JUSTICES: New Jersey Defendant's prior DWI conviction(s) should be considered for purposes of assigning penalties for subsequent refusal conviction
This article was originally published in The Barrister, the official monthly publication of the Camden County Bar Association for which DeMichele & DeMichele attorney GREG DEMICHELE serves as a CCBA Trustee.
________ The New Jersey Supreme Court in State v. Roger Paul Frye (070975) finally and unequivocally resolved the issue as to whether or not a prior DWI conviction can be used to enhance the penalty(s) for a subsequent breath-test refusal conviction. It has always been clear that a prior breath-test refusal conviction cannot be used to enhance the penalties for a subsequent DWI conviction. However, the opposite has been debated for quite some time amongst municipal court practitioners. The source of this confusion, in large part, was the Court's ruling in State v.Ciancaglini, 204 N.J. 597 (2011). In this case 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 New Jersey Supreme Court agreed with the Defendant and ruled that a Defendant's prior refusal conviction cannot be considered as a prior DWI violation for enhancement purposes. State v.Ciancaglini, 204 N.J. 597 (2011) However, in State v. Roger Paul Frye (070975), 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 and argued that his prior DWI convictions could not be used to enhance his guilty plea to the refusal charge. The judge denied Defendant's motion, concluding that Defendant's two prior DWI convictions could be considered in imposing the sentence. Defendant argued to the New Jersey Supreme Court 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. He argued that although Ciancaglini addressed a factually opposite case, (there, the prior conviction was for refusal, not DWI) the Court's decision in Ciancaglini supports the proposition that, for sentencing purposes, the refusal and DWI statutes are separate and distinct statutes. The State took the position that Defendant was properly sentenced as a third-time offender under the refusal statute. The State also argued that Ciancaglini is inapplicable because it addressed a factually inverse situation involving the DWI statute rather than the refusal statute and that this very issue was previously addressed in In re Bergwall, 85 N.J. 382 (1981), rev'g on dissent, 173 N.J. Super. 431 (App. Div. 1980). According to the Supreme Court the Defendant's appeal centered in large part upon the Legislature's intent in enacting the refusal statute, N.J.S.A. 39:4-50.4a, which requires municipal courts to revoke the driving privileges of drivers who refuse to submit breath samples to be tested for their blood alcohol content. In relevant part, the law provides: “the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c. 189 (C.39:4-50.14), shall refuse to submit to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) when requested to do so, for not less than seven months or more than one year unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years.” [N.J.S.A. 39:4-50.4a.]
State v. Roger Paul Frye (070975)
The Court stated that the amendments made to the refusal statue after the Court's ruling in In re Bergwall reveal that the refusal statute has maintained language that is nearly identical to the language at issue in In re Bergwall. State v. Roger Paul Frye (070975) Despite having opportunities to change the refusal statute, the Legislature has not made any significant changes to the statute since this Court's 1981 In re Bergwall decision. Consequently, the Supreme Court found that this legislative acquiescence reflects the Legislature's agreement with this Court's interpretation of the refusal statute. State v. Roger Paul Frye (070975) See State v. Wilhalme, 206 N.J. Super. 359, 362 (App. Div. 1985), (recognizing that “an examination of the legislative history in chronological juxtaposition with the litigation history of Bergwall” supports the conclusion that statutory amendments do not change application of In re Bergwall to refusal statute), certif. denied, 104 N.J. 398 (1986); see also State v. Fielding, 290 N.J. Super. 191, 193 (App. Div. 1996). The Court next addressed the Defendants argument that the sentence was improper in light of the decision in Ciancaglini. The Court found that the Defendant's reliance on Ciancaglini was misplaced. The Supreme Court noted that nothing in the DWI statute suggests that its references to prior violations refer to anything other than DWI convictions, and because the Legislature did not amend the DWI and refusal statutes to express an alternative intent, the Court found that the references to prior violations only refer to DWI convictions and not to refusal convictions. State v. Roger Paul Frye (070975) Given the distinction between the DWI statute and the refusal statute, the Supreme Court found that In re Bergwall, rather than Ciancaglini, controls the outcome of the case. State v. Roger Paul Frye (070975) Consequently, based on the foregoing analysis, the New Jersey Supreme Court re-affirmed In re Bergwall and held that that the Defendant's prior DWI convictions were appropriately considered for purposes of his subsequent refusal conviction. State v. Roger Paul Frye (070975) This issue has presumably now been settled. ________ If you or a loved one needs strong representation in a municipal court in New Jersey, contact the DWI defense lawyers at DeMichele & DeMichele today. We are here to defend the charges against you. Contact us now for your confidential and free initial consultation. You can also reach us by telephone (856) 546-1350. Don't just plead guilty and risk your driving privilege or driving record.