On appeal from Superior Court of New Jersey, Law Division, Morris County.
Brody, Gaynor and Baime. The opinion of the court was delivered by Gaynor, J.A.D. Brody, J.A.D. (concurring).
On this appeal, defendant challenges the de novo affirmance of the Denville Municipal Court's determination that a 1976 conviction under N.J.S.A. 39:4-50.4 for refusing to submit to a breathalyzer test subjected him to the enhanced penalties, as a subsequent offender, upon his refusal conviction under the successor statute, N.J.S.A. 39:4-50.4a. He contends the enhanced penalties may be imposed only when the convictions for the prior and subsequent refusals have been obtained under N.J.S.A. 39:4-50.4a, or when the refusal offense is subsequent to a previous drunken driving conviction under N.J.S.A. 39:4-50. We disagree and affirm.
Defendant was charged with driving while intoxicated, refusing to take a breathalyzer test and careless driving. These offenses allegedly occurred on June 10, 1982. After a trial before the Denville Municipal Court, he was found guilty of refusing to submit to the test and careless driving but acquitted of the driving while intoxicated charge. Following a trial de novo in the Law Division the refusal conviction was upheld. Because of a prior refusal offense in 1976 under the predecessor
statute, N.J.S.A. 39:4-50.4, the enhanced penalty of a two-year license revocation applicable to subsequent offenders was imposed.
Defendant claims the court erred in penalizing him as a subsequent offender as he had no previous conviction under N.J.S.A. 39:4-50.4a, the amendatory legislation enacted in 1981. He urges that his conviction in 1976 was under a different statute and thus should not be considered as a prior offense implicating the enhanced penalties provided for in the present statute. While acknowledging that both laws deal with a refusal to submit to a breathalyzer test, defendant points out that the original statute, N.J.S.A. 39:4-50.4, provided for an administrative hearing before the Director, Division of Motor Vehicles, while the successor statute vested jurisdiction over the offense in the municipal courts. Also, as originally enacted, N.J.S.A. 39:4-50.4 did not include an enhanced penalty for a second offender such as provided for in 50.4a.*fn1 Defendant further claims that the reference in 50.4a to a refusal in connection with a subsequent offense "under this section" indicates a legislative intent to limit the imposition of an enhanced penalty to post 1981 violators. In addition, he suggests the preponderance of evidence standard in N.J.S.A. 50.4a cannot be deemed to apply to proof of refusal to submit, as such conduct constitutes a quasi -criminal offense requiring proof beyond a reasonable doubt, thereby rendering the current statute dissimilar in this respect from the predecessor statute. Furthermore, he challenges the constitutionality of the statute in permitting a lesser standard of proof than beyond a reasonable doubt.*fn2 Thus, he argues his refusal conviction in 1976
cannot be considered as a prior offense in fixing the penalty for his present violation.
Defendant relies upon In re Bergwall, 85 N.J. 382 (1981), rev'g on dissent, 173 N.J. Super. 431, 436 (App.Div.1980) in support of his further contention that the enhanced penalty for a subsequent refusal under 50.4a is applicable only when the prior offense is a drunk driving violation under N.J.S.A. 39:4-50.
Prior to 1981, refusals to submit to breathalyzer tests were handled administratively by the Director, Division of Motor Vehicles, in accordance with N.J.S.A. 39:4-50.4. The following penalty provision was contained in subsection (b) of the statute:
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.
The successor statute, N.J.S.A. 39:4-50.4a, placed jurisdiction over refusal to submit cases in the municipal courts. L. 1981, c. 512. Following an amendment, the statute included the following penalty provision:
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 ...