximately a single square block in size, contains not only a parish church, but also a parochial elementary school. Id. The Court also noted that there was no lease agreement between the school and the church governing the use of the church owned land by the school. Id. at 6.The accident occurred within 1000 feet of the church property, but 1048 feet from the nearest corner of the school parking lot. Id. at 25.

Defendant was arrested and indicted for second-degree assault by auto in a school zone, N.J.S.A. 2C:12-1(c)(3)(a). Id. Defendant was also issued summonses for DWI, driving with a suspended license, DWI in a school zone, reckless driving, careless driving due to speed, and unlicensed driving. Id. On May 7, 2007, McDonald requested bail so that he may discuss his case with a new counsel. Id. While still represented by original counsel, however, McDonald entered a plea agreement on May 21, 2007. Id. Under the agreement, defendant pled guilty to second-degree assault by auto in a school zone, DWI, and driving with a suspended license in exchange for a sentence as if he had pled to a third-degree offense with a recommended sentence of three years in state prison. Id.

During his plea hearing, defendant acknowledged that he was guilty of driving a vehicle recklessly while intoxicated and also within a thousand feet of school property which caused serious bodily injury to the pedestrian involved. Id. at 7. Upon being asked if he disputed that his offense occurred within a thousand feet of the parochial school, the defendant stated that “[he] didn’t see it, but I might have missed it, okay.” Id. at 7.

On October 19, 2007, McDonald moved to withdraw his guilty plea under State v. Slater, contending that his former attorney had dismissed his concerns over the distance of the accident from the school and had not adequately determined the exact distance. As such, McDonald argued that the distance was in excess of 1000 feet from the actual school grounds (as opposed to the grounds of the church) and gave him a colorable claim of innocence. Id. at 8.The trial court rejected this argument, arguing that defendant’s motion was nothing more than “buyer’s remorse” as to a proper plea. Id. The defendant appealed, arguing points including that the accident was more than 1000 feet from actual school grounds. Id. at 9. The appellate division affirmed the trial court’s finding, corrected some sentencing issues, and merged the DWI conviction into the assault by auto conviction. McDonald appealed and certification was granted. Id. at 10.

Under Slater, a court must consider whether the defendant has asserted a colorable claim of innocence, the nature and strength of defendant’s reason for withdrawing his plea, the existence of a plea bargain, and whether withdrawal would prejudice the state in determining if a plea may be withdrawn. The Court held that McDonald could assert no colorable claim to innocence and as such the defendant’s plea was not subject to withdrawal under the Slater test. The Court, in interpreting the meaning of the “within 1000 feet of a school” language of N.J.S.A. 2C:12-1(c)(3)(a) looked both to the case law and legislative history of that statute and that of N.J.S.A. 2C:35-7, which governs controlled dangerous substance offenses in school zones.

Under the statute, assault by auto is a second degree when the driver causes serious iunjury, while intoxicated and “on any school property used for school purposes which is owned by or leased to any elementary school or school board, or within 1,000 feet of such school property.” The statute precludes a defendant from claiming that he was unaware of being within that zone or that no juveniles were present at the time as a defense to the charges. Id. at 15. The Court, in interpreting the statute, first noted that the purpose of the statute was to make the streets near schools safer for students and crossing guards. Id. at 17. Looking to the CDS statute, the Court noted that the legislature had stated that N.J.S.A.’s similar language was intended to create a permanent safety zone around schools recognizing that children often congregate around school grounds even when school is not in session. Id.

The Court stated that as the statute is designed to protect children travelling to and from school, the statute does not limit its definition of school property based on whether the school is public, private, or parochial, nor whether it is an elementary or secondary school. Id. at 18. The Court likewise noted that based on the legislative history, that courts should not focus on the manner in which title to the property is held. Id. at 19. The legislature, therefore, did not define “school property” to exclude schools because they are not owned or leased by a school board.

Under this legislative history, then, the Court found that the parish church which owns the property and operates the school qualifies as an “elementary education entity” within the meaning of the statute. Id. As the legislative history clearly expresses an intent that the 1000 foot zone begins at the borders of the school’s campus and not at the edge of the building or immediate vicinity, the Court likewise found that the entirety of the parish’s property qualified as “school property” under the statute. Id. at 21-22. As such, defendant’s claim that he was “1048” feet from school and its parking lot but less than 1000 feet from other parts of the church grounds does not assert a colorable claim of innocence. Id. at 22. The Court similarly rejected McDonald’s contention that the late hour prevents the school zone language from applying. Id. at 23.

Turning to the remaining three Slater factors, the Court found that they did not make up for the lack of a colorable claim of innocence. That defendant was not permitted to contest the allegation that the event occurred within 1,000 feet of a school could not serve as a valid excuse for not raising a defense when that contest was, as a matter of law, incapable of establishing a colorable claim of innocence. Id. at 24. Likewise, the presence of a plea bargain weighed against McDonald. Id. Though the Court found that no prejudice would be done to the state, in the absence of a colorable claim of innocence, the Court ruled that the interests of justice would not be served by allowing McDonald to withdraw his plea. Id. at 26-27.

The Court also addressed the defendant’s remaining contentions. As the defendant had been intoxicated and travelling over the speed limit, the Court rejected the argument that the element of recklessness was not supported during the plea hearing. Id. at 28. The Court also rejected the argument that there was no basis for his driving with a suspended license plea. Id. at 29-30. That defendant had a North Carolina license for 15 years (which had expired) did not change the fact that his suspended NJ license had never been reinstated. As such, the defendant’s guilt for that charge was established by the letter of the statute, regardless of the out of state license. Id. As the defendant’s final contention, that he had suffered from ineffective assistance of counsel at the original plea hearing would be more properly addressed in a Post Conviction Relief hearing, the Court did not address that issue.

Ultimately, the Court held that the definition of “within 1000 feet” of a school included being within 1000 feet of any portion of the church grounds of the church which owned and operated the school. As such, McDonald could not assert a colorable claim of innocence as to his assault by auto charge, and thus had no grounds to move for the withdrawal of his guilty plea.