On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 30-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically November 13, 2012
Before Judges Axelrad and Haas.
Defendant Gregory Clapper pled guilty in the Eagleswood Municipal Court on September 28, 2011 to refusal to submit to a chemical test (refusal), N.J.S.A. 39:4-50.4a, and reckless driving, N.J.S.A. 39:4-96. Defendant had three prior convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50.
The municipal court judge sentenced defendant, as a "third or subsequent offender," to a $1,006 fine, $33 in court costs, a $100 surcharge, forty-eight hours attendance at the Intoxicated Driver Resource Center, a ten-year license revocation, and required him to install an ignition interlock device for one-year, for refusal. The judge sentenced defendant to a $206 fine and $33 in court costs for reckless driving.
Defendant filed an appeal of his sentence to the Law Division, arguing that he should have been sentenced as a first-time offender for refusal. On de novo appeal, the Law Division judge disagreed and again sentenced defendant as "a third or subsequent offender" for refusal, imposing the same sentence as the municipal court judge.
On appeal, defendant raises the following contentions:
I. Under Ciancaglini[,] a prior conviction for DWI cannot be used to enhance the penalties for a subsequent refusal conviction.
A. Post-Ciancaglini, any ambiguities in N.J.S.A. 39:4-50.4 are resolved and the plain language of the statute controls.
B. There is no statutory cross- reference nor similar expression to suggest a prior DWI conviction enhances a refusal sentence.
C. The use of "section" refers only to N.J.S.A. 39:50-4.
D. Only foreign convictions enhance a refusal sentence.
II. Zeikel explicates Ciancaglini's rule that a prior conviction for DWI does not enhance a ...