State of New Jersey v. Thomas Taylor

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3923-13T2

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
May 11, 2015
v. APPELLATE DIVISION

THOMAS TAYLOR,

Defendant-Appellant.

Argued telephonically April 27, 2015 –
Decided May 11, 2015

Before Judges Alvarez, Waugh, and Carroll.

On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Municipal Appeal No. 13-067.

John Menzel argued the cause for appellant.

Monica do Outeiro, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant (Christopher J.
Gramiccioni, Acting Monmouth County
Prosecutor, attorney; Ms. do Outeiro, of
counsel and on the brief).

The opinion of the court was delivered by

CARROLL, J.A.D.

On October 29, 2013, defendant Thomas J. Taylor entered a

conditional guilty plea to refusal to submit to a breath test in

violation of N.J.S.A. 39:4-50.2, reserving the right "to appeal
[] any and all issues, including sentencing." Defendant was

sentenced by the municipal judge as a "third offender," N.J.S.A.

39:4-50.4a, to a $1006 fine, $33 in court costs, a $100

surcharge, forty-eight hours of attendance at the Intoxicated

Driver Resource Center (IDRC), a ten-year suspension of driving

privileges, and installation of an interlock device for a period

of two years.

There is no dispute that defendant had two prior

convictions for driving while under the influence (DWI),

N.J.S.A. 39:4-50, in 1985 and 1996, but no prior convictions for

refusal. In his appeal to the Law Division, defendant argued,

among other things, that his prior convictions for DWI did not

qualify as prior offenses within the meaning of N.J.S.A. 39:4-

50.4a. Defendant contended that State v. Ciancaglini, 204 N.J.

597 (2011), controlled and mandated that he be sentenced as a

first offender for refusal.

The Court in Ciancaglini considered whether a defendant

previously convicted of refusal under N.J.S.A. 39:4-50.4a,

should be sentenced as a first or second offender on a

subsequent DWI conviction under N.J.S.A. 39:4-50, which provides

for enhanced penalties for repeat offenses. Id. at 600. The

Court held that N.J.S.A. 39:4-50 precludes use of a prior

refusal conviction to enhance the sentence on a subsequent DWI,

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and thus Ciancaglini had to be sentenced as a first offender.

Id. at 610-11. In its ruling, however, the Court left

undisturbed the holding of In re Bergwall, 85 N.J. 382 (1981),

rev'g on dissent, 173 N.J. Super. 431, 436-40 (App. Div. 1980)

(Lora, P.J.A.D., dissenting), that a prior DWI conviction is

deemed a prior violation for purposes of enhancing the sentence

on a subsequent refusal conviction under N.J.S.A. 39:4-50.4a.

Ciancaglini, supra, 204 N.J. at 610 n.10.

Specifically, the Court in Ciancaglini reiterated Judge

Lora's analysis that the phrase "in connection with a subsequent

offense of this section" in N.J.S.A. 39:4-50.4 included prior

DWI offenses because "'a refusal cannot be "in connection with"

another refusal. Rather, it can only be "in connection with" an

arrest for drinking-driving and a request to take the breath

test.'" Id. (quoting Bergwall, supra, 173 N.J. Super. at 437).

Here, the Law Division judge concluded, correctly, that

defendant's reliance on Ciancaglini was misplaced. The judge

determined that he remained bound by Bergwall, and affirmed

defendant's sentence. We note that since this case was decided,

our Supreme Court has reaffirmed the vitality of Bergwall that a

prior DWI conviction will enhance the sentence on a subsequent

refusal conviction. State v. Frye, 217 N.J. 566, 568-69 (2014).

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 On appeal, defendant advances two new arguments not

previously raised in the Law Division:

I. THE COURTS BELOW IMPROPERLY SENTENCED
DEFENDANT AS A THIRD OFFENDER OF BREATH TEST
REFUSAL BECAUSE HE HAD TWO PRIOR DWI
CONVICTIONS FOR OFFENSES OCCURRING MORE THAN
TEN YEARS AGO, THEREBY ENTITLING HIM TO BE
TREATED AS A SECOND OFFENDER.

II. THE UNEXPLAINED DELAY OF MORE THAN ONE
YEAR BETWEEN ISSUANCE OF THE COMPLAINT AND
CONVICTION WARRANTS DISMISSAL AS A VIOLATION
OF DEFENDANT'S RIGHT TO A SPEEDY TRIAL.

We address each of these arguments in turn.

The penal consequences that flow from a DWI conviction

escalate with each subsequent DWI conviction. N.J.S.A. 39:4-50.

"Thus, the number of prior violations is significant in

sentencing [a] defendant." Ciancaglini, supra, 204 N.J. at 607.

As the Court further noted:

The refusal statute, N.J.S.A. 39:4-
50.4a, is similarly structured with
penalties based on whether the conviction is
the driver's first, second, or third or
subsequent offense. The statute provides
that "the municipal court shall revoke the
right to operate a motor vehicle of any
operator who, after being arrested for a
violation of [the DWI statute], shall refuse
to submit to a [breath test] when requested
to do so." N.J.S.A. 39:4-50.4a(a). The
length of the license suspension under a
first, second, or third or subsequent
offense mirrors the length of the suspension
for a first (with a [blood alcohol]
concentration of 0.10% or more), second, or
third or subsequent violation of the DWI
statute. The first offense will result in a

4 A-3923-13T2
 suspension of seven months to one year; if
"the refusal was in connection with a second
offense under this section," it will result
in a suspension of two years; and if "the
refusal was in connection with a third or
subsequent offense under this section," it
will result in a suspension of ten years.
Ibid.

. . . . A first offender is subject to
a $300 to $500 fine; a second offender is
subject to a $500 to $1,000 fine; a third
offender is subject to a $1,000 fine. Ibid.
Therefore, the penalties for each refusal
offense now essentially mirror the penalties
for each offense of DWI, but no custodial
sentence is authorized as the result of a
refusal conviction.

[Ciancaglini, supra, 204 N.J. at 607-08
(first and second alterations in original)
(footnote omitted).]

However, unlike the refusal statute, the DWI statute contains a

so-called "step-down" provision, which provides that

if 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)(3).]

Defendant now argues that we should engraft a similar

"step-down" provision into the refusal statute, and treat his

refusal conviction as a second rather than a third conviction

5 A-3923-13T2
for sentencing purposes since it followed more than ten years

after his second DWI conviction.

Defendant's argument finds support in our prior holding in

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

Fielding, the defendant had two prior DWI convictions in 1981.

Id. at 193. The defendant was then convicted of refusal in

1994. Id. at 192. The sole issue on appeal was whether

Fielding was properly sentenced as a second offender, requiring

a two-year license revocation, or whether he should have been

sentenced as a first offender under the refusal statute,

N.J.S.A. 39:4-50.4a, in which event "his license would have been

revoked for only six months." Id. at 193. In upholding the

two-year suspension for refusal, we concluded:

Fielding had two prior DWI convictions in
1981. Thus, while he received the benefit
of one step-down, avoiding a ten-year
suspension, he properly was sentenced as a
second offender.

[Id. at 195.]

Thus, at least by implication, defendant's penalty for his

refusal conviction, which was enhanced due to his two prior DWI

convictions, was likewise reduced by the step-down provision

applicable to enhanced DWI penalties.

We view the issue as one of fundamental fairness. As

noted, N.J.S.A. 39:4-50.4a has been consistently interpreted as

6 A-3923-13T2
requiring that a prior DWI conviction be deemed a prior

violation for purposes of the enhanced refusal penalty. Frye,

supra, 217 N.J. at 569; Bergwall, supra, 85 N.J. at 383;

Fielding, supra, 290 N.J. Super. at 193. If the penalty

attendant to a driver's refusal conviction is enhanced by a

prior conviction under the DWI statute, fairness dictates that

it be similarly reduced by the sentencing leniency accorded a

driver under the "step-down" provision of that statute where

there is a hiatus of ten years or more between offenses.

In the present case, had defendant consented to a

breathalyzer test and been convicted of DWI, he would have been

treated as a second rather than a third offender because his

second DWI conviction occurred more than ten years ago in 1996.

Consequently, his driving privileges would have been revoked for

two, rather than ten, years. We see no reason why a comparable

result should not be reached here, and a "step-down" applied to

the same DWI convictions that serve as the basis to enhance

defendant's refusal sentence.

As noted, defendant did not previously raise the argument

that he is entitled to a "step-down" sentence for the instant

refusal conviction. Nonetheless, the Law Division judge appears

to have determined that defendant was ineligible for a second

"step-down" because he was previously granted "step-down" status

7 A-3923-13T2
due to the ten-year lapse of time between his first and second

DWI convictions. The judge reasoned:

[D]efendant was not entitled to a step-down
provision in this particular case and
whether to consider this [] a third offense
because he had previously been afforded a
step-down – and case law indicates that
you're entitled to one step-down and one
only – and on a third or more offense, the
prior two offense[s] are counted as separate
offenses so he was not entitled to a step
down. That argument, I note, has not been
made and that's probably the reason. The
law says it cannot be.

After the Law Division judge issued his decision, and while

this appeal was pending, our Supreme Court clarified "that a

repeat DWI offender may invoke the statutory 'step-down'

provision [N.J.S.A. 39:4-50(a)(3)] a second time, provided that

more than ten years have passed with no infraction since the

defendant's most recent DWI offense." State v. Revie, 220 N.J.

126, 129 (2014). Therefore, as the State concedes, defendant's

prior use of a "step-down" would not bar a second application of

the step-down provision. As applied to the present case, we

conclude that defendant should have been sentenced as a second

offender due to the ten-year lapse between his second DWI

offense and the instant refusal offense.

Next, we have considered defendant's speedy trial argument

in light of the record and applicable legal principles and

conclude it is without sufficient merit to warrant discussion in

8 A-3923-13T2
a written opinion. R. 2:11-3(e)(2). Directive #1-84, on which

defendant relies, established a sixty-day dispositional goal for

DWI cases, not a bright-line try-or-dismiss rule. State v.

Cahill, 213 N.J. 253, 270 (2013). After balancing the four

factors in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.

Ed. 2d 101 (1972), which govern the evaluation of speedy trial

violations in DWI cases, Cahill, supra, 213 N.J. at 271, we

conclude that the limited record provided fails to establish

that defendant ever asserted his right to a speedy trial, that

the State caused any undue pre-trial delay, or that defendant

sustained any prejudice.

Affirmed in part and reversed and remanded for sentencing

as a second offender.

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