The analysis in Ciancaglini and Frye focuses on well-established rules of statutory construction as applied to the particular law under consideration. That methodology informs our discussion.
In interpreting a statute, the primary goal is, as always, “to divine and effectuate the Legislature’s intent.” We consider the enactment’s plain language, viewed in the context of the entire legislative scheme that includes it. Statutory text ‘should be given its ordinary meaning and be construed in a common-sense manner.'” If, however, the language is ambiguous or lends itself to more than one reasonable interpretation, we look beyond the literal language and consider extrinsic factors, such as the statute’s purpose, legislative history, and statutory context to determine the legislative intent.
We must strictly construe any reasonable doubt about the meaning of a penal statute in favor of a defendant, applying the rule of lenity. The rule of lenity, however, applies only where the statutory language, legislative history, and other secondary sources do not resolve the purported ambiguity.
Defendant also argues the relevant language is ambiguous and triggers the rule of lenity, compelling interpretation of the statute requiring dismissal of his indictment. Defendant’s starting premise on this issue is that a fair reading of State v. Olivero (2015), and In re Estate of Fisher, (App. Div. 2015), means the word “or” in the statute should not be interpreted as “either/or,” but as “or” without the “either.” He therefore asserts that he should have gained the benefit of the rule and his motion to dismiss the indictment should have been granted.
The statutory language is not ambiguous. Even if it were, the legislative history reveals that DWI and refusal are referred to interchangeably as predicate convictions.
The “either / or” argument advanced by defense counsel is interesting. The Court’s response is that a DWI and a refusal are interchangeable. That is not exactly true since a prior refusal can not be used to enhance the penalties for a subsequent DUI.