April 11, 2018
appeal from Superior Court of New Jersey, Law Division,
Burlington County, Indictment No. 16-04-0407.
P. Grimes argued the cause for appellant.
Jennifer E. Kmieciak, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney General,
attorney; Carol M. Henderson, Assistant Attorney General, of
counsel and on the brief).
Judges Alvarez, Nugent, and Currier.
commit a fourth-degree crime if they operate a motor vehicle
during a period of license suspension for a second or
subsequent motor vehicle violation of driving while
intoxicated (DWI), N.J.S.A. 39:4-50, or refusal to submit to
a breath test (refusal), N.J.S.A. 39:4-50.4(a). N.J.S.A.
2C:40-26(b). When defendant James T. Dougherty was arrested
and charged with violating N.J.S.A. 2C:40-26(b), he had one
prior DWI conviction, one prior refusal conviction, and his
license was suspended for the refusal. He contends
2C:40-26(b) requires convictions of the same two predicate
violations, either two convictions for driving while
intoxicated, or two convictions for refusal, not one of each.
Based on the plain language of the statute, we conclude the
two predicate violations may consist of one prior DWI and one
prior refusal conviction. Hence, we affirm the denial of
defendant's motion to dismiss the indictment, his
subsequent conviction, and vacate the Law Division
judge's stay of his sentence.
was convicted on August 19, 2015, of DWI, and on November 9,
2015, of refusal. On December 19, 2015, during the
seven-month refusal suspension,  police stopped defendant
while he was operating a motor vehicle. A grand jury indicted
him for driving while suspended, and after the judge denied
his motion to dismiss the indictment, defendant entered a
conditional guilty plea. The court sentenced him on December
15, 2016, to the statutory minimum of 180 days incarceration
and stayed the service of the jail time pending the outcome
of this appeal.
raises the following points:
i. Point One: A charge of [DWI] or Refusal cannot be used to
enhance the penalties of the other
ii. All methods of statutory construction including the Rule
of Lenity in criminal cases supports appellant's
interpretation of the DW[I] statute and requires reversal
arguments on appeal raise issues of law, which we review de
novo. State v. Grate, 220 N.J. 317, 329 (2015)
(citing State v. Drury, 190 N.J. 197, 209 (2007))
(holding that on appeal legal issues are reviewed "de
novo, unconstrained by deference to the decisions of the
2C:40-26(b) reads: "[i]t shall be a crime of the fourth
degree to operate a motor vehicle during the period of
license suspension in violation of [N.J.S.A.] 39:3-40, if the
actor's license was suspended or revoked for a second or
subsequent violation of [N.J.S.A.] 39:4-50 or [N.J.S.A.
on State v. Ciancaglini, 204 N.J. 597 (2011),
defendant argues the reference in N.J.S.A. 2C:40-26(b) to a
second or subsequent violation of N.J.S.A. 39:4-50 or
N.J.S.A. 39:4-50.4a means a single conviction under each
section of the Motor Vehicle Code does not suffice for