STATE OF NEW JERSEY VS. PHILLIP G. COLSON (6219, UNION COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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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