STATE OF NEW JERSEY VS. RICARDO J. SALAZAR (14-10-0963, GLOUCESTER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0219-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICARDO J. SALAZAR a/k/a
RICO,
Defendant-Appellant.
Argued November 30, 2016 – Decided May 11, 2017
Before Judges Alvarez and Accurso.1
On appeal from the Superior Court of New
Jersey, Law Division, Gloucester County,
Indictment No. 14-10-0963.
Patrick J. Grimes argued the cause for
appellant.
1 Hon. Carol E. Higbee was a member of the panel before whom this
case was argued. The opinion was not approved for filing prior
to Judge Higbee's death on January 3, 2017. Pursuant to R. 2:13-
2(b), "Appeals shall be decided by panels of 2 judges designated
by the presiding judge of the part except when the presiding judge
determines that an appeal should be determined by a panel of 3
judges." The presiding judge has determined that this appeal
remains one that shall be decided by two judges. Counsel has
agreed to the substitution and participation of another judge from
the part and to waive reargument.
Joseph A. Glyn, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Mr.
Glyn, of counsel and on the brief).
PER CURIAM
Defendant Ricardo J. Salazar was convicted of driving while
intoxicated (DWI), N.J.S.A. 39:4-50, on July 20, 2009. Thereafter,
on March 19, 2013, he was convicted of refusing to submit to
chemical testing (refusal), N.J.S.A. 39:4-50.4a. On May 9, 2014,
defendant was stopped while driving a motor vehicle and still
serving his two-year court-imposed term of license suspension.
After his motion to dismiss the indictment was denied, he entered
a conditional guilty plea to fourth-degree driving while
suspended, N.J.S.A. 2C:40-26(b), and on July 31, 2015, was
sentenced to six months in county jail, in addition to other
mandatory fines and penalties.
Defendant now appeals, contending, as he did before the Law
Division judge, that the driving while suspended criminal statute
requires an actor to be convicted of either two DWI offenses, or
two refusal offenses. He also contends that the Legislature did
not intend for a defendant convicted of one of each motor vehicle
offense to be subject to prosecution for the fourth-degree crime.
We affirm.
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In his oral decision, the Law Division judge gave the statute
a common sense reading, stating that he believed the use of the
word "or" was not intended to be preclusionary in effect, but
rather, to offer an alternative. He quoted the statute, N.J.S.A.
2C:40-26(b): "It shall be a crime of the fourth degree to operate
a motor vehicle during the period of license suspension in
violation of [N.J.S.A.] 39:3-40, if the actor's license was
suspended or revoked for a second or subsequent violation of
[N.J.S.A.] 39:4-50 or [N.J.S.A.] 39:4-50.4a." He found it was the
Legislature's intent to prohibit driving while suspended
regardless of whether the predicate offense was DWI, refusal, or
some combination. He also noted that pursuant to N.J.S.A. 39:4-
50, the consequences for a refusal were similar to a DWI.
Now on appeal, defendant reiterates his argument for
dismissal.2 In support, defendant relies principally on State v.
Ciancaglini, 204 N.J. 597 (2011). He suggests that since the
Court in that case concluded that N.J.S.A. 39:4-50 precluded the
use of a prior refusal conviction to enhance sentencing on a DWI,
Ciancaglini, supra, 204 N.J. at 600, one conviction for each of
2Rule 2:6-2(a)(6) requires an appellant's legal argument to be in
a formal brief with "appropriate point headings[.]" No point
heading was included in the brief, which is five pages in length
and appears to be a hybrid between a letter brief and a formal
brief not authorized by the rules.
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the two offenses cannot be used to find a defendant guilty of a
violation of N.J.S.A. 2C:40-26(b).
"In [Ciancaglini], however, the Court left undisturbed the
holding of In re Bergwall, 85 N.J. 382 (1981), rev'g on dissent,
173 N.J. Super. 431, 436-40 (App. Div. 1980) (Lora, P.J.A.D.,
dissenting), that a prior DWI conviction is deemed a prior
violation for purposes of enhancing the sentence on a subsequent
refusal conviction[.]" State v. Taylor, 440 N.J. Super. 387, 389
(App. Div.), certif. denied, 223 N.J. 283 (2015). That
Ciancaglini, based on a question of statutory interpretation, did
not permit the refusal statute to be used to enhance a DWI
sentencing, while leaving intact the doctrine that a DWI conviction
does enhance a refusal sentence, is not dispositive on the question
at issue, also one of statutory interpretation.
We review questions of statutory interpretation de novo.
State v. Revie, 220 N.J. 126, 132 (2014). In this case, however,
we agree with the trial court that the issue is one readily
resolved by the plain language used in the statute. See ibid.
Our role is not to rewrite a plainly worded statute. Ibid.
The statute is couched in clear and plain language as to the
nature of the predicate offenses. A common sense reading
establishes that the word "or" is used as a coordinating
conjunction that presents an alternative. In order to be subject
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to prosecution under this statute, a defendant must have been
convicted on two occasions or more of DWI, refusal, or one of
each. The Legislature did not intend for the nonsensical outcome
that a person who has been convicted on one occasion of DWI and
on another of refusal, both integral parts of the statutory effort
to control the great evil of drunken driving, would be spared
prosecution, while an individual who was twice convicted of
refusal, would not.
The Legislature could easily have drafted the statute to read
that it applied only when a driver had been convicted of two or
more DWI violations, or two or more refusal violations, but it did
not. To interpret the statute as defendant suggests would be to
rewrite it and distort the Legislature's plain words and patent
intent. See DiProspero v. Penn, 183 N.J. 477, 492 (2005).
There is no necessity for us to turn either to the legislative
history or principles of lenity as aids to interpretation. When
the plain language of a statute "leads to a clear and unambiguous
result, then the interpretive process should end, without resort
to extrinsic sources." State v. D.A., 191 N.J. 158, 164 (2007)
(citing DiProspero, supra, 183 N.J. at 492).
Affirmed.
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