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When it Comes to Sentencing There is a Difference Between a Prior DWI and a Prior Refusal

A conviction for driving while intoxicated or refusal has stiff penalties in New Jersey. The penalties are enhanced if the defendant has prior convictions for these offenses.  However, the enhanced penalties do not always apply.  A careful review of the drivers abstract is essential in determining the correct sentence.  For example, someone who is been convicted of driving while intoxicated who has not been convicted of DWI before but has a prior refusal will be sentenced as a first-time DWI offender upon a conviction.  Said another way, a prior refusal will not enhance a DWI conviction.  However, a prior DWI will enhance a refusal conviction.

Yesterday, in State v Korpita, (an unpublished decision) the Appellate Division held that a prior DWI enhances a subsequent refusal .  In this case, the Defendant, was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50, refusal to submit to a chemical test (refusal),N.J.S.A. 39:4-50.4a, and failure to keep right. N.J.S.A. 39:4-82. The Defendant had previously been convicted of DWI, but he had no prior convictions for refusal. The trial judge found the defendant was guilty of refusal and DWI.  For the DWI, the judge sentence the defendant as a as a second  offender and imposed a two-year license revocation, forty-eight hours at an Intoxicated Driver Resource Center (IDRC) program, and thirty days community service for the DWI.  For the refusal,the judge also sentenced the defendant as a second offender, and imposed a consecutive two-year license revocation for refusal.  The judge merged the failure to keep right with the DWI and imposed appropriate fines and penalties.

Our driving while intoxicated statute, N.J.S.A. 39:4-50 and refusal to submit to a chemical test (refusal),N.J.S.A. 39:4-50.4a  provide for enhanced penalties for subsequent convictions.  Defendant’s arguments concerning the legality of his sentence were based upon the Supreme Court’s decision in State v.Ciancaglini.  In Ciancaglini, the defendant had previously been convicted of refusal under N.J.S.A. 39:4-50.4a.  He was later  convicted of DWI and the issue was whether, based upon the prior refusal conviction, he should be sentenced as a first or second offender.    In making his argument, the defendant relied upon the court’s decision in State v. DiSomma, where the court held that a conviction for refusal was not a prior violation under the DWI statute, N.J.S.A. 39:4-50.

The Court distinguished a prior conviction for refusal from a prior conviction of driving while intoxicated.  In this decision the court held 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 because N.J.S.A. 39:4-50 contains “no reference whatsoever to the refusal statute”. When listing the penalties for driving while intoxicated, the statute categorizes them based on being “[f]or the first offense,” “[f]or the second violation,” and “[f]or a third or subsequent violation.” N.J.S.A. 39:4-50(a)(1), (2), (3).

Like the DWI statute, the refusal statute provides for enhanced penalties for repeat convictions. Thus, N.J.S.A. 39:4-50.4a requires the municipal court to revoke the driving privileges of a person convicted of refusing to submit to a breath test “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.”

In in Korpita the Appellate Division did not apply the same analysis as in Ciancaglini.  The Court ruled that the phrase “in connection with a subsequent offense” in N.J.S.A. 39:4-50.4 had to refer to a prior DWI conviction and not to a prior refusal conviction “because ‘a refusal cannot be ‘in connection with’ another refusal. Rather, it can only be ‘in connection with’ an arrest for drinking-driving and a request to take the breath test.  Therefore the Court held that a DWI conviction does qualify as a prior offense under the refusal statute.

Under this ruling, anyone convicted of a refusal and later found guilty of DWI will be sentenced as second offender. this case underscores the importance of a careful examination of the drivers abstract before entering into a plea of guilty for a DWI or refusal.  If you or someone you know is facing DWI or refusal charges in a New Jersey Municipal Court, contact the municipal court 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.

Post Author: Greg DeMichele

Gregory P. DeMichele is a seasoned litigator, devoting a substantial part of his practice to municipal court, family law and personal injury matters.