Opinion
DOCKET NO. A-3153-11T1
01-13-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD CAMPBELL, Defendant-Appellant.
Norman D. Smith, attorney for appellant. Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 29-11.
Norman D. Smith, attorney for appellant.
Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief).
The opinion of the court was delivered by ACCURSO, J.A.D.
Defendant Richard Campbell pled guilty on September 26, 2011 to refusal to submit to a breath test in violation of N.J.S.A. 39:4-50.2, and was sentenced as a "second offender," N.J.S.A. 39:4-50.4a, by the municipal judge to a $756 fine, $33 in court costs, a $100 surcharge, forty-eight hours of attendance at the Intoxicated Driver Resource Center (IDRC), a two-year suspension of driving privileges, and installation of an interlock device for a period of three years. Defendant's prior conviction was in 2008 for driving while intoxicated (DWI), N.J.S.A. 39:4-50.
Defendant appealed his sentence to the Law Division renewing his argument that he should have been sentenced as a first-time offender for refusal. Reviewing the matter de novo, the Law Division judge disagreed and again sentenced defendant as a "second offender" for refusal, imposing the same sentence as the municipal court judge.
On appeal, defendant raises only one issue:
DOES THE CONVICTION FOR DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS IN VIOLATION OF N.J.S.A. 39:4-50 ENHANCE A SUBSEQUENT CONVICTION FOR A VIOLATION OF N.J.S.A. 39:4-50.2 REFUSAL TO SUBMIT TO A BREATH TEST, EVEN THOUGH THE LATTER CONVICTION IS THE DEFENDANT'S FIRST CONVICTION FOR A REFUSAL?Defendant contends that State v. Ciancaglini, 204 N.J. 597 (2011), controls and mandates that he be sentenced as a first offender. We disagree.
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 ruled that N.J.S.A. 39:4-50 precludes use of a prior refusal conviction to enhance the sentence on a subsequent DWI, and thus Ciancaglini had to be sentenced as a first offender. Id. at 610-11. In so holding, 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). Accordingly, we conclude that the Court in Ciancaglini, although holding that N.J.S.A. 39:4-50 precludes use of a prior refusal conviction to enhance the sentence on a subsequent DWI, has reaffirmed the vitality of Bergwall that a prior DWI conviction will enhance the sentence on a subsequent refusal conviction. Defendant's reliance on Ciancaglini to overturn his sentence here is thus misplaced. Because we remain bound by Bergwall, we affirm defendant's sentence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION