The Barrister Publishes Greg DeMichele's Article on DWI and Refusal Cases
The Camden County Bar Association has published Greg DeMichele's Article on analyzing a DWI and Refusal case which is pending before the New Jersey Supreme Court. You can review Greg's past posts regarding DWI and Refusal by clicking the links below: Defendant in DUI Case Wins Appeal and Gets a Reduced Sentence Defending Enhanced Penalties for DWI and Refusal DUI Conviction Upheld on Continuing Jurisdiction You can read the full text of his Barrister article below: The New Jersey Supreme Court will soon resolve an issue that has been debated and argued amongst municipal court practitioners for quite some time now. The Supreme Court granted certification in State v. Roger Paul Frye and is set to rule on whether or not a prior DUI conviction can be used to enhance the penalty(s) for a subsequent breath-test refusal conviction. A-30-12 State v. Roger Paul Frye (070975). It is clear that a prior breath-test refusal conviction cannot be used to enhance the penalties for a subsequent DUI conviction. However, the opposite is up for debate. In State v.Ciancaglini, 204 N.J. 597 (2011), the defendant had previously been convicted of refusal under N.J.S.A. 39:4-50.4a. Id. at 600. He was subsequently convicted of DWI and the issue was whether, based upon the prior refusal conviction, he should be sentenced as a first or second offender under N.J.S.A. 39:4-50, which provides for enhanced penalties for repeat offenses. Ibid. The Defendant in Ciancaglini, relying on State v. DiSomma, 262 N.J. Super. 375, 383 (App. Div. 1993), argued that a prior breath-test refusal conviction should not enhance penalties for a subsequent DUI conviction. In State v. DiSomma, the Court held that a conviction for refusal was not a prior violation under the DWI statute, N.J.S.A. 39:4-50 and that N.J.S.A. 39:4-50 precludes a prior refusal conviction from being used as a sentencing enhancement for a subsequent DWI conviction. When analyzing the relevant DWI statute, the Court in Ciancaglini recognized that: N.J.S.A. 39:4-50 contains no reference whatsoever to the refusal statute. When listing the penalties for driving while intoxicated, it categorizes them based on being “[f]or the first offense,” “[f]or the second violation,” and “[f]or a third subsequent violation.” N.J.S.A. 39:4-50(a)(1), (2), (3). Nothing suggests that those references to prior “violations” are meant to refer to anything beyond the DWI convictions in violation of N.J.S.A. 39:4- 50, and the Legislature made no relevant amendment to the DWI or refusal statute while otherwise strengthening the latter. Indeed, without any statutory cross-reference, or similar expression, the most natural reading of the statute would suggest that the “prior” violations described in the three subsections of N.J.S.A. 39:4-50 are meant to refer only to the section of Title 39, Chapter 4, in which they are contained, that is N.J.S.A. 39:4-50. Such a reading is consistent with the well-established principle that penal statutes must be strictly construed. Ciancaglini at 204. Accordingly, the New Jersey Supreme Court, in State v.Ciancaglini, reversed the Appellate Division and ruled that a Defendant's prior refusal conviction cannot be considered as a prior DWI violation for enhancement purposes. Recently, the Appellate Division, in State v Korpita, was faced with the inverse of what occurred in State v. Ciancaglini. In this case, the Defendant was sentenced as a second offender on his refusal conviction, even though his only prior conviction was for DWI. Based on the rulings in Ciancaglini and Korpita the issues surrounding sentencing for Defendants convicted of DWI and refusal appeared to be resolved. However, the New Jersey Supreme Court recently granted certification in State v. Frye, A-30-12. One of the issue before the Supreme Court is a whether prior DWI offenses can be counted to sentence a defendant as a repeat offender on a refusal conviction, the opposite factual scenario in State v.Ciancaglini and the same as State v Korpita. In State v. Frye, the Defendant, who had two prior DWI convictions, plead guilty to a refusal charge. Based on his two prior DWI convictions, he was sentenced as at three-time offender and his driver's license was suspended for 10 years. Defendant, thereafter, filed a motion for reconsideration of the sentence based on the Court's decisions in State v. Tekel, 281 N.J. Super. 502 (App. Div. 1995), as well as State v. DiSomma, 262 N.J. Super. 375 (App. Div. 1993). The judge denied defendant's motion, concluding that defendant's two prior DWI convictions could be considered in imposing the sentence. State v. Frye N.J. Super 2012. The Defendant then filed a Motion to withdraw his guilty plea based upon his assertion that he was unaware of the ten-year loss of driving privileges when he entered his plea. This motion was also denied. State v. Frye N.J. Super 2012. On appeal the Defendant argued that the Court imposed an illegal sentence when he was sentenced to a ten year loss of driving privileges based upon the Supreme Court's decision in State v. Ciancaglini, 204 N.J. 597 (2011), which held that the penalty provisions in N.J.S.A. 39:4-50 and 39:4-50a are not interchangeable. State v. Frye N.J. Super 2012. In State v. Ciancaglini, 204 N.J. 597 (2011), the Supreme Court held that a defendant's prior refusal conviction could not be considered a prior conviction for purposes of enhancing the sentence for a subsequent DWI conviction. State v. Ciancaglini, 204 N.J. 597 (2011). The Defendant also argued he should have been permitted to withdraw his guilty plea. The Appellate Division disagreed with both of these arguments and affirmed the lower Court's decision. State v. Frye N.J. Super 2012. The New Jersey Supreme Court granted certification and will rule whether the Defendant's two prior convictions for driving while intoxicated can be counted to sentence him as a third-time offender for a conviction of refusal to submit to a chemical breath test under N.J.S.A. 39:4-50.4a; and whether the Defendant should have been permitted to withdraw his guilty plea to refusal under the circumstances of his case. A-30-12 State v. Roger Paul Frye (070975) STAY TUNED!