State v. Eckert, A-0216-08T4; Appellate Division; opinion by Baxter, J.A.D.; decided and approved for publication November 16, 2009. Before Judges Lisa, Baxter and Alvarez.
This appeal involves a sentencing issue concerning the interplay between the driver’s license suspensions that are required following a conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), when, by virtue of the “step-down” provisions of the DWI statute, the DWI conviction is treated as a first offense, thereby permitting a license suspension of three months. In the municipal court, the parties agreed that defendant would plead guilty to both DWI and refusal, but the refusal charge would merge with the DWI offense, and a sentence would therefore be imposed only on the DWI. No specific agreement was reached on the length of the driver’s license suspension to be imposed; at sentencing, the municipal court judge imposed a seven-month license suspension, even though the step-down provision of the DWI statute entitled defendant to a three-month license suspension. The Law Division, in a trial de novo, did likewise. Defendant appeals.
The issue is whether a refusal conviction can be merged with a DWI conviction, or whether a separate sentence is the only permissible result where a defendant pleads guilty, or is found guilty, of both.
Held: A conviction for refusal to submit to a breath examination cannot be merged with a DWI conviction. Such a plea agreement violated applicable merger principles as well as the Supreme Court’s Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey.
By providing a strong disincentive to withholding consent to a breath test, the Implied Consent Law, N.J.S.A. 39:4-50.2, and the refusal statute, N.J.S.A. 39:4-50.4a, together advance New Jersey’s public policy of preventing drunk driving. Additionally, the Supreme Court, in 1990, adopted the “Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey,” which prohibits plea agreements in cases where the defendant is charged with driving while intoxicated. Guideline 4 specifically permits the dismissal of the refusal charge where the defendant is charged with a second or subsequent DWI violation, but expressly prohibits the dismissal of the refusal charge where it is charged in connection with a defendant’s first DWI offense.
The appellate panel rejects defendant’s argument that merging the refusal conviction into the DWI conviction preserves the refusal conviction, and does not run afoul of the Court’s prohibition on the dismissal of the refusal violation in instances of a first DWI conviction. Merging the refusal conviction with the DWI conviction, when the resulting license suspension is only for three months, rather than the seven months required by the refusal statute, preserves the refusal violation in name only. Sentencing defendant to a three-month suspension, under the guise of a merger of offenses is nothing more than a de facto dismissal of the refusal charge, a result that is prohibited by the guidelines. In the official comment promulgated simultaneously with issuance of the guidelines, the Court expressly prohibited the use of “merger” as a technique designed to circumvent the general prohibition in the guidelines on plea agreements in drunk-driving cases and its specific prohibition on dismissal of refusal violations for first-time DWI offenders. Moreover, accepting defendant’s argument that he was entitled to a mere three-month license suspension creates the potential for an unacceptable result in that defendant, who pleaded guilty to both DWI and refusal, would receive a three-month license suspension, while another driver, who pleads guilty only to refusal, would receive a seven-month suspension.
Further, the language the Legislature chose to incorporate in the refusal statute, N.J.S.A. 39:4-50.4a(a), specifically provides that “[f]or a first offense, the revocation [of driving privileges] may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of R.S. 39:4-50[, the drunk driving statute,] arising out of the same incident.” By choosing to permit concurrent or consecutive license suspensions for first-time refusal offenders, the Legislature insisted on the preservation of the refusal conviction. The appellate panel concludes that the Legislature, by virtue of its failure to authorize the merger of the refusal violation with the DWI conviction for first-time offenders, and its insistence that the refusal conviction be preserved by way of a concurrent or consecutive sentence, intended to forbid the result defendant urges.
Lastly, a conviction for refusal to submit to a breath examination cannot, as a matter of law, merge with a conviction for drunk driving. Two offenses will not merge when each offense requires the proof of an additional fact not required by the other, unless principles of fundamental fairness and due process would be offended by multiple prosecutions. The DWI statute requires proof beyond a reasonable doubt that the defendant was operating a motor vehicle while under the influence of alcohol or other intoxicant. To prove a defendant guilty of refusal, the state need only prove beyond a reasonable doubt that the arresting officer had probable cause to believe that defendant was operating the vehicle while intoxicated, and that, beyond a reasonable doubt, the defendant refused to submit to the breath test. Thus, unlike the refusal statute, the DWI statute requires proof beyond a reasonable doubt of operation of a vehicle while intoxicated, not merely that police had probable cause to so believe.
The appellate panel finds the DWI and refusal statutes do not merge, and the imposition of separate punishments for each would not violate guarantees of due process and fundamental fairness or the prohibition against double jeopardy. The merger of the DWI and refusal convictions was improper. The panel reverses the sentence imposed by the Law Division and remands.
source https://www.law.com/njlawjournal/almID/1202435527282/
