Last month, a New Jersey appellate court overturned a decision which had stood for 17 years when it ruled that prior convictions for violating New Jersey's implied consent law must be counted as prior DWI convictions during sentencing for DWIs. The case is State v. Ciancaglini, No. A-2785-08T4 (N.J.A.D. 2010), in which the state was appealing the sentence of Eileen Ciancaglini, who had been charged with a DWI in May 2008, after registering a 0.17 BAC on a Breathalyzer. Ms. Ciancaglini had been convicted of DWI in 1979 and was also convicted of refusing a chemical alcohol test in 2006. She pled guilty to the 2008 DWI and was sentenced as a third-time offender by the municipal court. In New Jersey, DWI defendants have the right to appeal the decisions of the municipal court to New Jersey Superior Court, and Ms. Ciancaglini did.

The Superior Court used a precedent from the case of State v. DiSomma, 262 N.J.Super. 375 (N.J.A.D. 1993), which had established the rule that prior refusal convictions did not count as prior DWI convictions under New Jersey's DWI sentencing statute, N.J.S.A. 39:4-50. That law also requires the sentencing court to discount a conviction if it occurred more than 10 years before the current conviction. One might be forgiven for thinking that this law means that any conviction that was more than 10 years old would not be counted against a defendant, and indeed that is the way the Superior Court understood it. Forced to discount both of Ms. Ciancaglini's prior offenses, the Superior Court re-sentenced her as a first-time DWI offender, which carries a jail sentence of 30 days.

After the 30 days were up, the state appealed to the Appellate Division, which overruled the Superior Court and decided that prior refusal convictions did count as prior DWIs. The court said it was overruling DiSomma because none of the four reasons the DiSomma court had ruled as it did were valid any longer. These were: (1) The refusal statute was a civil/administrative law while the DWI statute was a criminal law, (2) Traditionally, when a law refers to "repeat offenses," it means only violations of the same law, (3) The refusal statute were enacted as separate laws and only later codified in the same title, and (4) criminal laws like the DWI statute are usually interpreted as narrowly as their language permits. The Supreme Court of New Jersey knocked out the first of these legs supporting DiSomma when it decided the case of State v. Cummings, 184 N.J. 84 (2005), which held that the refusal statute was "quasi-criminal." Also, several cases considering the converse question, that is, whether a conviction for DWI counted as a prior conviction under the refusal statute, had ruled that it did. The Ciancaglini court was persuaded that unless it overruled DiSomma, DWI convictions would be equivalent to refusal convictions when the driver was charged refusal but not when the driver was charged with DWI.

The court ordered that Ms. Ciancaglini be sentenced as a third-time offender, which carries a jail sentence of up to 6 months. Why not treat her as a second-time offender? Because although her 1979 conviction was more than 10 years old, N.J.S.A. 39:4-50 technically only requires that the court discount the most recent conviction if that conviction occurred more than 10 years before the present one, and now that refusals were to be counted, her most recent conviction was in 2006. But isn't it double jeapordy to punish someone after they've already completed their sentence? According to the court, only when the defendant should have had an "expectation of finality" in the first sentence would it be unconstitutional to increase the sentence on appeal. The court here ruled that Ms. Ciancaglini could not have reasonably relied on the Superior Court's ruling because it only concerned the law and was not an individual determination of what sentence her crime deserved.

This was clearly an unfortunate ruling for Ms. Ciancaglini, but it's less clear what the impact of this change will be in New Jersey. Now that violating the implied consent law will have much the same effect as being convicted of DWI for sentencing purposes, drivers with a history of convictions for refusing may think again before driving drunk. At the same time, since state prosecutors can now use a larger array of prior convictions to enhance DWI charges, many DWI defendants can probably expect less generous plea bargains in the future, so the options available to those drivers who do drive while intoxicated will be more restricted.