State v. Fielding, 290 N.J. Super. 191 (App. Div.
1996), reaffirmed that a prior DWI conviction, as well as
a prior conviction for refusal to submit to a breath test,
triggers the enhanced refusal penalty contained in
N.J.S.A. 39:4-50.4a for a refusal “in connection to a
subsequent offense.” Consistent with the penalties for
DWI contained in N.J.S.A. 39:4-50, and to avoid a
benefit to a defendant for a refusal conviction rather than
a DWI conviction, the present conviction was treated as
a second offense for purposes of enhanced sentencing,
despite the fact that defendant’s two prior convictions
occurred more than 10 years before the present charges.
State v. Nicolai, 287 N.J. Super. 528 (App. Div.
1996), on the State’s appeal, reversed the Law Division’s
illegal sentence imposed upon a fourth-time drunk
driver. The judiciary must enforce legislatively
mandated sentences, and defendants cannot benefit from
a prior illegal term even if the State did not appeal it.
Reiterating that illegal sentences can be corrected at any
time, the court held that defendants have no legitimate
expectation of finality in a sentence below the statutory
minimum. To the extent that the decision in State v.
Decher, 196 N.J. Super. 157 (Law Div. 1984), differs
from this holding, it is disapproved.
State v. Tekel, 281 N.J. Super. 502 (1995), ruled that
a prior conviction for operating a motor vehicle while
under the influence of intoxicating liquor in violation of
N.J.S.A. 39:4-50 satisfies the language of “a subsequent
offense under this section” contained in N.J.S.A. 39:4-
50.4a, thereby mandating the imposition of the
enhanced penalty of a two-year suspension. The Court
rejected defendant’s claim that only a conviction for a
prior refusal to take a breath test in violation of N.J.S.A.
39:4-50.4a satisfies this statutory language.
- License Suspension
In Re Raphael, 238 B.R. 69 (D.N.J. 1999), reversing
230 B.R. 657 (Bankr. D.N.J. 1999), where the
Bankruptcy Court had directed New Jersey Municipal
Courts to rescind any driver license suspensions resulting
from non-payment of court-imposed fines. The District
Court found that the municipal courts were akin to the
State for the purposes of 11th Amendment immunity.
The District Court further found that even if there was no
11th Amendment immunity, the Bankruptcy Court was
barred from issuing such an order to a municipal court
under the Anti-Injunction Act. The debtor had failed to
comply with an installment order to pay traffic and
parking fines and for failure to appear in another
municipal court in response to a speeding summons.
In re Brown, 244 B.R. 62 (Bankr. D.N.J. 2000), held
that the Bankruptcy Code antidiscrimination provisions
authorized the Bankruptcy Court to direct a New Jersey
Municipal Court to rescind a court ordered license
suspension based upon a driver’s failure to pay fines
through an installment plan. Contrary to In Re Raphael,
238 B.R. 69 (D.N.J. 1999), Judge Wizmur determined
that the municipal courts of New Jersey were not an arm
of the State for 11th Amendment purposes and,
therefore, were not subject to sovereign immunity, and
that an Order of the Bankruptcy Court to rescind a court
ordered license suspension was not subject to the Anti-
Injunction Act.State v. Ferrier, 294 N.J. Super. 198 (App. Div.
1996), certif. denied 148 N.J. 461 (1997), held that
defendant should have challenged any deficiencies
regarding the suspension of her driver’s license by
appealing from that decision rather than trying to attack
it collaterally as a defense to a charge of driving while her
license was suspended. The court overruled State v.
Kindler, 191 N.J. Super. 358 (Law Div. 1983) and State
v. Wenof, 102 N.J. Super. 370 (Law Div. 1968).State v. Tekel, 281 N.J. Super. 502 (App. Div. 1995),
affirmed defendant’s sentence as a subsequent offender,
where he had a prior DWI conviction, followed thereafter
by a refusal to submit to breath testing conviction.
Unlike the holding in State v. DiSomma, 262 N.J. Super.
375 (App. Div. 1993), which analyzed the converse
situation, a prior refusal conviction, followed by a DWI
conviction, this appellate panel agreed with the holdings
in In re Bergwall, 85 N.J. 382 (1981), rev’g on dissent, 173
N.J. Super. 431 (App. Div. 1980); State v. Wilhalme, 206
N.J. Super. 359 (App. Div. 1985), certif. denied, 104 N.J.
398 (1986); State v. Grant, 196 N.J. Super. 470 (App.
Div. 1984), that a determination of what is a subsequent
offense under N.J.S.A. 39:4-50 includes a conviction for
refusal to submit to breath testing, N.J.S.A. 39:4-50.4a.
Here, the court read the words, “under this section” to
include both convictions for DWI and for refusal to
submit to breath testing as within that phrase.State v. Sandora, 272 N.J. Super. 206 (App. Div.
1994), held that defendant’s operation of a vehicle, after
a period of suspension but prior to the restoration of his
driver’s license, constituted a violation of N.J.S.A. 39:3-
40, driving while on the suspended list. The court
specifically disapproved and overruled State v. Somma,
215 N.J. Super. 142 (Law Div. 1986), which held to the
contrary, choosing instead to follow the opinion of
another panel of the Appellate Division in State v. Zalta,
217 N.J. Super. 209 (App. Div. 1987).