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.

DUI Step-Down Is Not Limited To One Use Per Driver

The NJ driving under the influence (DUI) statute (N.J.S.A. 39:4-50) includes a provision wherein a “step-down” in sentencing occurs after any ten (10) year period in which an individual charged with a prior DUI receives a lesser level penalty for a subsequent DUI. For example, pursuant to N.J.S.A. 39:4-50(a)(2), if an individual was convicted of their first DUI in 1986 and a second DUI in 1994, they would be sentenced, among other penalties, to a two year loss of driving privileges as a second offender in 1994. However, pursuant to N.J.S.A. 39:4-50(a)(3), if an individual was convicted of their first DUI in 1986 and a second DUI in 1997, more than ten (10) years later, they would be sentenced to, among other penalties, a seven to twelve month loss of driving privileges as a first-offender in 1997. In State v. Revie, the defendant, James Revie was convicted of a fourth driving while intoxicated (DWI) charge in 2011 in Wharton, NJ after an initial DWI in 1981 in Hillsdale, NJ, a second and uncounseled DWI in 1982 in Bogota, NJ, and a third DWI over ten (10) years later in 1994 in Montvale, NJ. Due to the fact that the second DWI was uncounseled and the defendant should have received the benefit of the step-down provision for the ten (10) year lapse between the second and third DWI convictions, the defendant argued that, for the 2011 DUI, he should be sentenced as a second-offender with regard to any term of incarceration. However, the Municipal Court Judge sentenced him as a third-offender refusing to read N.J.S.A. 39:4-50(a)(3) as providing more than one “step-down” benefit to any driver. The NJ Superior Court, Law Division, Morris County affirmed as did the NJ Appellate Division. The NJ Supreme court held that there is no indication that the Legislature intended for a defendant meeting the requirements of the “step-down” provision on more than one occasion to be entitled to the benefits thereof on only one such occasion. In addition to the Legislative intent, included in the NJ Supreme Court’s consideration were also State v. Laurick, 120 N.J. 1, 498 U.S. 967, 111S.Ct. 429, 112 L. Ed. 2d 413, (1990) and State v. Hrycak, 184 N.J. 351 (2005) as they pertained to Revies’ second and uncounseled DUI and State v. Conroy, 397 N.J. Super. 324 (App.Div. 2007) as it pertained to a defendant sentenced with the benefit of Laurick and the “step-down” provision of N.J.S.A. 39:4-50(a)(3). The matter was remanded to the Law Division for re-sentencing as a second-offender. DUI charges, whether for alcohol or drugs, are very serious charges which can lead to incarceration and loss of driving privileges up to ten years. If you are facing charges for DUI it is critical that you obtain experienced defense counsel immediately. For more information about DUI, DUID, controlled dangerous substances (CDS) in a motor vehicle, refusal to submit to chemical breath tests, reckless driving or other serious motor vehicle charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.