Ten year
step down in DWI also applies to Refusal
State v
Taylor
A-3923-13T2
In 2013, defendant Thomas Taylor entered a
conditional guilty plea to refusal to submit to a breath test, N.J.S.A.
39:4-50.2, reserving the right "to appeal [] any and all issues, including
sentencing." Although defendant had no prior convictions for refusal, he
had two prior convictions for driving while intoxicated (DWI), N.J.S.A.
39-4-50, in 1985 and 1996. The trial court sentenced defendant as a "third
offender," using his DWI convictions to enhance the penalty for his
refusal conviction.
On appeal, defendant argues that the
"step-down" provision of the DWI statute, N.J.S.A. 39:4-50(a)(3),
should apply so as to reduce his refusal conviction from a third to a second
offense for sentencing purposes since it followed more than ten years after his
second DWI conviction. We agree, and hold that where the penalty attendant to a
driver's refusal conviction is enhanced by a prior conviction under the DWI
statute, fairness dictates that it be similarly reduced by the sentencing
leniency accorded a driver under the "step-down" provision of that
statute when there is a hiatus of ten years or more between offenses.
