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State v. Dougherty

Superior Court of New Jersey, Appellate Division

July 10, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JAMES T. DOUGHERTY, Defendant-Appellant.

          Argued April 11, 2018

          On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 16-04-0407.

          Joseph 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).

          Before Judges Alvarez, Nugent, and Currier.

          OPINION

          ALVAREZ, P.J.A.D.

         Drivers 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.

         Defendant was convicted on August 19, 2015, of DWI, and on November 9, 2015, of refusal.[1] On December 19, 2015, during the seven-month refusal suspension, [2] 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.

         Defendant 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

         Defendant's 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 trial court").

         N.J.S.A. 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. 39:4-50.4a]."

         Relying 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 ...


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