Argued telephonically: April 27, 2015.
Approved for Publication May 11, 2015.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 13-067.
John Menzel argued the cause for appellant.
Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant ( Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief).
Before Judges ALVAREZ, WAUGH, and Carroll. The opinion of the court was delivered by CARROLL, J.A.D.
[440 N.J.Super. 388] CARROLL, J.A.D.
[440 N.J.Super. 389] On October 29, 2013, defendant Thomas J. Taylor entered a conditional guilty plea to refusal to submit to a breath test in violation of N.J.S.A. 39:4-50.2, reserving the right " to appeal  any and all issues, including sentencing." Defendant was sentenced by the municipal judge as a " third offender," N.J.S.A. 39:4-50.4a, to a $1006 fine, $33 in court costs, a $100 surcharge, forty-eight hours of attendance at
the Intoxicated Driver Resource Center (IDRC), a ten-year suspension of driving privileges, and installation of an interlock device for a period of two years.
There is no dispute that defendant had two prior convictions for driving while under the influence (DWI), N.J.S.A. 39:4-50, in 1985 and 1996, but no prior convictions for refusal. In his appeal to the Law Division, defendant argued, among other things, that his prior convictions for DWI did not qualify as prior offenses within the meaning of N.J.S.A. 39:4-50.4a. Defendant contended that State v. Ciancaglini, 204 N.J. 597, 10 A.3d 870 (2011), controlled and mandated that he be sentenced as a first offender for refusal.
The Court in Ciancaglini considered whether a defendant previously convicted of refusal under N.J.S.A. 39:4-50.4a, should be sentenced as a first or second offender on a subsequent DWI conviction under N.J.S.A. 39:4-50, which provides for enhanced penalties for repeat offenses. Id. at 600, 10 A.3d 870. The Court held that N.J.S.A. 39:4-50 precludes use of a prior refusal conviction to enhance the sentence on a subsequent DWI, and thus Ciancaglini had to be sentenced as a first offender. Id. at 610-11. In its ruling, however, the Court left undisturbed the holding of In re Bergwall, 85 N.J. 382, 427 A.2d 65 (1981), rev'g on dissent, 173 N.J.Super. 431, 436-40, 414 A.2d 584 (App.Div. 1980) (Lora, P.J.A.D., dissenting), that a prior DWI conviction is deemed a prior violation for purposes of enhancing the sentence on a subsequent refusal conviction under N.J.S.A. 39:4-50.4a. Ciancaglini, supra, 204 N.J. at 610 n.10, 10 A.3d 870.
Specifically, the Court in Ciancaglini reiterated Judge Lora's analysis that the phrase " in connection with a subsequent offense [440 N.J.Super. 390] of this section" in N.J.S.A. 39:4-50.4 included prior DWI offenses because " 'a refusal cannot 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. ...