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Senate Gives Nod to Measure That Considers Refusal as Prior DWI

Senate Gives Nod to Measure That Considers Refusal as Prior DWI

Michael Booth


The state Senate on Thursday approved a bill that would overturn a Supreme Court ruling that breath-test refusal convictions do not count as prior DWI offenses for sentencing purposes.

In a 31-0 vote, the Senate passed S-2671 , which would upend State v. Ciancaglini , 204 N.J. 597 (2011). There, the Court held it was not clear from the state’s drunken-driving statutes that prior convictions for refusal were to be considered prior convictions at sentencing.

The bill clarifies that refusals are prior convictions under the drunken-driving statute and that drunken-driving convictions are prior convictions under the refusal statute.

On May 1, 2008, Rumson police stopped Eileen Ciancaglini for erratic driving. A breath test turned up a blood-alcohol content of .17 percent, more than twice the legal limit of .08 percent.

She pleaded guilty to DWI but argued that she should be treated as a first-time offender despite her May 18, 2006, refusal conviction. She cited State v. DiSomma 262, N.J. Super. 375 (1993), which said refusal is not a prior DWI.

But a municipal judge treated her as a second offender, sentencing her to six months in jail and suspending her driver’s license for 10 years. He relied on State v. Cummings , 184 N.J. 84 (2005), which raised the burden of proof for a refusal conviction from a preponderance of the evidence to beyond a reasonable doubt, putting refusal on par with a DWI conviction, prosecutors said.

Monmouth County Superior Court Judge Anthony Mellacci Jr. reversed, holding that DiSomma still applied. He sentenced Ciancaglini to 30 days in jail and a one-year license suspension.

The Appellate Division reversed and reinstated the municipal ruling, holding that Cummings had equalized DWI and refusal offenses, and thus that they were interchangeable for sentencing purposes.

But a unanimous Supreme Court overturned the appellate ruling and reinstated the less-severe penalty, saying that the “Legislature clearly understood how to provide for enhanced sentences by reference to prior convictions,” but did not.

The bill also would change the burden of proof in establishing the elements of a refusal violation from a preponderance of the evidence to beyond a reasonable doubt. Courts have held that a refusal conviction is quasi-criminal in nature and therefore requires proof of each element beyond a reasonable doubt.

The bill is sponsored by Sens. Jefferson Van Drew, D-Atlantic, and Sandra Cunningham, D-Hudson. An identical measure, A-3762 , is pending before the Assembly Law and Public Safety Committee.

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