A Prior Refusal To An Alcotest Will Enhance A DWI For Sentencing
January 7, 2010 - Today, the Superior Court of NJ, Appellate Division, ruled that a prior conviction for refusing to submit to a breath test or Alcotest (N.J.S.A. 39:4-50.2) , can enhance a current DWI (N.J.S.A. 39:4-50) for sentencing purposes. To clarify this point, the defendant in State v. Ciancaglini, had a 1979 DWI conviction, a 2006 Refusal Conviction and a current 2008 DWI charge. The defendant's position was that she should be treated as a first offender since her only prior DWI conviction was over 10-years old and that a prior refusal never enhanced a DWI sentence. The Appellate Division held that the defendant must be treated otherwise. They treated her as a third offender based upon as the refusal conviction being regarded as a DWI conviction for sentencing purposes.
Part of the Court's reasoning in this new case was based on State v. Cummings, which was a 2005 Supreme Court case involving the standard of proof required by a prosecutor to prove a person guilty of a refusal. Prior to Cummings, the standard of proof necessary for a conviction of a refusal (considered to be a civil offense in nature as opposed to quasi-criminal) was by a lesser standard, called a preponderance of the evidence; not proof beyond a reasonable doubt, required for DWI. As such, it would be unfair to use a refusal to enhance a DWI prior to Cummings because the standard of proof for refusal was far less than the standard of proof for a DWI. In Cummings, the Court ruled that a prosecutor must now prove a person guilty beyond a reasonable doubt of refusal; same as a DWI. As such, both offenses now have the same standard of proof.
However, I believe this reason is flawed. By way of example, a person might not be under the influence of alcohol for a DWI, refuse an officer's request for a breath test, and still be found guilty of the refusal charge. Thereafter, they can subsequently be charged for their first DWI (assuming they are driving drunk at a later date), which will be treated as a second DWI for sentencing purposes because their prior refusal will now enhance the present DWI. The tragedy lies in the fact that the person never had a DWI, was legally sober previously, but is now being treated as a second offender for DWI sentencing.
The story gets more confusing. Let's suppose a person is charged in incident number one with DWI and Refusal. They subsequently are found not guilty of the DWI, but are found guilty of refusal at a trial. Next time, in incident number two, they are stopped for DWI (let's hope the person has learned to get a designated driver by then) and are ultimately found guilty. The Court will create a "legal fiction" and treat this person as a second DWI offender; despite the fact that another Court previously found, as a matter of law, that the person was not guilty of the earlier DWI. I am hoping this case will get to the Supreme Court of NJ and they will overrule the Appellate Division and the Municipal Court 's position. Lastly, if you have a refusal prior to the decision in Cummings, I as a DWI attorney would argue that your prior refusal was found under the lower standard of proof (preponderance) and cannot enhance the DWI.
Oh how lamentable it is that we forget our not too distant past history!
You see there were these crazy fellows who said "no" and refused the overbearing and overreaching ruling entity's grasp into their personal spheres as if they ad no rights at all ----they called these rebels The Founding Fathers.
The Founding Fathers refused and they were called heroes even to this day. How ironic and downright shameful it is that saying "no" and asserting one's rights to the overbearing and overreaching now results in enhanced charges. For shame. For shame.
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-Justin J. McShane, Esquire, Harrisburg DUI Lawyer