DWI Changes: An Update

In January, I posted a discussion of State v. Ciancaglini here, regarding the sentencing changes in the DWI and refusal laws.

Because the decision in Ciancaglini differed so markedly from prior court decisions, it has created confusion in the courts and defense bar.  Therefore, on May 7, 2010, the New Jersey Supreme Court granted certiorari, and will be reviewing the Appellate Division's decision.  Oral argument has not yet been scheduled.

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.

Equitable Distribution and Inheritance

Daphne Speck-Bartynski v. Robert Bartynski - A Discussion

[Unpublished Decision of the Appellate Division - Decided September 25, 2009]

The facts in brief: After twenty-two years of marriage and raising two adult children, the parties divorced on July 23, 2008. At the time of the divorce, the husband earned $115,000 per year and the wife was a full-time homemaker.

The parties entered into a settlement agreement, providing for permanent alimony in the amount of slightly more than $30,000 per year. The parties also agreed to the majority of equitable distribution, including valuations on property, custody, parenting time, and child support. Only one issue with regard to equitable distribution remained.

In 1998, the husband received an inheritance, the majority of which was commingled with marital funds. It was used to purchase investment accounts and the parties' summer home. After the complaint for divorce was filed, the wife used a portion of the funds to purchase her post-marital home, an "advance" on equitable distribution according to the settlement agreement. In addition, a portion was lent to the wife's brother, some deposited in a bank account, and $120,000 was used by the wife to pay down the mortgage on the marital home.

The payment of the mortgage spurred the husband to curtail the wife's access to the funds by requiring two signatures on all large withdrawals. He sought to preserve the funds for the parties' children and grandchildren.

The issue before the trial court was the percentage of property allocated to each of the parties. Following a hearing, the court ruled that the fair market value of the summer home, the money used to pay off the marital home mortgage, and the balance of the loan owed by the wife's brother were to be divided equally.

The other assets purchased with the inheritance funds, the two investment accounts, the bank account, and the fair market value of the wife's post-marital home, would be divided with 2/3 going to the husband and 1/3 going to the wife. It is from this portion of the court's decision that the wife appealed.

The issues: Should the assets purchased with the commingled inheritance funds have been divided equally?

The court's holding: The Appellate Division affirmed the trial court's decision.

The general rule is that an inheritance is not subject to equitable distribution. Had the husband kept these funds separate from marital funds, they would have been his alone at the time of divorce. However, because the funds were commingled with marital monies, they do become subject to equitable distribution. That said, the trial court is permitted to allocate some weighted amount of distribution, as it did here.

The trial court has broad discretion regarding the division of marital assets, and its determination cannot be touched by an appellate court as long as the trial court could have reasonably reached its result from the evidence presented. The appellate courts cannot disturb the division just because it is unequal, unless a legal or factual mistake has been made. It is the moving party, in this case the wife, who bears the burden of proving an abuse of discretion.

In this case, the trial judge considered all of the necessary statutory elements with regard to equitable distribution, as well as the evidence, and could have reasonably placed significance on the husband's much larger contribution to marital assets through inheritance, as well as his intention to limit the wife's use of those assets as demonstrated by the change to the signature requirement. There was nothing permitting the Appellate Division to interfere.

The end result: The distribution of assets remained as the trial judge had directed.

What does all of this mean to you? While an inheritance belongs solely to the heir for purposes of equitable distribution, if funds are commingled, they can be distributed between the parties. However, the non-heir party cannot necessarily expect that he or she will receive a full 50% of a commingled inheritance.

Appellate Review, Business Ownership, and Support

Catherine Romania v. Nicholas Mattera - A Discussion

[Unpublished Decision of the Appellate Division - Decided September 4, 2009]

The facts in brief: After 17 years of marriage, Romania filed a complaint for divorce on May 10, 1999. The parties had five children, aged fourteen, eleven, nine, seven, and four at the time the complaint was filed.

The divorce was contentious, including domestic violence complaints, municipal court complaints for interference with custody and harassment, and claims of malicious prosecution. The parties retained a psychologist and psychiatrist to assist in determining the best custody and visitation arrangement for the children, one of whom described the children's situation as living in a "war zone."

The trial regarding financial issues ancillary to the divorce was conducted separately after a failed attempt at mediation.

Both parties were attorneys. After the children were born, Romania became a partner in Mattera’s firm, later leaving to work part-time in another firm for an hourly wage. Mattera continued to run his own law firm. He did not keep the finances separate, instead paying household bills and expenses directly from the firm’s account and intermingling the funds.

The firm’s income fluctuated throughout the years. Romania retained two experts to determine the actual disposable income from the business for the purpose of evaluating alimony and child support, and Mattera one.

The parties stipulated to the value of the marital home and that Romania’s share of Mattera’s $1.8 million dollar law firm was $627,000. The parties also had several investment accounts.

The trial court ordered that Mattera pay permanent alimony, child support for the five children, health insurance for the children, and two thirds of the college expenses. The court also ordered an equal division of assets, subject to several debits and credits. One such credit was to Romania for one half of $330,000, the sum withdrawn by Mattera from his profit-sharing account. Mattera was not granted credit for funds Romania withdrew from accounts which was used to pay for major repairs on the marital residence and litigation expenses. The trial court explained that it considered Mattera’s share of those withdrawals to be Mattera’s contributio to Romania’s litigation expenses, in effect ordering that Mattera pay some of Romania’s counsel fees. It also acknowledged that the funds used to repair the residence increased its value, thereby increasing the amount Mattera and Romania would both receive with regard to equitable distribution. The court also directed additional credits for Romania, including one half of the tax she paid on joint assets for several years and one half of Mattera’s vehicle. A credit was given to Mattera to reimburse him the full payment he made to an escrow account. Both parties were denied other requested credits.

The court also determined custody and visitation.

The issues: Was the court biased, having an impact on it’s discretionary determinations regarding custody and parenting time, alimony, child support, and equitable distribution?

The court's holding: Affirmed in part, and remanded for reconsideration of alimony, child support, and college expenses.

The trial court had expressed concern that the children were being damaged by the actions and hostility of both parties, simply reflecting the observations of all the professionals involved in the custody recommendations and determination. Beyond that, the judge was obligated to, and did, make findings of credibility.

Because the judgment of the trial court concerning custody and parenting time was based on findings of fact adequately supported by the credible evidence, and because the review of the Appellate Division is limited to solely determining whether the findings of fact could reasonably have been reached based on that evidence, it could not alter the judgment. The Appellate Division is forbidden from undertaking an independent analysis of the trial court record or making it’s own credibility findings.

The standard for appellate review of a trial judge’s determinations regarding equitable distribution is one of “abuse of discretion.” The Appellate Division cannot “disturb decisions that have reasonable support in the record as a whole and are consistent with the law.” The question is whether the “division is clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence.” The Appellate Division cannot, in essence, hold a new trial, and so the decision will be affirmed even if the court would not have made the same division of assets as the trial judge.

The denial of additional credits to Mattera was not an abuse of discretion resulting in an unfair division of assets, according to the Appellate Division, given the financial circumstances of the parties and the likelihood that Romania would have been awarded pretrial counsel fees.

It was also not an abuse of discretion when the trial court refused to award Romania interest on her share of Mattera’s law practice, since during that same period of time, she has use of the marital residence and significant assets, a portion of which were later awarded to Mattera. The use of those assets were used in lieu of the interest she demanded.

The standard used by the Appellate Division to review alimony and child support awards is also “abuse of discretion.” If the decision has reasonable support in the record, the Appellate Division cannot touch it.

The Appellate Division found that the trial court’s determination that Mattera’s net income approximated $778,000 per year had no support in the record. The trial court relied upon the testimony of Mattera’s accountant, who assumed unreasonably and contrary to the history of the firm’s finances, that the law firm’s receipts and expenses would remain constant throughout the year. The Appellate Division also found that the evidence would permit a finding of net business revenue higher than that reported, but that business revenue cannot be equated with net income available to Mattera. The Appellate Division therefore found that both support orders were based upon a mistaken foundation, requiring remand to the trial court for an additional determination.

The end result: The Appellate Division upheld most of the judgment of the trial court, and so equitable distribution and custody were not altered. The issues that were determined by Mattera’s disposable income, those of child support, alimony, and college payments, were sent back to the trial court for a new trial.

What does all of this mean to you? Although you may not be happy with the trial court determinations regarding your divorce, the Appellate Division is very limited in its ability to make changes. The higher courts cannot re-try your case, or make credibility determinations, they can only determine whether, under the standards dictated by the specific issue in question, the trial court made such a large error that the decision must be overturned.

In addition, if you or your spouse owns a business, even when the business and personal funds and expenses are intermingled, the income of the business is not equivalent to the income of the person, and cannot be used outright for determination of support amounts.