New Jersey Criminal Attorney Blog

In an opinion released yesterday, the New Jersey Appellate Division ruled that a DWI defendant who was previously convicted of refusing a breathalyzer test requires sentencing as a repeat offender.

The case, State v. Ciancaglini, involved a Monmouth County woman who was previously convicted of DWI in 1979, and of failing to submit to a breathalyzer test in 2006. She was again convicted of DWI in 2008.

The municipal court sentenced her as a third-time offender to six months in jail, a $1,006 fine, ten-year loss of license and vehicle registration, 12 hours at an Intoxicated Driver Resource Center, and other fees.

On appeal, the Law Division held that she should have been sentenced as a first time offender because the 1979 conviction occurred more than ten years ago and the conviction for refusal to take a breathalyzer test did not qualify as a prior conviction for DWI. The Law Division sentenced her as a first time offender to 30 days in jail, a $500 fine, 12 months license revocation, and 12 hours at an Intoxicated Driver Resource Center.

The Appellate Division disagreed and reinstated the original sentence.

An opinion released Tuesday by the New Jersey Supreme Court interpreting the state's unsafe driving statute offers some good news and some bad news for drivers hoping to avoid points on their licenses.

Since the unsafe driving law went into effect in 2000, it has offered drivers in some circumstances a way to avoid having points assessed for moving violations. In some cases, drivers may have the opportunity to plead guilty to Operation of a Vehicle in an Unsafe Manner. The penalty involves payment of a fine and court fees without any points. However, the wording of the statute has been the subject of much confusion. It prohibits drivers from taking advantage of the exemption three times where each offense is within five years of the prior offense, raising questions about how the five-year limitation should be measured.

Last year, the Appellate Division took up the issue in State v. Patel. In that case, the driver had three offenses within five years of each other. On her fourth offense, she was assessed points. She argued that she should be allowed the exemption on the fourth offense because although it was within five years of her third offense, it was not within five years of her first and second offenses. Thus, she only had two offenses within the last five years. The Appellate Division disagreed and held that five years must pass from the prior offense before the exemption becomes available again.

Also in that opinion, the Court stated that points will be assessed upon a third unsafe driving offense within five years of the prior offense. After five years have passed from that offense, the driver would once again become eligible for the exemption.

The Defendant appealed that ruling to the New Jersey Supreme Court. The Supreme Court agreed with the Appellate Division's opinion that the Defendant should be assessed points because her fourth offense was within five years of her prior offense. Even though more than five years had passed from the first two offenses, each offense occurred within five years of the one prior.

However, the Court disagreed with the Appellate Division over the availability of the exemption on the third conviction. The opinion stated that the exemption applies to the third offense, no matter when the third offense takes place.

The opinion offers a mixed bag for drivers. The good news is that a driver qualifies for the exemption on a third offense no matter when it takes place. The bad news is that when a driver has three offenses each within five years of the last, he or she must wait five years after the third offense before the exemption will again be available.