State v. Roger Paul Frye (070975) , 217 N.J. 566 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State v. Roger Paul Frye (A-30-12) (070975)
Argued February 3, 2014 -- Decided June 3, 2014
FERNANDEZ-VINA, J., writing for a unanimous Court.
In this appeal, 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.
In 2008, defendant was arrested and charged with DWI, refusal, and reckless driving. He pled guilty to
refusal and, in exchange, the State dismissed the DWI and reckless driving charges. The municipal court judge
accepted defendant’s guilty plea and further concluded that there was proof beyond a reasonable doubt that
defendant refused to submit to a breathalyzer test. 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 as 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 The Appellate Division affirmed in an unpublished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).
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.
1. The paramount goal of statutory interpretation is to ascertain and effectuate the Legislature’s intent. When the
language of a statute is clear on its face, the sole function of the courts is to enforce it according to its terms. If,
however, a statute’s plain language is ambiguous or subject to multiple interpretations, the Court may consider
extrinsic evidence including legislative history and committee reports. (pp. 12-13)
2. The refusal statute provides that a person convicted of refusal will be subject to an enhanced penalty if “the
refusal was in connection with a second[, third, or subsequent] offense under this section.” N.J.S.A. 39:4-50.4a. The
length of the driver’s license suspension differs depending on whether the conviction is the driver’s first, second, or
third or subsequent offense. Ibid. It was not until 1977 that the statute distinguished between initial and subsequent
offenses. The statute originally required a six-month license revocation for a driver’s refusal to submit to a chemical
test. L. 1966, c. 142, § 4. In 1977, the Legislature amended the law to mandate a ninety-day license revocation
“unless the refusal was in connection with a subsequent offense of this section, in which case, the revocation period
shall be for 1 year.” L. 1977, c. 29, § 4; N.J.S.A. 39:4-50.4(b). That amendment was prompted by a Motor Vehicle
Study Commission report recommending enhanced penalties for refusal convictions that were subsequent to a prior
DWI conviction. Report of the New Jersey Motor Vehicle Study Commission (Sept. 1975), 147-53. The
Commission recommended the change because, under the then-current law, it was advantageous for an individual
who had a prior DWI conviction to refuse a breath test because the refusal penalty was less severe than the penalty
for a second DWI, and the refusal deprived the State of evidence needed to obtain a second DWI conviction. Id. at
147-48, 150-51. (pp. 13-15)
3. This Court previously addressed whether a prior DWI conviction enhances a subsequent refusal sentence in In re
Bergwall, 85 N.J. 382 (1981), rev’g on dissent, 173 N.J. Super. 431 (App. Div. 1980). At the time, the refusal
1
statute called for an enhanced penalty if “the refusal was in connection with a subsequent offense of this section.”
N.J.S.A. 39:4-50.4(b). The Appellate Division majority found that the word “section” “unmistakably means
N.J.S.A. 39:4-50.4 itself” and therefore held that the phrase “subsequent offense of this section” was limited to prior
refusal convictions, and not prior DWI convictions. In re Bergwall, 173 N.J. Super. at 433. Judge Lora, dissenting,
disagreed and found that a prior DWI conviction enhances a subsequent refusal sentence under the refusal statute.
Id. at 437. He stated that the majority erroneously emphasized the word “section” and should have instead given
meaning to the phrase “in connection with.” Ibid. He emphasized that a refusal conviction can only be “in
connection with” a DWI arrest, and cannot be “in connection with” another refusal conviction, because refusal is an
offense that is dependent upon a police officer stopping someone for a suspected DWI and requesting that he or she
take a breathalyzer test. Ibid. The dissenting judge also stated that the statute’s legislative history, including the
New Jersey Motor Vehicle Study Commission’s report, revealed that the Legislature intended to have a prior DWI
conviction qualify as a prior offense under the refusal statute. Id. at 437-38. This Court thereafter reversed the
majority’s decision “for the reasons expressed in the dissenting opinion of Judge Lora in the Appellate Division.”
Bergwall, 85 N.J. at 383. (pp. 16-19)
4. A few months after the Appellate Division’s decision in Bergwall, Assemblyman Herman introduced a bill
suggesting amendments to the refusal statute that would call for an enhanced penalty if “the refusal was in
connection with a subsequent offense under R.S. 39:4-50.” Assemb. 2293, 199th Leg. (Dec. 8, 1980). After this
Court’s subsequent Bergwall decision, the Senate Judiciary Committee rejected that proposal and made amendments
to the bill which replaced the term “R.S. 39:4-50” with “this section.” Sen. Comm. Amend. to Assemb. 2293, 199th
Leg. (May 14, 1981). The final text of the statute required an enhanced penalty if “the refusal was in connection
with a subsequent offense under this section.” L. 1981, c. 512, § 2 (emphasis added). The Legislature is presumed
to be aware of judicial constructions of statutory provisions. Despite the Legislature’s amendments to the refusal
statute after this Court’s Bergwall decision, the statute has maintained “this section” language similar to the
language at issue in Bergwall. The Legislature’s acquiescence reflects its agreement with this Court’s interpretation
of the refusal statute in Bergwall. (pp. 19-21)
5. In Ciancaglini, the Court held that a prior refusal conviction may not be used to enhance a subsequent DWI
sentence under the DWI statute. 204 N.J. at 599. The Court reasoned that, “although N.J.S.A. 39:4-50 and N.J.S.A.
39:4-50.4a are both part of a statutory complex designed to rid the highways of drunk drivers and to make our roads
safer, each is a separate section (each referring to ‘this section’) with a different, albeit related, purpose, and each
has different elements.” Id. at 606. The Ciancaglini Court, however, acknowledged Bergwall and reiterated that the
dissent’s decision, which the Court adopted, was grounded in the language “in connection with a subsequent offense
of this section.” Id. at 610 n.10. Furthermore, the Ciancaglini Court differentiated the “in connection with”
language of the refusal statute with the DWI statute, which “contains no reference whatsoever to the refusal statute.”
Id. at 610. Given the distinction between the DWI statute and the refusal statute, Bergwall, rather than Ciancaglini,
controls the outcome of this case. (pp. 21-22)
6. The continued application of Bergwall furthers New Jersey’s strong public policy against drunk driving. If prior
DWI convictions did not serve to enhance subsequent refusal sentences, it would be advantageous for an individual
with a prior DWI conviction to refuse to take a breathalyzer test. That result would undermine the enforcement of
the DWI statute and the Legislature’s purpose of “curb[ing] the senseless havoc and destruction caused by
intoxicated drivers.” State v. Tischio, 107 N.J. 504, 512 (1987). (pp. 23-24)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-30 September Term 2012
070975
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROGER PAUL FRYE,
Defendant-Appellant.
Argued February 3, 2014 – Decided June 3, 2014
On certification to the Superior Court,
Appellate Division.
John Menzel argued the cause for appellant
(Mr. Menzel attorney; Roger Paul Frye
submitted a brief pro se).
Joseph A. Glyn, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
In this appeal, defendant, Roger Paul Frye, challenges his
conviction and sentence for refusal to submit to a breathalyzer
test, N.J.S.A. 39:4-50.4a.
On May 12, 2009, defendant pled guilty to refusal to submit
to a breathalyzer test and was sentenced as a third-time
offender, thereby receiving a ten-year driver’s license
suspension, along with fines and penalties. Defendant’s
sentence was based on the municipal court judge’s finding that
1
under the refusal statute, defendant was a third-time offender
because he had two previous convictions for driving while
intoxicated (DWI), N.J.S.A. 39:4-50. Defendant’s conviction and
sentence for refusal to submit to a breathalyzer test were
affirmed on de novo review by the Law Division and also were
affirmed by the Appellate Division.
The plain language of the refusal statute requires that a
municipal court judge sentence an individual based on the number
of prior offenses that he or she has committed. N.J.S.A. 39:4-
50.4a. The statute provides that a person convicted of refusal
will be subject to enhanced penalties if “the refusal was in
connection with a second[, third, or subsequent] offense under
this section.” Ibid.
In 1981, the Court considered the same issue that is now
presented by this case: whether a previous DWI conviction may
serve to enhance a sentence for a subsequent refusal sentencing.
In re Bergwall, 85 N.J. 382 (1981), rev’g on dissent, 173 N.J.
Super. 431 (App. Div. 1980). There, this Court concluded a
prior DWI may enhance a subsequent refusal sentence under the
refusal statute. Id. at 383. More recently, in State v.
Ciancaglini, 204 N.J. 597, 599 (2011), this Court discussed the
inverse of the issue presented in In re Bergwall, supra, 173
N.J. Super. at 432. Specifically, the Ciancaglini Court
addressed whether a prior refusal conviction may be used to
2
enhance a subsequent DWI sentence under the DWI statute.
Ciancaglini, supra, 204 N.J. at 599. This Court answered the
question in the negative. Id. at 610-11.
We now address whether, in light of Ciancaglini and the
Legislature’s post-Bergwall amendments to the refusal statute,
we must overturn In re Bergwall. For the reasons set forth in
this opinion, we re-affirm In re Bergwall. We conclude that
defendant’s prior DWI convictions were appropriately considered
for purposes of his subsequent refusal conviction. Accordingly,
we affirm the judgment of the Appellate Division.
I.
On December 19, 2008, defendant was arrested and charged
with DWI, N.J.S.A. 39:4-50, refusal to submit to a breathalyzer
test, N.J.S.A. 39:4-50.4a, and reckless driving, N.J.S.A. 39:4-
97.
Earlier that evening, Sergeant Sack of the Haddon Heights
Police Department was monitoring vehicle speeds on radar on East
Atlantic Avenue. He observed a vehicle stop in the middle of
Atlantic Avenue, and make an abrupt left-hand turn across the
grass of 500 Grove Street. Sergeant Sack then observed the
vehicle drive into the parking lot of a building, and come to a
complete stop. Sergeant Sack pulled behind the vehicle and
exited his car to approach the driver. Defendant was the driver
of the car.
3
Sergeant Sack approached defendant and spoke to him.
According to Sergeant Sack, he smelled alcohol coming from
defendant’s car and observed that defendant appeared to be very
incoherent. Defendant then commented that he was possibly a
diabetic. Sergeant Sack proceeded to ask defendant for
documentation of his diabetic condition. Defendant did not
produce any documents confirming that condition.
At that point, Sergeant Sack called Detective Long to
respond to the location because Detective Long was the detective
on patrol for alcohol-related driving offenses. Both Detective
Long and Officer Volpe arrived at the scene. Detective Long
conducted field-sobriety balance tests. Based on the result of
those tests, Officer Volpe placed defendant under arrest for
suspicion of driving under the influence.
Officer Volpe then transported defendant to police
headquarters. When they arrived at headquarters, Officer Volpe,
a certified Alcotest operator, attempted to have defendant
provide a breath sample for the Alcotest. Defendant agreed to
take the test. Officer Volpe provided defendant with
instructions on how to use the Alcotest machine. Defendant
attempted to take the test on four occasions, each of which was
preceded by instructions.
During defendant’s first three attempts to perform the
breathalyzer test, he did not achieve the minimum breath volume
4
required for the machine. On his fourth attempt, defendant
sucked inward rather than blowing outward into the hose.
Thereafter, although there was no outright verbal refusal,
Officer Volpe determined that defendant’s actions warranted the
conclusion that defendant refused to submit to the breathalyzer
test.
II.
On March 24, 2009, defendant appeared in the Haddon Heights
Municipal Court for a case management conference. At the
conference, defendant confirmed that he had previously entered a
plea of not guilty to all three charges.
Following denial of a motion to suppress evidence,
defendant pled guilty to refusal to submit to a breathalyzer
test, N.J.S.A. 39:4-50.4a. In exchange for the guilty plea, the
State dismissed the DWI, N.J.S.A. 39:4-50, and reckless driving,
N.J.S.A. 39:4-97, offenses on the basis that there were
“significant issues with regard to the medical evidence of the
State.”
During the plea colloquy, consistent with Rule 3:9-2,
defendant acknowledged on the record that he had a right to
plead not guilty, a right to a trial, and that it was the
State’s obligation to prove the charges beyond a reasonable
doubt. He then confirmed that he was aware that, by pleading
5
guilty, he was waiving these rights. Defendant also stated that
he was entering the guilty plea voluntarily.
Defendant admitted that he operated a motor vehicle in
Haddon Heights on December 19, 2008, after consuming alcohol.
He said that he had a medical condition that night which
prevented him from remembering exactly what happened. Although
defendant recalled being stopped by a police officer, he did not
remember events from the stop, including talking to a police
officer or performing balance tests.
Defendant replied affirmatively when the court asked him
whether he was taken back to the police station and whether he
was asked to submit to a breathalyzer test. However, when the
court asked what his reply was when asked to perform the test,
defendant stated, “I don’t recall, but apparently I refused to
take the test.” After defendant acknowledged that he did not
have “a hundred percent crystal clear recollection” of the
events, the court inquired if defendant recalled whether he
understood what Officer Volpe was saying when explaining how to
use the Alcotest. Defendant replied, “Possibly, possibly I
didn’t. Probably, probably I didn’t.” He then admitted that he
had attempted to take the Alcotest, but had not followed Officer
Volpe’s instructions.
The court also heard testimony from Sergeant Sack and
Officer Volpe. Sergeant Sack described his observations of
6
defendant’s vehicle and his subsequent interactions with
defendant during the stop. Officer Volpe then testified that
defendant initially agreed to take the Alcotest and attempted to
take the test on four occasions. Officer Volpe stated that he
gave defendant specific instructions on how to take the test for
each of his four attempts; however defendant did not follow the
instructions.
The municipal court judge then accepted defendant’s guilty
plea. He found defendant’s plea to be knowing, intelligent, and
voluntary. The judge further concluded that there was proof
beyond a reasonable doubt that defendant refused to submit to a
breathalyzer test by not following Officer Volpe’s instructions.
After hearing statements from defense counsel, the
prosecutor, and defendant, the municipal court judge sentenced
defendant. He recognized that defendant had two previous DWI
convictions from 2001 and 2004. The judge explained that
defendant’s two prior DWI convictions “can serve to enhance a
subsequent conviction” for a refusal offense. He noted that he
was mandated to sentence defendant as a third-time offender
under the refusal statute. Accordingly, the court suspended
defendant’s license for ten years. The court also imposed a
fine, court costs, and a DWI surcharge.
Following his sentencing, defendant filed a pro se motion
for reconsideration of the sentence and, in the alternative, for
7
reconsideration of the refusal conviction. He argued that his
two prior DWI convictions could not enhance his sentencing for
the refusal offense. Therefore, according to defendant, he
should have been sentenced as a first-time offender. On July
14, 2009, after hearing oral argument, the municipal court
rejected defendant’s motion for reconsideration of the sentence.
At a subsequent hearing on September 22, 2009, the court
also rejected defendant’s motion for reconsideration of the
refusal conviction. Defendant asserted he was unaware of the
ten-year loss of driving privileges when he entered his guilty
plea.
Defendant appealed pro se to the Law Division for a trial
de novo. He asserted the following six claims: the municipal
court erred in accepting his guilty plea; the municipal court
erred in denying his motion to suppress; the municipal court
judge imposed an illegal sentence; the municipal court erred in
denying him a jury trial; he did not understand the breathalyzer
instructions; and trial counsel provided ineffective assistance.
After addressing, and rejecting, each of defendant’s
claims, the Law Division judge found defendant guilty of refusal
to submit to a breathalyzer test. The court also concluded that
the municipal court judge had properly sentenced defendant as a
third-time offender because defendant’s two previous DWI
convictions elevated the refusal conviction to a third offense.
8
The court found that the sentence was mandated by law and,
therefore, imposed the same sentence that defendant had received
in municipal court. Specifically, defendant was sentenced to a
ten-year license suspension, as well as the mandated fines and
penalties.
Defendant then filed a pro se petition for post-conviction
relief (PCR) in the Law Division on February 2, 2011.1 In
particular, defendant contended that his sentence as a third-
time offender was contrary to this Court’s recent Ciancaglini
decision. On March 9, 2011, the Law Division judge rejected
defendant’s arguments and denied his application for PCR.
On April 27, 2011, defendant appealed both the entire
judgment of the Law Division’s decision and the denial of his
PCR petition. In an unpublished opinion, the Appellate Division
deemed most of defendant’s claims meritless and unworthy of
discussion.
The appellate panel specifically addressed, and rejected,
two of defendant’s claims. The panel concluded that the judge
properly weighed the Slater factors in denying the motion to
withdraw the guilty plea.2 It also found that defendant did not
receive ineffective assistance of counsel. The Appellate
Division affirmed the Law Division’s denial of defendant’s
1
Defendant never filed a PCR petition in the municipal court.
2
State v. Slater, 198 N.J. 145, 157-58 (2009).
9
motion to withdraw his plea, and denial of defendant’s PCR
petition.
We granted defendant’s petition for certification. 212
N.J. 455 (2012).
III.
Defendant argues that the Appellate Division erred by not
following the logic of Ciancaglini. He maintains that although
Ciancaglini addresses a factually opposite case, (there, the
prior conviction was for refusal, not DWI) the Court’s decision
in Ciancaglini supports the proposition that, for sentencing
purposes, the refusal and DWI statutes are separate and distinct
statutes.
Defendant advances two other arguments. First, he
asserts that there was an insufficient factual basis to support
his guilty plea. Defendant argues that the municipal court
judge never advised him that a ten-year license suspension would
be imposed, and that the court should have recognized his plea
was not voluntary when he indicated that he had really not
consumed any alcohol that night.
Second, defendant argues that he was entitled to a jury
trial for his refusal charge because of the seriousness of the
penalty which could be imposed upon him. He contends that the
“criminal nature” of the breathalyzer statute mandates a jury
trial. N.J.S.A. 39:4-50.
10
The State argues that defendant was properly sentenced as a
third-time offender under the refusal statute. The State
maintains that this very issue was decided in In re Bergwall.
The State emphasizes that in In re Bergwall, this Court rejected
the same position advocated by defendant and held that a prior
DWI conviction enhances a subsequent refusal sentence.
The State also argues that Ciancaglini is inapplicable
because it addressed a factually inverse situation involving the
DWI statute rather than the refusal statute. In particular, the
State points out that in Ciancaglini, the Court addressed
whether a prior refusal conviction could be used as a sentencing
enhancement for a subsequent DWI conviction.
The State asserts that the question before the Ciancaglini
Court is inapposite to the issue presented here and was
previously addressed in In re Bergwall. Moreover, it maintains
that this Court’s holding in Ciancaglini did not overturn In re
Bergwall. Rather, the Ciancaglini opinion implicitly reaffirmed
In re Bergwall by finding that the DWI statute does not contain
any cross-reference to the refusal statute, thereby suggesting
that the refusal statute includes a cross-reference to the DWI
statute.
The State further asserts that the municipal court judge
had a sufficient factual basis to support defendant’s guilty
plea. With regard to defendant’s claim that he was entitled to
11
a jury trial, the State argues that defendant’s claim lacks
merit.
IV.
Our evaluation of defendant’s claim requires that we first
consider the plain language of the refusal statute. State v.
Marquez, 202 N.J. 485, 499 (2010). The paramount goal of
statutory interpretation is to ascertain and effectuate the
Legislature’s intent. State v. Shelley, 205 N.J. 320, 323
(2011) (citing DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
“In most instances, the best indicator of that intent is the
plain language chosen by the Legislature.” State v. Gandhi, 201
N.J. 161, 176 (2010) (citing DiProspero, supra, 183 N.J. at
492).
“[W]hen the language of a statute is clear on its face,
‘the sole function of the courts is to enforce it according to
its terms.’” Hubbard v. Reed, 168 N.J. 387, 392 (2001) (quoting
Sheeran v. Nationwide Mut. Ins. Co., 80 N.J. 548, 556 (1979)).
In carrying out that function, we read words “with[in] their
context” and give them “their generally accepted meaning.”
N.J.S.A. 1:1-1.
Courts cannot “rewrite a plainly-written enactment of the
Legislature nor presume that the Legislature intended something
other than that expressed by way of the plain language.”
O’Connell v. State, 171 N.J. 484, 488 (2002). If, however, the
12
Court determines that “a literal interpretation would create a
manifestly absurd result, contrary to public policy, the spirit
of the law should control.” Turner v. First Union Nat’l Bank,
162 N.J. 75, 84 (1999). Furthermore, if a statute’s plain
language is ambiguous or subject to multiple interpretations,
the Court “may consider extrinsic evidence including legislative
history and committee reports.” Marquez, supra, 202 N.J. at
500.
This appeal centers upon the Legislature’s intent in
enacting the refusal statute, N.J.S.A. 39:4-50.4a. The statute
requires municipal courts to revoke the driving privileges of
drivers who refuse to submit breath samples to be tested for
their blood alcohol content. In relevant part, the law
provides:
the municipal court shall revoke the right
to operate a motor vehicle of any operator
who, after being arrested for a violation of
R.S.39:4-50 or section 1 of P.L.1992, c. 189
(C.39:4-50.14), shall refuse to submit to a
test provided for in section 2 of P.L.1966,
c.142 (C.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 or 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.
[N.J.S.A. 39:4-50.4a.]
13
As demonstrated by the statutory language, penalties are
based on the number of prior offenses the driver has committed.
Ibid. The length of the driver’s license suspension differs
depending on whether the conviction is the driver’s first,
second, or third or subsequent offense. Ibid.
For a first-time refusal conviction, the driver is subject
to a driver’s license suspension ranging from seven months to
one year. Ibid. If “the refusal was in connection with a
second offense under this section,” the driver is subject to a
two-year license suspension. Ibid. The statute further
requires a ten-year license suspension where the refusal
conviction is “in connection with a third or subsequent offense
under this section.” Ibid.
The legislative history of the refusal statute reveals that
it was not until 1977 that the statute distinguished between
initial and subsequent offenses, and set forth increased
penalties for subsequent offenses. L. 1977, c. 29, § 4. As
originally enacted under N.J.S.A. 39:4-50.4, the statute
required a six-month license revocation for a driver’s refusal
to submit to a chemical test. L. 1966, c. 142, § 4. However,
in 1977, the Legislature amended the refusal law by mandating a
ninety-day license revocation “unless the refusal was in
connection with a subsequent offense of this section, in which
14
case, the revocation period shall be for 1 year.” L. 1977, c.
29, § 4; N.J.S.A. 39:4-50.4(b).
Importantly, a Motor Vehicle Study Commission report
prompted the inclusion of that language. See Report of the New
Jersey Motor Vehicle Study Commission (Sept. 1975), 147-53. The
Commission recommended a one-year suspension if the refusal was
subsequent to a prior DWI conviction that occurred within the
past fifteen years. Id. at 153. In making that recommendation,
the Motor Vehicle Study Commission noted:
If an individual is a second offender under
the impaired statute, it is advantageous for
him to refuse the test, since the penalty he
must receive, if convicted, is two years
loss of license. If he is charged with
driving while under the influence, he faces
either a two or ten year revocation,
depending on his prior record. By refusing
the test, he deprives the state of objective
evidence of intoxication or impairment (and
perhaps evidence of his own innocence), and
risks a six month loss of license. . .
It is presently advantageous for an
individual to refuse the breath test since
the refusal suspension penalty is so much
shorter than any penalty imposed under
N.J.S.A. 39:4-50 except for a first
“impaired” offense. That advantage should
be removed from the law so that more
individuals will be induced to take the
test.
[Id. at 147-48, 150-51.]
V.
15
This Court addressed the interpretation of the refusal
statute in In re Bergwall. In that case, the defendant was
convicted of refusal in 1977 after previously having been
convicted of DWI. In re Bergwall, supra, 173 N.J. Super. at
431-32. The issue before the Appellate Division was whether a
prior DWI enhances a sentence for a subsequent refusal
conviction. Id. at 432.
At the time, the refusal statute provided as follows:
Any revocation of the right to operate a
motor vehicle over the highways of this
State for refusing to submit to a chemical
test 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. . .
[N.J.S.A. 39:4-50.4(b) (emphasis added).]
The majority of the In re Bergwall panel held that the
phrase “subsequent offense of this section” as used in N.J.S.A.
39:4-50.4(b) was limited to prior convictions for refusal, and
therefore, a prior DWI did not enhance a sentence for a
subsequent refusal conviction. In re Bergwall, supra, 173 N.J.
Super. at 433.
The majority first concluded that the word “section”
“unmistakably means N.J.S.A. 39:4-50.4 itself.” Ibid. The
majority also noted that refusal to submit to a breathalyzer
test deals with “an entirely independent and separate subject”
from a drunk driving offense. Id. at 434. Based on these
16
conclusions, the majority held that a previous DWI conviction
could not enhance a penalty for refusal as it would result in
anomalies that were not intended by the Legislature. Id. at
434-35.
The dissenting opinion by Judge Lora expressed the view
that the phrase “subsequent offense of this section” encompassed
the drunk driving section of Title 39, N.J.S.A. 39:4-50. Id. at
437. The dissent stated that the statutory interpretation
adopted by the majority erroneously emphasized the word
“section” in the phrase “unless the refusal was in connection
with a subsequent offense of this section.” Ibid. Rather,
according to the dissent, the court should have instead given
meaning to the phrase “in connection with.” Ibid.
The dissent emphasized that a refusal can only be “in
connection with” a DWI arrest and a request to take a
breathalyzer test because refusal of a breathalyzer test is an
offense that is dependent upon a police officer stopping someone
for a suspected DWI and requesting that he or she take a
breathalyzer test. Ibid. The dissenting opinion pointed out
that the majority’s interpretation of “unless the refusal was in
connection with a subsequent offense of this section”, and its
reliance on the word “section” as referring to the “refusal
statute,” defied logic because a refusal cannot be “in
connection with” another refusal. Ibid.
17
The dissenting judge also stated that the statute’s
legislative history revealed that the Legislature intended to
have a prior DWI conviction qualify as a prior offense under the
refusal statute. Id. at 437-38. He further opined that the
“[m]ost persuasive” and “controlling” relevant legislative
history was found in the New Jersey Motor Vehicle Study
Commission’s Report. Id. at 438 (citing Report of the New
Jersey Motor Vehicle Study Commission (Sept. 1975), 147-53).
The dissenting judge noted that the Report of the New Jersey
Motor Vehicle Study Commission revealed that the Commission
recommended certain penalties because it sought to remove a
driver’s advantage in refusing a breathalyzer test when he or
she had a prior DWI conviction. Ibid. He also found that the
summary chart in the “Statement to Senate, No. 1423,” which was
prepared by the Senate Law, Public Safety and Defense Committee,
indicated that a court should impose a one-year license
suspension for refusing a breathalyzer test when a prior DWI
conviction occurred within the previous fifteen years. Id. at
439.
This Court reversed the majority panel’s decision in In re
Bergwall and adopted the dissent’s analysis. In re Bergwall,
supra, 85 N.J. at 383. Specifically, the Court stated that it
was reversing the panel “for the reasons expressed in the
18
dissenting opinion of Judge Lora in the Appellate Division.”
Ibid.
The Appellate Division decided In re Bergwall on April 25,
1980. A few months after the panel’s decision, on December 8,
1980, Assemblyman Herman introduced a bill suggesting amendments
to the refusal statute. That bill included language stating:
Any operator of a motor vehicle who, after
being arrested for a violation of R.S. 39:4-
50, shall refuse to submit to the chemical
test provided for in section 3 of P.L. 1966,
c. 142 (C. 39:4-50.3) when requested to do
so, shall be subject to revocation of the
right to operate a motor vehicle for 90 days
unless the refusal was in connection with a
subsequent offense under R.S. 39:4-50, in
which case the revocation period shall be
for 1 year.
[Assemb. 2293, 199th Leg. (Dec. 8, 1980)
(emphasis added).]
After this Court’s March 1981 In re Bergwall decision, the
Senate Judiciary Committee rejected that proposal and made
amendments to the bill which replaced the term “R.S. 39:4-50”
with “this section.” Sen. Comm. Amend. to Assemb. 2293, 199th
Leg. (May 14, 1981). Therefore, the final text of the statute
read, “unless the refusal was in connection with a subsequent
offense under this section.” L. 1981, c. 512, § 2 (emphasis
added). Thus, the phrase “of this section,” which existed at
19
the time of our In re Bergwall decision, changed to “under this
section.”3
Despite the change to the refusal statute’s language after
our In re Bergwall decision, In re Bergwall remains binding
precedent. “As a principle of statutory construction, the
legislative branch is presumed to be aware of judicial
constructions of statutory provisions.” State v. Singleton, 211
N.J. 157, 180-81 (2012) (citations omitted). A close
examination of the amendments made after this Court’s In re
Bergwall decision reveals that the refusal statute has
maintained language that is nearly identical to the language at
issue in In re Bergwall.
Despite having opportunities to change the refusal statute,
the Legislature has not made any significant changes to the
statute since this Court’s 1981 In re Bergwall decision. At the
time In re Bergwall, supra, 173 N.J. Super. at 432, was decided,
the refusal statute provided: “unless the refusal was in
connection with a subsequent offense of this section.” N.J.S.A.
39:4-50.4(b). The refusal statute currently states: “unless the
refusal was in connection with a second offense under this
3
Since this 1981 amendment, the Legislature has amended the
refusal statute on many other occasions. See L. 1981, c. 537, §
2; L. 1994, c. 184, § 2; L. 1997, c. 277, § 2; L. 1999, c. 185,
§ 5; L. 2004, c. 8, § 1; L. 2007, c. 267, § 2; L. 2009, c. 201,
§ 5. However, those amendments are not relevant to our analysis
of the issue in this case.
20
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. This legislative acquiescence reflects the Legislature’s
agreement with this Court’s interpretation of the refusal
statute. See State v. Wilhalme, 206 N.J. Super. 359, 362 (App.
Div. 1985), (recognizing that “an examination of the legislative
history in chronological juxtaposition with the litigation
history of Bergwall” supports the conclusion that statutory
amendments do not change application of In re Bergwall to
refusal statute), certif. denied, 104 N.J. 398 (1986); see also
State v. Fielding, 290 N.J. Super. 191, 193 (App. Div. 1996).
VI.
We turn our attention now to defendant’s argument that the
Appellate Division’s decision in this case conflicts with our
decision in Ciancaglini. Defendant’s reliance on Ciancaglini is
misplaced.
As mentioned previously, in Ciancaglini, supra, 204 N.J. at
599, this Court addressed the inverse of the issue presented
here: whether a prior refusal conviction may be used to enhance
a subsequent DWI sentence under the DWI statute, N.J.S.A. 39:4-
50. This Court held that a “defendant’s prior refusal
conviction may not be considered as a ‘prior conviction’ for
purposes of [that defendant’s] subsequent DWI conviction.”
Ibid. This Court reasoned that, “although N.J.S.A. 39:4-50 and
21
N.J.S.A. 39:4-50.4a are both part of a statutory complex
designed to rid the highways of drunk drivers and to make our
roads safer, each is a separate section (each referring to ‘this
section’) with a different, albeit related, purpose, and each
has different elements.” Id. at 606.
In Ciancaglini, this Court also acknowledged the In re
Bergwall holding. Id. at 610 n.10. Although confined to a
footnote, this Court reiterated that the dissent’s decision,
which the Court adopted, was grounded in the language “in
connection with a subsequent offense of this section.” Ibid.
Furthermore, in our analysis of the Ciancaglini case, this Court
differentiated the “in connection with” language of the refusal
statute with the DWI statute, which “contains no reference
whatsoever to the refusal statute.” Id. at 610.
Recognizing that nothing in the DWI statute suggests that
its references to prior violations refer to anything other than
DWI convictions, and because the Legislature did not amend the
DWI and refusal statutes to express an alternative intent, this
Court found that the references to prior violations only refer
to DWI convictions and not to refusal convictions. Id. at 610-
11.
Accordingly, given the distinction between the DWI statute
and the refusal statute, In re Bergwall, rather than
Ciancaglini, controls the outcome of this case.
22
VII.
We note that public policy further supports upholding our
In re Bergwall decision. As noted by the panel in Wilhalme,
supra, 206 N.J. Super. at 362-63, the continued application of
In re Bergwall recognizes New Jersey’s strong public policy
against drunk driving. In re Bergwall furthers that policy by
creating harsher penalties for individuals who commit multiple
alcohol-related driving offenses.
If prior DWI convictions were not to enhance subsequent
refusal sentences, it would be tactically advantageous for an
individual to refuse a breathalyzer test. See In re Bergwall,
supra, 173 N.J. Super. at 438 (Lora, P.J.A.D., dissenting)
(citing Report of the Motor Vehicle Study Commission (September
1975) at 147-48, 150-51). Individuals who have been previously
convicted of drunk driving would refuse to take a breathalyzer
test because the penalty for the refusal would be the seven-
month penalty rather than the more severe two-year penalty.
Ibid.
Furthermore, those individuals would also be able to escape
punishment for a subsequent DWI conviction by refusing the
breathalyzer test. Ibid. Such a refusal would deny the State
the necessary evidence to obtain a conviction for that
subsequent DWI offense. Ibid. That result would undermine the
enforcement of the DWI statute and the Legislature’s purpose of
23
“curb[ing] the senseless havoc and destruction caused by
intoxicated drivers.” State v. Tischio, 107 N.J. 504, 512
(1987).
This appeal also presents the corollary issues of whether,
under the circumstances of this case, defendant should have been
permitted to withdraw his guilty plea, and whether he was
entitled to a jury trial. We decline to address those claims
because they are untimely. See R. 2:4-1(a).
VIII.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
PATTERSON; and JUDGES RODRÍGUEZ and CUFF (both temporarily
assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.
24
SUPREME COURT OF NEW JERSEY
NO. A-30 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROGER PAUL FRYE,
Defendant-Appellant.
DECIDED June 3, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Fernandez-Vina
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7
1