State v. Ciancaglini


DOCKET NO. A-2785-08T4






Argued October 27, 2009 – Decided

Before Judges Carchman,

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Municipal

Appeal No. 08-073.

Mary R. Juliano, Assistant Prosecutor,

argued the cause for appellant (Luis A.

Valentin, Monmouth County Prosecutor,

attorney; Patricia B. Quelch, Assistant

Prosecutor, of counsel and on the brief).

Stephen M. Pascarella argued the cause for


The opinion of the court was delivered by

ASHRAFI, J.S.C. (temporarily assigned).

1 Parrillo and Ashrafi.1

appeal, but has participated in the decision with the consent of

the parties.

Judge Carchman did not participate at oral argument of theAPPROVED FOR PUBLICATION

January 7, 2010


January 7, 2010


A-2785-08T4The State appeals the judgment of the Law Division

sentencing defendant Eileen Ciancaglini as a first-time offender

for driving under the influence of alcohol (DWI). Defendant was

previously convicted of DWI in 1979 and of refusing to take a

breathalyzer test in 2006, but the Law Division discounted those

convictions under the holding of State v. DiSomma, 262 N.J.

Super. 375 (App. Div. 1993). We agree with the State that

defendant’s prior convictions required that she be sentenced as

a third-time offender. We reverse and re-impose the original

sentence of the municipal court for a third offense.


The police stopped defendant for traffic offenses in May

2008. Breathalyzer testing showed a blood alcohol concentration

of 0.17%. In September 2008, defendant pleaded guilty to DWI,

in violation of N.J.S.A. 39:4-50. The municipal court sentenced

her as a third-time offender to six months in jail, a fine of

$1,006, ten-year loss of driver’s license and vehicle

registration, twelve hours at an Intoxicated Driver Resource

Center (IDRC), and other fees and surcharges as provided by

statute. The municipal court stayed execution of the sentence

pending defendant’s appeal to the Law Division of the Superior



A-2785-08T4On de novo review, the Law Division applied the holding of

DiSomma, supra, 262 N.J. Super. 375, and concluded that the 2006

refusal conviction could not be considered the same as a prior

DWI violation. Because the 1979 DWI conviction occurred more

than ten years earlier, the Law Division held that defendant

should be sentenced as a first-time offender in accordance with

N.J.S.A. 39:4-50. Defendant was sentenced to thirty days in

jail, a fine of $500, twelve months’ driver’s license

revocation, twelve hours at IDRC, and fees and surcharges as

provided by statute. Defendant has served the thirty-day jail



The primary issue before us is virtually the same one we

framed seventeen years ago in DiSomma, supra, 262 N.J. Super. at

378: “can a defendant with a prior ‘conviction’ for refusing to

take a breathalyzer be sentenced as a second offender pursuant

to N.J.S.A. 39:4-50(a)(2) following a subsequent driving under

the influence conviction?” We answered that question no in

DiSomma. Id. at 383.

The relevant language of the DWI statute provides:

[A] person who operates a motor vehicle

while under the influence of intoxicating

liquor . . . shall be subject:

(1) For the first offense:


A-2785-08T4(i) if the person’s blood alcohol

concentration is 0.08% or higher

but less than 0.10% . . . to a

fine of not less than $250 nor

more than $400 . . . and, in the

discretion of the court, a term of

imprisonment of not more than 30

days and shall forthwith forfeit

his right to operate a motor

vehicle over the highways of this

State for a period of three


2(ii) if the person’s blood alcohol

concentration is 0.10% or higher .

. . to a fine of not less than

$300 nor more than $500 . . . and,

in the discretion of the court, a

term of imprisonment of not more

than 30 days and shall forthwith

forfeit his right to operate a

motor vehicle over the highways of

this State for a period of not

less than seven months nor more

than one year;

. . . .

(2) For a second violation, a person shall

be subject to a fine of not less than

$500.00 nor more than $1,000.00, . . . and

shall be sentenced to imprisonment for a

term of not less than 48 consecutive hours,

. . . nor more than 90 days, and shall

forfeit his right to operate a motor vehicle

over the highways of this State for a period

of two years upon conviction . . . .

(3) For a third or subsequent violation, a

person shall be subject to a fine of

$1,000.00, and shall be sentenced to


we quote only the penalty provisions establishing fines, jail

sentences, and periods of license revocation.


To highlight the differences among the sentencing provisions,A-2785-08T4imprisonment for a term of not less than 180

days . . . and shall thereafter forfeit his

right to operate a motor vehicle over the

highways of this State for 10 years. . . .

. . . .

[I]f the second offense occurs more than 10

years after the first offense, the court

shall treat the second conviction as a first

offense for sentencing purposes and if a

third offense occurs more than 10 years

after the second offense, the court shall

treat the third conviction as a second

offense for sentencing purposes.

[N.J.S.A. 39:4-50(a) (emphasis added).]

In the emphasized phrases, the statute uses the words

“violation” and “offense” in referring to the defendant’s prior

record and resultant sentencing exposure.

The statute applicable to refusing a breathalyzer test does

not authorize a sentence of incarceration, but the applicable

fine and the period of license revocation vary depending on

whether the defendant has prior convictions. The relevant

language of the refusal statute states:

[T]he municipal court shall revoke the right

to operate a motor vehicle of any operator

who, after being arrested for [DWI] shall

refuse to submit to a test provided for in

[N.J.S.A. 39:4-50.2] when requested to do

so, for not less than seven months or more

than one year unless the refusal was in

connection with a second offense under this

section, in which case the revocation period

shall be for two years or unless the refusal

was in connection with a third or subsequent

offense under this section in which case the


A-2785-08T4revocation shall be for ten years. . . .

The municipal court shall determine by a

preponderance of the evidence . . . [the]

elements of the violation . . . the

municipal court shall fine a person

convicted under this section, a fine of not

less than $300 or more than $500 for a first

offense; a fine of not less than $500 or

more than $1,000 for a second offense; and a

fine of $1,000 for a third or subsequent


[N.J.S.A. 39:4-50.4a(a) (emphasis added).]

As shown in the emphasized language, the refusal statute

includes the phrase “under this section” after the word

“offense” in the first paragraph.

In DiSomma, supra, 262 N.J. Super. at 382, we held that the

DWI and refusal statutes do not establish “the same or

interchangeable violations.” A prior refusal conviction does

not count toward the number of prior DWI convictions that

determine the sentence under the DWI statute. Id. at 383.

In the intervening years since DiSomma, the two statutes

have been amended several times, but not with respect to the

language relevant to determining the number of prior

convictions. The cases interpreting that language, however,

have almost uniformly come to conclusions that are inconsistent

with our holding in DiSomma. We now depart from the holding of

DiSomma and conclude that a prior refusal conviction has the


A-2785-08T4same effect as a prior DWI conviction for determining the number

of prior violations under the DWI statute, N.J.S.A. 39:4-50(a).

In DiSomma, supra, we gave four reasons for reaching the

opposite conclusion: (1) the refusal violation was deemed to be

“civil in character” because it required only “proof by a

preponderance of the evidence,” 262 N.J. Super. at 380-81;

(2) “[u]nder usual principles of statutory construction,” the

language in the refusal statute making “reference to ‘a

subsequent offense under this section’ is and must be just to

the section of the refusal statute,” id. at 381; (3) the DWI and

refusal statutes were enacted as separate sections of the New

Jersey Statutes although compiled within the same Title and

Chapter, id. at 382; and (4) as a penal measure, the DWI statute

should be strictly construed, id. at 383. None of these reasons

has stood the test of time and analysis in other decisions.

The first, that refusal violations are civil in nature, was

rejected by the Supreme Court in State v. Cummings, 184 N.J. 84,

95-96 (2005). See also State v. Widmaier, 157 N.J. 475, 500

(1999) (double jeopardy protections are applicable to a charge

under the refusal statute). In Cummings, supra, the Court

acknowledged both that the refusal statute by its terms requires

proof only by the preponderance of the evidence standard and

that historically the statute had been treated as a civil rather


A-2785-08T4than penal remedy. 184 N.J. at 93-95 (citing State v. Wright,

107 N.J. 488, 503 (1987); State v. Todaro, 242 N.J. Super. 177,

179 (App. Div. 1990); State v. Fahrer, 212 N.J. Super. 571, 577

(App. Div. 1986)). The Court nevertheless held that a violation

of the refusal statute, like other traffic offenses, is quasicriminal

in nature and therefore requires proof by the higher

reasonable doubt standard. Id. at 95-96 (citing State v.

Dively, 92 N.J. 573, 585 (1983)). Refusal convictions are no

longer deemed civil in character.

Our other reasons for declining to treat refusal and DWI

violations as interchangeable prior convictions have been

weakened by virtually every other decision that considered the

relationship of the statutes, both before and after we decided

DiSomma in 1993.

Beginning with In re Bergwall, 85 N.J. 382 (1981), rev’g on

dissent, 173 N.J. Super. 431, 436, 439 (App. Div. 1980),

judicial decisions that have considered the converse of the

issue in this case have invariably held that a prior DWI

conviction must be treated as a prior offense under the refusal

statute. See State v. Grant, 196 N.J. Super. 470, 479-81 (App.

Div. 1984); State v. Wilhalme, 206 N.J. Super. 359, 362-63 (App.

Div. 1985), certif. denied, 104 N.J. 398 (1986); Fahrer, supra,

212 N.J. Super. at 578; State v. Tekel, 281 N.J. Super. 502, 505


A-2785-08T4(App. Div. 1995); State v. Fielding, 290 N.J. Super. 191, 193

(App. Div. 1996); State v. Lucci, 310 N.J. Super. 58, 60 (App.

Div.), certif. denied, 156 N.J. 386 (1998). These cases have

reached conclusions inconsistent with DiSomma despite the more

restrictive language of the refusal statute that includes the

phrase “under this section.”

3In Bergwall, supra, 85 N.J. 382, the Supreme Court approved

this court’s dissenting opinion, which reasoned that undue

emphasis should not be placed on the phrase “under this section”

because the focus of the refusal statute was on DWI offenses,

not just refusal violations. Bergwall, 173 N.J. Super. at 438.

Also, the legislative history of the two statutes strongly

suggested that a prior DWI conviction should result in lengthier

revocation of driving privileges upon a subsequent refusal

conviction. Id. at 438-39; see Wilhalme, supra, 206 N.J. Super.

at 361-63.

In this case, the relevant language of the DWI statute

provides even better reason to treat a prior refusal conviction


questioning its reasoning. See State v. Breslin, 392 N.J.

Super. 584, 591-92 (App. Div.), certif. denied, 192 N.J. 477

(2007); Fielding, supra, 290 N.J. Super. at 193. We adhered to

the holding of DiSomma only in Levine v. State DOT, 338 N.J.

Super. 28, 30-31 (App. Div. 2001), which concerned a statute

prohibiting issuance of specialty license plates to persons with

DWI convictions, N.J.S.A. 39:3-33.5.


We have also distinguished DiSomma factually withoutA-2785-08T4the same as a prior DWI conviction. The DWI statute does not

use the phrase “under this section” in describing a defendant’s

prior record. It refers to “a second violation” and “a third or

subsequent violation,” or just to “offense.” N.J.S.A. 39:4-

50(a). We have less justification to restrict the general

references to “violation” and “offense” to DWI convictions alone

than the cited decisions had to restrict the phrase “offense

under this section” to refusal convictions alone.

In order to read the two offenses as interchangeable for

purposes of determining a defendant’s prior record, the cited

cases relied upon several principles of statutory construction,

including elevating the essential purpose and design of a

statute over a contrary literal reading, discerning the intent

of the Legislature, and avoiding “absurd or unreasonable” or

“anomalous” results. See Tekel, supra, 281 N.J. Super. at 506

(quoting 534 Hawthorne Ave. Corp. v. Barnes, 204 N.J. Super.

144, 148 (App. Div. 1985); Union Cty. Bd. of Freeholders v.

Union Cty. Park Comm., 41 N.J. 333, 341 (1964)); Grant, supra,

196 N.J. Super. at 481.

Because the two statutes contain parallel provisions

establishing fines and periods of license revocation, it is

unlikely that the Legislature intended to impose a lesser fine

or period of license revocation on one convicted of DWI after an


A-2785-08T4earlier refusal conviction than one convicted of refusal after

an earlier DWI conviction. Cf. State v. Eckert, 410 N.J. Super.

389, 399 (App. Div. 2009) (declining to read the statutes to

permit an “anomalous” or “irrational result”).

In sum, the reasons we found in DiSomma for treating DWI

and refusal offenses as distinct prior violations have been

rejected in our decisions and the Supreme Court’s earlier

decision in Bergwall, supra, 85 N.J. 382. We now conclude that

a prior conviction for refusing a breathalyzer test is a prior

“violation” or “offense” for purposes of the DWI statute.

Therefore, in this case, defendant’s 2008 conviction should

have been deemed her third, not her first, violation or offense.

In that regard, the sentence imposed originally by the municipal

court was correct.


Defendant contends that the double jeopardy clauses of the

federal and State constitutions prohibit re-sentencing her as a


50(a), defendant was not entitled to a reduction of the

penalties applicable to her 2008 conviction based on the time

elapsed since the 1979 conviction. State v. Burroughs, 349 N.J.

Super. 225, 226 (App. Div.), certif. denied, 174 N.J. 43 (2002).

She was previously given the benefit of a step-down to a lesser

sentence for her 2006 refusal conviction. See Fielding, supra,

290 N.J. Super. at 194-95.


Under the “step-down” terms of the DWI statute, N.J.S.A. 39:4-A-2785-08T4third-time offender.

jeopardy prohibits increasing her sentence above that imposed by

the Law Division, especially because she has already served the

sentence of incarceration, thirty days in jail. See State v.

Ryan, 86 N.J. 1, 10, cert. denied, 454 U.S. 880, 102 S. Ct. 363,

70 L. Ed. 2d 190 (1981). The State responds that an illegal

sentence may be corrected on appeal, even if defendant has

already served part of the sentence. Monge v. California, 524

U.S. 721, 730, 118 S. Ct. 2246, 2251, 141 L. Ed. 615, 625

(1998); State v. Baker, 270 N.J. Super. 55, 72 (App. Div.),

aff’d o.b. 138 N.J. 89 (1994).

The guarantee against double jeopardy “protects against

multiple punishments for the same offense.” United States v.

DiFrancesco, 449 U.S. 117, 129, 101 S. Ct. 426, 433, 66 L. Ed.

2d 328, 340 (1980); accord North Carolina v. Pearce, 395 U.S.

711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 665 (1969).

It does not permit a defendant to retain a lesser sentence

mistakenly imposed contrary to law. See Baker, supra, 270 N.J.

Super. at 71-77. A defendant’s double jeopardy rights are not

violated by imposition of a more severe sentence upon the

5 She argues that her right against double5

Const., art. I, ¶ 11, as co-extensive with the double jeopardy

clause of the federal constitution, U.S. Const., amend. V.

State v. Dillihay, 127 N.J. 42, 47 (1992); State v. Roth, 95

N.J. 334, 344-45 (1984).


Our courts interpret New Jersey’s double jeopardy clause, N.J.A-2785-08T4State’s successful appeal where the sentence was illegal or the

State otherwise was granted the right to appeal a lenient

sentence. State v. Kirk, 243 N.J. Super. 636, 643 (App. Div.

1990); State v. McCourt, 131 N.J. Super. 283, 288 (App. Div.

1974); see N.J.S.A. 2C:44-1f(2); State v. Sanders, 107 N.J. 609,

621 (1987).

We agree with defendant, however, that the sentence imposed

by the Law Division was not an illegal sentence. It conformed

to our holding in DiSomma, supra, 262 N.J. Super. 375. Cf.

Eckert, supra, 410 N.J. Super. at 408 (unauthorized merger of

refusal conviction into DWI conviction resulted in “sentencing

error,” not illegal sentence); State v. Burford, 163 N.J. 16, 21

n.2 (2000) (failure of sentencing court to find a sentencing

predicate does not make the sentence illegal). We need not

address whether double jeopardy rights would have barred the

State from appealing defendant’s sentence as a first-time

offender if it had been the only sentence imposed. Defendant’s

right to be protected against double jeopardy is not violated by

re-imposition of a sentence imposed originally and then

mistakenly decreased. See State v. Pomo, 95 N.J. 13 (1983).

In applying double jeopardy principles to sentences, we

look to the defendant’s “legitimate expectation of finality” in

the sentence imposed. Ryan, supra, 86 N.J. at 10; see


A-2785-08T4DiFrancesco, supra, 449 U.S. at 136, 101 S. Ct. at 437, 66 L.

Ed. 2d at 345. In State v. Rodriguez, 97 N.J. 263, 270 (1984),

the Supreme Court said, “Ryan can be understood to hold that the

commencement of sentence coupled with the defendant’s

expectation of finality in his original underlying conviction

and sentence combined to raise a constitutional bar against an

increase in that sentence.” After Rodriguez, “the critical

inquiry in assessing whether principles of due process and

double jeopardy bar imposition of a sentence greater than one

initially imposed is whether the defendant maintains a

‘legitimate expectation of finality’ with respect to the

sentence.” State v. Haliski, 140 N.J. 1, 21 (1995) (quoting

DiFrancesco, supra, 449 U.S. at 136, 101 S. Ct. at 437, 66 L.

Ed. 2d at 345)).

Here, defendant could not have a reasonable expectation of

finality in the Law Division’s sentence. Defendant’s appeal to

the Law Division challenged the legality of the municipal

court’s original sentence on the ground that defendant must be

sentenced as a first-time offender. When the Law Division

agreed with defendant’s position and imposed the lesser

sentence, it was not making any factual determination regarding

defendant’s guilt or punishment. Nor was it determining

appropriate punishment as a matter of judicial discretion. See


A-2785-08T4Kirk, supra, 243 N.J. Super. at 642. It was making a legal

determination about application of the DWI statute, just as any

intermediate appellate court might do in reviewing a sentence.

See State v. Chambers, 377 N.J. Super. 365 (App. Div. 2005).

A higher appellate court’s disagreement and re-imposition

of the original sentence does not violate a defendant’s right

against multiple punishment for the same offense. See Pomo,

supra, 95 N.J. 13; Rodriguez, supra, 97 N.J. at 277; cf. United

States v. Wilson, 420 U.S. 332, 345, 95 S. Ct. 1013, 1022-23, 43

L. Ed. 2d 232, 242 (1975) (no double jeopardy violation in

appellate court reversing trial court’s dismissal of charges and

re-instating jury verdict of guilty); State v. Nwobu, 139 N.J.

236, 258 (1995) (defendant’s completion of pretrial intervention

program while appeal was pending did not preclude reversal of

trial court’s decision admitting him into the program, and

defendant could be prosecuted on the original charges).

In State v. Thomas, 195 N.J. 431, 435 (2008), the Court


Plainly, where a defendant files an appeal,

courts are permitted to revise a sentence

“notwithstanding his initial commencement of

the sentencing term, providing that any new

sentence is in accordance with the

substantive punishment standards under the

Code and not in excess of the sentence

originally imposed.” (citation omitted)

“[W]ith the determination of guilt made, the

defendant is not subject to the harassment


A-2785-08T4and risk of multiple prosecution the Double

Jeopardy Clause was meant to prohibit.”

[quoting Rodriguez, supra, 97 N.J. at 277,

and Roth, supra, 95 N.J. at 344.]

Defendant’s right against double jeopardy is not violated by reinstating

the sentence originally imposed by the municipal



The judgment of the Law Division sentencing defendant as a

first-time offender is reversed. We remand to the Law Division

for re-instatement of the sentence imposed by the municipal



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