June 26, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM HILL, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CAMILLA A. TOFT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal Nos. 11-11 and 12-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 12, 2012
Before Judges Fisher and Grall.
On our own motion, we consolidate two appeals filed by William Hill and Camilla A. Toft. Both involve the interpretation of the second or subsequent offender provision for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a.
Hill pled guilty on September 24, 2008 to refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and was sentenced by the municipal judge to a $1006 fine, $33 in court costs, a $100 surcharge, twelve hours of attendance at the Intoxicated Driver Resource Center (IDRC), and a ten-year suspension of driving privileges. Hill had three prior driving while intoxicated (DWI), N.J.S.A. 39:4-50, convictions from 2000, 2001, and 2002. On May 4, 2011, he moved to correct an illegal sentence, asserting he should have been sentenced as a first-time offender. Both the municipal court and the Law Division denied his application.
Toft was sentenced by the municipal judge on November 24, 2009 as a third-time offender to a $1006 fine, $33 in court costs, a $100 DWI surcharge, forty-eight hours of attendance at the IDRC, and a mandatory ten-year suspension of driving privileges. She had two prior convictions: DWI in 1994 and refusal in 2002. Toft filed a motion for post-conviction relief (PCR) with the municipal court and moved to withdraw her guilty plea on the grounds that the refusal sentence was illegal as she should have been sentenced as a second-time offender. The municipal judge denied the motion, and Toft appealed to the Law Division. This appeal arises from the Law Division's denial of Toft's petition for PCR.
Defendant Hill argues:
I. BECAUSE THE SUPREME COURT HELD BREATH TEST REFUSAL AND DWI TO BE INDEPENDENT OFFENSES, THIS COURT SHOULD SENTENCE DEFENDANT AS A FIRST OFFENDER UNDER THE REFUSAL STATUTE AND DISREGARD PRIOR DWI OFFENSES FOR PURPOSES OF SENTENCE ENHANCEMENT BEYOND FIRST OFFENDER STATUS.
Defendant Toft raises the following points:
I. DEFENDANT'S 2009 SENTENCE AS A THIRD REFUSAL OFFENDER IS ILLEGAL BECAUSE A PRIOR DWI CONVICTION OR CHARGE MAY NOT BE USED TO ENHANCE A SUBSEQUENT REFUSAL CONVICTION.
II. EVEN IF A PRIOR DWI ENHANCES A LATER REFUSAL, DEFENDANT IS A SECOND REFUSAL OFFENDER BECAUSE SHE IS ENTITLED TO THE STEP-DOWN IN N.J.S.A. 39:4-50(a)(3).
Defendants' arguments concerning the legality of their sentences rest on the Supreme Court's recent decision in State v. Ciancaglini, 204 N.J. 597 (2011). As these appeals are governed by In re Bergwall, 85 N.J. 382 (1981), rev'g on dissent, 173 N.J. Super. 431, 436 (App. Div. 1980) (Lora, P.J.A.D., dissenting), to which we are bound, we affirm the decisions of the Law Division.
N.J.S.A. 39:4-50.4a requires the municipal court to revoke the driving privileges of a person convicted of refusing to submit to a breath test "for not less than seven months or more than one year . . . 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." In Ciancaglini, the Supreme Court concluded similar provisions for subsequent violations in N.J.S.A. 39:4-50 preclude a prior refusal conviction from being used as a sentencing enhancement for a subsequent DWI conviction.
N.J.S.A. 39:4-50 contains no reference whatsoever to the refusal statute. When listing the penalties for driving while intoxicated, it categorizes them based on being "[f]or the first offense," "[f]or a second violation," and "[f]or a third or subsequent violation." N.J.S.A. 39:4-50(a)(1), (2), (3). Nothing suggests that those references to prior "violations" are meant to refer to anything beyond DWI convictions in violation of N.J.S.A. 39:4-50, and the Legislature made no relevant amendment to the DWI or refusal statute while otherwise strengthening the latter. Indeed, without any statutory cross-reference, or similar expression, the most natural reading of the statute would suggest that the "prior" violations described in the three subsections of N.J.S.A. 39:4-50 are meant to refer only to the section of Title 39, Chapter 4, in which they are contained, that is N.J.S.A. 39:4-50. Such a reading is consistent with the well-established principle that penal statutes must be strictly construed. [Id. at 610-11.]
Defendants urge this court to apply Ciancaglini to its inverse - using a prior DWI conviction to enhance a subsequent refusal conviction. We decline to do so because we are bound by the interpretation adopted by the Supreme Court in Bergwall.
The Court addressed this precise question in In re Bergwall by adopting the dissenting Appellate Division opinion of Judge Lora. 85 N.J. 382. By adopting the dissent, the Court relied on the rather peculiar wording of N.J.S.A. 39:4-50.4a:
[R]evocation . . . for refusing . . . shall be for 90 days unless the refusal was in connection with a subsequent offense of this section, in which case, the revocation period shall be for 1 year. [Bergwall, supra, 173 N.J. Super. at 432-33.]
Whereas the majority of the Appellate Division panel had adopted the position now urged by defendants, that a prior DWI conviction may not enhance a subsequent refusal conviction, Judge Lora opined that the statutory language of the refusal statute was insensible under the majority's interpretation "since a refusal can not be 'in connection with' another refusal. Rather, it can only be 'in connection with' an arrest for drinking-driving and a request to take the breath test."
Id. at 437. Judge Lora looked to legislative history, which indicated that this was, in fact, the Legislature's intent. Id. at 438-39.
Although N.J.S.A. 39:4-50.4a has been amended several times since 1981, it still contains language that is nearly identical to the language at issue in Bergwall. The penalty is now between seven months and one year "unless the refusal was in connection with a second offense under this section . . . or unless the refusal was in connection with a third or subsequent offense under this section . . . ." Despite the Legislature's amendment of the refusal statute's repeat offender provision after the Court interpreted it in Bergwall, the Legislature has left the pertinent language unchanged. The Legislature's inaction in this circumstance is indicative of its agreement with the Court's interpretation. See State v. Fielding, 290 N.J. Super. 191, 193-94 (App. Div. 1996) (noting that "legislative retention of judicially construed language signals an agreement with the language, as construed"). The only difference in the phrase deemed determinative in Bergwall and the present version is a substitution of the word "under" for word "or." Moreover, Ciancaglini includes a footnote suggesting the Court still adheres to Bergwall's interpretation. 204 N.J. at 610 n.10. We recognize that in dicta in State v. DiSomma, 262 N.J. Super. 375, 381-82 (App. Div. 1993), a panel of this court questioned the continued validity of Bergwall. But the Supreme Court discussed both DiSomma and Bergwall in Ciancaglini; despite the Court's reliance on DiSomma's reasoning with respect to the DWI statute, the Court did not approve of the dicta addressing the refusal statute or question the continuing validity of the holding in Bergwall. 204 N.J. at 609-10 & n.10. In our view, defendants' reliance on Ciancaglini is misplaced. Thus, we follow Bergwall, as this court has in the past. See, e.g., Fielding, supra, 290 N.J. Super. at 193-94 (and cases cited therein).
There is a second issue raised by Toft about the relevance of the step-down provision of N.J.S.A. 39:4-50(a)(3):
A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section on a second or subsequent offender, but if 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.
Toft's prior convictions occurred in 1994 and 2002. She argues that as her third conviction occurred in 2009, more than ten years after her first in 1994, she is entitled to be sentenced as a second-time offender under the step-down provision.
The plain language of the statute limits the step-down provision to "punishment imposed by this section," i.e., DWI. As Ciancaglini makes clear, N.J.S.A. 39:4-50's references to "this section" only apply to DWI convictions. 204 N.J. at 610-11. Even if we assume that it would be improper to use a prior DWI conviction to enhance the sentence for a refusal conviction if the refusal violation occurred more than ten years after the DWI, Toft's refusal offense occurred less than ten years after her DWI conviction. Thus, the step-down did not apply at the time of her first refusal conviction or her second. Toft was properly sentenced as a third-time offender.
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