DWI offenses separated by more than ten
years are eligible for “step-down” provision. State v. Revie __ NJ __ (2014) A-31-13
The N.J.S.A. 39:4-50(a)(3) “step-down”
provision can benefit a DWI offender more than once, provided that the
defendant’s most recent and current DWI offenses are separated by more than ten
years. In this case, defendant should be
sentenced as a second DWI offender with respect to any term of incarceration
imposed, and as a third DWI offender with respect to the applicable
administrative penalties.
1. Appellate courts review a trial court’s
construction of a statute de novo. In construing a statute, the Court’s role is
to determine and effectuate the Legislature’s intent. Generally, the best
indicator of that intent is the plain language chosen by the Legislature. The
penalties imposed under New Jersey’s DWI statute, N.J.S.A. 39:4-50(a),
increase with successive violations. For a second offense, the driver is
subject to, among other things, no “more than 90 days” imprisonment and loss of
driving privileges for two years. N.J.S.A. 39:4-50(a)(2). A third or
subsequent DWI offense subjects the defendant to, among other things,
incarceration “for a term of not less than 180 days” and a ten-year loss of
driving privileges. N.J.S.A. 39:4-50(a)(3).
2. The “step-down” provision, first added to New
Jersey’s DWI statutory scheme in 1977, was amended to its current form in 1981.
It provides in pertinent part: “if the second offense occurs more than 10 years
after the first offense, the court shall treat the second conviction as a first
offense for sentencing purposes and if a third offense occurs more than 10
years after the second offense, the court shall treat the third conviction as a
second offense for sentencing purposes.” N.J.S.A. 39:4-50(a)(3). The
Senate Judiciary Committee explained that the amended statute provided that
“any second offense occurring more than 10 years after the first offense be
treated for sentencing purposes as a first offense and that any third offense
occurring more than 10 years after the second conviction be treated for
sentencing purposes as a second offense.” S. Judiciary Comm. Statement to S.
No. 1267, 199th Leg., 1st Sess. (June 9, 1980).
3. The “step-down” language of N.J.S.A.
39:4-50(a)(3) has rarely been discussed in appellate decisions. In Burroughs,
the defendant was convicted of DWI in 1982, was convicted of a second DWI in
1998, for which he was sentenced as a first offender under the “step-down”
provision, and was convicted of a third DWI in 2000. 349 N.J. Super. at
226-28. Despite the brief interval between the defendant’s second and third DWI
convictions, the municipal court sentenced him as a second offender, reasoning
that his first DWI offense “had been ‘forgiven’ because of the eighteen-year
hiatus between the first and second offenses.” Ibid. The Appellate
Division held that defendant should be sentenced as a third DWI offender,
explaining that “once having been granted . . . leniency [by way of the
‘step-down’ provision], the defendant has no vested right to continued
‘step-down’ status where he commits a subsequent drunk driving offense. The
earlier offense is not ‘forgiven.’” Id. at 227. Thus, Burroughs
addressed the second application of a “step-down” to a defendant whose history
included only one interval of more than ten years without an infraction. Id.
at 226-27. Given the passage of only two years between his second and third
convictions, the Burroughs defendant was clearly ineligible for a second
“step-down” when he was convicted of a third DWI. Ibid. In State v.
Ciancaglini, 204 N.J. 597, 612 (2011), recognizing that the question
of multiple applications of the N.J.S.A. 39:4-50(a)(3) “step-down”
provision is not squarely raised unless the defendant has two intervals of more
than ten years between DWI convictions, and because the defendant’s record had
only one such interval, the Court stated that it “need not decide in this case
whether a person can twice take advantage of a ‘step-down.’” Ibid. Thus,
this Court has not previously addressed the issue presented by this case.
4. The plain language of N.J.S.A. 39:4-50(a)(3)
does not suggest that a defendant who meets the statute’s requirements twice
may invoke the “step-down” only once. Instead, N.J.S.A. 39:4-50(a)(3)
treats a defendant whose second offense occurs more than ten years after the
first offense as a first DWI offender for sentencing purposes. Using the
conjunctive term “and” followed by parallel language, the statute then deems a
defendant whose third offense occurs more than ten years after the second
offense to be a second DWI offender for sentencing purposes. N.J.S.A.
39:4-50(a)(3). Therefore, the Court holds that that the “step-down” provision
can benefit a DWI offender more than once, if in each instance the defendant’s
most recent and current DWI offenses are separated by more than ten years
without an infraction. The legislative history supports the Court’s
construction. The Senate Judiciary Committee Statement indicated the
Legislature’s determination that “any” second offense and “any” third offense
that followed the previous offense by more than ten years is subject to a
“step-down.” S. Judiciary Comm. Statement to S. No. 1267.
5. In Laurick, the Court held that the
uncounseled DWI conviction of a defendant not properly advised of his right to
counsel prior to pleading guilty could not be used to increase the period of
incarceration imposed for a subsequent DWI offense. 120 N.J. at 4. State
v. Hrycak, 184 N.J. 351, 362-63 (2005) confirmed, however, that an
uncounseled DWI conviction may be used to enhance the administrative penalties that
are part of a DWI sentence, such as the loss of driving privileges, fines, and
the installation of an interlock device. N.J.S.A. 39:4-50(a); N.J.S.A.
39:4-50.17(b). Under the principles of Laurick and Hrycak,
defendant’s uncounseled 1982 DWI conviction may not be used to enhance his term
of incarceration for a subsequent DWI offense, but does constitute a prior
conviction for purposes of determining his administrative penalties. Thus,
regarding defendant’s 2011 DWI conviction, he is deemed to be a third offender
entitled to a “step-down” under N.J.S.A. 39:4-50(a)(3) for purposes of
incarceration. He should therefore be sentenced to the term of incarceration
prescribed for a second offense. For purposes of imposing administrative
penalties, however, defendant should be sentenced as a third or subsequent
offender.
