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State v. Malone

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 2, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL J. MALONE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-011.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2008

Before Judges Skillman and Collester.

Defendant pled guilty in the East Hanover municipal court to charges of driving while under the influence of alcohol, in violation of N.J.S.A. 39:4-50, and a refusal to submit to a breathalyzer test, in violation of N.J.S.A. 39:4-50.2. The municipal court sentenced defendant for both violations as a second offender and imposed consecutive two-year suspensions of his license. The court also imposed the other statutorily mandated fines, fees and community service for a second offender. On a de novo appeal, the Law Division judge agreed with the municipal court that defendant was required to be sentenced as a second offender and reimposed the same sentence that had been imposed by that court.

The sole issue before the lower courts and on this appeal is whether defendant should be sentenced as a first or second offender for both the driving while under the influence and refusal to submit to a breathalyzer test offenses. Although defendant had two prior convictions for driving while under the influence, he argued that he should be treated as a first offender for the present offenses because there were ten-year hiatuses between both his first and second and second and third violations (the first conviction occurred on November 5, 1976, the second conviction on September 6, 1995, and the current offenses were committed on May 1, 2007.)

N.J.S.A. 39:4-50(a)(3) provides in relevant part:

[I]f the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

Defendant received the benefit of this "step-down" provision when he was sentenced as a first offender for his second conviction for driving while under the influence because there was a hiatus of more than ten years between his first and second convictions. In this appeal, defendant claims that he is entitled to a "double step-down," under which he would be sentenced as a first offender for a third offense, because there were hiatuses of more than ten years between both his first and second and second and third violations.

In State v. Burroughs, 349 N.J. Super. 225, 227 (App. Div. 2002), we rejected substantially the same argument defendant presents on this appeal:

[N.J.S.A. 39:4-50(a)(3)] accords sentencing leniency to a driver who is a second drunk driving offender, where there is a hiatus of ten or more years between the first and second offenses, and to a driver who is a third drunk driving offender where there is a hiatus of ten or more years between the second and third offenses. But once having been granted such leniency, the defendant has no vested right to continued "step-down" status where he commits a subsequent drunk driving offense. The earlier offense is not "forgiven." Having been granted leniency by virtue of the infraction-free lapse of time between the two earlier violations the offender has received his reward for good conduct and is entitled to no further consideration.

See also State v. Lucas, 310 N.J. Super. 58, 60-62 (App. Div. 1981).

We adhere to our interpretation of N.J.S.A. 39:4-50(a)(3) in Burroughs. Although there was a hiatus of ten or more years between only the first and second convictions for driving while under the influence (DWI) in Burroughs, while there were ten-year hiatuses between both the first and second and the second and third offenses in this case, the two cases are governed by the same principle: that a defendant's second conviction for a DWI must be treated as a second DWI for purposes of sentencing for a third DWI even though the step-down provision enabled defendant to be sentenced as first offender for the second DWI. In Burroughs, this resulted in defendant being sentenced as a third offender for his third DWI because there was less than a ten-year hiatus between the second and third offenses. In this case, defendant was properly sentenced as a second offender for his third DWI because there was a hiatus of more than ten years between the second and third offenses.

Defendant was also properly sentenced as a second offender for his refusal to submit to a breathalyzer test. N.J.S.A. 39:4-50.4(a) provides that the license of a motor vehicle operator who refuses to submit to a breathalyzer test, in violation of N.J.S.A. 39:4-50.2, shall be suspended for two years for a second offense and that the suspension shall be consecutive to any suspension for a violation of N.J.S.A. 39:4- 50. In determining whether a motor vehicle operator who refuses to submit to a breathalyzer test is a second offender, a prior conviction for a violation of N.J.S.A. 39:4-50 is considered to be a prior offense. In re Bergwall, 85 N.J. 382 (1981), rev'g on dissent, 173 N.J. Super. 431, 436-40 (App. Div. 1980); State v. Fielding, 290 N.J. Super. 191, 193-94 (App. Div. 1996). N.J.S.A. 39:4-50.4(a) does not contain a step-down provision, under which a motorist who commits a third violation may be sentenced as a second offender if there is a hiatus of ten or more years between the second and third violations. However, we have concluded that the step-down provisions of N.J.S.A. 39:4-50 should also be applied to sentences under N.J.S.A. 39:4-50.4(a). See Fielding, supra, 290 N.J. Super. at 194-95. Therefore, the Law Division correctly concluded that defendant had the same second-offender status for the purpose of his sentence under N.J.S.A. 39:4-50.4(a) as for his sentence under N.J.S.A. 39:4-50.

Finally, defendant's argument that he must be sentenced as a first offender for his violations of N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.2 because he had a reasonable belief when he pled guilty that he would be treated as a first-time offender is clearly without merit and does not require extended discussion.

R. 2:11-3(e)(2). The municipal court judge made it crystal clear before the plea, in colloquy with defendant's counsel in defendant's presence, that he would be sentencing defendant as a second offender.

Affirmed.

20081002

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