On appeal from the Superior Court of New Jersey, Law Division, Camden County, A-39-06.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, S.L. Reisner and C.L. Miniman.
Defendant, Hugh Breslin, appeals from a judgment convicting him of refusal to submit a breath sample and the imposition of a two-year suspension of his driving privileges as a second offender, N.J.S.A. 39:4-50.4a. We affirm both the conviction and the sentence imposed.
Defendant was charged in Gloucester Township with driving while intoxicated, N.J.S.A. 39:4-50; refusal to submit a breath sample, N.J.S.A. 39:4-50.2 (refusal statute); failure to maintain a lane, N.J.S.A. 39:4-88b; and reckless driving, N.J.S.A. 39:4-96.*fn1 He entered a plea to refusal to submit a breath sample and the municipal court judge entered a finding of not guilty to the driving while intoxicated charge based upon the prosecutor's representation that the State could not prove a case.*fn2 Based upon a March 10, 1999, conviction of the refusal statute, the judge suspended defendant's driving privileges for two years.
Defendant appealed and on trial de novo the Law Division judge vacated the plea because defendant had not given a factual basis for his plea in the municipal court. On remand, following a trial in municipal court, defendant was found guilty beyond a reasonable doubt of refusal to submit a breath sample and sentenced again as a second offender to a two-year suspension of his driving privileges. Defendant appealed, contending that the arresting officers did not have probable cause to stop him and request that he submit to a breath test. Following a de novo hearing in the Law Division, the judge found defendant guilty of violating the refusal statute.
Relying on the decision in State v. Cummings, 184 N.J. 84 (2005), which raised the burden of proof for violation of the refusal statute to beyond a reasonable doubt, defendant argued in the Law Division that because his 1999 conviction was based upon the preponderance of the evidence standard, he should not be sentenced as a second offender to a two-year driving suspension. Noting that Cummings provided for pipeline retroactivity, and defendant's conviction under the lesser standard of proof in 1999 was not pending appeal at the time Cummings was decided, the judge concluded that Cummings did not "reach back" to disqualify defendant's prior conviction from being considered in assessing the sentence. Consequently, the judge imposed a two-year suspension, twelve hours of Intoxicated Driver's Resource Center training, and $433 in fines and costs. However, he stayed the implementation of the suspension, pending appeal.
On appeal, defendant raises the following points:
DEFENDANT BRESLIN SHOULD BE ACQUITTED OF HIS REFUSAL TO TAKE THE BREATHALYZER TEST BECAUSE THERE WAS INSUFFICIENT PROBABLE CAUSE TO PERMIT THE CHARGING OFFICER TO REQUEST THAT DEFENDANT TAKE A BREATHALYZER TEST.
DEFENDANT BRESLIN SHOULD BE SENTENCED AS A FIRST OFFENDER FOR VIOLATION OF N.J.S.A. [39:4-50.2] REFUSAL TO TAKE A BREATHALYZER TEST - BECAUSE HIS PRIOR REFUSAL CONVICTION WAS OBTAINED WHEN THE BURDEN OF PROOF REQUIRED FOR CONVICTION WAS ...