On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-19-08.
The opinion of the court was delivered by: Baxter, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2009
Before Judges Lisa, Baxter and Alvarez.
This appeal requires us to decide a sentencing issue concerning the interplay between the driver's license suspensions that are required following a conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), when, by virtue of the "step-down" provisions of the DWI statute, the DWI conviction is treated as a first offense,*fn1 thereby permitting a license suspension of three months.*fn2 In the municipal court, the parties agreed that defendant would plead guilty to both DWI and refusal, but the refusal charge would merge with the DWI offense, and sentence would therefore be imposed only on the DWI. No specific agreement was reached on the length of the driver's license suspension to be imposed; at sentencing, the municipal court judge imposed a seven-month license suspension, even though the step-down provision of the DWI statute entitled defendant to a three-month license suspension. The Law Division, in a trial de novo, did likewise. Thus, we are called upon to decide whether a refusal conviction can be merged with a DWI conviction, or whether a separate sentence is the only permissible result where a defendant pleads guilty, or is found guilty, of both.
We reject defendant's argument that because the refusal conviction was merged with his DWI conviction, the refusal conviction "should have been of no moment," and the Law Division was permitted to impose only the three-month license suspension applicable to his DWI conviction. For the following reasons, we conclude that a refusal conviction cannot be merged with a DWI conviction: 1) although the two statutes have some commonality of operative facts, each one requires proof of an element not required by the other; 2) as evidenced by the specific language of N.J.S.A. 39:4-50.4a(a), the Legislature expressly permitted the driver's license suspension applicable to a first conviction for refusing a breath test to be made concurrent with, or consecutive to, any revocation imposed for a DWI conviction, thereby evincing a legislative intent to prohibit the merger of the refusal conviction with the DWI conviction; and 3) the approach urged by defendant runs afoul of the Supreme Court's "Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey."*fn3 Because we conclude that the merger of the two offenses was improper, we reverse and remand for further proceedings.
On May 14, 2008, defendant Joseph Eckert entered guilty pleas to the charges of driving while intoxicated, N.J.S.A. 39:4-50, and refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, in the Mantua Township Municipal Court. Pursuant to an agreement negotiated by defendant and the State, and accepted by the court, the parties agreed that the refusal and various other motor vehicle offenses would be merged with the DWI,*fn4 and that the sentence to be imposed on the refusal conviction would merge with the sentence to be imposed for the DWI. As we understand the record, there was no agreement reached on the length of the driver's license suspension that would be imposed.
Immediately after accepting defendant's guilty pleas to the DWI and refusal charges, the municipal court judge proceeded to sentencing. He merged the refusal violation with the DWI conviction, and imposed sentence on the DWI. In addition to the imposition of appropriate fines and other penalties, he suspended defendant's driver's license for a period of seven months, even though the step-down provision of the DWI statute entitled defendant to a three-month suspension. The court insisted on imposing the statutorily-required seven-month driver's license suspension for refusal to submit to a breath test,*fn5 reasoning that the Legislature did not intend "to give [defendant] as a step down second offender less than what a first offender" would receive.
On appeal to the Law Division in a trial de novo, the judge considered defendant's motion to modify the sentence imposed in the municipal court. Defendant argued that the driver's license suspension should be changed to a three-month period of suspension, rather than the seven-month period imposed in the municipal court.
The State objected, arguing that "[y]ou can't merge a greater amount into a smaller amount. So you can't merge seven months into a sentence for three months." The State also relied upon a portion of the refusal statute that specifies, for a first refusal conviction, the driver's license revocation "may be concurrent with or consecutive to" any revocation imposed for a conviction for driving while intoxicated that arises out of the same incident. See N.J.S.A. 39:4-50.4a(a). The State asserted that had the Legislature intended to permit a refusal conviction to merge with a DWI conviction, such that the required seven-month mandatory minimum driver's license suspension for refusal would be eliminated, it would have expressly permitted such a merger; however, by limiting the available options to a concurrent or consecutive sentence for the two offenses, the Legislature expressed an intention to preserve the required seven-month period of driver's license suspension for a first refusal conviction.
In imposing the sentence, the Law Division judge rejected the arguments advanced by defendant, reasoning that imposing only a three-month license suspension would be tantamount to "a step-down provision for refusing," which the Legislature chose not to establish. The judge also held that "[t]o allow this defendant only to be suspended for three months would be rewarding him for refusing to comply with the [breath test], when there is no step-down for a refusal."
On appeal, defendant presents the same arguments he advanced in the municipal court and in the Law Division, asserting that "because the refusal charge was merged with the driving while intoxicated charge, [he] ...