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DWI-DUI / Refusal Sentencing and Double Jeopardy

05
Dec
2009

by in Criminal Appeals, DWI Defense

The following DWI-DUI appeal was recently decided by the New Jersey Superior Court – Appellate Division dealing with the interplay between subsequent DWI-DUI and refusal conviction sentences. Summary by Mark Friedman.

State v. Joseph Eckert, ? N.J. Super. ?, 2009 N.J. Super. LEXIS 239 (November 16, 2009) – Reversed and remanded. This appeal required the court to decide a sentencing issue concerning the interplay between the driver’s license suspensions that are required following a conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), when, by virtue of the ‘step-down’ provisions of the DWI statute, the DWI conviction is treated as a first offense, thereby permitting a license suspension of three months.

In the municipal court, the parties agreed that defendant would plead guilty to both DWI and refusal, but the refusal charge would merge with the DWI offense, and sentence would therefore be imposed only on the DWI…. “Applying the principles of Davis [68 N.J. 69 (1975)] and Parker [335 N.J. Super. 415 (App. Div. 2000)] to the case before us demonstrates that the DWI and refusal statutes do not merge, and the imposition of separate punishments for each would not violate guarantees of due process and fundamental fairness or the prohibition against double jeopardy.”

In particular, unlike in Parker, where the defendant engaged in a single act at a single time and at the same location, here defendant Eckert’s operation of his vehicle while intoxicated was a separate act that had already concluded by the time he committed the second offense of refusing to submit to the breath examination. Although perhaps the two offenses were separated by only an hour, they were committed at separate times and separate places, and did not constitute the ‘single criminal event’ we described in Parker…. [H]ere, each of the two offenses involved a separate purposeful act, and a separate violation of law.

The ‘intent of the accused,’ defendant Eckert, was different in each of the two offenses. Unlike the defendant in Parker, whose sole objective was to distribute drugs, and where the location in which he did so was irrelevant to that objective, here defendant Eckert had a different purpose with each offense.

One offense, the DWI, had as its central objective defendant’s driving of his vehicle, albeit while intoxicated. The other had as its objective a different goal, avoiding prosecution, by refusing to submit to the breath examination. The two statutory objectives are likewise different. N.J.S.A. 39:4-50 broadly seeks to punish those who drive while intoxicated, while N.J.S.A. 39:4-50.4a promotes the narrower goal of punishing those who seek to thwart or avoid prosecution for DWI. Finally, and as we have already discussed, only some of the proof pertaining to one offense would be a ‘necessary ingredient,’ Davis, supra, 68 N.J. at 81, of the proofs for the other.” (Evan M. Levow)

  • //www.judiciary.state.nj.us/opinions/a0216-08.pdf

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