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.

Mandatory Joinder

State of New Jersey v. Louis E. Veney, Jr. - A Discussion

The facts in brief: The defendant was arrested after an officer observed a "marijuana blunt" in his vehicle's console and the defendant told him there was a weapon in the car.

The grand jury indicted the defendant for third-degree "unlawful possession of a weapon" (Count 1), fourth-degree "hindering apprehension" (Count 2), second-degree "certain persons not to have a weapon" (Count 3). The state also charged defendant under separate complaint-summons with disorderly persons offenses of possession of marijuana and possession of drug paraphernalia, and with two traffic offenses, operating a vehicle with a suspended drivers license and operating a motor vehicle while in possession of a controlled dangerous substance.

Prior to trial, the State moved to dismiss Counts 1 and 2 of the indictment, with no objection from the defendant. This confirmed a letter previously sent to defense counsel indicating the State's intention to dismiss those counts. The court indicated an intention to dismiss the two counts after the jury was impaneled and sworn. After the jury was sworn, the State did not move again to dismiss the counts, but the trial proceeded only on Count 3 with regard to this defendant.

The jury found defendant guilty of Count 3, "certain persons not to have a weapon." The judge granted defendant’s motion of acquittal notwithstanding the verdict. At the same hearing, the defendant pled guilty, upon the advice of his attorney and pursuant to a plea agreement, to Count 1 in exchange for state recommending 4 years prison with 18 month period of parole ineligibility, dismissal of Count 2 and dismissal of the disorderly persons and traffic offenses.

The court sentenced the defendant according to the plea agreement.

The issues: Was the defendant denied effective assistance of counsel? Was the State precluded from seeking the defendant's conviction on Count 1 of the indictment pursuant to the bar against double jeopardy? Was the State precluded from seeking the defendant's conviction on Count 1 of the indictment pursuant to the mandatory joinder rule?

The court's holding: The state was barred from prosecuting the charge of unlawful possession of a weapon under the mandatory joinder rule, as well as the doctrine of fundamental fairness. The defense attorney should have sought dismissal of the charge prior to defendant's plea, the state previously having tried defendant to conclusion on another charge arising from the same core set of facts giving rise to this charge.

The Appellate Division determined that the Constitution's prohibition against double jeopardy was irrelevant, as jeopardy had not attached when the motion for Counts 1 and 2 of the indictment was made, as the jury had not yet been impaneled and sworn. Therefore, the State would have been within its rights to try the defendant on those separate charges.

However, the mandatory joinder rule precluded such a subsequent trial. That rule was adopted to bar separate trials for multiple offenses that are known to the prosecuting attorney at the time the first trial begins, when the offenses are based essentially on the same conduct or arise from the same criminal episode and are within the jurisdiction and venue of a single court. This rule is more widely applicable than that barring double jeopardy.

[Note: The court may still order a separate trial for multiple charges when it believes the occasion warrants it due to potential prejudice to either the defendant or the State.]

In this case, the State could not have proceeded to trial on Counts 1 and 2 of the indictment after the dismissal of Count 3 by the court. Therefore, by negotiating the plea agreement with defendant, the State had indirectly accomplished what the mandatory joinder rule prohibits. The defendant was "entitled to be free of the harassment and oppression of a second trial on offenses relating to the same episode."

The Appellate Division further concluded that even had the mandatory joinder rule been inapplicable in this case, the State should have been barred from proceeding on Count 1 by the doctrine of fundamental fairness.

In considering the fairness to defendant, the court examined his reasonable expectations. The letter to defense counsel, followed by the statements made in court describing the State's intention to dismiss Counts 1 and 2 and proceed only on Count 3 with regard to this defendant would lead the defendant to believe that, in proceeding to trial on Count 3, he would not have to face subsequent prosecution on Count 1. Further prosecution would violate the spirit of the mandatory joinder rule and the doctrine of fundamental fairness.

In addition, the court concluded that defendant was denied effective assistance of counsel, as his attorney should have moved to dismiss Counts 1 and 2 prior to the entry of a guilty plea by defendant.

The end result: The conviction of the defendant was reversed and the indictment dismissed by the Appellate Division.

What does all of this mean to you? The Appellate Division has reiterated the protection afforded to defendants from multiple trials stemming from the same instance of criminal conduct. Except in instances where the court orders separate trials for separate counts of an indictment, you will be subjected to only one trial, freeing you from the additional stress and expense of facing additional trials at a later date regarding the same indictment.