Third Time DWI Offense: Prior DWI Convictions may Enhance the Sentence for a Subsequent Refusal Conviction

Submitted by New Jersey DWI lawyer, Jeffrey Hark

State v. Roger Paul Frye (A-30-12) (070975)  Argued February 3, 2014 — Decided June 3, 2014

The Court considers whether a previous conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, may serve to enhance the sentence for a subsequent conviction for refusal to submit to a breathalyzer test (refusal), N.J.S.A. 39:4-50.4a.

HELD: The Court reaffirms its holding in In re Bergwall, 85 N.J. 382 (1981).  A prior DWI conviction may enhance the sentence for a subsequent refusal conviction under the refusal statute, N.J.S.A. 39:4-50.4a. Opinion attached


In 2008, defendant was arrested and charged with DWI, refusal, and then pled guilty to refusal and, in exchange, the State dismissed the DWI and reckless driving charges. Because defendant had two previous DWI convictions from 2001 and 2004, the judge sentenced him as a third-time offender under the refusal statute and suspended his license for ten years. Defendant filed a motion for reconsideration arguing that his two prior DWI convictions could not enhance his refusal sentence and that he therefore should have been sentenced as a first-time refusal offender. The municipal court denied defendant’s motion for reconsideration. Defendant appealed and, after a de novo review, the Law Division found that the municipal court correctly sentenced defendant a a third-time refusal offender.  Defendant thereafter filed a petition for post-conviction relief (PCR) in the Law Division contending that his sentence as a third-time offender was contrary to State v. Ciancaglini, 204 N.J. 597 (2011), in which the Court held that a prior refusal conviction cannot be used to enhance a subsequent DWI sentence under the DWI statute. The Law Division rejected defendant’s argument and denied PCR. The Appellate Division affirmed in an unpublished decision. The Court granted defendant’s petition for certification. 212 N.J.455 (2012).

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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