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State v. Wilhalme

Decided: December 24, 1985.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN V. WILHALME, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. WILLIAM DENNO, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Pressler, Bilder and Gruccio. The opinion of the Court was delivered by Bilder, J.A.D.

Bilder

[206 NJSuper Page 360] These cases, consolidated for the purpose of this opinion, both involve the question of whether the enhanced two-year license suspension penalty for refusal to take a breathalyzer test set forth in N.J.S.A. 39:4-50.4a is applicable where the driver has a prior conviction for driving while intoxicated but not for refusal. Both defendants were convicted of refusal and penalized by two-year suspensions. They concede that prior to 1981 the enhanced penalty for a refusal was applicable regardless of whether the first offense was for driving while intoxicated or for refusal, In re Bergwall, 85 N.J. 382 (1981), rev'g on

dissent, 173 N.J. Super. 431, 436 (App.Div.1980). But they contend that a 1981 amendment, L. 1981, c. 512, changed the law to limit the enhanced penalty to cases where there had been a prior refusal.

Prior to 1981, N.J.S.A. 39:4-50.4 provided for administrative handling of refusal to submit to test cases and contained the following penalty provision:

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 N.J.S.A. 39:4-50. (Emphasis added.)

The phrase "of this section" referred to the general drunk driving statute, N.J.S.A. 39:4-50, and encompassed previous convictions of driving under the influence. In re Bergwall, supra.

In 1981 N.J.S.A. 39:4-50.4 was replaced by N.J.S.A. 39:4-50.4a which placed jurisdiction over refusal to submit cases in the municipal courts. L. 1981, c. 512. At the same time, the enhanced penalty was increased to two years. L. 1981, c. 537. After the amendments, the penalty provision read:

The municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of R.S. 39:4-50, shall refuse to submit to the chemical test provided for in section 2 of P.L.1966, c. 142 (C. 39:4-50.2) when requested to do so, for 6 months unless the refusal was in connection with a subsequent offense under this section, in which case the revocation period shall be for 2 years. (Emphasis added.)

Defendants argue that the phrase "under this section" changes the prior law and limits the two-year revocation to subsequent refusals to submit. They predicate their argument on the legislative history of the amendment during which the original phrase "of this section" was replaced by the phrase "under N.J.S.A. 39:50-4" and this was in turn replaced by the final language "under this section" and upon the replacement of the word "of" with "under".

An examination of the legislative history in chronological juxtaposition with the litigation history of Bergwall rebuts defendant's contention. In 1980 we held that the phrase "of this section" was limited to prior refusals to submit. In re Bergwall, 173 N.J. Super. 431, 433 (App.Div.1980). In a dissent, Judge Lora expressed the view that the phrase encompassed the drunk driving section of Title 39, N.J.S.A. 39:4-50 -- that the legislative history clearly indicated a prior drunk driving conviction would trigger the greater penalty. Id. at 437-440. After our opinion in Bergwall, the legislation was introduced which repealed N.J.S.A. 39:4-50.4 and enacted N.J.S.A. 39:4-50.4a. In its original version, the phrase "in this section" was replaced with "under R.S. 39:4-50", the meaning unsuccessfully urged by Judge Lora in his dissent. Assembly Bill 2293 of 1980. On March 26, 1981 our Supreme Court reversed our opinion for the reasons expressed in the dissent. In re Bergwall, 85 N.J. at 383. Seven weeks later, Senate Judiciary Committee Amendments to the legislation replaced the phrase " R.S. 39:4-50" with "this section." Assembly Bill 2293 of 1980 with Senate Committee Amendments. This change was responsive to the Supreme Court's construction of N.J.S.A. 39:4-50 and incidentally explains the change in phraseology from "in this section" to "under this section."

We are persuaded that the Legislature was familiar with the judicial history and intended to use words which had been judicially construed so as to leave the operation of the enhanced penalty provision unchanged. See Brewer v. Porch, 53 N.J. 167, 174 (1969); In re Estate of Posey, 89 N.J. Super. 293, 301 (Cty.Ct.1965) aff'd 92 N.J. Super. 259 (App.Div.1966). Ordinarily, a revision such as this is not construed to alter existing law unless there is a clear indication the Legislature desires it have such effect. See Helfrich v. Hamilton Tp., 182 N.J. Super. 365, 370 (App.Div.1981). We have ...


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