NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2045-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. July 10, 2018
APPELLATE DIVISION
JAMES T. DOUGHERTY,
Defendant-Appellant.
________________________________
Argued April 11, 2018 – Decided July 10, 2018
Before Judges Alvarez, Nugent, and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 16-04-0407.
Joseph P. Grimes argued the cause for
appellant.
Jennifer E. Kmieciak, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Carol M.
Henderson, Assistant Attorney General, of
counsel and on the brief).
The opinion of the court was delivered by
ALVAREZ, P.J.A.D.
Drivers commit a fourth-degree crime if they operate a motor
vehicle during a period of license suspension for a second or
subsequent motor vehicle violation of driving while intoxicated
(DWI), N.J.S.A. 39:4-50, or refusal to submit to a breath test
(refusal), N.J.S.A. 39:4-50.4(a). N.J.S.A. 2C:40-26(b). When
defendant James T. Dougherty was arrested and charged with
violating N.J.S.A. 2C:40-26(b), he had one prior DWI conviction,
one prior refusal conviction, and his license was suspended for
the refusal. He contends 2C:40-26(b) requires convictions of the
same two predicate violations, either two convictions for driving
while intoxicated, or two convictions for refusal, not one of
each. Based on the plain language of the statute, we conclude the
two predicate violations may consist of one prior DWI and one
prior refusal conviction. Hence, we affirm the denial of
defendant's motion to dismiss the indictment, his subsequent
conviction, and vacate the Law Division judge's stay of his
sentence.
Defendant was convicted on August 19, 2015, of DWI, and on
November 9, 2015, of refusal.1 On December 19, 2015, during the
seven-month refusal suspension,2 police stopped defendant while he
was operating a motor vehicle. A grand jury indicted him for
1
The refusal arrest took place on February 4, 2009. The DWI
arrest occurred on February 23, 2009. The record does not explain
the reason for the more than six-year delay between arrests and
convictions.
2
The record does not indicate the length of suspension imposed
on the DWI.
2 A-2045-16T4
driving while suspended, and after the judge denied his motion to
dismiss the indictment, defendant entered a conditional guilty
plea. The court sentenced him on December 15, 2016, to the
statutory minimum of 180 days incarceration and stayed the service
of the jail time pending the outcome of this appeal.
Defendant raises the following points:
i. Point One: A charge of [DWI] or Refusal
cannot be used to enhance the penalties of the
other
ii. All methods of statutory construction
including the Rule of Lenity in criminal cases
supports appellant's interpretation of the
DW[I] statute and requires reversal
Defendant's arguments on appeal raise issues of law, which
we review de novo. State v. Grate, 220 N.J. 317, 329 (2015)
(citing State v. Drury, 190 N.J. 197, 209 (2007)) (holding that
on appeal legal issues are reviewed "de novo, unconstrained by
deference to the decisions of the trial court").
N.J.S.A. 2C:40-26(b) reads: "[i]t shall be a crime of the
fourth degree to operate a motor vehicle during the period of
license suspension in violation of [N.J.S.A.] 39:3-40, if the
actor's license was suspended or revoked for a second or subsequent
violation of [N.J.S.A.] 39:4-50 or [N.J.S.A. 39:4-50.4a]."
Relying on State v. Ciancaglini, 204 N.J. 597 (2011),
defendant argues the reference in N.J.S.A. 2C:40-26(b) to a second
3 A-2045-16T4
or subsequent violation of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4a
means a single conviction under each section of the Motor Vehicle
Code does not suffice for prosecution. We disagree that the
opinion supports defendant's interpretation of the statute.
Ciancaglini holds a "[d]efendant's refusal conviction cannot
be considered a prior DWI violation for enhancement purposes" when
a defendant is being sentenced for a violation of the DWI statute.
204 N.J. at 612. Ciancaglini focuses only on N.J.S.A. 39:4-50.
In State v. Frye, 217 N.J. 566 (2014), the Court again
addressed the interplay between DWI and refusal convictions for
sentencing purposes, this time in the context of the refusal
statute. Frye reaffirmed the doctrine established in In re
Bergwall, 85 N.J. 382 (1981). Based on the language of N.J.S.A.
39:4-50.4a, the Bergwall Court had held a prior DWI conviction
enhances the sentence for a conviction for refusal. 85 N.J. at
383 (citing In re Bergwall, 173 N.J. Super. 431, 436 (App. Div.
1980) (Lora, P.J.A.D., dissenting)). The defendant in Frye argued:
"the Court's decision in Ciancaglini supports the proposition
that, for sentencing purposes, the refusal and DWI statutes are
separate and distinct" and that as a result a prior DWI could no
longer be used to enhance a refusal penalty. 217 N.J. at 573.
Contrary to that defendant's suggestion that Ciancaglini
controlled the outcome, in Frye, the Court examined the "plain
4 A-2045-16T4
language of the refusal statute" and the legislative history of
the subsequent amendments, concluding the enactments were all
designed to discourage drivers from refusing to submit to alcohol
breath testing in order to avoid more serious penalties under the
DWI statute. The Court again held that prior DWI convictions must
be included as prior convictions when a defendant is sentenced for
refusal. Id. at 575-82. A "strong public policy" mandated the
continuing viability of Bergwall because of the societal interest
in addressing the harm inflicted by drunken drivers. Id. at 582.
The analysis in Ciancaglini and Frye focuses on well-
established rules of statutory construction as applied to the
particular law under consideration. That methodology informs our
discussion.
In interpreting a statute, the primary goal is, as always,
"to divine 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)); accord State v. Bass, 224 N.J. 285, 322
(2016) (quoting Shelley, 205 N.J. at 323); State v. Gandhi, 201
N.J. 161, 176 (2010). We consider the enactment's plain language,
viewed in the context of the entire legislative scheme that
includes it. Bass, 224 N.J. at 322; Drury, 190 N.J. at 209;
superceded by statute on other grounds, State v. Livingston, 172
N.J. 209, 217-18 (2002); superceded by statute on other grounds,
5 A-2045-16T4
State v. Thomas, 166 N.J. 560, 567 (2001). "Statutory text 'should
be given its ordinary meaning and be construed in a common-sense
manner.'" State v. Revie, 220 N.J. 126, 132 (2014) (quoting State
in re K.O., 217 N.J. 83, 91 (2014)).
If, however, the language is ambiguous or lends itself to
more than one reasonable interpretation, we look beyond the literal
language and consider extrinsic factors, such as the statute's
purpose, legislative history, and statutory context to determine
the legislative intent. State v. McDonald, 211 N.J. 4, 18 (2012);
Gandhi, 201 N.J. at 177, 180-81; Drury, 190 N.J. at 209.
We must strictly construe any reasonable doubt about the
meaning of a penal statute in favor of a defendant, applying the
rule of lenity. State v. D.A., 191 N.J. 158, 164 (2007). The
rule of lenity, however, applies only where the statutory language,
legislative history, and other secondary sources do not resolve
the purported ambiguity. McDonald, 211 N.J. at 18 (citing State
v. Gelman, 195 N.J. 475, 482 (2008)); Drury, 190 N.J. at 209-10.
Defendant also argues the relevant language is ambiguous and
triggers the rule of lenity, compelling interpretation of the
statute requiring dismissal of his indictment. Defendant's
starting premise on this issue is that a fair reading of State v.
Olivero, 221 N.J. 632, 639 (2015), and In re Estate of Fisher, 443
N.J. Super. 180, 190-95 (App. Div. 2015), means the word "or" in
6 A-2045-16T4
the statute should not be interpreted as "either/or," but as "or"
without the "either." He therefore asserts that he should have
gained the benefit of the rule and his motion to dismiss the
indictment should have been granted.
The statutory language is not ambiguous. Even if it were,
the legislative history reveals that DWI and refusal are referred
to interchangeably as predicate convictions.
"When N.J.S.A. 2C:40-26 was enacted in 2009, L. 2009, c. 333,
§ 1, the Senate intended to lodge 'criminal penalties for persons
whose [drivers'] licenses are suspended for certain drunk driving
offenses and who, while under suspension for those offenses,
unlawfully operate a motor vehicle.'" See State v. Luzhak, 445
N.J. Super. 241, 245-46 (App. Div. 2016) (quoting Senate Law and
Public Safety and Veterans' Affairs Comm. Statement to S. 2939
(Nov. 23, 2009)). The phrase "certain drunk driving offenses" is
not limited to one category of offense. It necessarily refers to
more than DWI. Otherwise it would have said the intent of the law
was to create "criminal penalties for persons whose [drivers']
licenses are suspended for DWI and who, while under suspension for
that offense, unlawfully operate a motor vehicle."
Additionally, the Sponsor's Statement to S. 2939 (June 15,
2009) explained that N.J.S.A. 2C:40-26(b) made it a fourth-degree
crime for "a person who is convicted of a second or subsequent
7 A-2045-16T4
driving while intoxicated or refusal offense" to operate a motor
vehicle during a period of license suspension "for that second
offense." After the specific mention of DWI and refusal, the
language states: "that second offense[,]" effectively referring
to both types of offenses interchangeably as possibilities. The
legislative intent is therefore clear——the word "either" is
imported into the use of "or" in this statute. Since the statute
is not ambiguous, and the pertinent language does not lend itself
to a different reasonable interpretation, the rule of lenity does
not apply.
It is noteworthy that the statute, unlike most fourth-degree
crimes, imposes a mandatory 180-day jail sentence.3 That speaks
to the legislative purpose of addressing the problem of drunk
driving by imposing significant sanctions, tailored to maximize
the deterrent impact.
We affirm defendant's conviction and vacate the stay of the
sentence.
3
N.J.S.A. 2C:44-1(e) creates a general presumption against
imprisonment for first offenders convicted of fourth-degree
crimes.
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