Saturday, January 9, 2010

DWI, Refusal, and New Sentencing Problem

State v. Ciancaglini, January 7, 2010 - A discussion
[Full text of the decision here.]

The facts in brief:  The defendant was stopped for traffic offenses in May of 2008.  After breathalyzer testing showed a blood alcohol level of 0.17%, she pleaded guilty to DWI in September of 2008.

The defendant had a prior DWI conviction from 1979 and a conviction for refusal to take a breathalyzer test in 2006.

The municipal court sentenced the defendant as a third-time offender, subjecting her to six months in jail, a fine of $1,006, ten-year loss of her driver's license and vehicle registration, and other penalties.  She filed an appeal with the Law Division of the Superior Court, which decided that the 2006 refusal conviction could not be considered the same as a prior DWI conviction.  Because the 1979 conviction was more than ten yares earlier, the statute called for the defendant to be sentenced as a first-time offender under the DWI statute.  She was sentenced to thirty days in jail, a $500 fine, and a one-year suspension of her driver's license, plus the other requisite penalties.

At this time, the defendant has already served the thirty-day jail sentence.

The issues:  Can a defendant with a prior conviction for refusing to take a breathalyzer be subjected to the enhanced penalties facing a multiple-offender when she is later convicted of driving while intoxicated?  Does the right against double jeopardy prohibit the imposition of an increased sentence where the defendant has already served the lesser sentence?

The court's holidng:  Previously, the Appellate Division had held that a conviction for refusal would not count as a prior offense with regard to sentencing for later DWI convictions and would not result in enhanced penalties.

The sentence for a refusal to submit to a breath test is essentially the same as the sentence for DWI itself.  You should know that if you are convicted of both refusal and DWI as a result of a single traffic stop, those two charges and sentences are no longer merged; you can be convicted of both and are subject to both sentences.

While I do understand and support the State's interest in removing drunk drivers from the streets, and I do understand the frustration of law enforcement officials when a suspect refuses a breath test when there is suspected DWI, I have some issues with the penalties for refusal.  On the one hand, the law says that an intoxicated person is incapable of taking marital vows, entering into a contract, entering into a divorce property settlement agreement, or taking a number of other actions.  On the other hand, the traffic code holds allegedly intoxicated people responsible, with severe penalties, for a decision made (refusal) during the state of intoxication.

While conviction under the refusal statute does not result in a period of incarceration, the fines and license suspension periods are parallel to those for DWI and increase comparably with convictions subsequent to a first offense of either refusal or DWI.

Previously, the Appellate Division treated refusal as a civil-type offense, holding that the standard of proof was merely a "preponderance of the evidence," rather than the stricter "beyond a reasonable doubt" afforded criminal cases.  However, that was rejected by the NJ Supreme court, which determined that the offense was quasi-criminal in nature, requiring proof beyond a reasonable doubt and affording it the protection of the bar against double jeopardy.

For these reasons, because a DWI conviction enhances penalties for a subsequent refusal, and because refusal is now treated as a quasi-criminal charge rather than civil, the Appellate Division has now determined that the refusal offense and DWI offense are interchangeable enough that a conviction for refusal counts as a "prior conviction" when calculating whether a subsequent DWI is a first, second, or third offense for sentencing purposes.

Therefore, the defendant's September 2008 conviction for DWI was her third offense.

The guarantee against double jeopardy prohibits multiple sentences for the same offense, but does not permit a defendant to serve only a lesser sentence imposed based upon an error of law.

Although the reduced sentence imposed by the Law Division was not an illegal sentence based upon an error of law, because it was imposed based upon a prior decision of the Appellate Division, the court stated that it need not address the double jeopardy issue in this case.  The Law Division's sentence was not the only sentence imposed, and defendant's double jeopardy rights are not violated by the return to an original sentence imposed by the municipal court and mistakenly decreased by the Law Division.

Because the sentence reduction was based upon a finding of law, not facts, by an intermediate court after defendant's appeal, defendant also did not have an expectation of finality regarding the reduced sentence.

The end result:  The matter was remanded to the Law Division for the imposition of the original sentence imposed by the municipal court.  The defendant will have to serve the remainder of the six months in jail, lose her license and vehicle registration for ten years, and pay enhanced fines and penalties according to her third-time offender status.

What does all of this mean to you?  If you are convicted of refusal to submit to a breath test pursuant to a DWI stop, and later are convicted of a DWI, even if you are not convicted of DWI at the time of the refusal conviction, and even if a first DWI is never proven or admitted in any court, the later DWI conviction will be treated as a second or subsequent offense for sentencing purposes.

This may seem unjust, and I agree.  You can be sentenced as a second or third offender without first been convicted of an initial DWI.

The smartest thing?  Do not refuse a breath test.  In fifteen years of doing defense work, I have never seen it help anyone's case, only increase the number of charges they are facing and make their lives more difficult.


  1. My question is this-If a refusal was not treated as a DWI conviction in regards to later incidence of the same, what would be the consequence of concurrent refusals, thereby negating possibility of conviction?

  2. Previously, a refusal charge would be issued concurrent with a charge for DWI. Often, defendants would plead guilty to the DWI based upon the officer's implementation of the field sobriety test and observations of the defendant, and the refusal would be dismissed and merged into the DWI.

    A while back, it was determined that the courts were no longer permitted to merge the two charges, meaning defendants would be found guilty or plead guilty to both charges at the same time and face the separate penalties for both charges if the officer is able to make a case for DWI based on observation (the only way they could make a case for DWI pre-breathalyzer anyway). Sometimes a prosecutor, on a fist offense, will give a defendant the benefit of pleading guilty to a lower-tier DWI (assuming a BAC of .08 and giving a three-month suspension rather than .10 BAC and 7 month suspension) in return for a guilty plea and a stipulation that the officer had probable cause for the traffic stop. This is obviously not an option for later DWI offenses.

    This new case appears to mean that if that happens, a defendant pleads guilty to both refusal and DWI or is found guilty of both charges pursuant to the same traffic stop, a second incident will result in sentencing as a third-time offender, rather than a second-time offender.

  3. This is a very interesting case that I had never thought of previously.

    It may not be fair to convict a person as a second or third time DWI offender if they were never convicted before but I like this law. I have no patience for drunk drivers and personally, I would think that if they refused to take the breath test then they are admitting to DWI. I know that isn't the case in court but in my eyes it is. You made an excellent point about it not being fair to hold this decision against an intoxicated person since they are clearly not in the right frame of mind to make this decision. Obviously, if they are that intoxicated that they shouldn't be held accountable for refusing the breath test then they should be held accountable for driving while intoxicated.

    This post sure brought up some interesting points and has made me think. Thanks for posting!

  4. Thanks for reading! It really is a tough question, because like I said, I'm also all for getting and keeping drunk drivers off the streets. At the same time, while the issues need to be addressed from the law enforcement perspective, we can't run roughshod over the defendants' rights either.

  5. Update: The NJ Supreme Court will be reviewing this decision. Oral argument has not yet been scheduled.


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