New Jersey Appellate Division Addresses DWI Step-Down Provisions in Refusal Case

Roman dieNew Jersey law imposes increasingly harsh penalties for subsequent convictions of driving while intoxicated (DWI) and refusal to submit to breath testing. Penalties for both offenses may include fines, a driver’s license suspension, and the mandatory use of an ignition interlock device. A conviction for DWI may also involve jail time. State law includes “step-down” provisions, however, that lessen the severity of a sentence if a sufficient amount of time has passed since the most recent prior conviction. The New Jersey Appellate Division recently ruled on an appeal involving a defendant’s refusal conviction, which followed three DWI convictions. The court’s ruling in State v. Clapper considered whether the step-down provisions, which only mention second and third DWI offenses, apply to subsequent refusal offenses.

The New Jersey DWI statute imposes progressively harsher penalties for (1) a first DWI conviction involving a blood alcohol content (BAC) of at least 0.08 percent but less than 0.10 percent, (2) a first offense involving a BAC of 0.10 percent or higher, (3) a second offense, and (4) a third or subsequent offense. The refusal statute imposes increasing penalties for (1) first, (2) second, and (3) third or subsequent offenses. Prior DWI convictions may be used to enhance the sentence for a refusal conviction, according to the Appellate Division’s 2015 ruling in State v. Taylor, but prior refusal convictions may not be used to enhance a DWI conviction.

Under the step-down provisions, if a second DWI offense occurs more than 10 years after the first, the court must impose the sentence for a first offense. Likewise, if a third offense occurs more than 10 years after the second, the court must treat it as a second offense. This applies to both DWI and refusal convictions under the system described in Taylor. Notably, the step-down provisions do not mention subsequent convictions after a third one.

The defendant in Clapper pleaded guilty to refusal in 2011. He had three prior DWI convictions, all more than 10 years old. The court imposed the sentence for a third or subsequent refusal offense, based on the prior DWI convictions. The defendant argued that the court should have sentenced him as a second offender, since his third DWI offense occurred more than a decade before the refusal offense. He cited a 2014 New Jersey Supreme Court decision, State v. Revie, which held that the step-down provisions applied to a fourth DWI offense that occurred more than 10 years after the third. Mr. Revie was represented by Evan Levow.

The Appellate Division rejected the defendant’s argument. It noted that the step-down provisions make no mention of “subsequent” offenses after the third. It also distinguished the defendant’s case from Revie, noting that, unlike the DWI offense in Revie, the “defendant’s refusal offense did not expose him to a loss of liberty.” While it denied the defendant’s appeal, the court’s ruling leaves open the possibility of a step-down for a fourth DWI conviction.

If you have been charged with alleged DWI in a New Jersey municipal court, DWI attorney Evan Levow can help you understand your legal and constitutional rights and prepare a strong defense for your case. Contact us today online or at (877) 593-1717 to schedule a free and confidential consultation to see how our team can help you.

More Blog Posts:

Out-of-State DWI Convictions Count as Prior Convictions in New Jersey DWI Cases, Appellate Court Holds, New Jersey DWI Attorney Blog, April 9, 2015

New Jersey Supreme Court Rules that “Step-Down” Provision in State’s DWI Law Is Not Limited to One Use, New Jersey DWI Attorney Blog, January 10, 2015

New Jersey Refusal / DWI Sentencing Issues: Prior Refusal Conviction Does Not Enhance a Later DWI Conviction — Yet, New Jersey DWI Attorney Blog, January 26, 2011

Photo credit: Wintermute115 (Own work) [CC BY-SA 4.0], via Wikimedia Commons.