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.

Refusal to Submit to DUI Breath Testing Receives Step-Down Sentence

Thomas Taylor was charged with driving under the influence (DUI)(N.J.S.A. 39:5-50) and pled guilty to refusal to submit to a breath test (N.J.S.A. 39:4-50.2). Taylor had been convicted of two prior driving while intoxicated charges, both of which occurred over ten years prior to the event in question. The municipal court judge sentenced Taylor as a third offender to a 10 year suspension and a $1000 fine. The defendant appealed. In State v. Taylor, Taylor used the misplaced argument that, pursuant to State v. Ciancaglini, 204 N.J. 597 (2011), which addressed the impact of prior refusal convictions to enhance subsequent DUI penalties. However, In re Bergwall, 85 N.J. 382 (1981), reaffirmed in State v. Frye, 217 N.J. 566 (2014), held that a prior driving while intoxicated conviction may be used in enhancing a sentence for a subsequent refusal conviction. Designed as punishment for driving under the influence, the penalties for refusal mirror those for DUI in that they increase with each subsequent offense. The statutes differ in that the DWI statute calls for a "step-down" in sentencing for each 10-year period in which a driver goes without a conviction for DUI, but the refusal statute does not include such a provision. This means that an individual convicted of DUI in 1990 who is convicted of a second DUI in 2001 would be again sentenced as a first offender in 2001. Likewise, a third DWI conviction occurring 10 or more years after a second conviction would subject the driver to sentencing as a second offender under the DUI statute, pursuant to State v. Revie, 220 N.J. 126 (2014). Taylor argued that his refusal should be sentenced under the terms of a second offender, as more than 10 years had elapsed since his prior offense. In State v. Fielding, 290 N.J. Super 191 (App. Div. 1996) the court addressed the matter of applying step-down sentencing to refusal conviction and determined that it was appropriate under the principal of fundamental fairness. After review, the matter was remanded for resentencing as a second offense including a significantly lower 2 year suspension and $500 fine. 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 refusal, DUI, controlled dangerous substances (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.

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.