On appeal from Superior Court, Law Division, Criminal Part, Atlantic County.
Petrella, Long and Keefe. The opinion of the court was delivered by Petrella, P.J.A.D.
The court has been advised by counsel for the appellant that defendant Dennis DiSomma died in December 1992. Nonetheless, in view of the significance of the issues raised on the appeal and cross-appeal, and the potential for repetition in other cases, we have determined to decide the matter on the merits. See Matter of Conroy, 98 N.J. 321, 342, 486 A.2d 1209 (1985); Daly v. High Bridge Teachers' Ass'n, 242 N.J. Super. 12, 15-16, 575 A.2d 1373 (App.Div.), certif. denied, 122 N.J. 356, 585 A.2d 366 (1990).
On January 25, 1986, defendant was convicted of refusing to submit to a breathalyzer test in violation of N.J.S.A. 39:4-50.4a and was sentenced by the court under that provision as then in effect. Some six years later, on January 27, 1992, defendant was found guilty in the Brigantine Municipal Court of driving under the influence, in violation of N.J.S.A. 39:4-50, commonly referred to as driving while intoxicated (DWI). At sentencing for this offense, the municipal court Judge decided that the defendant's 1986 refusal violation did not provide a basis for imposing second offender status, see N.J.S.A. 39:4-50(a)(2), under the driving while under the influence section.
Defendant appealed his conviction to the Law Division. His conviction was affirmed after a trial de novo on the record below. The Law Division Judge decided that a prior "conviction"*fn1 for refusal to submit to a breathalyzer test in contravention of N.J.S.A. 39:4-50.4a could be considered a prior conviction for second offender status upon a subsequent conviction of driving under the influence contrary to N.J.S.A. 39:4-50. However, he held that a mandatory term of imprisonment could not
be imposed for such a "second violation." He concluded it would be unconstitutional to impose mandatory imprisonment under these circumstances because the defendant's "second offender status is a result of a conviction where the burden of proof was by a preponderance of the evidence." Defendant appealed and the State cross-appealed the limitation on the mandatory term of imprisonment.
Although it has been held that if a defendant had a prior conviction for DWI, a subsequent refusal "conviction" would lead to second offender status and the enhanced penalties of N.J.S.A. 39:4-50.4a because the DWI and refusal offenses have been interpreted to be parts of the same "section," see State v. Wilhalme, 206 N.J. Super. 359, 362-363, 502 A.2d 1159 (App.Div.1985), certif. denied, 104 N.J. 398, 517 A.2d 401 (1986); State v. Grant, 196 N.J. Super. 470, 479-481, 483 A.2d 411 (App.Div.1984), we do not necessarily agree with that interpretation. See also In re Bergwall, 85 N.J. 382, 427 A.2d 65 (1981), rev'g on Dissent 173 N.J. Super. 431, 436, 414 A.2d 584 (App.Div.1980) (dissenting opinion of Lora, P.J.A.D.).
DiSomma's case presents the converse situation, i.e., can a defendant with a prior "conviction" for refusing to take a breathalyzer be sentenced as a second offender pursuant to N.J.S.A. 39:4-50(a)(2) following a subsequent driving under the influence conviction? The Law Division Judge considered this a "novel issue."
N.J.S.A. 39:4-50 provides in pertinent part:
(a) A person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood . . . shall be subject:
(1) For the first offense, to a fine of not less than $250.00 nor more than $400.00 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of the Intoxicated Driver Resource Centers established under subsection (f) of this section and, in the discretion of the court, a term of ...