On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 50-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Messano.
The State appeals from the January 23, 2008 order that followed defendant Sean Watkins' de novo trial in the Law Division. It argues that given defendant's prior conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, his guilty plea to refusing to submit to a breath test (refusal), N.J.S.A. 39:4-50.4a, made him a second offender under that statute. As a result, any revocation of his driver's license imposed because of the refusal conviction must run consecutively to the license revocation imposed as a result of a contemporaneous DWI conviction. The State contends, therefore, that the concurrent license revocations imposed by the Law Division judge made the sentence illegal. We agree and reverse.
The facts and procedural history are undisputed. Defendant was convicted of DWI in 2004.*fn1 On July 27, 2007, he was arrested again for DWI, charged with refusal and six other motor vehicle offenses. On October 4, 2007, defendant pled guilty to both DWI and refusal, the State agreeing to dismiss the balance of the charges.*fn2 The municipal judge imposed two consecutive two-year license revocations. Defendant appealed.
In the Law Division, defendant argued 1) that the two offenses merged for purposes of sentencing; and 2) that the municipal judge mistakenly exercised his discretion by imposing consecutive sentences. Defendant argued the sentences were unduly "harsh," particularly since he pled guilty to both DWI and refusal. Defendant contended that in doing so, he was not "skat[ing] out of a second DWI" by refusing to give a breath sample, and argued that the proper exercise of judicial discretion required concurrent sentences.
The State, however, contended that the judge was required to impose consecutive license revocations upon defendant and that it was not subject to discretion. Although defendant had not been convicted of a prior refusal, the State argued his prior conviction for DWI served to make this refusal a "second offense" under N.J.S.A. 39:4-50.4a(a), and a consecutive license suspension was mandated by that statute.
The judge distinguished our holding in State v. Tekel, 281 N.J. Super. 502 (1995). Finding the refusal statute "fairly clear on its face," he concluded that defendant's conviction for refusal was his first offense under the statute. As a result, he determined "the issue [is] whether the sentence should be consecutive or concurrent." Relying on the analysis in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), the judge concluded "the refusal and the [DWI] are interlocked and one in the same." He imposed a two-year license revocation on each charge, and ran the sentences concurrently.*fn3
The judge entered an order memorializing his decision on January 23, 2008. The State's appeal ensued.
We begin our analysis by examining the text of the refusal statute that provides in relevant part,
[T]he municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of [N.J.S.A.] 39:4-50 . . . shall refuse to submit to a test provided for in . . . [N.J.S.A. 39:4-50.2] when requested to do so, for not less than seven months or more than one year unless the refusal was in connection with a second ...