State v. Dougherty

189 A.3d 932, 455 N.J. Super. 336
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 10, 2018
DocketDOCKET NO. A–2045–16T4
StatusPublished
Cited by2 cases

This text of 189 A.3d 932 (State v. Dougherty) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dougherty, 189 A.3d 932, 455 N.J. Super. 336 (N.J. Ct. App. 2018).

Opinion

ALVAREZ, P.J.A.D.

*338Drivers commit a fourth-degree crime if they operate a motor vehicle during a period of license suspension for a second or subsequent motor vehicle violation of driving while intoxicated (DWI), N.J.S.A. 39:4-50, or refusal to submit to a breath test (refusal), N.J.S.A. 39:4-50.4(a). N.J.S.A. 2C:40-26(b). When defendant James T. Dougherty was arrested and charged with violating N.J.S.A. 2C:40-26(b), he had one prior DWI conviction, one prior refusal conviction, and his license was suspended for the refusal. He contends 2C:40-26(b) requires convictions of the same two predicate violations, either two convictions for driving while intoxicated, or two convictions for refusal, not one of each. Based on the plain language of the statute, we conclude the two predicate violations may consist of one prior DWI and one prior refusal conviction. Hence, we affirm the denial of defendant's motion to *339dismiss the indictment, his subsequent conviction, and vacate the Law Division judge's stay of his sentence.

Defendant was convicted on August 19, 2015, of DWI, and on November 9, 2015, of refusal.1 On December 19, 2015, during the seven-month refusal suspension,2 police stopped defendant while he was operating a motor vehicle. A grand jury indicted him for driving while suspended, and after the judge denied his motion to dismiss the indictment, defendant entered a conditional guilty plea. The court sentenced him on December 15, 2016, to the statutory minimum of 180 days incarceration and stayed the service of the jail time pending the outcome of this appeal.

Defendant raises the following points:

*934i. Point One: A charge of [DWI] or Refusal cannot be used to enhance the penalties of the other
ii. All methods of statutory construction including the Rule of Lenity in criminal cases supports appellant's interpretation of the DW[I] statute and requires reversal

Defendant's arguments on appeal raise issues of law, which we review de novo. State v. Grate, 220 N.J. 317, 329, 106 A.3d 466 (2015) (citing State v. Drury, 190 N.J. 197, 209, 919 A.2d 813 (2007) ) (holding that on appeal legal issues are reviewed "de novo, unconstrained by deference to the decisions of the trial court").

N.J.S.A. 2C:40-26(b) reads: "[i]t shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of [N.J.S.A.] 39:3-40, if the actor's license was suspended or revoked for a second or subsequent violation of [N.J.S.A.] 39:4-50 or [ N.J.S.A. 39:4-50.4a ]."

Relying on State v. Ciancaglini, 204 N.J. 597, 10 A.3d 870 (2011), defendant argues the reference in N.J.S.A. 2C:40-26(b) to a second or subsequent violation of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4a means a single conviction under each section of the *340Motor Vehicle Code does not suffice for prosecution. We disagree that the opinion supports defendant's interpretation of the statute.

Ciancaglini holds a "[d]efendant's refusal conviction cannot be considered a prior DWI violation for enhancement purposes" when a defendant is being sentenced for a violation of the DWI statute. 204 N.J. at 612, 10 A.3d 870. Ciancaglini focuses only on N.J.S.A. 39:4-50.

In State v. Frye, 217 N.J. 566, 90 A.3d 1281 (2014), the Court again addressed the interplay between DWI and refusal convictions for sentencing purposes, this time in the context of the refusal statute. Frye reaffirmed the doctrine established in In re Bergwall, 85 N.J. 382, 427 A.2d 65 (1981). Based on the language of N.J.S.A. 39:4-50.4a, the Bergwall Court had held a prior DWI conviction enhances the sentence for a conviction for refusal. 85 N.J. at 383, 427 A.2d 65 (citing In re Bergwall, 173 N.J. Super. 431, 436, 414 A.2d 584 (App. Div. 1980) (Lora, P.J.A.D., dissenting) ). The defendant in Frye argued: "the Court's decision in Ciancaglini supports the proposition that, for sentencing purposes, the refusal and DWI statutes are separate and distinct" and that as a result a prior DWI could no longer be used to enhance a refusal penalty. 217 N.J. at 573, 90 A.3d 1281.

Contrary to that defendant's suggestion that Ciancaglini controlled the outcome, in Frye, the Court examined the "plain language of the refusal statute" and the legislative history of the subsequent amendments, concluding the enactments were all designed to discourage drivers from refusing to submit to alcohol breath testing in order to avoid more serious penalties under the DWI statute.

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Bluebook (online)
189 A.3d 932, 455 N.J. Super. 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dougherty-njsuperctappdiv-2018.