DOCKET NO. A-2785-08T4
STATE OF NEW JERSEY,
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
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.
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,
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