A Mercer County judge, finding that drunken-driving laws allow too much discretion in sentencing, says that a court should look to the state's Criminal Code in deciding whether to jail defendants and for how long.

"The court concludes that it should apply, with appropriate tailoring, the aggravating and mitigating factors prescribed by the Criminal Code for sentencing of offenses and crimes," Superior Court Judge Mitchel Ostrer wrote in State v Henry, Municipal Appeal 2010-16, an Oct. 20 ruling approved for publication on Wednesday.

"Even if the factors are not mandated, they provide appropriate guides for the court's exercise of discretion," he added.

Ostrer departed from a 1989 Law Division precedent, State v. Walsh, 236 N.J. Super. 151, in which Burlington County Superior Court Judge Martin Haines declined to apply the criminal code's aggravating-mitigating analysis to sentencing for driving under the influence, reasoning that motor vehicle violations do not fall within the code's definition of an "offense."

But Walsh "outlined no alternative structure or factors to guide the exercise of its sentencing discretion," Ostrer said, adding that "unfettered sentencing discretion violates notions of due process and fairness," because it leads to random and unpredictable punishment.

He pointed to State v. Moran, 202 N.J. 311 (2010), where the Supreme Court identified criteria that should be considered in suspending a license to ensure uniformity.

Rule 7:1-9(b), one of the rules governing municipal court sentencing, refers to aggravating and mitigating factors, but the Moran Court apparently deemed the rule as applying only to disorderly persons and petty disorderly persons offenses, Ostrer said.

Noting the punishment for DUI is equivalent to that for disorderly and petty disorderly offenses, Ostrer said he was "unaware of a compelling reason why the Code's applicable criteria for withholding or imposing imprisonment for disorderly persons and petty disorderly persons should not apply to DUI violators facing comparable terms of incarceration."

The Moran factors overlap those in the criminal code, N.J.S.A. 2C:44-1, but are not as extensive, Ostrer said. In his view, the code contains additional factors that could be relevant to DUI, such as a justification or excuse that falls short of a defense, which could exist, for instance where a driver did not realize how alcohol would interact with a new medication. Other code factors he deemed relevant include the defendant's failure "to contemplate that his conduct would cause or threaten serious harm" and the likelihood the defendant will respond well to probation.

Where the criminal factors are not an exact fit for DUI, Ostrer said he would mold them.

Ostrer's ruling came in an appeal by John Henry from a 60-day sentence for driving under the influence imposed by Hamilton Municipal Judge Kenneth Lozier. Thirty days were suspended, conditioned on Henry performing 30 days of community service and completing 48 hours at the Intoxicated Driver Resource Center, a program run by the Department of Health and Senior Services.

In addition, Henry's license was suspended for two years, with an ignition interlock to be installed for three years, and he had to pay a $1,000 fine and other penalties and surcharges.

In giving Henry much more than the mandatory two-day minimum for a second offense, Lozier took into account that Henry's blood alcohol content (BAC) was .30 percent, more than four times the legal limit of .08. Henry was so inebriated that he was "unable to control basic bodily functions" and police took him to the hospital because they were concerned about him, Ostrer found.

Henry, who had pleaded guilty, appealed the jail time, contending that the lengthier sentence based on his extremely high BAC amounted to double counting an element of the offense as an aggravating factor in sentencing, which is not permitted.

His lawyer, Robert Ramsey, of Donini & Ramsey in Trenton, cited State v. Kromphold, 162 N.J. 345 (2000), which Ostrer distinguished it because it involved a crime in which the elevated BAC level provided the recklessness that was an element of the offense, while a BAC of only .08 is needed for a DUI.

Ostrer analogized the use of Henry's high BAC to boost his jail time to a sexual assault case in which the age of the victim, 4 years old, was an aggravating factor where the statute applied to victims 13 and under, and to another case where the defendant had seven times the amount of drugs specified in the applicable statute.

Other aggravating factors for Henry were his risk of reoffending as an untreated alcoholic with a propensity to drink and drive. Henry had two prior DUIs from 1997 but because they were more than 10 years old, the step-down provision meant he was sentenced as a second-time offender, for which he could get two to 90 days.

Despite the step-down, Ostrer factored in that Henry was a three-time offender, especially because he did not stay sober between 1997 and 2009, as evidenced by his 2003 conviction for possession of a sawed-off shotgun. When police showed up in response to a neighbor's call about Henry's truck left running in his driveway, police found the gun inside Henry's home and an intoxicated Henry.

On the mitigation side were Henry's persistent alcoholism, which he "cannot simply turn off," his cooperation with police and prosecutors and, most significantly, the effect of his incarceration on his 87 year-old mother who depends on him. But Ostrer refused to treat as mitigation the fact that no one got hurt, since there was a threat of serious harm.

On balance, the aggravating factors predominated, and Ostrer gave Henry one year of probation conditioned on 14 days incarceration and intensive alcohol treatment, along with the rest of the sentence imposed by Lozier.

Ramsey calls Ostrer's ruling very fair and well thought out and says Henry has already served the time.

He welcomes use of the factors, saying it will make it "easier to put together coherent arguments" at sentencing and everyone will be "reading from the same script."

Livingston solo Greggory Marootian, whose practice focuses on DUI, says he is troubled that Ostrer factored in all three offenses, despite the step-down provision.

Both prior DUIs were considered, "even though the Legislature has said this person should be stepped down to second offender status," he says.

Marootian says he thinks using a high BAC as an aggravating factor will clog the courts, as more defendants contest their readings.

The Mercer County Prosecutor's Office declines comment through spokeswoman Casey DeBlasio.