Written by attorney Kenneth Albert Vercammen

Prior refusal to take breath test does not count for 3rd DWI State v. Ciancaglini

Prior refusal to take breath test does not count for 3rd DWI

State v. Ciancaglini __ NJ ___ (A-92/93-09)

Defendant Ciancaglini’s conviction in 2006 for refusing to take a breathalyzer test does not constitute a prior conviction for purposes of determining her sentence for driving while intoxicated in 2008. Appellate Division reversed.

The Supreme Court held: 1. To interpret a statute, courts look to the Legislative intent, examining first the plain language of the statute. If the statute is clear on its face, courts enforce it; if it is ambiguous or open to more than one meaning, courts may consider extrinsic evidence, including legislative history and committee reports. Any reasonable doubt concerning the meaning of a penal statute must be strictly construed in favor of the defendant.

  1. Although N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.4 are both part of a statutory complex designed to rid the highways of drunk drivers, each is a separate section with a different, albeit related, purpose, and each has different elements. Under the DWI statute, N.J.S.A. 39:4-50, operating a motor vehicle while intoxicated subjects the defendant to penalties that are based on the number of prior offenses the defendant has committed. For a first offense in which the driver’s blood alcohol content is .10% or higher, the sentence includes a license suspension of seven months to one year, a fine, and a jail term of not more than 30 days. For a second violation, the sentence includes a two-year license suspension, a fine, and a jail term of up to ninety days. For a third or subsequent violation, the sentence includes a ten-year license suspension, a fine, and a jail term of 180 days. However, the DWI statute contains a “step-down" provision that states that “if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second conviction for sentencing purposes." The refusal statute, N.J.S.A 39:4-50.4a, is similarly structured with penalties based on whether the conviction is the driver’s first, second, or third or subsequent offense. It requires the revocation of the right to operate a motor vehicle by any driver who, after being arrested for DWI, refuses to submit to a breathalyzer test. The length of license suspension for refusal mirrors the length of the license suspensions for DWI. However, no custodial sentence is authorized for refusal convictions.

  2. Until the Appellate Division in this case reached the opposite conclusion, DiSomma represented the controlling case for sentencing DWI offenders with a prior refusal conviction. In DiSomma, the Appellate Division examined both the DWI statute and the refusal statute and determined that their provisions were intended to be separate.

Concluding that a prior refusal conviction cannot serve as the basis to enhance a subsequent DWI conviction, the defendant, who had a prior conviction for refusal, was sentenced as a first offender after his DWI conviction. Since DiSomma, there have been no legislative revisions to the DWI or refusal statutes suggesting an integration of refusal convictions into DWI sentencing. Although a 1997 amendment to both the DWI and refusal statutes was designed to ensure that DWI and refusal convictions in other jurisdictions qualify as prior offenses under the respective sections in New Jersey, the Legislature never endeavored to provide that a prior refusal conviction could be treated

as a prior DWI.

  1. The DWI statute contains no reference whatsoever to the refusal statute, and nothing suggests that the references to prior violations in the DWI statute’s lists of penalties are meant to refer to anything beyond DWI convictions.

Without any statutory cross-reference, or similar expression, the most natural reading of the DWI statute suggests that the “prior" violations described in N.J.S.A. 39:4-50 are meant to refer only to the DWI section in which they are contained. Such a reading is consistent with the well-established principle that penal statutes must be strictly construed.

  1. While the record is not clear as to whether Ciancaglini’s 2006 refusal conviction was or was not incident to an acquittal of DWI, it cannot be reasonably suggested that someone convicted of refusal when found not guilty of DWI can be treated as if he or she were convicted of the DWI offense. If the Legislature wanted to treat a refusal

conviction as an enhancer for DWI, even after an acquittal of DWI, it would have to do so in clearer language.

  1. The Court determines that it need not decide in this case whether a person can twice take advantage of a stepdown under N.J.S.A. 39:4-50 because Ciancaglini’s refusal conviction cannot be considered a prior DWI violation for enhancement purposes. As such, she is not precluded from the benefit of the step-down since her first DWI conviction in 1979 was more than ten years prior to her second, the 2008 DWI conviction.

The judgment of the Appellate Division is REVERSED and the Law Division’s sentence is REINSTATED.

Free Q&A with lawyers in your area

Avvo DUI email series

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer