No right to jury trial or insanity defense in 3rd offense DWI State v Baverov 482 N.J. Super. 344 (App. Div. 2025)
The issues in this appeal are whether defendant's conviction for a fifth offense of driving while intoxicated (DWI) should be reversed on the ground that trial counsel rendered ineffective assistance by refusing to present a psychiatric defense and whether defendant was entitled to a jury trial given the 180-day sentence imposed. The court affirms the tenet that DWI is a strict-liability offense for which mental-state defenses are unavailable and that defendant is not entitled to a jury trial where the period of incarceration does not exceed six months.
Here, defendant was convicted following a municipal court bench trial at which he admitted to consuming alcohol, exhibited indicia of intoxication, and failed field sobriety tests. Although defendant attributed his conduct to persecutory paranoia and amnesia unrelated to alcohol use, his trial counsel declined to pursue a psychiatric defense. The court holds that counsel's decision was reasonable and compelled by law, as mental-state defenses such as insanity are not viable in DWI prosecutions. In so holding, the court adopts as precedent the case of State v. Inglis, 304 N.J. Super. 207 (Law Div. 1997).
Counsel's refusal to advance a legally untenable defense did not fall below professional standards. Nor did the sentence of 180 days in county jail entitle defendant to a jury trial. The court reaffirms that a single petty offense subject to no more than six months' incarceration does not meet the threshold for jury-trial protections, even when accompanied by significant collateral penalties such as years-long license suspension and installation of an ignition interlock device. The conviction and sentence are affirmed. A-0274-23
DOCKET NO. A-0274-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
August 11, 2025
APPELLATE DIVISION
v.
VICTOR BAVEROV,
Defendant-Appellant.
_______________________
Argued April 28, 2025 – Decided August 11, 2025
Before Judges Gummer, Berdote Byrne and Jacobs.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Municipal Appeal No.
23-004.
John Menzel argued the cause for appellant.
Alexandra E. Harrigan, Assistant Prosecutor, argued
the cause for respondent (Raymond S. Santiago,
Monmouth County Prosecutor, attorney; Monica do
Outeiro, Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
JACOBS, J.S.C. (temporarily assigned)Defendant Victor Baverov appeals from an August 30, 2023 Law Division
order upholding a municipal court's January 26, 2023 finding of guilt for a fifth
driving-while-intoxicated (DWI) offense, sentencing him to 180 days in jail, an
eight-year license forfeiture, and other mandatory fines and penalties. N.J.S.A.
39:4-50. Defendant claims ineffective assistance of counsel, arguing his trial
attorney refused to present a psychiatric defense based on "persecutory
paranoia" and amnesia unrelated to alcohol use. He also challenges the
constitutionality of a bench trial, claiming he was entitled to a jury trial given
the custodial sentence imposed.
We conclude neither of defendant's contentions has merit and affirm the
Law Division's order.
I.
Shortly before 11:00 p.m. on November 19, 2021, a New Jersey State
Trooper was dispatched to a motor-vehicle accident on a rural roadway in Upper
Freehold. The trooper encountered defendant standing beside his vehicle, which
had veered off the road and struck a tree. The trooper saw that defendant
exhibited signs of alcohol impairment. Specifically, the trooper observed
defendant's eyes were bloodshot and watery, his speech was slurred, and there
2 A-0274-23was a strong odor of alcohol emanating from his breath. When questioned,
defendant admitted consuming "five or six beers" that evening at a nearby bar.
The trooper administered a battery of field sobriety tests, several of which
defendant failed. Defendant was arrested and transported to the police station.
After being advised of his Miranda1 rights, defendant again admitted to
consuming alcohol earlier that night and consented to provide Alcotest breath
samples.
Defendant was charged with DWI, N.J.S.A. 39:4-50; reckless driving,
N.J.S.A. 39:4-96; and failure to maintain lane, N.J.S.A. 39:4-88(b). Before trial,
defendant expressed to his attorney that he wished to assert a psychiatric defense
based on persecutory paranoia and amnesia. He contended he had suffered from
a mental abnormality that caused episodes of memory loss, independent of
alcohol consumption. Defendant claimed he could not recall the accident and
had no memory of consuming alcohol on the night in question. Defendant did
not retain an expert to advance this defense.
During a trial held on November 17, 2022, the State called as a witness
the trooper who had conducted the sobriety tests and effectuated arrest. After
the State rested, the following colloquy ensued:
1 Miranda v. Arizona, 384 U.S. 436 (1966).
3 A-0274-23DEFENSE COUNSEL: Judge, we're not going to put a
case on, but I do want to – and Your Honor may want
to hear from the defendant. I just want to build a record
on a legal issue in case there's an appeal out of this.
THE COURT: Understood.
DEFENSE COUNSEL: And I'm going to have my
client testify[,] not substantively. Your Honor doesn't
have to put him under oath because . . . he wants to
pursue a line of defense which [by] my understanding
of the law is improper and inadmissible. I'm certain the
prosecutor would object, and I'm a hundred percent
positive Your Honor would sustain the objection. The
case I'm referring to [is] a Law Division [case], but it's
still good law[,] called State v. Inglis I-N-G-L-I-S. It's
reported at 304 N.J. [Super.] 207 [(Law Div. 1997)].
It's a 1997 Law Division case, and it came out with a
tranche of cases from that era dealing with what the
Appellate Division, Supreme Court call – . . . they're
just defenses that are just subject to being made up.
Okay. I'll think of what the word they used to describe
it.[2] But the bottom line is that one of the defenses that
came up, and this was in the Inglis case, was the defense
of insanity . . . . And the Law Division said, listen, this
is not an appropriate defense in a drunk driving case.
First of all, you're dealing with a strict liability offense.
The defendant's state of mind is irrelevant. That's
Number 1. And Number 2, it's a type of defense that
lends itself to fraud and, you know, just made-up
evidence, and there's really no way for the State to rebut
those things. So, this case stands for the proposition
2 We surmise the word counsel likely attempted to recall was "pretextual." For
example, Justice Garibaldi wrote, "In our DWI decisions we attempt to eliminate
every possibility of pretextual defenses. We have done so not only because of
any doubts about the veracity of the factual defense offered, but also because of
the potential for pretext." State v. Fogarty, 128 N.J. 59, 68 (1992).
4 A-0274-23that if you're going to raise a psychiatric defense in a
drunk driving case, that evidence is inadmissible and
should not be heard by the court. It's not relevant to the
case in any way, shape or form. Now, as an attorney
and the relationship between attorney and client is
pretty specific in the sense that at trial defendant gets
to decide three things. If you want to plead guilty or
you want to plead not guilty, that's Number 1. Number
2, in the Superior Court do you want to have a jury trial
or not a jury trial? And, Number 3, do you want to
testify or not testify? Okay. Apart from that, every
other decision in the case gets made by the attorney.
Everything that's – all of those tactical and strategic
decisions are out of the defendant’s hands, and I've
made a determination based on my understanding of the
law that Your Honor would not admit it, the prosecutor
would object, it's improper testimony and just can’t be
part of the case based upon the case law. If I thought it
was going to help my client and be admissible, I'd take
a different position, and my client disagrees with me on
that, and he wanted Your Honor to know about that, not
as substantive evidence, only just for the purpose of
building a record, and I would ask Your Honor not to
consider it as evidence. Is that okay with the court?
THE COURT: That's fine.
After hearing from defendant directly as to his lack of memory of events
on the night in question, the court reserved decision to consider the evidence.
On January 26, 2023, the municipal judge found defendant guilty of DWI and
dismissed the remaining charges. Noting this was defendant's fifth DWI
offense, the court imposed a sentence of 180 days in county jail, an eight-year
driver's license suspension, four year of mandatory ignition interlock, and other
5 A-0274-23mandatory fines and penalties. Execution of the sentence was stayed pending
appeal.
Represented by new counsel, defendant appealed to the Law Division. On
August 14, 2023, Judge Michael A. Guadagno, J.A.D. (Ret.) heard argument and
conducted a de novo review, ultimately affirming the conviction and sentence.
The Law Division rejected defendant's ineffective assistance of counsel
argument, holding that even if the psychiatric defense had been presented, there
was no resulting prejudice because the defense was without merit as a matter of
law. Judge Guadagno emphasized that the insanity defense and other
affirmative defenses under the Criminal Code are not applicable to motor-
vehicle violations such as DWI. State v. Federico, 414 N.J. Super. 321, 326-27
(App. Div. 2010).
After the Law Division vacated the stay, defendant moved before this
court for a stay pending further appeal. Although this court denied the stay, we
remanded for resentencing before a different judge to permit defendant to make
a statement in mitigation. On December 7, 2023, the case was heard by the
presiding judge of the Criminal Part. The presiding judge denied defendant's
request for a stay of sentence and re-affirmed the sentence previously imposed.
On appeal, defendant advances two arguments for consideration:
6 A-0274-23POINT I
BECAUSE DEFENSE COUNSEL NOT ONLY
FAILED TO PRESENT, BUT ALSO UNDERMINED
HIS CLIENT'S DEFENSE, THIS COURT SHOULD
VACATE THE CONVICTION AND REMAND FOR
A NEW TRIAL.
POINT II
GIVEN CHANGES IN DOUBLE JEOPARDY
JURISPRUDENCE AND THE SEVERITY OF THE
PENALTIES TO WHICH DEFENDANT IS
EXPOSED, THIS COURT SHOULD REMAND THIS
MATTER FOR A JURY TRIAL.
II.
On appeal from a municipal court to the Law Division, the standard of
review is de novo on the record. Pressler & Verniero, Current N.J. Court Rules,
cmt. 1.1 on R. 3:23-8 (2025). Because the Law Division judge is not in a
position to judge the credibility of witnesses, deference is due to the credibility
findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472
(1999). See R. 3:23-8(a) (governing de novo criminal trials). Our review is
limited to determining whether the Law Division's findings could reasonably
have been reached on sufficient credible evidence in the record. State v.
Robertson, 228 N.J. 138, 148 (2017). Like the Law Division, we lack the
"opportunity to hear and see the witnesses and to have the 'feel' of the case" that
7 A-0274-23the municipal court has. Locurto, 157 N.J. at 471. We may not "weigh the
evidence, assess the credibility of witnesses, or make conclusions about the
evidence." State v. Barone, 147 N.J. 599, 615 (1997). We thus must defer to
the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383
(App. Div. 2000).
However, legal determinations are reviewed de novo. Robertson, 228 N.J.
at 148. Whether defendant was entitled to a jury trial is a question of law.
Whether he received ineffective assistance of counsel is also a question of law
in this instance, as we accept all that counsel said at face value, without making
credibility determinations.
III.
Ineffective Assistance of Counsel
We begin with defendant's claim that trial counsel provided
constitutionally ineffective assistance by failing to present an insanity or
psychiatric defense in connection with the DWI charge. His argument is
premised on the assertion that these conditions, particularly when manifested
independently of alcohol consumption, would have undermined the State's
ability to prove impairment under N.J.S.A. 39:4-50.
8 A-0274-23To assess this claim, we apply the familiar two-prong test established
under Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 53-58 (1987). A defendant must
demonstrate both: (1) that counsel's performance fell below an objective
standard of reasonableness; and (2) that, but for counsel's errors, there is a
reasonable probability the result of the proceeding would have been different.
Strickland, 466 U.S. at 687, 694; State v. Echols, 199 N.J. 344, 359 (2009).
Here, the first prong is dispositive. Trial counsel's decision not to advance
an insanity defense was not only reasonable but compelled by prevailing law.
DWI under N.J.S.A. 39:4-50 is a strict-liability offense to which affirmative
defenses based on mental states, including insanity, diminished capacity, or
intoxication, do not apply. See State v. Hammond, 118 N.J. 306, 307, 310
(1990); Federico, 414 N.J. Super. at 326.
The most thorough treatment of the purported defense raised here appears
in an opinion, State v. Inglis, 304 N.J. Super. 207 (Law Div. 1997), authored by
then Law Division Judge Jose Fuentes, P.J.A.D. (Ret.). There, the court rejected
a DWI defendant's attempt to introduce psychiatric evidence of bipolar disorder
to negate culpability. Id. at 209-210. Judge Fuentes explained:
[T]he offense of driving while intoxicated precludes the
common-law defense of insanity for two reasons. The
9 A-0274-23first is that the statute creating the offense embodies a
strong legislative policy of precluding defenses that
have a high potential for being pretextual. The second
is that driving while intoxicated is an absolute liability
offense, a fact that militates against permitting a
defense that focuses on a defendant's lack of mental
culpability.
. . . .
[T]he common-law insanity defense is unavailable to
defendants charged with driving under the influence.
[Id. at 211, 214.]
Judge Fuentes noted it is irrelevant for defendants to claim that driving
under the influence meets the M'Naghten test for common-law insanity because
that test focuses on the culpability associated with the defendant's state of mind.
Id. at 213. He wrote, because "[DWI] is a strict liability offense, requiring no
culpable mental state," it is therefore irrelevant whether the defendant "knew or
appreciated that driving under the influence was wrong." Ibid. (citing
Hammond, 118 N.J. at 314).
We endorse the holding and reasoning of Inglis, adopting it as precedent.
In the same vein, our holding aligns with Federico, where defendant claimed
involuntary exposure to intoxicating chemical compounds at his workplace
resulted in an "inability to recollect short memory and lack of orientation." 414
N.J. Super. at 326. The defendant "could therefore neither remember nor have
10 A-0274-23'the cognitive capacity to make a knowing and reasoned response to the
questions that he was asked'" by the police officer who found him sleeping in
his car. Ibid. Here, as there, we emphasize that DWI is an absolute liability
offence. To allow a defense based on involuntary ingestion of intoxicants, like
an altered mental state due to psychiatric condition, "would contravene the 'clear
legislative intent and a strong legislative policy to discourage long trials
complicated by pretextual defenses.'" Id. at 327 (quoting Hammond, 118 N.J.
at 317).
Counsel's decision to cite Inglis and decline pursuit of a legally untenable
defense not only reflected professional competence but fulfilled an ethical
obligation to refrain from advancing a frivolous defense and to disclose to the
tribunal legal authority known to be directly adverse to the position of the client.
RPC 3.1; RPC 3.3(a)(3).3 Counsel's conduct in this case was tactically sound
and ethically commendable.
3 RPC 3.1 reads, in pertinent part: "Meritorious Claims and Contentions. A
lawyer shall not bring or defend a proceeding, nor assert or controvert an issue
therein unless the lawyer knows or reasonably believes that there is a basis in
law and fact for doing so that is not frivolous, which includes a good faith
argument for an extension, modification, or reversal of existing law, or the
establishment of new law." (Emphasis added).
11 A-0274-23Because the first prong of the Strickland/Fritz test has not been met, we
do not reach the second prong. Nonetheless, we note the evidence of
intoxication was substantial. Defendant admitted to drinking five or six beers,
failed field sobriety tests, exhibited classic signs of impairment, and drove his
vehicle into a tree. Had counsel presented psychiatric testimony, there remains
no realistic likelihood the result of the proceeding would have been different.
Accordingly, the claim of ineffective assistance of counsel is without merit.
Right to a Jury Trial
Defendant contends that he was constitutionally entitled to a trial by jury
in light of the 180-day jail sentence imposed combined with the gravity of the
other penalties imposed, including an eight-year license suspension and four-
year ignition interlock device. He argues his offense must be deemed "serious"
rather than "petty," thereby triggering the jury trial guarantee under both the
Sixth Amendment to the United States Constitution and Article I, Paragraph 10
of the New Jersey Constitution.
RPC 3.3(a)(3) reads, in pertinent part: "Candor Toward the Tribunal. A
lawyer shall not knowingly fail to disclose to the tribunal legal authority in the
controlling jurisdiction known to the lawyer to be directly adverse to the position
of the client . . . ."
12 A-0274-23Both federal and state precedent foreclose defendant's claim.
The United States Supreme Court has held there is no Sixth Amendment
right to jury trial for "petty offenses," defined as those for which the maximum
authorized term for imprisonment does not exceed six months. Blanton v. N.
Las Vegas, 489 U.S. 538, 543-44 (1989). In Blanton, the Court held that a first-
offense DWI conviction under Nevada law, punishable by a maximum sentence
of six months in jail, was a petty offense that did not constitutionally require a
jury trial. Ibid.
New Jersey courts have uniformly recognized the distinction between
petty and more serious offenses, categorized as disorderly persons and indictable
offenses, the former allowing for a maximum sentence of six months under our
Criminal Code. N.J.S.A. 2C:1-4. In State v. Hamm, 121 N.J. 109, 112 (1990),
our Court held that a third-offense DWI conviction with a 180-day mandatory
jail sentence did not entitle the defendant to a jury trial. The Hamm Court noted
that "the DWI offense is in no sense to be regarded as a criminal offense under
the laws of the State of New Jersey." Id. at 118. As such, the Court observed
that "the culpability standards with respect to state of mind that ordinarily attend
criminal offenses do not attend DWI offenses." Ibid.
13 A-0274-23Likewise, in State v. Denselbeck, 225 N.J. 103, 106 (2016), the Court
reiterated that the denial of a jury trial in a third-offense DWI case did not offend
federal or state constitutional guarantees. So long as the period of incarceration
does not exceed six months for any single offense, the right to trial by jury does
not attach. Ibid.; see also Lewis v. United States, 518 U.S. 322, 324-28 (1996)
(defendant charged with multiple petty offenses with potential aggregate
penalties exceeding six months is not entitled to a jury trial unless a single
offense carries a sentence exceeding six months).
Applying these principles here, defendant was convicted of a single DWI
offense, subject to a 180-day custodial sentence. Although the court imposed
ancillary penalties, those consequences, though significant, do not establish the
offense as "serious" under controlling jurisprudence.
Defendant's attempt to aggregate multiple Title 39 penalties into a single,
compound offense is unavailing. Likewise, his suggestion that the possibility
of additional jail time on dismissed charges triggers a right to trial by jury is
unsupported by law. Because the remaining charges here were dismissed, and
because the sentence imposed did not exceed the 180-day limit, the
constitutional threshold for a jury trial was not met.
14 A-0274-23Even if the remaining charges had not been dismissed, New Jersey law
nonetheless permits imposition of concurrent sentences for multiple petty
offenses without mandating a corresponding right to a jury trial. See State v.
Linnehan, 197 N.J. Super. 41, 43 (App. Div. 1984) (citing State v. Owens, 54
N.J. 153, 163 (1969)). Accordingly, we conclude defendant was not entitled to
a jury trial under either federal or state law.
In sum, we affirm the August 30, 2023 order of the Law Division
upholding defendant's municipal court conviction for DWI and the sentence
imposed.
Affirmed.
15 A-0274-23
