DUI + Refusal = Jail

James T. Dougherty was convicted, on February 4, 2009 of refusal to submit to chemical breath testing (N.J.S.A. 39:4-50.4(a) and on February 23, 2009, of driving while intoxicated (N.J.S.A. 39:4-50) . On August 19, 2015, 6 years later, he was convicted of DWI and, on November 9, 2015, he was convicted for refusal. Dougherty was later stopped, on December 19, 2015,while driving during the seven-month suspension period for the refusal (N.J.S.A. 2C:40-26(b)), a fourth degree crime for a second or subsequent DUI conviction. Dougherty ultimately pled guilty and, after receiving the statutory minimum 180 days incarceration, appealed based on the argument, he based on State v. Ciancaglini, 204 N.J. 597 (2011), that a charge of DWI or refusal could not be used to enhance the penalties of the other and that incarceration stemmed only from two convictions for driving under the influence or two convictions for refusal to submit to chemical breath testing. Dougherty also claimed the statutory language was ambiguous and required dismissal of his indictment. The appellate division cited to the strong public policy interest in addressing the damage caused by drunken drivers and found the statutory language to be unambiguous as to the fact that either two DUI convictions, two refusal convictions or one of each would meet the requirement of two predicate violations and trigger a period of 180 days incarceration. The appellate division read Ciancaglini to hold that "a defendant's refusal conviction cannot be considered a prior DWI violation for enhancement purposes" in sentencing under the DWI statute and found the decision to have no bearing on sentencing for driving during a period of suspension for DWI or refusal. Further, the appellate division looked to State v. Frye, 217 N.J. 566 (2014), reaffirming In re Bergwall, 85 N.J. 382 (1981) which held that a prior DUI conviction would serve to enhance the sentence for a subsequent refusal conviction. The matter of the number of years between the arrests and convictions was not addressed. The penalties for driving under the influence are severe including substantial fines, insurance surcharges, loss of license and often the loss of employment when you cannot drive to work. Each time you are convicted, the penalties get more harsh and you run the very real risk of jail time. If you are facing charges of DUI, refusal, CDS in a motor vehicle or driving while suspended for DUI or refusal, call the Darling Law Firm, LLC now for representation or visit DarlingFirm.com for more information. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Prior DUI Convictions Enhance Penalty For Refusal In NJ

In the recent case of State v. Frye, the NJ Supreme Court upheld the use of prior Driving Under the Influence (DUI) convictions to enhance the sentence for refusal to submit to chemical breath testing. In Frye, the defendant was convicted to a 10 year loss of license as a result of 2 prior DUIs. Although the court held, in State v. Ciancaglini, 204 N.J. 597 (2011) that a prior refusals to submit to chemical breath testing could not be used to enhance penalties for subsequent DUIs, the Frye court found the logic behind this instant decision to be different. The Court reasoned that, failure to utilize prior DUI convictions to enhance refusal convictions would then leave a strategic opportunity to repeat DUI offenders to obtain a significantly reduced penalty for subsequent offenses by simply refusing to submit to the Alcotest. The chemical breath test refusal statute, N.J.S.A. 39:4-50.4a, does contemplate enhanced sentencing for repeat refusal offenses in a manner which parallels enhancement for repeat DUI offenses bringing the Frye decision in line with the Legislative intent of keeping intoxicated drivers off NJ roads. The Frye decision is not the first of its kind in New Jersey. In re Bergwall, 85 N.J. 382 (1981), decided by the NJ Supreme Court over 30 years ago, held that a prior DUI convictions should be used to enhance suspensions in refusal cases. If you are facing charges of DUI or refusal, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DUI, controlled dangerous substance (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.