New Jersey Criminal Defense Attorney Blog

Earlier this month, the NJ Appellate Division held that a prior conviction for Refusing to Submit to the taking of breath samples qualifies as a prior conviction for subsequent NJ DWI sentencing. This creates new challenges for NJ DWI-DUI defense attorneys and drunk driving defendants.

In State v Ciancaglini, the State appealed from the Law Division trial court's decision that the defendant should have been sentenced as a first offender for her DWI conviction. Defendant was previously convicted of Driving while Intoxicated in 1979. In 2006, she was convicted of refusing to take the breathalyzer test. The Law Division discounted those convictions and gave the defendant the 10-year step down and also did not count the prior Refusal charge as a prior conviction. On appeal, the court agreed with the State that defendant's prior convictions required that she be sentenced as a third-time DWI offender, subjecting her to 10 years license suspension, 6 months jail and a $1000 fine.

Sergeant Steven Pelligra, a veteran of the NJ State Police, was arrested last week and charged with DWI-DUI, Refusal to Submit to a Breath Test, and related offenses. His arrest followed a two-vehicle accident that occurred in Hackettstown. He has been suspended from duty without pay.

At the time of the crash, Pelligra was off duty and traveling north in his Nissan Frontier when his truck hit the driver's side of a 1999 Pontiac Grand Prix going south. Pelligra fled from the scene after the accident. He later refused to give a breath sample.

The New Jersey Assembly voted unanimously approved a bill this week that levies harsh penalties on individuals who are caught loaning their cars to anyone whose whose license is suspended or revoked from a drunk driving (DWI/DUI) or refusal conviction.

The new law, S-2940/A-4302, is contained in a package of legislation sponsored by Richard Codey aimed at cracking down on repeat DWI offenders. If passed, the new law would levy on first or second-time offenders a fine of $1,000 and up to 15 days jail time for anyone who knowingly lends their vehicle to someone with a suspended license resulting from a DWI-DUI conviction or refusal to take a breath test. A third-time offender would receive a $1,000 fine, up to 15 days jail time, and a 90-day driver's license suspension.

As the law currently stands, the only penalties that exist for this offense are a fine of $200-$500 and up to 15 days in jail. The proposed law will now proceed to the Senate floor for final approval.

In a New Jersey DWI-DUI case, you do not have the right to refuse to take a breath test. However, under current law the refusal of a defendant to provide police with a blood sample during a DWI-DUI investigation does not constitute a crime under the criminal or motor vehicle laws.

In State v. Ravotto, 169 N.J. 227, the Supreme Court held that a good-faith fear of needles was a legitimate reason to refuse to give a blood sample. However, police may use "reasonable force" in obtaining the sample. The Court in Ravotto found that police had used excessive force under the facts of that case.

However, be warned that if a court finds that the refusal to give the blood sample was "self-serving" it may infer that the reason for the refusal was that the defendant in fact was driving while intoxicated. The same inference may be drawn when the defendant refuses to take the breath test.