A Case of Fundamental Fairness–Refusal of Breath Test Sentences Subject to Step-Down Provision

Submitted by New Jersey DWI Attorney, Jeffrey Hark.

This blog concerns a case that recently settled the unfairness of sentencing disparities between repeat offenders guilty of DWI (see N.J.S.A. 39:4-50) versus repeat offenders guilty of refusal to submit to a breath test under N.J.S.A. 39:4-50.4a. State v. Taylor was decided May 11th by the Appellate Division and involves a defendant who pled guilty to refusal to submit to a breath test after being pulled over for suspected DWI. He was sentenced as a third offender due to two DWI convictions in 1985 and 1996. He was sentenced to:

• a $1006. fine
• 48 hours of rehab programs
• ten-year license suspension
• and a two year period with an interlock device in his vehicle (after the 10 year suspension ends).

On appeal the defendant argued that he was improperly sentenced as a third offender since his previous offenses were ten years in the past, and because his criminal proceedings took a year to complete which violated his right to a speedy trial.

Penalties for repeat refusals to submit to a breath test mirror penalties for repeat DWI offenses except with regards to custodial sentences (jail time). So seemingly there shouldn’t be sentencing disparities except for the fact that the “step-down” provision that exists for DWI offenses does not exist when it comes to refusals. The step-down provision in N.J.S.A. 39:4-50(a)(3) reads “if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first conviction 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.”

This would have clearly helped the defendant in this case since his last conviction was in 1996. Coincidentally in a case that same year, State v. Fielding, a defendant was convicted of a refusal to take a breath test and sentenced as a second offender. He had two prior convictions in 1981 and since that was more than ten years in the past he received the benefit of the step-down provision in his refusal case–only because the prior offense was a DWI. So his sentence as a second offender was upheld but he was not treated as a third-time offender. Had the prior two offenses been refusals Fielding would likely have been re-sentenced as a third time offender. This gets to an issue of “fundamental fairness” according to the Taylor Court. If a penalty for a refusal can be enhanced by prior offenses then it should likewise get the benefit of a step-down. The Court here remanded for re-sentencing of Mr. Taylor as a second-time offender. It should also be noted that a repeat DWI offender may invoke the step-down provision a second time so long as ten years has passed since the last offense.