STATE OF NEW JERSEY v. PHILLIP G. COLSON

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1551-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

PHILLIP G. COLSON,

     Defendant-Appellant.
_______________________

                    Submitted March 4, 2020 – Decided March 13, 2020

                    Before Judges Haas, Mayer and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Municipal Appeal No. 6219.

                    Levow DWI Law, PC, attorneys for appellant (Evan M.
                    Levow, of counsel and on the brief).

                    Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                    attorney for respondent (Timothy Mark Ortolani,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Phillip G. Colson appeals from the November 1, 2018 Law

Division, Criminal Part order directing him to install an ignition interlock device

based on his guilty plea to refusing to submit to a breath test,  N.J.S.A. 39:4-

50.4a. We affirm.

      On November 29, 2017, defendant was charged with driving while

intoxicated,  N.J.S.A. 39:4-50; refusal to submit to breath testing,  N.J.S.A. 39:4-

50.4a; and reckless driving,  N.J.S.A. 39:4-96. On April 18, 2018, he entered a

guilty plea in municipal court to the refusal to submit to a breath test,  N.J.S.A.

39:4-50.4a.    All other charges were dismissed based on the defendant's

negotiated plea agreement.

      On May 1, 2018, defendant was sentenced by a municipal court judge to

seven months' loss of driving privileges in New Jersey and installation of an

ignition interlock device for thirteen months. Defendant also was ordered to

attend 12 hours at the Intoxicated Driver Resource Center, pay a $306 fine, as

well as $100 in Drunk Driving Enforcement Fund (DDEF) assessments and $33

in court costs. The municipal court judge rejected defense counsel's argument

that installation of an ignition interlock device did not apply to out -of-state

drivers.




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      On May 18, 2018, defendant appealed from the municipal court's

sentence, challenging only the imposition of the ignition interlock device. A

Law Division, Criminal Part judge in Union County rejected defendant's claim

that he was not required to install the device and on November 1, 2018, the judge

imposed the same sentence the municipal court judge imposed. 1

      On appeal defendant renews his argument that it was error for the

sentencing court to impose the requirement of an ignition interlock device based

on his conviction for violating  N.J.S.A. 39:4-50.4a, because he is a licensed

Pennsylvania driver. We disagree.

      "When an appellate court reviews a trial court's analysis of a legal issue,

it does not owe any special deference to the trial court's legal interpretation."

State v. Schubert,  212 N.J. 295, 303-04 (2012). "'[A]ppellate review of legal

determinations is plenary.'" Id. at 304 (quoting State v. Handy,  206 N.J. 39, 45

(2011)). Here, defendant raises an issue involving the interpretation of a statute.

Therefore, our review is plenary.




1
   In doing so, the Law Division, Criminal Part judge stated that it "sees no
reason to deviate from the previously imposed sentence." However, the judge
inadvertently failed to mention the mandatory $100 DDEF assessment in his
ruling. Accordingly, the order of November 1, 2018 must be amended to reflect
this mandatory assessment.
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      When the interpretation of a statute is at issue, we must first consider the

plain language of the statute. State v. Marquez,  202 N.J. 485, 499 (2010). "We

apply common sense in deducing the meaning of the Legislature's chosen

language, drawing inferences based on the statute's structure and composition."

In re J.S.,  444 N.J. Super. 303, 308 (App. Div. 2016).

       "If a plain-language reading of the statute 'leads to a clear and

unambiguous result, then our interpretive process is over.'" State v. Hupka,  203 N.J. 222, 232 (2010) (quoting Richardson v. Board. of Trs., Police & Firemen's

Ret. Sys.,  192 N.J. 189, 195-96 (2007)). Still, if we discern an ambiguity in the

statutory language, we look to extrinsic evidence. Ibid. Sources for such

evidence include "the statute's purpose, legislative history, and statutory context

to ascertain the legislature's intent." State v. Thomas,  166 N.J. 560, 567 (quoting

Aponte-Correa v. Allstate Ins. Co.,  162 N.J. 318, 323 (2000)).

      By statute, "[a]ny person who operates a motor vehicle on any public road,

street or highway or quasi-public area in this State shall be deemed to have given

his consent to the taking of samples of his breath . . . to determine the content

of alcohol in his blood . . . ."  N.J.S.A. 39:4-50.2. Any refusal to consent to said

breath test is criminalized pursuant to  N.J.S.A. 39:4-50.4a. A reading of this

statute plainly confirms that if the refusal is in connection with a first offense,


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"[t]he . . . court shall order [the] person . . . to forfeit the right to operate a motor

vehicle over the highways of this State until the person installs an ignition

interlock device in one motor vehicle owned, leased, or principally operated by

the person . . . ."  N.J.S.A. 39:4-50.4a(a).

      Defendant asserts there "is nothing in the language of the statute that

expressly addresses the application of the interlock mandate to out[-]of[-]state

drivers." Relying on  N.J.S.A. 39:4-50(c), he argues the Legislature intended to

differentiate between out-of-state drivers and New Jersey drivers when

imposing a sentence for a refusal conviction. This statute provides:

             Upon conviction of a violation of this section, the court
             shall collect forthwith the New Jersey driver’s license
             or licenses of the person so convicted and forward such
             license or licenses to the chief administrator . . . . In the
             event that a person convicted under this section is the
             holder of any out-of-State driver’s license, the court
             shall not collect the license but shall notify forthwith
             the chief administrator, who shall, in turn, notify
             appropriate officials in the licensing jurisdiction. The
             court shall, however, revoke the nonresident’s driving
             privilege to operate a motor vehicle in this State, in
             accordance with this section.

             [N.J.S.A. 39:4-50(c).]

      Because  N.J.S.A. 39:4-50(c), involving the administrative treatment of a

license, distinguishes between a license suspension and the revocation of driving

privileges, defendant claims the ignition interlock device requirement applies

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only when a driver's license is suspended, but not when driving privileges are

revoked. We are not persuaded.

      Defendant's interpretation does not comport with a plain reading of this

statute and runs contrary to the stated intent of the Legislature to curb drunk

driving. As set forth in N.J.S.A. 39:4-50.16:

             a. This State’s penalties for drunk driving, including
            the mandatory suspension of driver’s licenses and
            counseling for offenders, are among the strongest in the
            nation. However, despite the severity of existing
            penalties, far too many persons who have been
            convicted under the drunk driving law continue to
            imperil the lives of their fellow citizens by driving
            while intoxicated.

            b. Ignition interlock devices, which permit a motor
            vehicle to be started only when the driver is sober, offer
            a technically feasible and effective means of further
            reducing the incidence of drunk driving . . . .

            c. The judicious deployment of ignition interlock
            devices, as provided under this act, will enhance and
            strengthen this State’s existing efforts to keep drunk
            drivers off the highways.

      Our Legislature clearly prioritizes the safety of its citizens and makes no

distinction between in- and out-of-state drivers when addressing the wisdom of

utilizing ignition interlock devices to "keep drunk drivers off the highways."

      Furthermore, the plain language of the refusal statute does not exempt out-

of-state drivers from the requirement to install an ignition interlock device.

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Rather, the statute explicitly states the court "shall order any person who, after

being arrested for a violation of [N.J.S.A. 39:4-50] . . . refuses to submit [to a

breath test] . . . to forfeit the right to operate a motor vehicle over the highways

of this State until the person installs an ignition interlock device . . . ."  N.J.S.A.

39:4-50.4a (emphasis added). The straightforward wording of the refusal statute

does not carve out an exception for out-of-state drivers who violate the law but

instead punishes "any person" who violates the refusal statute.

      Our Supreme Court has provided guidance on interpretation of the phrase,

"any person," explaining:

             "Any," as commonly defined, means one out of a group,
             without differentiating among the group's members.
             Webster's Third New Int'l Dictionary 97 (1971). When
             "any" is used in conjunction with "person," as in the
             eluding statute, the phrase embraces all natural persons,
             including the defendant. See State v. Constantino, 129
             N.J. Super. 111, 113 (App. Div. 1974) (concluding that
             words "any person" in statute governing issuance of
             revolver permits and firearms purchaser identification
             cards did not exclude anyone, even defendant chief of
             police, from its coverage).

             [State v. Bunch,  180 N.J. 534, 543 (2004).]


      "'[T]he Legislature is presumed to be aware of judicial construction of its

enactments.'" Maeker v. Ross,  219 N.J. 565, 575 (2014) (quoting DiProspero v.

Penn,  183 N.J. 477, 494 (2005)). Therefore, our Legislature is presumed to be

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aware that it did not exempt out-of-state drivers who are convicted under the

refusal statute from the requirement that they must install an ignition interlock

device. Accordingly, we are satisfied the Law Division, Criminal Part judge

properly subjected defendant to the requirement of installing an ignition

interlock device.

      Affirmed. We remand for correction of defendant's sentence to include a

$100 DDEF assessment, which must be imposed following a conviction under

 N.J.S.A. 39:4-50.4(a). We do not retain jurisdiction.




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