STATE OF NEW JERSEY v. SEAN WATKINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2594-07T42594-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

SEAN WATKINS,

Defendant-Respondent.

______________________________________________________________

 

Argued January 29, 2009 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 50-07.

Thomas Cannavo, Senior Assistant Prosecutor, argued the cause for appellant (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Mr. Cannavo, on the brief).

Richard J. Simon argued the cause for respondent (Richard J. Simon, LLC, attorneys; Jeffrey Zajac, on the brief).

PER CURIAM

The State appeals from the January 23, 2008 order that followed defendant Sean Watkins' de novo trial in the Law Division. It argues that given defendant's prior conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, his guilty plea to refusing to submit to a breath test (refusal), N.J.S.A. 39:4-50.4a, made him a second offender under that statute. As a result, any revocation of his driver's license imposed because of the refusal conviction must run consecutively to the license revocation imposed as a result of a contemporaneous DWI conviction. The State contends, therefore, that the concurrent license revocations imposed by the Law Division judge made the sentence illegal. We agree and reverse.

I.

The facts and procedural history are undisputed. Defendant was convicted of DWI in 2004. On July 27, 2007, he was arrested again for DWI, charged with refusal and six other motor vehicle offenses. On October 4, 2007, defendant pled guilty to both DWI and refusal, the State agreeing to dismiss the balance of the charges. The municipal judge imposed two consecutive two-year license revocations. Defendant appealed.

In the Law Division, defendant argued 1) that the two offenses merged for purposes of sentencing; and 2) that the municipal judge mistakenly exercised his discretion by imposing consecutive sentences. Defendant argued the sentences were unduly "harsh," particularly since he pled guilty to both DWI and refusal. Defendant contended that in doing so, he was not "skat[ing] out of a second DWI" by refusing to give a breath sample, and argued that the proper exercise of judicial discretion required concurrent sentences.

The State, however, contended that the judge was required to impose consecutive license revocations upon defendant and that it was not subject to discretion. Although defendant had not been convicted of a prior refusal, the State argued his prior conviction for DWI served to make this refusal a "second offense" under N.J.S.A. 39:4-50.4a(a), and a consecutive license suspension was mandated by that statute.

The judge distinguished our holding in State v. Tekel, 281 N.J. Super. 502 (1995). Finding the refusal statute "fairly clear on its face," he concluded that defendant's conviction for refusal was his first offense under the statute. As a result, he determined "the issue [is] whether the sentence should be consecutive or concurrent." Relying on the analysis in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the judge concluded "the refusal and the [DWI] are interlocked and one in the same." He imposed a two-year license revocation on each charge, and ran the sentences concurrently.

The judge entered an order memorializing his decision on January 23, 2008. The State's appeal ensued.

II.

We begin our analysis by examining the text of the refusal statute that provides in relevant part,

[T]he municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of [N.J.S.A.] 39:4-50 . . . shall refuse to submit to a test provided for in . . . [N.J.S.A. 39:4-50.2] when requested to do so, for not less than seven months or more than one year unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years . . . .

. . . .

For a first offense, the revocation may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of [N.J.S.A.] 39:4-50 arising out of the same incident. For a second or subsequent offense, the revocation shall be consecutive to any revocation imposed for a conviction under the provisions of [N.J.S.A.] 39:4-50.

[N.J.S.A. 39:4-50.4a(a) (emphasis added).]

We have said that "[w]hen the legislature imposes minimum penalties for certain offenses, the judiciary must enforce that mandate." State v. Nicolai, 287 N.J. Super. 528, 531 (App. Div. 1996). "No defendant can claim a legitimate expectation of . . . a sentence below the statutorily mandated minimum." Id. at 532. "The court [] [i]s not at liberty to ignore the legislative command that a [certain] sentence be imposed and [is] without power to [shorten] its imposition or execution." State v. Fearick, 132 N.J. Super. 165, 170 (App. Div. 1975) (citing State v. Johnson, 42 N.J. 146, 174 (1964)), aff'd 69 N.J. 32 (1976).

The issue presented here is whether defendant's conviction under the refusal statute was for a "second or subsequent offense under th[at] section." If so, the statute required the imposition of a mandatory two-year license revocation, and that revocation must run consecutively to the license revocation period imposed on defendant's DWI conviction.

Despite minor changes in its actual language throughout the years, case law interpreting the refusal statute has been uniformly consistent. In In re Bergwall, 85 N.J. 382, 383 (1981), rev'g on dissent, 173 N.J. Super., 431 (App. Div. 1980), the Supreme Court reversed our interpretation of the statute's enhanced penalty provision, "substantially for the reasons expressed in" Judge Lora's dissenting opinion. Although the majority of the appellate panel had interpreted the phrase "subsequent offense of this section" as requiring a prior conviction for refusal, Judge Lora argued that the majority's conclusion conflicted with the statutory language and legislative history. Bergwall, 173 N.J. Super. 431, 437-39 (App. Div. 1980), rev'd 85 N.J. 382 (1981). After reviewing the Report of the New Jersey Motor Vehicle Study Commission (Sept. 1975), Judge Lora concluded that "the legislative purpose as revealed by the composite thrust of the whole statutory scheme was to impose a[n] [enhanced] suspension for refusing to take the breath test when subsequent to a prior . . . drinking/driving violation." Id. at 438; accord State v. Fahrer, 212 N.J. Super. 571, 578-79 (App. Div. 1986); State v. Wilhalme, 206 N.J. Super. 359, 362-63 (App. Div. 1985), certif. denied, 104 N.J. 398 (1986).

In 1995, we decided Tekel. There, the defendant had previously been convicted of DWI when he pled guilty to refusal arising out of a subsequent arrest. Tekel, supra, 281 N.J. Super. at 503-04. We stated:

[T]he issue is whether a prior conviction for [DWI] in violation of N.J.S.A. 39:4-50 satisfies the language of "a subsequent offense under this section" contained in N.J.S.A. 39:4-50.4a, thereby mandating the imposition of the enhanced penalty of a two-year suspension. Defendant contends that only a conviction for a prior refusal to take a breathalyzer test in violation of N.J.S.A. 39:4-50.4a satisfies this statutory language and that a prior conviction for [DWI] in violation of N.J.S.A. 39:4-50 does not lead to the enhanced two-year penalty. We disagree and affirm the trial court's suspension of defendant's driver's license for two years.

[Id. at 504.]

We subsequently repeated this interpretation of the refusal statute in State v. Fielding, 290 N.J. Super. 191, 193 (App. Div. 1996), noting "our courts have consistently interpreted [N.J.S.A. 39:4-50.4a] as requiring that a prior DWI conviction be deemed a prior violation for purposes of the enhanced refusal penalty." And, finally in State v. Lucci, 310 N.J. Super. 58, 60 (App. Div.), certif. denied, 156 N.J. 386 (1998), we observed that "[w]e have consistently held that prior DWI convictions are subsequent offense[s] under [the refusal statute]" (internal quotations omitted). The consistency of our interpretation of the statute has been noted and promulgated by a well-recognized commentator in the field.

There are two ways a defendant may subject himself . . . to the enhanced penalties of a second refusal offense. The offense may actually be the second time the defendant has refused to take a breathalyzer.

. . . .

A defendant may also be subject to the second offense enhanced penalties even if he . . . never refused to take a breath test before. If the defendant is charged with a second offense of drunk driving, and in connection with the second drunk driving offense, he or she refuses to take a breath test, then such a defendant must be treated as a second offender for sentencing purposes on the refusal charge[.]

[24 New Jersey Practice, Motor Vehicle Law and Practice 4.122, at 69 (Robert Ramsey) (3d ed. 2006-07 pocket part).]

Defendant's reliance upon our holding in State v. DiSomma, 262 N.J. Super. 375 (App. Div. 1993), is inapposite. DiSomma involved the converse of the facts presented in Tekel and in this case. In DiSomma, we held that a defendant who had a prior conviction for refusal should not receive an enhanced second offender sentence on his first conviction for DWI. supra, 262 N.J. Super. at 383; see also Levine v. State, Dep't. of Transp., 338 N.J. Super. 28, 31-32 (App. Div. 2001) (holding that the agency cannot deny personalized license plates to one convicted of refusal when the statute only prohibits issuance to one convicted of violating N.J.S.A. 39:4-50). Despite any dicta in the case to the contrary, as we noted in Tekel, "DiSomma . . . does not serve as precedent here, because the factual circumstances were plainly different from this case[.]" Tekel, supra, 281 N.J. Super. 509. We continue to be of the same view regarding DiSomma's application to the facts of this case.

Defendant next argues that because he pled guilty to both DWI and refusal in this case, a different result is required than in Tekel, where defendant was convicted only of refusal. He argues that our construction of the statute in Tekel was motivated by policy concerns, which we expressed as follows:

Beyond this, should defendant's argument succeed, anyone who has been previously convicted of drunk driving would refuse to take a breathalyzer test, since the penalty for such refusal would be the lesser six-month penalty, instead of the more severe two-year penalty. Such an outcome would do nothing to curb the "senseless havoc and destruction caused by intoxicated drivers."

[Tekel, supra, 281 N.J. Super. at 509 (quoting State v. Tischio, 107 N.J. 504, 512 (1987)).]

Defendant contends that no such concern exists in this case. Because he also pled guilty to DWI, his refusal to consent to a breathalyzer did not result in the State's loss of critical evidence, i.e., his breath sample, thereby adversely impacting its ability to prove the DWI violation.

We find the argument unavailing. First, it is fortuitous that the State struck a plea bargain in this case requiring defendant to plead guilty to both charges. Had defendant chose to go to trial, the State would have borne the disadvantage of having to prove the DWI case without the benefit of breathalyzer results. Moreover, in municipal court, a plea bargain may be struck without defendant pleading guilty to both charges. The Supreme Court's Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey provide

If a defendant is charged with a second or subsequent offense of [DWI] and refusal . . . arising out of the same factual transaction, and the defendant pleads guilty to [DWI], the judge, on recommendation of the prosecutor, may dismiss the refusal charge.

[Pressler, Current N.J. Court Rules, Appendix to Part VII, at 2239 (2009).]

Thus, in another case, a defendant pleading guilty to DWI might never face the consecutive license revocation issue presented here. We must conclude that the idiosyncrasies of an individual plea bargain cannot form the basis for the necessarily uniform construction of the statute.

Second, and perhaps more importantly, when defendant refused to submit to a breathalyzer, the immediate effect of the decision was in fact to deny the State the objective evidence necessary to convict him of DWI. See Tekel, supra, 281 N.J. Super. at 505 (noting a "high rate of refusal made enforcement of the drunk driving laws very difficult" prior to enactment of the implied consent statute). The happenstance that other sufficient evidence apparently existed to compel defendant to plead guilty to both charges, months later when the case came to trial, does not mitigate the policy concerns we expressed in Tekel.

Having concluded that defendant's conviction for refusal was "a second or subsequent offense under" N.J.S.A. 39:4-50.4a(a), it is axiomatic that not only must his license be revoked for two years, but also that the period of revocation "be consecutive to any revocation imposed for a conviction" under the DWI statute. Ibid.

The Legislature amended this portion of the refusal statute in 2004. L. 2004, c. 8, 1. Prior to the amendment, the statute provided that any license revocation resulting from a refusal conviction "shall be independent of any revocation imposed by virtue of a conviction under the provisions of [N.J.S.A.] 39:4-50." In amending the statute, the Legislature intended to "clarif[y] the language concerning consecutive license suspensions for second or subsequent refusal convictions and convictions for drunk driving." Assembly Law and Public Safety Comm. Statement, A.B. 2259 (Feb. 26, 2004). The bill further provided that "[i]n order to promote the uniform enforcement of [N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.2], the Attorney General shall promulgate guidelines concerning the prosecution of such violations." L. 2004, c. 8, 2. As a result, the Attorney General enacted a guideline for county and municipal prosecutors requiring that "sentences for second or subsequent DWI refusal conviction must run consecutively to any other sentence. The legislative intent for the enhanced sentencing for DWI refusal is intentional." Att'y Gen. Guideline: Prosecution of DWI & Refusal Violations, at 16 (Jan. 24, 2005) (citing Tekel, supra, 281 N.J. Super. at 502).

As a result of the foregoing, we conclude that defendant's conviction for refusal was a second offense under N.J.S.A. 39:4-50.4a that required the mandatory license revocation period of two years to be imposed, and further required that the period of revocation resulting from the refusal conviction run consecutively to the revocation period imposed on defendant's conviction of DWI. We therefore vacate the sentence imposed in this respect because it was an illegal sentence, and we remand the matter to the Law Division for imposition of a sentence that complies with the requirements set forth in N.J.S.A. 39:4-50a(a).

Reversed and remanded. We do not retain jurisdiction.

We glean from the transcript that defendant had an additional prior conviction for what the municipal prosecutor referred to as "baby DWI," N.J.S.A. 39:4-50.14, making "[a]ny person under the legal age to purchase alcoholic beverages who operates a motor vehicle with a blood alcohol concentration of 0.01% or more, but less than 0.08%" guilty of an offense.

Defendant had another DWI charge pending from August 2007 that was not disposed of at the time.

We do not recount the other aspects of defendant's sentence, the State's appeal being limited solely to the issue of the license revocations imposed and whether consecutive sentences are mandated by statute under the facts presented.

(continued)

(continued)

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A-2594-07T4

April 2, 2009