On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 08-073.
The opinion of the court was delivered by: Ashrafi, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman,*fn1 Parrillo and Ashrafi.
The State appeals the judgment of the Law Division sentencing defendant Eileen Ciancaglini as a first-time offender for driving under the influence of alcohol (DWI). Defendant was previously convicted of DWI in 1979 and of refusing to take a breathalyzer test in 2006, but the Law Division discounted those convictions under the holding of State v. DiSomma, 262 N.J. Super. 375 (App. Div. 1993). We agree with the State that defendant's prior convictions required that she be sentenced as a third-time offender. We reverse and re-impose the original sentence of the municipal court for a third offense.
The police stopped defendant for traffic offenses in May 2008. Breathalyzer testing showed a blood alcohol concentration of 0.17%. In September 2008, defendant pleaded guilty to DWI, in violation of N.J.S.A. 39:4-50. The municipal court sentenced her as a third-time offender to six months in jail, a fine of $1,006, ten-year loss of driver's license and vehicle registration, twelve hours at an Intoxicated Driver Resource Center (IDRC), and other fees and surcharges as provided by statute. The municipal court stayed execution of the sentence pending defendant's appeal to the Law Division of the Superior Court.
On de novo review, the Law Division applied the holding of DiSomma, supra, 262 N.J. Super. 375, and concluded that the 2006 refusal conviction could not be considered the same as a prior DWI violation. Because the 1979 DWI conviction occurred more than ten years earlier, the Law Division held that defendant should be sentenced as a first-time offender in accordance with N.J.S.A. 39:4-50. Defendant was sentenced to thirty days in jail, a fine of $500, twelve months' driver's license revocation, twelve hours at IDRC, and fees and surcharges as provided by statute. Defendant has served the thirty-day jail sentence.
The primary issue before us is virtually the same one we framed seventeen years ago in DiSomma, supra, 262 N.J. Super. at 378: "can a defendant with a prior 'conviction' for refusing to take a breathalyzer be sentenced as a second offender pursuant to N.J.S.A. 39:4-50(a)(2) following a subsequent driving under the influence conviction?" We answered that question no in DiSomma. Id. at 383.
The relevant language of the DWI statute provides:
[A] person who operates a motor vehicle while under the influence of intoxicating liquor ...