State v. James J. Revie (072600)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. James J. Revie (A-31-13) (072600)
Argued September 24, 2014 -- Decided December 17, 2014
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court considers whether the “step-down” provision of N.J.S.A. 39:4-50(a)(3) can be
applied to the benefit of a defendant for the second time, when an interval of more than ten years separates his
previous driving while intoxicated (DWI) conviction from the conviction at issue.
Defendant was first convicted of DWI in 1981. He was charged with DWI again in 1982 and,
unrepresented by counsel, pled guilty to that charge. Defendant’s third DWI conviction occurred in 1994. Because
that conviction was more than ten years after defendant’s second DWI offense, he was sentenced as a second DWI
offender, rather than a third DWI offender, pursuant to N.J.S.A. 39:4-50(a)(3)’s “step-down” provision. In 2011,
defendant was granted post-conviction relief (PCR) with respect to his 1982 DWI conviction. The PCR court held
that, pursuant to State v. Laurick, 120 N.J. 1, 16 (1990), defendant’s uncounseled 1982 DWI conviction could not be
used to enhance a term of incarceration imposed for a subsequent DWI offense.
Defendant was convicted of his fourth DWI offense in 2011. Although there was a sixteen-year gap
between defendant’s third and fourth DWI offenses, the municipal court construed N.J.S.A. 39:4-50(a)(3) to afford a
defendant only a single “step-down.” The municipal court therefore sentenced defendant as a “third or subsequent”
DWI offender. The Law Division affirmed defendant’s conviction and sentence. Citing State v. Burroughs, 349
N.J. Super. 225 (App. Div.), certif. denied, 174 N.J. 43 (2002), the Law Division held that defendant was not
entitled to a second “step-down” under N.J.S.A. 39:4-50(a)(3). The Appellate Division affirmed defendant’s
conviction and sentence, relying primarily on its decision in Burroughs. This Court granted defendant’s petition for
certification, which challenged only his sentence and raised no issues regarding his conviction. 216 N.J. 14 (2013).
HELD: The N.J.S.A. 39:4-50(a)(3) “step-down” provision can benefit a DWI offender more than once, provided
that the defendant’s most recent and current DWI offenses are separated by more than ten years. In this case,
defendant should be sentenced as a second DWI offender with respect to any term of incarceration imposed, and as a
third DWI offender with respect to the applicable administrative penalties.
1. Appellate courts review a trial court’s construction of a statute de novo. In construing a statute, the Court’s role is
to determine and effectuate the Legislature’s intent. Generally, the best indicator of that intent is the plain language
chosen by the Legislature. The penalties imposed under New Jersey’s DWI statute, N.J.S.A. 39:4-50(a), increase
with successive violations. For a second offense, the driver is subject to, among other things, no “more than 90
days” imprisonment and loss of driving privileges for two years. N.J.S.A. 39:4-50(a)(2). A third or subsequent
DWI offense subjects the defendant to, among other things, incarceration “for a term of not less than 180 days” and
a ten-year loss of driving privileges. N.J.S.A. 39:4-50(a)(3). (pp. 8-9)
2. The “step-down” provision, first added to New Jersey’s DWI statutory scheme in 1977, was amended to its
current form in 1981. It provides in pertinent part: “if the second offense occurs more than 10 years after the first
offense, the court shall treat the second conviction as a first offense 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.” N.J.S.A. 39:4-50(a)(3). The Senate Judiciary Committee explained that the amended statute
provided that “any second offense occurring more than 10 years after the first offense be treated for sentencing
purposes as a first offense and that any third offense occurring more than 10 years after the second conviction be
treated for sentencing purposes as a second offense.” S. Judiciary Comm. Statement to S. No. 1267, 199th Leg., 1st
Sess. (June 9, 1980). (pp. 9-12)
1
3. The “step-down” language of N.J.S.A. 39:4-50(a)(3) has rarely been discussed in appellate decisions. In
Burroughs, the defendant was convicted of DWI in 1982, was convicted of a second DWI in 1998, for which he was
sentenced as a first offender under the “step-down” provision, and was convicted of a third DWI in 2000. 349 N.J.
Super. at 226-28. Despite the brief interval between the defendant’s second and third DWI convictions, the
municipal court sentenced him as a second offender, reasoning that his first DWI offense “had been ‘forgiven’
because of the eighteen-year hiatus between the first and second offenses.” Ibid. The Appellate Division held that
defendant should be sentenced as a third DWI offender, explaining that “once having been granted . . . leniency [by
way of the ‘step-down’ provision], the defendant has no vested right to continued ‘step-down’ status where he
commits a subsequent drunk driving offense. The earlier offense is not ‘forgiven.’” Id. at 227. Thus, Burroughs
addressed the second application of a “step-down” to a defendant whose history included only one interval of more
than ten years without an infraction. Id. at 226-27. Given the passage of only two years between his second and
third convictions, the Burroughs defendant was clearly ineligible for a second “step-down” when he was convicted
of a third DWI. Ibid. In State v. Ciancaglini, 204 N.J. 597, 612 (2011), recognizing that the question of multiple
applications of the N.J.S.A. 39:4-50(a)(3) “step-down” provision is not squarely raised unless the defendant has two
intervals of more than ten years between DWI convictions, and because the defendant’s record had only one such
interval, the Court stated that it “need not decide in this case whether a person can twice take advantage of a ‘step-
down.’” Ibid. Thus, this Court has not previously addressed the issue presented by this case. (pp. 12-14)
4. The plain language of N.J.S.A. 39:4-50(a)(3) does not suggest that a defendant who meets the statute’s
requirements twice may invoke the “step-down” only once. Instead, N.J.S.A. 39:4-50(a)(3) treats a defendant whose
second offense occurs more than ten years after the first offense as a first DWI offender for sentencing purposes.
Using the conjunctive term “and” followed by parallel language, the statute then deems a defendant whose third
offense occurs more than ten years after the second offense to be a second DWI offender for sentencing purposes.
N.J.S.A. 39:4-50(a)(3). Therefore, the Court holds that that the “step-down” provision can benefit a DWI offender
more than once, if in each instance the defendant’s most recent and current DWI offenses are separated by more
than ten years without an infraction. The legislative history supports the Court’s construction. The Senate Judiciary
Committee Statement indicated the Legislature’s determination that “any” second offense and “any” third offense
that followed the previous offense by more than ten years is subject to a “step-down.” S. Judiciary Comm.
Statement to S. No. 1267. (pp. 15-16)
5. In Laurick, the Court held that the uncounseled DWI conviction of a defendant not properly advised of his right to
counsel prior to pleading guilty could not be used to increase the period of incarceration imposed for a subsequent
DWI offense. 120 N.J. at 4. State v. Hrycak, 184 N.J. 351, 362-63 (2005) confirmed, however, that an uncounseled
DWI conviction may be used to enhance the administrative penalties that are part of a DWI sentence, such as the loss
of driving privileges, fines, and the installation of an interlock device. N.J.S.A. 39:4-50(a); N.J.S.A. 39:4-50.17(b).
Under the principles of Laurick and Hrycak, defendant’s uncounseled 1982 DWI conviction may not be used to
enhance his term of incarceration for a subsequent DWI offense, but does constitute a prior conviction for purposes of
determining his administrative penalties. Thus, regarding defendant’s 2011 DWI conviction, he is deemed to be a
third offender entitled to a “step-down” under N.J.S.A. 39:4-50(a)(3) for purposes of incarceration. He should
therefore be sentenced to the term of incarceration prescribed for a second offense. For purposes of imposing
administrative penalties, however, defendant should be sentenced as a third or subsequent offender. (pp. 16-20)
The judgment of the Appellate Division is REVERSED, and the case is REMANDED to the Law
Division for resentencing in accordance with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-31 September Term 2013
072600
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES J. REVIE,
Defendant-Appellant.
Argued September 24, 2014 – Decided December 17, 2014
On certification to the Superior Court,
Appellate Division.
Evan M. Levow argued the cause for appellant
(Levow & Associates, attorneys).
Paula C. Jordao, Assistant Prosecutor, Special
Deputy Attorney General, argued the cause
for respondent (Fredric M. Knapp, Morris County
Prosecutor, attorney).
Jeffrey Evan Gold argued the cause for amicus
curiae New Jersey State Bar Association (Paris P.
Eliades, President, attorney; Ralph J. Lamparello,
of counsel).
JUSTICE PATTERSON delivered the opinion of the Court.
As part of the Legislature’s statutory scheme to combat
driving while intoxicated (DWI), N.J.S.A. 39:4-50 prescribes the
penalties that may be imposed on a defendant for a first,
second, and third or subsequent DWI offense. The statute
includes a “step-down” provision, under which a second DWI
offender is treated as a first DWI offender for sentencing
1
purposes if more than ten years elapsed between his or her first
and second offenses, and a third DWI offender is treated as a
second DWI offender for sentencing purposes if more than ten
years elapsed between his or her second and third DWI offenses.
N.J.S.A. 39:4-50(a)(3). This appeal raises the issue of whether
a repeat DWI offender may, on more than one occasion, invoke the
N.J.S.A. 39:4-50(a)(3) “step-down” provision and thereby avoid
the enhanced penalties prescribed by the statute.
Prior to the offense at issue in this case, defendant James
Revie was convicted of three DWI offenses. One of those three
convictions involved a guilty plea in which defendant was not
represented by counsel. Pursuant to State v. Laurick, 120 N.J.
1, 16, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d
413 (1990), that conviction does not constitute a prior offense
for purposes of increasing defendant’s custodial sentence, but
is counted as a prior offense for purposes of imposing
administrative penalties on defendant.
Following his fourth offense in 2010, defendant invoked the
“step-down” provision of N.J.S.A. 39:4-50(a)(3) for the second
time and sought to be sentenced as a second DWI offender. The
municipal court denied defendant’s request, reasoning that
because defendant had received the benefit of the N.J.S.A. 39:4-
50(a)(3) “step-down” provision when he was sentenced for his
third DWI offense in 1994, he was ineligible for a second “step-
2
down” in this matter. On de novo review, the Law Division
reached the same conclusion. The Appellate Division affirmed
defendant’s conviction and sentence.
We reverse the Appellate Division’s judgment. Based upon
the plain language of N.J.S.A. 39:4-50(a)(3), we hold that a
repeat DWI offender may invoke the statutory “step-down”
provision a second time, provided that more than ten years have
passed with no infraction since the defendant’s most recent DWI
offense. Applied to this case, N.J.S.A. 39:4-50(a)(3) requires
that defendant be sentenced as a second DWI offender, rather
than as a third DWI offender, with respect to any term of
incarceration imposed, and as a third DWI offender with respect
to the administrative penalties set forth in the statute.
I.
This appeal arises from defendant’s fourth DWI conviction.
His first DWI offense occurred in Hillsdale and resulted in a
conviction in 1981. In 1982, defendant was again charged with
DWI, this time in Bogota. Unrepresented by counsel, defendant
pled guilty to the charge. Defendant’s third conviction for DWI
occurred in Montvale in 1994, more than ten years after his
second DWI offense. Accordingly, he qualified for a “step-down”
under N.J.S.A. 39:4-50(a)(3) and was, consequently, sentenced as
a second DWI offender, rather than a third DWI offender.
3
In August 2011, defendant was granted post-conviction
relief (PCR) with respect to his second DWI conviction in 1982.
The PCR court held that as a consequence of Laurick, supra, 120
N.J. at 16, defendant’s 1982 conviction could not be used to
enhance a term of incarceration imposed for a subsequent DWI
offense.
Defendant’s fourth offense, which gave rise to this appeal,
occurred on December 23, 2010. Defendant was arrested in
Wharton by a police officer who observed his vehicle traveling
at a high rate of speed and weaving across a double-yellow line.
Defendant was charged with DWI, N.J.S.A. 39:4-50; failure to
keep right, N.J.S.A. 39:4-82; failure to maintain lane, N.J.S.A.
39:4-88; reckless driving, N.J.S.A. 39:4-96; careless driving,
N.J.S.A. 39:4-97; and speeding, N.J.S.A. 39:4-98. Following a
trial conducted on September 23, 2011, the municipal court found
defendant guilty of DWI, based on the observations of the
arresting officer. The municipal court also convicted defendant
of the remaining offenses, and merged the careless driving,
speeding, failure to keep right, and failure to maintain lane
offenses into the reckless driving offense.
At sentencing, the State argued that defendant should be
sentenced as a fourth offender under the DWI statute. Defendant
conceded that the current offense was his fourth. However, he
asserted that by virtue of the grant of his PCR application, his
4
second offense should be disregarded in setting a term of
incarceration for any subsequent DWI offense, and that he was in
effect a third offender. Defendant further contended that in
light of the sixteen-year gap between defendant’s third and
fourth offenses, the “step-down” provision of N.J.S.A. 39:4-
50(a)(3) governed, and that he should, therefore, be sentenced
as a second offender.
The municipal court disagreed. It construed N.J.S.A. 39:4-
50(a)(3) to afford a defendant only a single “step-down.” The
municipal court sentenced defendant to 180 days in the county
correctional facility, a ten-year suspension of his driving
privileges and registration, and a fine of $1000, N.J.S.A. 39:4-
50(a)(3), as well as $33 in court costs, N.J.S.A. 22A:3-4, $6 in
miscellaneous assessments, N.J.S.A. 39:5-41(d)-(h), a $50
Victims of Crimes Compensation Board assessment, N.J.S.A. 2C:43-
3.1(a)(2)(a), a $75 Safe Neighborhoods Services Fund assessment,
N.J.S.A. 2C:43-3.2(a)(1), a $100 DWI surcharge, N.J.S.A. 39:4-
50(i), and a $100 Drunk Driving Enforcement Fund assessment,
N.J.S.A. 39:4-50.8. Defendant’s incarceration was stayed
pending appeal.
On de novo review, a Law Division judge affirmed
defendant’s conviction and sentence. The Law Division judge
agreed with defendant that, under Laurick, defendant’s second
DWI should not have been considered when he was sentenced in
5
this matter. However, citing State v. Burroughs, 349 N.J.
Super. 225 (App. Div.), certif. denied, 174 N.J. 43 (2002), the
Law Division concurred with the municipal court that defendant
was not entitled to a second application of the N.J.S.A. 39:4-
50(a)(3) “step-down” provision. It imposed a sentence
consistent with the sentence determined by the municipal court.
The Appellate Division affirmed defendant’s conviction and
sentence, relying primarily on its decision in Burroughs, supra,349 N.J. Super. at 225-28.
We granted defendant’s petition for certification, which
challenged only his sentence and raised no issues regarding his
conviction. 216 N.J. 14 (2013).
II.
Defendant urges the Court to apply the N.J.S.A. 39:4-
50(a)(3) “step-down” provision, and argues that he should,
therefore, be sentenced as if the DWI conviction at issue
constituted his second offense. He contends that N.J.S.A. 39:4-
50(a)(3) authorizes a defendant whose DWI conviction follows his
previous DWI conviction by more than ten years to obtain the
benefit of more than one application of the statute’s “step-
down” provision. Defendant contends that the statutory language
is clear, but argues that if the Court finds an ambiguity in the
text, it should resolve that ambiguity in his favor.
6
The State urges the Court to affirm the Appellate Division
determination. It argues that the Legislature did not intend
N.J.S.A. 39:4-50(a)(3) to grant a pardon in perpetuity to DWI
offenders. The State relies on the Appellate Division decision
in Burroughs, noting that the Legislature did not amend the
“step-down” language in N.J.S.A. 39:4-50(a)(3) following
Burroughs, and arguing that this failure to amend the statute
indicates the Legislature’s agreement with the Appellate
Division decision in that case.
Amicus curiae New Jersey State Bar Association (NJSBA)
asserts that Burroughs does not govern defendant’s sentence
because the DWI offender in Burroughs committed his third
offense only two years after his second offense. It notes that,
in Burroughs, the Appellate Division did not address the
availability of a second “step-down” to a defendant who twice
meets the requirements of N.J.S.A. 39:4-50(a)(3). NJSBA
contends that because defendant’s second DWI conviction cannot
be counted as a prior DWI conviction solely for penal sentencing
purposes pursuant to Laurick, and because defendant is entitled
to the N.J.S.A. 39:4-50(a)(3) “step-down,” he should be
sentenced to a term of imprisonment as a second offender.
III.
A.
7
Appellate courts review a trial court’s construction of a
statute de novo. State v. J.D., 211 N.J. 344, 354 (2012); State
v. Gandhi, 201 N.J. 161, 176 (2010). In construing a statute,
our role “‘is to determine and effectuate the Legislature’s
intent.’” State v. Friedman, 209 N.J. 102, 117 (2012) (quoting
Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009)).
Generally, “‘the best indicator of that intent is the plain
language chosen by the Legislature.’” State v. Frye, 217 N.J.
566, 575 (2014) (quoting Gandhi, supra, 201 N.J. at 176).
Statutory text “should be given its ordinary meaning and be
construed in a common-sense manner.” State in Interest of K.O.,
217 N.J. 83, 91 (2014) (citing N.J. Dep’t of Envtl. Prot. v.
Huber, 213 N.J. 338, 365 (2013); N.E.R.I. Corp. v. N.J. Highway
Auth., 147 N.J. 223, 236 (1996)). “Our role is not to ‘rewrite
a plainly-written enactment of the Legislature []or [to] presume
that the Legislature intended something other than that
expressed by way of the plain language.’” Id. at 91-92 (quoting
DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
New Jersey’s DWI statute prohibits the operation of a motor
vehicle “while under the influence of intoxicating liquor,” or
“with a blood alcohol concentration [(BAC)] of 0.08% or more by
weight of alcohol in the defendant’s blood.” N.J.S.A. 39:4-
50(a). The penalties imposed under the statute increase with
successive violations. For a second offense, the driver is
8
subject to enhanced penalties, including a fine of between $500
and $1000, “imprisonment for a term of not less than 48
consecutive hours . . . nor more than 90 days,” thirty days of
community service, a loss of his or her driver’s license for two
years, and the mandatory installation of an ignition interlock
device. N.J.S.A. 39:4-50(a)(2); N.J.S.A. 39:4-50.17(b). A
third or subsequent DWI offense subjects the defendant to a fine
of $1000, incarceration “for a term of not less than 180 days in
a county jail or workhouse, except that the court may lower such
term for each day, not exceeding 90 days, served participating
in a qualifying drug or alcohol inpatient rehabilitation
program,” a ten-year loss of driving privileges, and the
installation of an ignition interlock device. N.J.S.A. 39:4-
50(a)(3); N.J.S.A. 39:4-50.17(b). Thus, a defendant’s record of
prior DWI offenses has a pivotal impact on his or her exposure
to a term of incarceration, the loss of his or her driver’s
license, and other penalties.
The N.J.S.A. 39:4-50(a)(3) “step-down” provision was not
part of New Jersey’s original DWI statutory scheme. In its
original form, N.J.S.A. 39:4-50 provided for only two grades of
punishment for drunk driving, one for first offenders and the
other for all subsequent offenders. See L. 1952, c. 286, § 1
(codified, as amended, N.J.S.A. 39:4-50).
9
In 1977, the statute was amended to add a third grade of
punishment for third or subsequent DWI offenses. L. 1977, c.
29, § 1 (codified, as amended, N.J.S.A. 39:4-50(a)). At that
time, the Legislature added the first version of the N.J.S.A.
39:4-50 “step-down” provision, which read: “if the second
offense occurs 15 or more years after the first conviction the
court shall treat the conviction as a first offense, and if a
third or subsequent offense occurs 10 or more years after the
first conviction, the court shall treat the conviction as a
second offense.” Ibid. Thus, under the first version of the
“step-down” provision, the crucial issue was the interval
between defendant’s first offense and his current offense. See
ibid.
Several years later, the Senate Judiciary Committee
recognized the “undesirable and probably unintentional results”
of that statutory language. S. Judiciary Comm. Statement to S.
No. 1267, 199th Leg., 1st Sess. (June 9, 1980). It observed
that, under the statute then in effect, a defendant convicted of
a second DWI offense fourteen years after his first drunk
driving conviction and a defendant convicted of a third DWI
offense eleven years after his first conviction could “both be
sentenced as second offenders.” Ibid. The Senate Judiciary
Committee further noted that pursuant to the original “step-
down” language, the enhanced penalties for third and subsequent
10
offenders would, in effect, be reserved for defendants convicted
of DWI three or more times within a period of ten years –- a
result contrary to the Legislature’s intent. Ibid.
Accordingly, the Legislature amended the statutory language
in 1981 to its current form:
A person who has been convicted of a previous
violation of this section need not be charged
as a second or subsequent offender in the
complaint made against him in order to render
him liable to the punishment imposed by this
section on a second or subsequent offender,
but if the second offense occurs more than 10
years after the first offense, the court shall
treat the second conviction as a first offense
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.
[N.J.S.A. 39:4-50(a)(3); see also L. 1981, c.
47, § 1 (codified as N.J.S.A. 39:4-50(a)),
amended by L. 1983, c. 444, § 1 (re-codifying
as N.J.S.A. 39:4-50(a)(3)).]
As the Senate Judiciary Committee noted, the amended
statute provided that “any second offense occurring more than 10
years after the first offense be treated for sentencing purposes
as a first offense and that any third offense occurring more
than 10 years after the second conviction be treated for
11
sentencing purposes as a second offense.” S. Judiciary Comm.
Statement to S. No. 1267, supra.1
The “step-down” language of N.J.S.A. 39:4-50(a)(3) has
rarely been discussed in appellate decisions. In Burroughs,
supra, 349 N.J. Super. at 226-28, the Appellate Division
considered the sentence to be imposed on a repeat offender first
convicted of DWI in 1982. When the defendant in Burroughs was
convicted of his second offense in 1998, the sentencing court
applied the “step-down” provision of N.J.S.A. 39:4-50(a)(3)
because of the sixteen-year interval between the defendant’s
first and second convictions; as a result, he was sentenced as a
first offender for his second offense. Id. at 226. The
defendant committed a third offense only two years later. Ibid.Despite that brief interval between the defendant’s second and
third DWI convictions, the municipal court sentenced the
defendant as a second offender, reasoning that his first offense
“had been ‘forgiven’ because of the eighteen-year hiatus between
the first and second offenses.” Ibid.Interpreting the statutory language, the Appellate Division
affirmed the Law Division’s reversal of the municipal court’s
sentence, explaining that
1 N.J.S.A. 39:4-50 has been amended several times following the
1981 revision to the “step-down” provision, but none of the
amendments have materially affected that provision.
12
once having been granted . . . leniency [by
way of the “step-down” provision], the
defendant has no vested right to continued
“step-down” status where he commits a
subsequent drunk driving offense. The earlier
offense is not “forgiven.” Having been granted
leniency by virtue of the infraction-free
lapse of time between the two earlier
violations, the offender has received his
reward for good conduct and is entitled to no
further consideration.
[Id. at 227.]
Thus, in Burroughs, the Appellate Division panel addressed
a distinct set of circumstances: the second application of a
“step-down” to a defendant whose history included only one
interval of more than ten years without an infraction, not two
such intervals as in the present case. Id. at 226-27. Given
the passage of only two years between his second and third
convictions, the defendant in Burroughs was clearly ineligible
for a second “step-down” when he was convicted of DWI for the
third time in 2000. Ibid. Accordingly, the panel affirmed that
the defendant be sentenced as a third DWI offender. Ibid.In State v. Ciancaglini, 204 N.J. 597 (2011), this Court
briefly addressed the Appellate Division’s application of the
N.J.S.A. 39:4-50(a)(3) “step-down” in Burroughs. The Court held
that the defendant’s prior conviction for refusing to take a
Breathalyzer test, in violation of N.J.S.A. 39:4-50.4a, did not
serve as the functional equivalent of a prior DWI conviction for
purposes of enhancing the punishment for her later DWI offense.
13
Id. at 612. It distinguished Burroughs, on which the State
relied, noting that “[b]ecause the Burroughs defendant had a
second conviction within ten years of his third conviction, he
was not entitled to any ‘step-down,’ regardless of how much time
passed between his first and second convictions.” Ibid. The
Court added:
That said, we need not decide in this
case whether a person can twice take advantage
of a “step-down.” Defendant’s refusal
conviction cannot be considered as a prior DWI
violation for enhancement purposes, and thus
she is not precluded from the benefit of the
“step-down” under N.J.S.A. 39:4-50 for a prior
DWI, because her first DWI conviction was more
than ten years prior to her second, the 2008
DWI conviction.
[Ibid.]
The Court thus recognized in Ciancaglini that the question
of multiple applications of the N.J.S.A. 39:4-50(a)(3) “step-
down” is not squarely raised unless the defendant’s record of
DWI offenses includes two infraction-free intervals of more than
ten years between convictions. Ibid. Like that of the DWI
offender in Burroughs, the Ciancaglini defendant’s record of
infractions featured only one such interval. Ibid. Thus, this
Court has not previously addressed the issue presented by this
case: whether the “step-down” provision should be applied to
the benefit of a defendant for the second time, when an interval
14
of more than ten years separates his previous DWI conviction
from the conviction at issue.
The plain language of N.J.S.A. 39:4-50(a)(3) reveals the
Legislature’s intent. There is no suggestion that a defendant
who meets the statute’s requirements twice may invoke the “step-
down” only once. Instead, N.J.S.A. 39:4-50(a)(3) treats a
defendant whose second offense occurs more than ten years after
the first offense as a first DWI offender for sentencing
purposes. Using the conjunctive term “and” followed by parallel
language, the statute then deems a defendant whose third offense
occurs more than ten years after the second offense to be a
second DWI offender for sentencing purposes. N.J.S.A. 39:4-
50(a)(3).2 Guided by the plain language of N.J.S.A. 39:4-
50(a)(3), we hold that that the “step-down” provision can
benefit a DWI offender more than once, if in each instance the
defendant’s most recent and current DWI offenses are separated
by more than ten years without an infraction.
2 We are unpersuaded by the State’s argument that the absence of
a comma after the word “purposes” in the phrase, “the court
shall treat the second conviction as a first offense for
sentencing purposes and if a third offense occurs more than 10
years after the second offense,” denotes an intent to authorize
only one “step-down,” either on the second or third DWI
conviction. See N.J.S.A. 39:4-50(a)(3). The Legislature’s
choice not to use a comma in that phrase does not alter the
sentence’s clear intent to permit two applications of the “step-
down” to a defendant who twice meets its timing requirements.
15
The legislative history supports this construction of the
statute. The Senate Judiciary Committee Statement indicated the
Legislature’s determination that “any” second offense and “any”
third offense that followed the previous offense by more than
ten years is subject to a “step-down.” S. Judiciary Comm.
Statement to S. No. 1267, supra. With this expansive,
unqualified language, the Senate Judiciary Committee Statement
confirms that the “step-down” provision governs the sentence
imposed for any offense that meets its timing requirements.
In short, N.J.S.A. 39:4-50(a)(3) may apply for a second
time to the benefit of a repeat offender whose current and
previous DWI convictions are separated by periods of ten years
or more without an infraction. Defendant is entitled to a
second “step-down” in his sentence for the offense at issue
here.
B.
By virtue of his DWI history, defendant’s sentence is also
affected by this Court’s decision in Laurick, supra, 120 N.J. 1.
In Laurick, the Court held that the DWI conviction of a
defendant, who was not properly advised of his right to counsel
prior to pleading guilty, could not be used to increase the
period of incarceration imposed in a subsequent sentence for a
DWI offense. 120 N.J. at 4. Accordingly, under Laurick,
defendant’s second DWI conviction in 1982 cannot be used to
16
enhance his punishment for any subsequent offense insofar as
that punishment involves a “loss of liberty.” Ibid.The Court observed, however, that apart from an “increase
[in] a defendant’s loss of liberty, there is no constitutional
impediment to the use of the prior uncounseled DWI conviction to
establish repeat-offender status under DWI laws.” Ibid. That
principle was underscored in State v. Hrycak, 184 N.J. 351, 362-
63 (2005), in which the Court confirmed that an uncounseled DWI
conviction may be used to enhance the administrative penalties
that are part of a defendant’s sentence under N.J.S.A. 39:4-
50(a). In Hrycak, the Court noted that “a third-time offender
with one prior uncounseled DWI conviction is still subject to
administrative penalties applicable to a third-time offender
under N.J.S.A. 39:4-50(a)(3).” Id. at 365. Thus, as defendant
agrees, under Laurick and Hrycak, a prior DWI conviction in an
uncounseled guilty plea may not enhance a sentence to a term of
incarceration, but is relevant in imposing the administrative
penalties prescribed by the DWI statute.
The decision of the Appellate Division in State v. Conroy,
397 N.J. Super. 324, 326-29 (App. Div. 2007), certif. denied,
195 N.J. 420 (2008), illustrates the impact of Laurick and
Hrycak in a case involving a “step-down” pursuant to N.J.S.A.
39:4-50(a)(3). In Conroy, the defendant was not represented by
counsel when he pled guilty to his first DWI offense in 1982.
17
Id. at 326. He was convicted of DWI on three subsequent
occasions: in 1990, 1995 and 2006. Ibid. The defendant argued
that because Laurick barred his 1982 conviction from enhancing
his sentence for his later DWI offenses, he was in effect a
third offender -- not a fourth offender -- when he was sentenced
for his 2006 conviction. Id. at 326-27.
The Appellate Division agreed. It observed that “when
[defendant] appeared before the Law Division he stood as a third
offender, not a fourth offender, for the limited purpose of the
trial court imposing a jail sentence under the enhanced
sentencing provision of the DWI statute.” Id. at 330.3 It held
that if the defendant was not afforded the benefit of the “step-
down” provision of N.J.S.A. 39:4-50(a)(3), his first conviction,
derived from an uncounseled plea, would effectively trigger “an
enhanced sentence, contrary to Hrycak and Laurick.” Id. at 334.
The defendant in Conroy was accordingly sentenced to a term of
incarceration as a second offender under N.J.S.A. 39:4-50(a)(2),
rather than as a third or subsequent offender pursuant to
N.J.S.A. 39:4-50(a)(3). Ibid.
Applied to defendant’s history of DWI offenses in this
case, the “step-down” provision of N.J.S.A. 39:4-50(a)(3), in
3 The Conroy panel distinguished Burroughs, in which none of the
defendant’s prior convictions involved an uncounseled guilty
plea, and which, accordingly, did not implicate Laurick. Id. at
332.
18
conjunction with the principles of Laurick and Hrycak, compel a
result similar to that reached in Conroy. Defendant’s first DWI
conviction in 1981, and his third DWI conviction in 1994,
constitute prior DWI offenses in the determination of all
aspects of defendant’s sentence in this case. As a consequence
of defendant’s uncounseled guilty plea in 1982, that conviction
may not be used for the purpose of enhancing defendant’s term of
incarceration when he is sentenced in the present case. See
Laurick, supra, 120 N.J. at 16. However, defendant’s 1982 DWI
conviction constitutes a prior conviction for purposes of
determining the administrative penalties as prescribed by
N.J.S.A. 39:4-50(a) -- the revocation of defendant’s driver’s
license,4 the imposition of fines, and the installation of an
interlock device pursuant to N.J.S.A. 39:4-50.17. Hrycak,
supra, 184 N.J. at 362; Laurick, supra, 120 N.J. at 16. Thus,
defendant’s record includes two prior DWI convictions that are
relevant to the sentencing court’s imposition of a term of
incarceration, and three prior DWI convictions that are relevant
to the imposition of administrative penalties.
4 The revocation of a DWI offender’s driver’s license constitutes
an administrative penalty imposed by N.J.S.A. 39:4-50(a). See
Hrycak, supra, 184 N.J. at 355, 364-65; State v. Hamm, 121 N.J.
109, 123 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413,
113 L. Ed. 2d 466 (1991).
19
Accordingly, with respect to a term of incarceration,
defendant is deemed to be a third offender entitled to a “step-
down” under N.J.S.A. 39:4-50(a)(3). Thus, he should be
sentenced to the term of incarceration prescribed for a second
offense: “imprisonment for a term of not less than 48
consecutive hours, which shall not be suspended or served on
probation, nor more than 90 days[.]” N.J.S.A. 39:4-50(a)(2).
In contrast, all three of defendant’s prior convictions -- his
1981 conviction, 1982 conviction and 1994 conviction -- count as
prior convictions for purposes of calculating his administrative
penalties. See Hrycak, supra, 184 N.J. 362-63; Laurick, supra,120 N.J. at 16; see also Hamm, supra, 121 N.J. at 123. Thus,
for purposes of imposing administrative penalties as part of
defendant’s sentence, such as the loss of his driver’s license,
the imposition of a fine, and the installation of an interlock
device on his vehicle under N.J.S.A. 39:4-50.17(b), defendant
should be sentenced as a third or subsequent offender in
accordance with N.J.S.A. 39:4-50(a)(3).
IV.
The judgment of the Appellate Division is reversed, and the
matter is remanded to the Law Division for resentencing in
accordance with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE PATTERSON’s opinion.
20
SUPREME COURT OF NEW JERSEY
NO. A-31 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES J. REVIE,
Defendant-Appellant.
DECIDED December 17, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7
1