Opinion
DOCKET NO. A-1562-12T4
02-19-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DENIS A. TIGHE, Defendant-Appellant.
Greggory M. Marootian, attorney for appellant. Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Waugh and Nugent.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 11-070.
Greggory M. Marootian, attorney for appellant.
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Denis A. Tighe appeals an order of the Law Division denying his appeal challenging the length of the license suspension imposed by a judge of the Township of Morris Municipal Court for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, which is within the range applicable to a third or subsequent offender. He does not challenge his conviction, which was based on his guilty plea, and there is no dispute that he had two prior convictions for driving while under the influence (DWI), N.J.S.A. 39:4-50, but no prior convictions for refusal.
Defendant raises a single legal issue involving the interpretation of the statute providing enhanced penalties for subsequent offenders convicted of refusal to submit to a breath test, N.J.S.A. 39:4-50. He contends that his prior convictions for driving while under the influence, N.J.S.A. 39:4-50.4, do not qualify as third or subsequent offenses within the meaning of N.J.S.A. 39:4-50.4a. We conclude that they do.
Defendant's arguments rest on the Supreme Court's recent decision in State v. Ciancaglini, 204 N.J. 597 (2011). But this appeal is governed by In re Bergwall, 85 N.J. 382 (1981), rev'g on dissent by Lora, P.J.A.D., 173 N.J. Super. 431, 436 (App. Div. 1980), and we are bound by that decision.
N.J.S.A. 39:4-50.4a requires the municipal court to revoke the driving privileges of a person convicted of refusing to submit to a breath test "for not less than seven months or more than one year . . . 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."
In Ciancaglini, the Supreme Court concluded that similar provisions for repeat violators of the law prohibiting driving while under the influence, N.J.S.A. 39:4-50, do not permit use of a prior refusal conviction as a basis for enhanced sentencing for that offense. 204 N.J. at 599. The Court explained:
N.J.S.A. 39:4-50 contains no reference whatsoever to the refusal statute. When listing the penalties for driving while intoxicated, it categorizes them based on being "[f]or the first offense," "[f]or a second violation," and "[f]or a third or subsequent violation." N.J.S.A. 39:4-50(a)(1),(2),(3). Nothing suggests that those references to prior "violations" are meant to refer to anything beyond DWI convictions in violation of N.J.S.A. 39:4-50, and the Legislature made no relevant amendment to the DWI or refusal statute while otherwise strengthening the latter. Indeed, without any statutory cross-reference, or similar expression, the most natural reading of the statute would suggest that the "prior" violations described in the three subsections of N.J.S.A. 39:4-50 are meant to refer only to the section of Title 39, Chapter 4, in which they are contained, that is N.J.S.A. 39:4-50. Such a reading is consistent with the well-established principle that penal statutes must be strictly construed.
[Id. at 610-11.]
Defendant urges this court to apply Ciancaglini to its inverse — using a prior DWI conviction to enhance a subsequent refusal conviction. We decline to do so because we are bound by the interpretation adopted by the Supreme Court in Bergwall.
The Court addressed this precise question in Bergwall by adopting the dissenting Appellate Division opinion of Judge Lora. 85 N.J. 382. By adopting the dissent, the Court relied on the rather peculiar wording of N.J.S.A. 39:4-50.4a, which then read: "[R]evocation . . . for refusing . . . 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." Bergwall, supra, 173 N.J. Super. at 432-33.
In fact, the majority of the Appellate Division panel had adopted the position now urged by defendants — a prior DWI conviction may not enhance a subsequent refusal conviction. But Judge Lora concluded that the statutory language of the refusal statute was nonsensical under the majority's interpretation "since a refusal can not 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. at 437. Judge Lora looked to legislative history, which indicated that this was, in fact, the Legislature's intent. Id. at 438-39.
Although N.J.S.A. 39:4-50.4a has been amended several times since 1981, it still contains language that is nearly identical to the language at issue in Bergwall. The penalty is now between seven months and one year "unless the refusal was in connection with a second offense under this 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. Despite the subsequent amendments to this repeat offender provision, the Legislature has left the pertinent language unchanged. In this circumstance, the Legislature's inaction is indicative of its agreement with the Court's interpretation. See State v. Fielding, 290 N.J. Super. 191, 193-94 (App. Div. 1996) (noting that "legislative retention of judicially construed language signals an agreement with the language, as construed"). The only difference in the phrase deemed determinative in Bergwall and the present version is a substitution of the word "under" for the word "of."
Indeed, the Supreme Court has indicated its continued agreement with Bergwall. See Ciancaglini, supra, 2 04 N.J. at 610 n.10. We recognize that in State v. DiSomma, 262 N.J. Super. 375, 381-82 (App. Div. 1993), a panel of this court questioned, in dicta, the continued validity of Bergwall. But the Supreme Court discussed both DiSomma and Bergwall in Ciancaglini. 204 N.J. at 608-10. In fact, the Ciancaglini Court relied on DiSomma's reasoning with respect to the DWI statute, but the Court did not approve of the dicta addressing the refusal statute or question the continuing validity of the holding in Bergwall. Id. at 609-10 & n.10.
In our view, defendant's reliance on Ciancaglini is wholly misplaced. For all of the foregoing reasons, we follow Bergwall as this court has in the past. See, e.g., Fielding, supra, 290 N.J. Super. at 193-94 (and cases cited therein).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION