On July 10, 2018, a three-judge appellate panel decided the Burlington County case of State v. James Dougherty. The principal issue before the Court was whether a defendant could be convicted of fourth-degree driving while suspended for a second or subsequent DWI or refusal conviction when he was previously convicted of a single DWI and a single refusal offense.
In relevant part, the Court held as follows: Relying on State v. Ciancaglini (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 prosecution. We disagree that the opinion supports defendant’s interpretation of the statute.
Ciancaglini holds a “defendant’s refusal conviction cannot be considered a prior DWI violation for enhancement purposes” when a defendant is being sentenced for a violation of the DWI statute. Ciancaglini focuses only on N.J.S.A. 39:4-50.
In State v. Frye (2014), the Court again addressed the interplay between DWI and refusal convictions for sentencing purposes, this time in the context of the refusal statute. Frye reaffirmed the doctrine established in In re Bergwall (1981). Based on the language of N.J.S.A. 39:4-50.4a, the Bergwall Court had held a prior DWI conviction enhances the sentence for a conviction for refusal. The defendant in Frye argued: “the Court’s decision in Ciancaglini supports the proposition that, for sentencing purposes, the refusal and DWI statutes are separate and distinct” and that as a result a prior DWI could no longer be used to enhance a refusal penalty.
Contrary to that defendant’s suggestion that Ciancaglini controlled the outcome, in Frye, the Court examined the “plain language of the refusal statute” and the legislative history of the subsequent amendments, concluding the enactments were all designed to discourage drivers from refusing to submit to alcohol breath testing in order to avoid more serious penalties under the DWI statute. The Court again held that prior DWI convictions must be included as prior convictions when a defendant is sentenced for refusal. A “strong public policy” mandated the continuing viability of Bergwall because of the societal interest in addressing the harm inflicted by drunken drivers.
The Court’s analysis seems to overlook that the same “strong public policy” against drunken driving that applied at the time of the 2014 Frye decision also applied at the time of the 2011 Ciancaglini decision. The less obvious difference between the two cases was that four of the seven Justices that decided Ciancaglini were no longer on the Supreme Court at the time of the Frye decision.