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.

Miranda Rights and Juveniles

State of New Jersey in the Interest of A.S., August 12, 2009 - A Discussion

The facts in brief: A 14-year-old girl, A.S. was accused of molesting the 4-year-old grandson of her adoptive mother. Had she been an adult, the acts described would have constituted first-degree aggravated sexual assault. A.S. had been abandoned by her substance-abusing biological mother at the age of nine, and began living with her adoptive mother when she was eleven. She was reading at a third-grade level although she was in high school. She had no prior experience with the police, courts, or legal system.

After a detective with the county prosecutor's office interviewed the victim, A.S. appeared for questioning with her adoptive mother, at which time A.S. confessed to the acts alleged. At trial, the Family Court judge conducted a suppression hearing to determine the admissibility of this confession.

From the tape of the interview as well as A.S. testimony during the suppression hearing, the judge learned that the prosecutor had directed A.S.' mother to read to A.S. her Miranda warnings. When A.S. asked what a lawyer would do for her, her mother responded simply, "Suppose to represent you," and then told A.S. that she'd have to talk eventually and that they already knew what she'd done. A.S.' mother, without obtaining the juvenile's consent, told the prosecutor that he could question her. It was only then that A.S. signed the waiver.

When A.S. again asked what an attorney would do on her behalf, her mother and the prosecutor told her that he would represent her and ensure that her rights were not violated, but could not speak for her. She was told by her mother, "When the questions are asked, you have to answer the question" and by the prosecutor, "... you're the only one that can actually speak the truth here." A.S. was not asked again whether she would like to have an attorney; instead, her mother expressed impatience at the delay A.S. was creating and the prosecutor told A.S., "the truth is only gonna help you," and that "an attorney that's an assistant prosecutor was gonna review all this information," and "the more truthful you are and the more complete you are, okay, the better it looks for you, okay."

The two adults proceeded to question her until she confessed to the acts alleged. Throughout, the antagonism of her mother toward A.S. was clear as she repeatedly insisted that A.S. confess to the prosecutor.

During the hearing, A.S. stated that she understood "some of" her rights, and that when she refused to answer questions, she was intending to invoke her right to "remain silent," until she was badgered into responding. She also stated that she never asked for an attorney because they didn't do anything but just "sit there." The judge determined that the confession was indeed admissible, if troubling.

The issues: Was A.S.' waiver of her right to counsel and right to remain silent under Miranda v. Arizona given knowingly and voluntarily? Did A.S. invoke her right to remain silent?

The court's holding: The Appellate Division determined that the confession, in fact, should not have been admitted into evidence.

In the case of a juvenile, the standards regarding the waiver of Miranda rights are exacting.

As the court discussed, "To admit the confession of a juvenile over the age of fourteen, the State must demonstrate, beyond a reasonable doubt, that the statement was knowingly, intelligently, and voluntarily given," based upon factors including the suspect's age, education, intelligence, advice as to constitutional rights, repetition and length of questioning, and the suspect's prior encounters with the law. When a juvenile is being interrogated, the role of a parent takes on a special significance. The parent’s role is to support the juvenile and guide her, not to be an additional adversary in an unfamiliar and intimidating setting. The court emphasized the necessity for adult protection with a juvenile suspect.

With regard to A.S. specifically, nothing was done to contribute to her comprehension of her rights, discuss whether waiver was an appropriate course for her to take, or explain to her what the practical effects of a waiver would be.

In addition, A.S.’ long silences suggested that she was indeed attempting to invoke her right to silence, requiring further inquiry from the prosecutor with regard to A.S. wishes, rather than further interrogation. The courts have held that a request by a defendant to terminate an interrogation must be scrupulously honored, no matter how ambiguous, even when the person being questioned is an adult. This requirement imposed by the courts upon prosecutors is all the more important when the suspect is a juvenile.

Most troubling to the court was the evident conflict of interest resulting from A.S.’ mother’s relationship to the victim and her actions in the best interests of her grandson, to the detriment of her adopted daughter. The purpose of a parent’s presence at the interrogation of a juvenile is to provide a buffer between law enforcement and the child. No such buffer was created here.

The facts of this case, reviewed as a whole, rendered A.S.’ confession substantially unfair. The court found that, “In circumstances such as those existing in the present matter, where the adult advisor is known to have a close family relationship to the victim and the alleged perpetrator, the prudent approach would be to require the presence of an attorney capable of advising the juvenile with respect to her rights and her potential culpability.”

The end result: In the end, the Appellate Division did uphold the adjudication of the Family Court. It had no choice, though it was gravely disturbed by the way the confession was handled and the findings of the Family Court judge with regard to its admissibility. The Family Court judge had indicated at trial that even without the confession he would have come to the same findings. It is the job of the Family Court judge to determine credibility, and he found the victim had given enough credible testimony to result in adjudication of A.S. as a delinquent and her registration with Megan's Law. It was not the place of the Appellate Division to dispute those findings.

What does all of this mean to you and your child?: The court has reiterated the great importance of protecting the rights of all defendants, but especially those of juveniles.

Certainly, if you have a conflict of interest with regard to a child in your care who has been arrested, it would be in the best interests of all concerned for you to obtain representation for the child to preserve his or her rights before any questioning begins. Failing to do so would merely drag out the process, harming the victim, harming the juvenile defendant, and increasing the expense.

If, as in most cases, you do not have a conflict of interest and are truly interested in protecting your child, do not allow him or her to be questioned without legal representation. If you cannot afford it, know that a public defender must be appointed on his or her behalf. Even if you can afford it, if there is no time given to you to to obtain private representation prior to initial questioning, a public defender must be assigned to protect your child. If you can obtain private representation, do so.

Prosecutors and police officers will always do all that is in their power to convince their suspect to waive his or her rights to counsel and silence and to confess; juveniles are treated no differently than adults in this. While they are not permitted to trample the rights of you or of your child, they will always, always tell you that it is in your child's best interest to talk, that the child would be helping himself and that they are there to help.

It is when they convince you of this, when you agree to permit your child to talk to the police or prosecutor unrepresented, that the defense attorney eventually retained to represent your child has the most difficult job ahead. It decreases the likelihood that your attorney can help, it decreases the likelihood that you will see a positive outcome to your child's case, and it increases the danger that your child will be adjudicated a delinquent and face the most severe types of punishment.