New Jersey Appellate Division Reverses Decision On DWI Sentence

In a recent case before the New Jersey Appellate Division, the question was posed as to whether a defendant with a prior 'conviction' for refusing to take a breathalyzer be sentenced

In a recent case before the New Jersey Appellate Division, the question was posed as to whether a defendant with a prior 'conviction' for refusing to take a breathalyzer be sentenced as a second offender following a subsequent DWI conviction?

The state appealed a judgment of the New Jersey Law Division that sentenced the defendant as a first-time offender for driving under the influence of alcohol (DWI). The defendant had a prior DWI conviction in 1979 and a breathalyzer refusal in 2006. The Law Division discounted those convictions under New Jersey DWI precedent established in State v. DiSomma.

On appeal, the Appellate Division agreed with the state's argument that the defendant's prior convictions required that she be sentenced as a third-time offender. This case stands as a departure from DiSomma with the conclusion that a prior refusal conviction has the same effect as a prior DWI conviction for determining the number of prior violations under the New Jersey DWI statute.

The Court reasoned that the relevant language of the DWI statute supports treating a prior refusal conviction the same as a prior DWI conviction. The Court relied on the language of the statute, specifically noting that the statute does not use the phrase "under this section" in describing a defendant's prior record. It refers to "a second violation" and "a third or subsequent violation," or just to "offense."