On appeal from the Department of Law and Public Safety, Division of Motor Vehicles.
Lora, Antell and Pressler. The opinion of the court was delivered by Pressler, J.A.D. Lora, P.J.A.D. (dissenting).
Appellant Victor Bergwall appeals from the imposition by the Director of the Division of Motor Vehicles of a one-year suspension of his driving license upon the administrative adjudication of his refusal to submit to a breathalyzer test following his arrest for drunk driving. N.J.S.A. 39:4-50.2, 50.4. The legal question raised by this appeal is whether the effect of the 1977 amendment of N.J.S.A. 39:4-50.4 is to impose the enhanced penalty of a one-year license suspension only in the case of a second refusal or rather in the case of a first refusal following a previous drunk driving conviction.
On September 2, 1977 appellant was arrested for drunk driving. He was taken to the police station where he refused a request to submit to a breathalyzer test. Despite the consequent absence of test results, he was nevertheless ultimately convicted of drunk driving. He had been once previously convicted of driving while impaired but on that occasion had consented to taking the breathalyzer test. An administrative proceeding was initiated against appellant arising out of his September 1977 breathalyzer refusal and, on an adverse finding, the one-year suspension penalty was imposed. Appellant argues that if any penalty was proper it should have been a 90-day suspension.
N.J.S.A. 39:4-50.4(b), adopted in 1977, reads in full as follows:
Any revocation of the right to operate a motor vehicle over the highways of this State for refusing to submit to a chemical test shall be for 90 days unless the refusal was in connection with a subsequent offense of this section, in which case, the revocation period shall be for 1 year. In addition to any other
requirements provided by law, a person whose operator's license is revoked for refusing to submit to a chemical test must satisfy the requirements of a program of alcohol education or rehabilitation pursuant to the provisions of R.S. 39:4-50.
This section, adopted in 1977, replaced the former version of N.J.S.A. 39:4-50.4, which provided for a six-month license suspension on each occasion of an unjustifiable refusal.
The critical language of the present statute is, of course, the phrase "unless the refusal was in connection with a subsequent offense of this section, in which case, the revocation period shall be for 1 year." It is appellant's contention that "a subsequent offense of this section" is intended to refer only to a subsequent refusal and not to a subsequent drunk driving conviction. He, therefore, places constructional emphasis on the word "section." The Director of the Division of Motor Vehicles, on the other hand, has taken the position that the operative word is "offense," and the "offense" referred to is not a prior refusal but rather a prior conviction.
We agree with the appellant. We are persuaded by principles of statutory construction as well as considerations of public policy that the actual legislative intention was to impose the enhanced penalty only for subsequent refusals and that the phrase in question should be read not as "a subsequent offense of this section" but rather as if it were "a subsequent violation of this section."
We are first satisfied that the word "section" in the statutory phrase unmistakably means N.J.S.A. 39:4-50.4 itself. The word "section" is consistently used throughout N.J.S.A. 39:4-50.1 to 50.4 to refer to a separate and individually numbered and captioned portion of the overall legislative enactment dealing with chemical analysis to determine alcohol percentages in the blood. The word thus appears in N.J.S.A. 39:4-50.1 to refer to that section. It is used in N.J.S.A. 39:4-50.2(d) to refer to subparagraphs (b) and (c) of that section. It is used in N.J.S.A.
39:4-50.2(e) to refer to section 4 of the act, further identified as N.J.S.A. 39:4-50.4. There is no reason for us to assume that the use of the word in N.J.S.A. 39:4-50.4 has any other technical ...