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.
