State v. Roger Paul Frye (070975)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

State v. Roger Paul Frye (A-30-12) (070975)

Argued February 3, 2014 -- Decided June 3, 2014

FERNANDEZ-VINA, J., writing for a unanimous Court.

In this appeal, the Court considers whether a previous conviction for driving while intoxicated (DWI),
N.J.S.A. 39:4-50, may serve to enhance the sentence for a subsequent conviction for refusal to submit to a
breathalyzer test (refusal), N.J.S.A. 39:4-50.4a.

In 2008, defendant was arrested and charged with DWI, refusal, and reckless driving. He pled guilty to
refusal and, in exchange, the State dismissed the DWI and reckless driving charges. The municipal court judge
accepted defendant’s guilty plea and further concluded that there was proof beyond a reasonable doubt that
defendant refused to submit to a breathalyzer test. Because defendant had two previous DWI convictions from 2001
and 2004, the judge sentenced him as a third-time offender under the refusal statute and suspended his license for
ten years. Defendant filed a motion for reconsideration arguing that his two prior DWI convictions could not
enhance his refusal sentence and that he therefore should have been sentenced as a first-time refusal offender. The
municipal court denied defendant’s motion for reconsideration. Defendant appealed and, after a de novo review, the
Law Division found that the municipal court correctly sentenced defendant as a third-time refusal offender.
Defendant thereafter filed a petition for post-conviction relief (PCR) in the Law Division contending that his
sentence as a third-time offender was contrary to State v. Ciancaglini, 204 N.J. 597 (2011), in which the Court held
that a prior refusal conviction cannot be used to enhance a subsequent DWI sentence under the DWI statute. The
Law Division rejected defendant’s argument and denied PCR. The Appellate Division affirmed in an unpublished
decision. The Court granted defendant’s petition for certification. 212 N.J. 455 (2012).

HELD: The Court reaffirms its holding in In re Bergwall, 85 N.J. 382 (1981). A prior DWI conviction may
enhance the sentence for a subsequent refusal conviction under the refusal statute, N.J.S.A. 39:4-50.4a.

1. The paramount goal of statutory interpretation is to ascertain and effectuate the Legislature’s intent. When the
language of a statute is clear on its face, the sole function of the courts is to enforce it according to its terms. If,
however, a statute’s plain language is ambiguous or subject to multiple interpretations, the Court may consider
extrinsic evidence including legislative history and committee reports. (pp. 12-13)

2. The refusal statute provides that a person convicted of refusal will be subject to an enhanced penalty if “the
refusal was in connection with a second[, third, or subsequent] offense under this section.” N.J.S.A. 39:4-50.4a. The
length of the driver’s license suspension differs depending on whether the conviction is the driver’s first, second, or
third or subsequent offense. Ibid. It was not until 1977 that the statute distinguished between initial and subsequent
offenses. The statute originally required a six-month license revocation for a driver’s refusal to submit to a chemical
test. L. 1966, c. 142, § 4. In 1977, the Legislature amended the law to mandate a ninety-day license revocation
“unless the refusal was in connection with a subsequent offense of this section, in which case, the revocation period
shall be for 1 year.” L. 1977, c. 29, § 4; N.J.S.A. 39:4-50.4(b). That amendment was prompted by a Motor Vehicle
Study Commission report recommending enhanced penalties for refusal convictions that were subsequent to a prior
DWI conviction. Report of the New Jersey Motor Vehicle Study Commission (Sept. 1975), 147-53. The
Commission recommended the change because, under the then-current law, it was advantageous for an individual
who had a prior DWI conviction to refuse a breath test because the refusal penalty was less severe than the penalty
for a second DWI, and the refusal deprived the State of evidence needed to obtain a second DWI conviction. Id. at
147-48, 150-51. (pp. 13-15)

3. This Court previously addressed whether a prior DWI conviction enhances a subsequent refusal sentence in In re
Bergwall, 85 N.J. 382 (1981), rev’g on dissent, 173 N.J. Super. 431 (App. Div. 1980). At the time, the refusal

1
statute called for an enhanced penalty if “the refusal was in connection with a subsequent offense of this section.”
N.J.S.A. 39:4-50.4(b). The Appellate Division majority found that the word “section” “unmistakably means
N.J.S.A. 39:4-50.4 itself” and therefore held that the phrase “subsequent offense of this section” was limited to prior
refusal convictions, and not prior DWI convictions. In re Bergwall, 173 N.J. Super. at 433. Judge Lora, dissenting,
disagreed and found that a prior DWI conviction enhances a subsequent refusal sentence under the refusal statute.
Id. at 437. He stated that the majority erroneously emphasized the word “section” and should have instead given
meaning to the phrase “in connection with.” Ibid. He emphasized that a refusal conviction can only be “in
connection with” a DWI arrest, and cannot be “in connection with” another refusal conviction, because refusal is an
offense that is dependent upon a police officer stopping someone for a suspected DWI and requesting that he or she
take a breathalyzer test. Ibid. The dissenting judge also stated that the statute’s legislative history, including the
New Jersey Motor Vehicle Study Commission’s report, revealed that the Legislature intended to have a prior DWI
conviction qualify as a prior offense under the refusal statute. Id. at 437-38. This Court thereafter reversed the
majority’s decision “for the reasons expressed in the dissenting opinion of Judge Lora in the Appellate Division.”
Bergwall, 85 N.J. at 383. (pp. 16-19)

4. A few months after the Appellate Division’s decision in Bergwall, Assemblyman Herman introduced a bill
suggesting amendments to the refusal statute that would call for an enhanced penalty if “the refusal was in
connection with a subsequent offense under R.S. 39:4-50.” Assemb. 2293, 199th Leg. (Dec. 8, 1980). After this
Court’s subsequent Bergwall decision, the Senate Judiciary Committee rejected that proposal and made amendments
to the bill which replaced the term “R.S. 39:4-50” with “this section.” Sen. Comm. Amend. to Assemb. 2293, 199th
Leg. (May 14, 1981). The final text of the statute required an enhanced penalty if “the refusal was in connection
with a subsequent offense under this section.” L. 1981, c. 512, § 2 (emphasis added). The Legislature is presumed
to be aware of judicial constructions of statutory provisions. Despite the Legislature’s amendments to the refusal
statute after this Court’s Bergwall decision, the statute has maintained “this section” language similar to the
language at issue in Bergwall. The Legislature’s acquiescence reflects its agreement with this Court’s interpretation
of the refusal statute in Bergwall. (pp. 19-21)

5. In Ciancaglini, the Court held that a prior refusal conviction may not be used to enhance a subsequent DWI
sentence under the DWI statute. 204 N.J. at 599. The Court reasoned that, “although N.J.S.A. 39:4-50 and N.J.S.A.
39:4-50.4a are both part of a statutory complex designed to rid the highways of drunk drivers and to make our roads
safer, each is a separate section (each referring to ‘this section’) with a different, albeit related, purpose, and each
has different elements.” Id. at 606. The Ciancaglini Court, however, acknowledged Bergwall and reiterated that the
dissent’s decision, which the Court adopted, was grounded in the language “in connection with a subsequent offense
of this section.” Id. at 610 n.10. Furthermore, the Ciancaglini Court differentiated the “in connection with”
language of the refusal statute with the DWI statute, which “contains no reference whatsoever to the refusal statute.”
Id. at 610. Given the distinction between the DWI statute and the refusal statute, Bergwall, rather than Ciancaglini,
controls the outcome of this case. (pp. 21-22)

6. The continued application of Bergwall furthers New Jersey’s strong public policy against drunk driving. If prior
DWI convictions did not serve to enhance subsequent refusal sentences, it would be advantageous for an individual
with a prior DWI conviction to refuse to take a breathalyzer test. That result would undermine the enforcement of
the DWI statute and the Legislature’s purpose of “curb[ing] the senseless havoc and destruction caused by
intoxicated drivers.” State v. Tischio, 107 N.J. 504, 512 (1987). (pp. 23-24)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.

2
 SUPREME COURT OF NEW JERSEY
A-30 September Term 2012
070975

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROGER PAUL FRYE,

Defendant-Appellant.

Argued February 3, 2014 – Decided June 3, 2014

On certification to the Superior Court,
Appellate Division.

John Menzel argued the cause for appellant
(Mr. Menzel attorney; Roger Paul Frye
submitted a brief pro se).

Joseph A. Glyn, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

In this appeal, defendant, Roger Paul Frye, challenges his

conviction and sentence for refusal to submit to a breathalyzer

test, N.J.S.A. 39:4-50.4a.

On May 12, 2009, defendant pled guilty to refusal to submit

to a breathalyzer test and was sentenced as a third-time

offender, thereby receiving a ten-year driver’s license

suspension, along with fines and penalties. Defendant’s

sentence was based on the municipal court judge’s finding that

1
under the refusal statute, defendant was a third-time offender

because he had two previous convictions for driving while

intoxicated (DWI), N.J.S.A. 39:4-50. Defendant’s conviction and

sentence for refusal to submit to a breathalyzer test were

affirmed on de novo review by the Law Division and also were

affirmed by the Appellate Division.

The plain language of the refusal statute requires that a

municipal court judge sentence an individual based on the number

of prior offenses that he or she has committed. N.J.S.A. 39:4-

50.4a. The statute provides that a person convicted of refusal

will be subject to enhanced penalties if “the refusal was in

connection with a second[, third, or subsequent] offense under

this section.” Ibid.

In 1981, the Court considered the same issue that is now

presented by this case: whether a previous DWI conviction may

serve to enhance a sentence for a subsequent refusal sentencing.

In re Bergwall, 85 N.J. 382 (1981), rev’g on dissent, 173 N.J.

Super. 431 (App. Div. 1980). There, this Court concluded a

prior DWI may enhance a subsequent refusal sentence under the

refusal statute. Id. at 383. More recently, in State v.

Ciancaglini, 204 N.J. 597, 599 (2011), this Court discussed the

inverse of the issue presented in In re Bergwall, supra, 173

N.J. Super. at 432. Specifically, the Ciancaglini Court

addressed whether a prior refusal conviction may be used to

2
enhance a subsequent DWI sentence under the DWI statute.

Ciancaglini, supra, 204 N.J. at 599. This Court answered the

question in the negative. Id. at 610-11.

We now address whether, in light of Ciancaglini and the

Legislature’s post-Bergwall amendments to the refusal statute,

we must overturn In re Bergwall. For the reasons set forth in

this opinion, we re-affirm In re Bergwall. We conclude that

defendant’s prior DWI convictions were appropriately considered

for purposes of his subsequent refusal conviction. Accordingly,

we affirm the judgment of the Appellate Division.

I.

On December 19, 2008, defendant was arrested and charged

with DWI, N.J.S.A. 39:4-50, refusal to submit to a breathalyzer

test, N.J.S.A. 39:4-50.4a, and reckless driving, N.J.S.A. 39:4-

97.

Earlier that evening, Sergeant Sack of the Haddon Heights

Police Department was monitoring vehicle speeds on radar on East

Atlantic Avenue. He observed a vehicle stop in the middle of

Atlantic Avenue, and make an abrupt left-hand turn across the

grass of 500 Grove Street. Sergeant Sack then observed the

vehicle drive into the parking lot of a building, and come to a

complete stop. Sergeant Sack pulled behind the vehicle and

exited his car to approach the driver. Defendant was the driver

of the car.

3
 Sergeant Sack approached defendant and spoke to him.

According to Sergeant Sack, he smelled alcohol coming from

defendant’s car and observed that defendant appeared to be very

incoherent. Defendant then commented that he was possibly a

diabetic. Sergeant Sack proceeded to ask defendant for

documentation of his diabetic condition. Defendant did not

produce any documents confirming that condition.

At that point, Sergeant Sack called Detective Long to

respond to the location because Detective Long was the detective

on patrol for alcohol-related driving offenses. Both Detective

Long and Officer Volpe arrived at the scene. Detective Long

conducted field-sobriety balance tests. Based on the result of

those tests, Officer Volpe placed defendant under arrest for

suspicion of driving under the influence.

Officer Volpe then transported defendant to police

headquarters. When they arrived at headquarters, Officer Volpe,

a certified Alcotest operator, attempted to have defendant

provide a breath sample for the Alcotest. Defendant agreed to

take the test. Officer Volpe provided defendant with

instructions on how to use the Alcotest machine. Defendant

attempted to take the test on four occasions, each of which was

preceded by instructions.

During defendant’s first three attempts to perform the

breathalyzer test, he did not achieve the minimum breath volume

4
required for the machine. On his fourth attempt, defendant

sucked inward rather than blowing outward into the hose.

Thereafter, although there was no outright verbal refusal,

Officer Volpe determined that defendant’s actions warranted the

conclusion that defendant refused to submit to the breathalyzer

test.

II.

On March 24, 2009, defendant appeared in the Haddon Heights

Municipal Court for a case management conference. At the

conference, defendant confirmed that he had previously entered a

plea of not guilty to all three charges.

Following denial of a motion to suppress evidence,

defendant pled guilty to refusal to submit to a breathalyzer

test, N.J.S.A. 39:4-50.4a. In exchange for the guilty plea, the

State dismissed the DWI, N.J.S.A. 39:4-50, and reckless driving,

N.J.S.A. 39:4-97, offenses on the basis that there were

“significant issues with regard to the medical evidence of the

State.”

During the plea colloquy, consistent with Rule 3:9-2,

defendant acknowledged on the record that he had a right to

plead not guilty, a right to a trial, and that it was the

State’s obligation to prove the charges beyond a reasonable

doubt. He then confirmed that he was aware that, by pleading

5
guilty, he was waiving these rights. Defendant also stated that

he was entering the guilty plea voluntarily.

Defendant admitted that he operated a motor vehicle in

Haddon Heights on December 19, 2008, after consuming alcohol.

He said that he had a medical condition that night which

prevented him from remembering exactly what happened. Although

defendant recalled being stopped by a police officer, he did not

remember events from the stop, including talking to a police

officer or performing balance tests.

Defendant replied affirmatively when the court asked him

whether he was taken back to the police station and whether he

was asked to submit to a breathalyzer test. However, when the

court asked what his reply was when asked to perform the test,

defendant stated, “I don’t recall, but apparently I refused to

take the test.” After defendant acknowledged that he did not

have “a hundred percent crystal clear recollection” of the

events, the court inquired if defendant recalled whether he

understood what Officer Volpe was saying when explaining how to

use the Alcotest. Defendant replied, “Possibly, possibly I

didn’t. Probably, probably I didn’t.” He then admitted that he

had attempted to take the Alcotest, but had not followed Officer

Volpe’s instructions.

The court also heard testimony from Sergeant Sack and

Officer Volpe. Sergeant Sack described his observations of

6
defendant’s vehicle and his subsequent interactions with

defendant during the stop. Officer Volpe then testified that

defendant initially agreed to take the Alcotest and attempted to

take the test on four occasions. Officer Volpe stated that he

gave defendant specific instructions on how to take the test for

each of his four attempts; however defendant did not follow the

instructions.

The municipal court judge then accepted defendant’s guilty

plea. He found defendant’s plea to be knowing, intelligent, and

voluntary. The judge further concluded that there was proof

beyond a reasonable doubt that defendant refused to submit to a

breathalyzer test by not following Officer Volpe’s instructions.

After hearing statements from defense counsel, the

prosecutor, and defendant, the municipal court judge sentenced

defendant. He recognized that defendant had two previous DWI

convictions from 2001 and 2004. The judge explained that

defendant’s two prior DWI convictions “can serve to enhance a

subsequent conviction” for a refusal offense. He noted that he

was mandated to sentence defendant as a third-time offender

under the refusal statute. Accordingly, the court suspended

defendant’s license for ten years. The court also imposed a

fine, court costs, and a DWI surcharge.

Following his sentencing, defendant filed a pro se motion

for reconsideration of the sentence and, in the alternative, for

7
reconsideration of the refusal conviction. He argued that his

two prior DWI convictions could not enhance his sentencing for

the refusal offense. Therefore, according to defendant, he

should have been sentenced as a first-time offender. On July

14, 2009, after hearing oral argument, the municipal court

rejected defendant’s motion for reconsideration of the sentence.

At a subsequent hearing on September 22, 2009, the court

also rejected defendant’s motion for reconsideration of the

refusal conviction. Defendant asserted he was unaware of the

ten-year loss of driving privileges when he entered his guilty

plea.

Defendant appealed pro se to the Law Division for a trial

de novo. He asserted the following six claims: the municipal

court erred in accepting his guilty plea; the municipal court

erred in denying his motion to suppress; the municipal court

judge imposed an illegal sentence; the municipal court erred in

denying him a jury trial; he did not understand the breathalyzer

instructions; and trial counsel provided ineffective assistance.

After addressing, and rejecting, each of defendant’s

claims, the Law Division judge found defendant guilty of refusal

to submit to a breathalyzer test. The court also concluded that

the municipal court judge had properly sentenced defendant as a

third-time offender because defendant’s two previous DWI

convictions elevated the refusal conviction to a third offense.

8
The court found that the sentence was mandated by law and,

therefore, imposed the same sentence that defendant had received

in municipal court. Specifically, defendant was sentenced to a

ten-year license suspension, as well as the mandated fines and

penalties.

Defendant then filed a pro se petition for post-conviction

relief (PCR) in the Law Division on February 2, 2011.1 In

particular, defendant contended that his sentence as a third-

time offender was contrary to this Court’s recent Ciancaglini

decision. On March 9, 2011, the Law Division judge rejected

defendant’s arguments and denied his application for PCR.

On April 27, 2011, defendant appealed both the entire

judgment of the Law Division’s decision and the denial of his

PCR petition. In an unpublished opinion, the Appellate Division

deemed most of defendant’s claims meritless and unworthy of

discussion.

The appellate panel specifically addressed, and rejected,

two of defendant’s claims. The panel concluded that the judge

properly weighed the Slater factors in denying the motion to

withdraw the guilty plea.2 It also found that defendant did not

receive ineffective assistance of counsel. The Appellate

Division affirmed the Law Division’s denial of defendant’s

1
Defendant never filed a PCR petition in the municipal court.
2
State v. Slater, 198 N.J. 145, 157-58 (2009).
9
motion to withdraw his plea, and denial of defendant’s PCR

petition.

We granted defendant’s petition for certification. 212

N.J. 455 (2012).

III.

Defendant argues that the Appellate Division erred by not

following the logic of Ciancaglini. He maintains that although

Ciancaglini addresses a factually opposite case, (there, the

prior conviction was for refusal, not DWI) the Court’s decision

in Ciancaglini supports the proposition that, for sentencing

purposes, the refusal and DWI statutes are separate and distinct

statutes.

Defendant advances two other arguments. First, he

asserts that there was an insufficient factual basis to support

his guilty plea. Defendant argues that the municipal court

judge never advised him that a ten-year license suspension would

be imposed, and that the court should have recognized his plea

was not voluntary when he indicated that he had really not

consumed any alcohol that night.

Second, defendant argues that he was entitled to a jury

trial for his refusal charge because of the seriousness of the

penalty which could be imposed upon him. He contends that the

“criminal nature” of the breathalyzer statute mandates a jury

trial. N.J.S.A. 39:4-50.

10
 The State argues that defendant was properly sentenced as a

third-time offender under the refusal statute. The State

maintains that this very issue was decided in In re Bergwall.

The State emphasizes that in In re Bergwall, this Court rejected

the same position advocated by defendant and held that a prior

DWI conviction enhances a subsequent refusal sentence.

The State also argues that Ciancaglini is inapplicable

because it addressed a factually inverse situation involving the

DWI statute rather than the refusal statute. In particular, the

State points out that in Ciancaglini, the Court addressed

whether a prior refusal conviction could be used as a sentencing

enhancement for a subsequent DWI conviction.

The State asserts that the question before the Ciancaglini

Court is inapposite to the issue presented here and was

previously addressed in In re Bergwall. Moreover, it maintains

that this Court’s holding in Ciancaglini did not overturn In re

Bergwall. Rather, the Ciancaglini opinion implicitly reaffirmed

In re Bergwall by finding that the DWI statute does not contain

any cross-reference to the refusal statute, thereby suggesting

that the refusal statute includes a cross-reference to the DWI

statute.

The State further asserts that the municipal court judge

had a sufficient factual basis to support defendant’s guilty

plea. With regard to defendant’s claim that he was entitled to

11
a jury trial, the State argues that defendant’s claim lacks

merit.

IV.

Our evaluation of defendant’s claim requires that we first

consider the plain language of the refusal statute. State v.

Marquez, 202 N.J. 485, 499 (2010). The paramount goal of

statutory interpretation is to ascertain and effectuate the

Legislature’s intent. State v. Shelley, 205 N.J. 320, 323

(2011) (citing DiProspero v. Penn, 183 N.J. 477, 492 (2005)).

“In most instances, the best indicator of that intent is the

plain language chosen by the Legislature.” State v. Gandhi, 201

N.J. 161, 176 (2010) (citing DiProspero, supra, 183 N.J. at

492).

“[W]hen the language of a statute is clear on its face,

‘the sole function of the courts is to enforce it according to

its terms.’” Hubbard v. Reed, 168 N.J. 387, 392 (2001) (quoting

Sheeran v. Nationwide Mut. Ins. Co., 80 N.J. 548, 556 (1979)).

In carrying out that function, we read words “with[in] their

context” and give them “their generally accepted meaning.”

N.J.S.A. 1:1-1.

Courts cannot “rewrite a plainly-written enactment of the

Legislature nor presume that the Legislature intended something

other than that expressed by way of the plain language.”

O’Connell v. State, 171 N.J. 484, 488 (2002). If, however, the

12
Court determines that “a literal interpretation would create a

manifestly absurd result, contrary to public policy, the spirit

of the law should control.” Turner v. First Union Nat’l Bank,

162 N.J. 75, 84 (1999). Furthermore, if a statute’s plain

language is ambiguous or subject to multiple interpretations,

the Court “may consider extrinsic evidence including legislative

history and committee reports.” Marquez, supra, 202 N.J. at

500.

This appeal centers upon the Legislature’s intent in

enacting the refusal statute, N.J.S.A. 39:4-50.4a. The statute

requires municipal courts to revoke the driving privileges of

drivers who refuse to submit breath samples to be tested for

their blood alcohol content. In relevant part, the law

provides:

the municipal court shall revoke the right
to operate a motor vehicle of any operator
who, after being arrested for a violation of
R.S.39:4-50 or section 1 of P.L.1992, c. 189
(C.39:4-50.14), shall refuse to submit to a
test provided for in section 2 of P.L.1966,
c.142 (C.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
revocation shall be for ten years.

[N.J.S.A. 39:4-50.4a.]

13
 As demonstrated by the statutory language, penalties are

based on the number of prior offenses the driver has committed.

Ibid. The length of the driver’s license suspension differs

depending on whether the conviction is the driver’s first,

second, or third or subsequent offense. Ibid.

For a first-time refusal conviction, the driver is subject

to a driver’s license suspension ranging from seven months to

one year. Ibid. If “the refusal was in connection with a

second offense under this section,” the driver is subject to a

two-year license suspension. Ibid. The statute further

requires a ten-year license suspension where the refusal

conviction is “in connection with a third or subsequent offense

under this section.” Ibid.

The legislative history of the refusal statute reveals that

it was not until 1977 that the statute distinguished between

initial and subsequent offenses, and set forth increased

penalties for subsequent offenses. L. 1977, c. 29, § 4. As

originally enacted under N.J.S.A. 39:4-50.4, the statute

required a six-month license revocation for a driver’s refusal

to submit to a chemical test. L. 1966, c. 142, § 4. However,

in 1977, the Legislature amended the refusal law by mandating a

ninety-day license revocation “unless the refusal was in

connection with a subsequent offense of this section, in which

14
case, the revocation period shall be for 1 year.” L. 1977, c.

29, § 4; N.J.S.A. 39:4-50.4(b).

Importantly, a Motor Vehicle Study Commission report

prompted the inclusion of that language. See Report of the New

Jersey Motor Vehicle Study Commission (Sept. 1975), 147-53. The

Commission recommended a one-year suspension if the refusal was

subsequent to a prior DWI conviction that occurred within the

past fifteen years. Id. at 153. In making that recommendation,

the Motor Vehicle Study Commission noted:

If an individual is a second offender under
the impaired statute, it is advantageous for
him to refuse the test, since the penalty he
must receive, if convicted, is two years
loss of license. If he is charged with
driving while under the influence, he faces
either a two or ten year revocation,
depending on his prior record. By refusing
the test, he deprives the state of objective
evidence of intoxication or impairment (and
perhaps evidence of his own innocence), and
risks a six month loss of license. . .

It is presently advantageous for an
individual to refuse the breath test since
the refusal suspension penalty is so much
shorter than any penalty imposed under
N.J.S.A. 39:4-50 except for a first
“impaired” offense. That advantage should
be removed from the law so that more
individuals will be induced to take the
test.

[Id. at 147-48, 150-51.]

V.

15
 This Court addressed the interpretation of the refusal

statute in In re Bergwall. In that case, the defendant was

convicted of refusal in 1977 after previously having been

convicted of DWI. In re Bergwall, supra, 173 N.J. Super. at

431-32. The issue before the Appellate Division was whether a

prior DWI enhances a sentence for a subsequent refusal

conviction. Id. at 432.

At the time, the refusal statute provided as follows:

Any revocation of the right to operate a
motor vehicle over the highways of this
State for refusing to submit to a chemical
test shall be for 90 days unless the refusal
was in connection with a subsequent offense
of this section, in which case, the
revocation period shall be for 1 year. . .

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

The majority of the In re Bergwall panel held that the

phrase “subsequent offense of this section” as used in N.J.S.A.

39:4-50.4(b) was limited to prior convictions for refusal, and

therefore, a prior DWI did not enhance a sentence for a

subsequent refusal conviction. In re Bergwall, supra, 173 N.J.

Super. at 433.

The majority first concluded that the word “section”

“unmistakably means N.J.S.A. 39:4-50.4 itself.” Ibid. The

majority also noted that refusal to submit to a breathalyzer

test deals with “an entirely independent and separate subject”

from a drunk driving offense. Id. at 434. Based on these

16
conclusions, the majority held that a previous DWI conviction

could not enhance a penalty for refusal as it would result in

anomalies that were not intended by the Legislature. Id. at

434-35.

The dissenting opinion by Judge Lora expressed the view

that the phrase “subsequent offense of this section” encompassed

the drunk driving section of Title 39, N.J.S.A. 39:4-50. Id. at

437. The dissent stated that the statutory interpretation

adopted by the majority erroneously emphasized the word

“section” in the phrase “unless the refusal was in connection

with a subsequent offense of this section.” Ibid. Rather,

according to the dissent, the court should have instead given

meaning to the phrase “in connection with.” Ibid.

The dissent emphasized that a refusal can only be “in

connection with” a DWI arrest and a request to take a

breathalyzer test because refusal of a breathalyzer test is an

offense that is dependent upon a police officer stopping someone

for a suspected DWI and requesting that he or she take a

breathalyzer test. Ibid. The dissenting opinion pointed out

that the majority’s interpretation of “unless the refusal was in

connection with a subsequent offense of this section”, and its

reliance on the word “section” as referring to the “refusal

statute,” defied logic because a refusal cannot be “in

connection with” another refusal. Ibid.

17
 The dissenting judge also stated that the statute’s

legislative history revealed that the Legislature intended to

have a prior DWI conviction qualify as a prior offense under the

refusal statute. Id. at 437-38. He further opined that the

“[m]ost persuasive” and “controlling” relevant legislative

history was found in the New Jersey Motor Vehicle Study

Commission’s Report. Id. at 438 (citing Report of the New

Jersey Motor Vehicle Study Commission (Sept. 1975), 147-53).

The dissenting judge noted that the Report of the New Jersey

Motor Vehicle Study Commission revealed that the Commission

recommended certain penalties because it sought to remove a

driver’s advantage in refusing a breathalyzer test when he or

she had a prior DWI conviction. Ibid. He also found that the

summary chart in the “Statement to Senate, No. 1423,” which was

prepared by the Senate Law, Public Safety and Defense Committee,

indicated that a court should impose a one-year license

suspension for refusing a breathalyzer test when a prior DWI

conviction occurred within the previous fifteen years. Id. at

439.

This Court reversed the majority panel’s decision in In re

Bergwall and adopted the dissent’s analysis. In re Bergwall,

supra, 85 N.J. at 383. Specifically, the Court stated that it

was reversing the panel “for the reasons expressed in the

18
dissenting opinion of Judge Lora in the Appellate Division.”

Ibid.

The Appellate Division decided In re Bergwall on April 25,

1980. A few months after the panel’s decision, on December 8,

1980, Assemblyman Herman introduced a bill suggesting amendments

to the refusal statute. That bill included language stating:

Any operator of a motor vehicle who, after
being arrested for a violation of R.S. 39:4-
50, shall refuse to submit to the chemical
test provided for in section 3 of P.L. 1966,
c. 142 (C. 39:4-50.3) when requested to do
so, shall be subject to revocation of the
right to operate a motor vehicle for 90 days
unless the refusal was in connection with a
subsequent offense under R.S. 39:4-50, in
which case the revocation period shall be
for 1 year.

[Assemb. 2293, 199th Leg. (Dec. 8, 1980)
(emphasis added).]

After this Court’s March 1981 In re Bergwall decision, the

Senate Judiciary Committee rejected that proposal and made

amendments to the bill which replaced the term “R.S. 39:4-50”

with “this section.” Sen. Comm. Amend. to Assemb. 2293, 199th

Leg. (May 14, 1981). Therefore, the final text of the statute

read, “unless the refusal was in connection with a subsequent

offense under this section.” L. 1981, c. 512, § 2 (emphasis

added). Thus, the phrase “of this section,” which existed at

19
the time of our In re Bergwall decision, changed to “under this

section.”3

Despite the change to the refusal statute’s language after

our In re Bergwall decision, In re Bergwall remains binding

precedent. “As a principle of statutory construction, the

legislative branch is presumed to be aware of judicial

constructions of statutory provisions.” State v. Singleton, 211

N.J. 157, 180-81 (2012) (citations omitted). A close

examination of the amendments made after this Court’s In re

Bergwall decision reveals that the refusal statute has

maintained language that is nearly identical to the language at

issue in In re Bergwall.

Despite having opportunities to change the refusal statute,

the Legislature has not made any significant changes to the

statute since this Court’s 1981 In re Bergwall decision. At the

time In re Bergwall, supra, 173 N.J. Super. at 432, was decided,

the refusal statute provided: “unless the refusal was in

connection with a subsequent offense of this section.” N.J.S.A.

39:4-50.4(b). The refusal statute currently states: “unless the

refusal was in connection with a second offense under this

3
Since this 1981 amendment, the Legislature has amended the
refusal statute on many other occasions. See L. 1981, c. 537, §
2; L. 1994, c. 184, § 2; L. 1997, c. 277, § 2; L. 1999, c. 185,
§ 5; L. 2004, c. 8, § 1; L. 2007, c. 267, § 2; L. 2009, c. 201,
§ 5. However, those amendments are not relevant to our analysis
of the issue in this case.
20
section. . . or unless the refusal was in connection with a

third or subsequent offense under this section.” N.J.S.A. 39:4-

50.4a. This legislative acquiescence reflects the Legislature’s

agreement with this Court’s interpretation of the refusal

statute. See State v. Wilhalme, 206 N.J. Super. 359, 362 (App.

Div. 1985), (recognizing that “an examination of the legislative

history in chronological juxtaposition with the litigation

history of Bergwall” supports the conclusion that statutory

amendments do not change application of In re Bergwall to

refusal statute), certif. denied, 104 N.J. 398 (1986); see also

State v. Fielding, 290 N.J. Super. 191, 193 (App. Div. 1996).

VI.

We turn our attention now to defendant’s argument that the

Appellate Division’s decision in this case conflicts with our

decision in Ciancaglini. Defendant’s reliance on Ciancaglini is

misplaced.

As mentioned previously, in Ciancaglini, supra, 204 N.J. at

599, this Court addressed the inverse of the issue presented

here: whether a prior refusal conviction may be used to enhance

a subsequent DWI sentence under the DWI statute, N.J.S.A. 39:4-

50. This Court held that a “defendant’s prior refusal

conviction may not be considered as a ‘prior conviction’ for

purposes of [that defendant’s] subsequent DWI conviction.”

Ibid. This Court reasoned that, “although N.J.S.A. 39:4-50 and

21
N.J.S.A. 39:4-50.4a are both part of a statutory complex

designed to rid the highways of drunk drivers and to make our

roads safer, each is a separate section (each referring to ‘this

section’) with a different, albeit related, purpose, and each

has different elements.” Id. at 606.

In Ciancaglini, this Court also acknowledged the In re

Bergwall holding. Id. at 610 n.10. Although confined to a

footnote, this Court reiterated that the dissent’s decision,

which the Court adopted, was grounded in the language “in

connection with a subsequent offense of this section.” Ibid.

Furthermore, in our analysis of the Ciancaglini case, this Court

differentiated the “in connection with” language of the refusal

statute with the DWI statute, which “contains no reference

whatsoever to the refusal statute.” Id. at 610.

Recognizing that nothing in the DWI statute suggests that

its references to prior violations refer to anything other than

DWI convictions, and because the Legislature did not amend the

DWI and refusal statutes to express an alternative intent, this

Court found that the references to prior violations only refer

to DWI convictions and not to refusal convictions. Id. at 610-

11.

Accordingly, given the distinction between the DWI statute

and the refusal statute, In re Bergwall, rather than

Ciancaglini, controls the outcome of this case.

22
 VII.

We note that public policy further supports upholding our

In re Bergwall decision. As noted by the panel in Wilhalme,

supra, 206 N.J. Super. at 362-63, the continued application of

In re Bergwall recognizes New Jersey’s strong public policy

against drunk driving. In re Bergwall furthers that policy by

creating harsher penalties for individuals who commit multiple

alcohol-related driving offenses.

If prior DWI convictions were not to enhance subsequent

refusal sentences, it would be tactically advantageous for an

individual to refuse a breathalyzer test. See In re Bergwall,

supra, 173 N.J. Super. at 438 (Lora, P.J.A.D., dissenting)

(citing Report of the Motor Vehicle Study Commission (September

1975) at 147-48, 150-51). Individuals who have been previously

convicted of drunk driving would refuse to take a breathalyzer

test because the penalty for the refusal would be the seven-

month penalty rather than the more severe two-year penalty.

Ibid.

Furthermore, those individuals would also be able to escape

punishment for a subsequent DWI conviction by refusing the

breathalyzer test. Ibid. Such a refusal would deny the State

the necessary evidence to obtain a conviction for that

subsequent DWI offense. Ibid. That result would undermine the

enforcement of the DWI statute and the Legislature’s purpose of

23
“curb[ing] the senseless havoc and destruction caused by

intoxicated drivers.” State v. Tischio, 107 N.J. 504, 512

(1987).

This appeal also presents the corollary issues of whether,

under the circumstances of this case, defendant should have been

permitted to withdraw his guilty plea, and whether he was

entitled to a jury trial. We decline to address those claims

because they are untimely. See R. 2:4-1(a).

VIII.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
PATTERSON; and JUDGES RODRÍGUEZ and CUFF (both temporarily
assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.

24
 SUPREME COURT OF NEW JERSEY

NO. A-30 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROGER PAUL FRYE,

Defendant-Appellant.

DECIDED June 3, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Fernandez-Vina
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7

1