August 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL P. MEEHAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Law Division, Criminal Part, Hunterdon County, Municipal Appeal No. 124A 2007 K18.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2009
Before Judges Rodríguez and Payne.
Defendant, Daniel P. Meehan, appeals from his convictions in the Law Division, following a trial de novo on the record developed in the Lambertville City Municipal Court, of refusal to submit to a breathalyzer test (ALCOtest), N.J.S.A. 39:4-50.4; and obstructing passage of other vehicles, N.J.S.A. 39:4-67. We affirm.
These are the salient facts. On January 21, 2007, at about 1:30 a.m., defendant was operating a motor vehicle on North Union Street in Lambertville City. Defendant double-parked in a way that drew an officer's attention. Defendant concedes that his vehicle would have obstructed the passage of other vehicles. Based on the reasonable suspicion that defendant was under the influence of an intoxicating substance, police asked him to submit breath samples. Defendant refused. Defendant was arrested and charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50, reckless driving, N.J.S.A. 39:4-69, refusal to submit a breathalyzer test, and obstructing passage. Defendant has two prior DWI convictions from 1995 and 1998.
On September 6, 2007, defendant appeared in the municipal court and demanded a jury trial. Municipal Court Judge Richard P. Cushing accepted defendant's guilty plea to refusal to submit to a breathalyzer test and obstructing passage. The State withdrew the charges of DWI and reckless driving. Defendant requested to be sentenced as a first offender. The municipal court denied this request and sentenced defendant as a third offender. On the refusal charge, the municipal court imposed payments of a $1,000 fine, $36 court costs, and a $100 Drunk Driving Enforcement Fund surcharge; forfeiture of driving privilege for ten years; and attendance at an Intoxicated Driver Resource Center for forty-eight hours. On the obstructing passage conviction, the municipal court imposed payment of a $103 fine and $36 court costs.
Defendant appealed to the Law Division and requested a jury trial. Judge Roger F. Mahon denied a jury trial and found defendant guilty of both charges. The judge imposed the same sentence as the municipal court.
Defendant appeals to us contending:
I. THIS COURT SHOULD REDUCE DEFENDANT'S DRIVING PRIVILEGE REVOCATION FOR BREATH TEST REFUSAL FROM TEN YEARS TO SEVEN MONTHS BECAUSE, UNDER THE MOST RATIONAL READING OF THE STATUTES, THIS IS DEFENDANT'S FIRST CONVICTION FOR REFUSAL.
We reject this contention.
N.J.S.A. 39:4-50.4a provides:
[T]he 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 or section 1 of P.L. 1992 c. 189 (C.39:4-50.14), shall refuse to submit to a test provided for in section 2 of P.L.1966, c. 142 (C.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 offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years. [N.J.S.A. 39:4-50.4a (emphasis added).]
Defendant argues the words "offense under this section" do not include offenses under N.J.S.A. 39:4-50.
Although the Supreme Court has stated that "N.J.S.A. 39:4-50 is not a model of clarity," State v. Reiner, 180 N.J. 307, 314 (2004), "[w]e have consistently held that prior DWI convictions are 'subsequent offense[s] under [N.J.S.A. 39:4-50.4]." State v. Lucci, 310 N.J. Super. 58, 60 (App. Div.), certif. denied, 156 N.J. 386 (1998); State v, Fielding, 290 N.J. Super. 191, 193 (App. Div. 1996); State v. Tekel, 281 N.J. Super. 502, 505-07 (App. Div. 1995). As we stated in Tekel:
[S]hould defendant's argument succeed, anyone who has been previously convicted of drunk driving would refuse to take a breathalyzer test, since the penalty for such refusal would be the lesser six-month penalty, instead of the more severe two-year penalty. Such an outcome would do nothing to curb the "senseless havoc and destruction caused by intoxicated drivers." [State v. Tekel, supra, 281 N.J. Super. at 509 (quoting State v. Tischio, 107 N.J. 504, 512 (1987)).]
Defendant's reliance on State v. Disomma, 262 N.J. Super. 375 (App. Div. 1993), is misplaced. In Disomma, we rejected the contention that a prior conviction for refusal to submit to a breathalyzer sustains second-offense sentencing for a subsequent first DWI conviction. Id. at 383. We expressly distinguished this scenario from the converse situation, found here, where the original offense carries heavier penalties than the subsequent offense. Id. at 381-82.
Defendant's reliance on State v. Reiner is similarly misplaced. Reiner involved the question of whether a prior DWI conviction pursuant to N.J.S.A. 39:4-50(a) warranted sentence enhancement for a subsequent conviction for a DWI committed within 1,000 feet of a school, in violation of N.J.S.A. 39:4-50(g). Reiner, supra, 180 N.J. at 309. Relying both on the legislative history of section (g) and on language in sections (a) and (h) of the statute isolating section (a) from section (g), the Supreme Court found it did not. Id. at 317-19. The language and history of the statutes in the present case do not sustain such a finding. Further, we note that our holdings both before and after Disomma have been consistent in finding a prior DWI conviction supports enhanced sentencing for subsequent convictions for refusal to submit to a breathalyzer. See State v. Tekel, supra, 281 N.J. Super. at 505-07; State v. Wilhalme, 206 N.J. Super. 359, 362-63 (App. Div. 1985), certif. denied, 104 N.J. 398 (1986); State v. Grant, 196 N.J. Super. 470, 480-81 (App. Div. 1984).
Defendant next contends:
II. THIS COURT SHOULD VACATE DEFENDANT'S CONVICTION AND REMAND HIS CASE FOR A JURY TRIAL BECAUSE HE FACED SERIOUS QUASI-CRIMINAL AND CIVIL CONSEQUENCES AS A DIRECT RESULT OF THE MUNICIPAL COURT PROCEEDINGS.
New Jersey has long held a defendant charged with a DWI or other Title 39 offense is not entitled to a trial by jury. State v. Hamm, 121 N.J. 109, 127-29 (1990). "Absent, then, clear constitutional requirement, reclassification of DWI as an offense to which trial by jury may attach should properly be by legislative, rather than judicial, judgment." Id. at 129.
Defendant has articulated no such "clear constitutional requirement."
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