State v. DiSomma, 262 N.J. Super. 375 (App. Div.
1993), held that a conviction for refusal to submit to
breath testing could not serve as a basis for imposing
second offender status on the same defendant for a
subsequent DWI conviction. The court also took the
opportunity to criticize earlier holdings in Wilhalme and
Grant pertaining to the converse of this case, that a prior
DWI conviction could be a basis upon which to sentence
the same defendant as a subsequent offender for a
subsequent refusal conviction.
State v. Laurick, 120 N.J. 1 (1990), cert. denied 498
U.S. 967, 111 S.Ct. 429, 112 L.Ed.2d 413 (1990),
affirmed, but modified the Appellate Division’s decision
concerning sentencing of a DWI defendant. The
defendant claimed that his prior DWI conviction was an
uncounseled conviction, and therefore, he should not be
subject to enhanced sentencing for his subsequent DWI
conviction. Relying on the holding in Bladasar v. Illinois,
446 U.S. 222, 100 S.Ct. 1535, 64 L.Ed.2d 169 (1980)
(which was overruled by Nichols v. U.S.), the Court found
that it was constitutionally permissible that a prior
uncounseled DWI conviction may establish repeat
offender status for the purposes of enhanced sentencing,
but the defendant may not suffer the consequence of an
increased period of incarceration, beyond that which was
applicable at the time of the uncounseled DWI
conviction. The Supreme Court also required that relief
from the effects of a prior uncounseled DWI conviction
are to be brought in the Court where the original
conviction was entered, not the court in which the
defendant is facing an enhanced sentence.
VII. FATALITIES & BODILY INJURIES
CAUSED BY VEHICULAR OPERATION -
CHARGING OFFENSES
In State v. Radziwil, 235 N.J. Super. 557 (App. Div.
1989), aff’d. o.b., 121 N.J. 527 (1990), defendant was
convicted of aggravated manslaughter and death by auto.
The State introduced evidence that the defendant
regularly became intoxicated every weekend at a
particular bar and that fact was admissible as evidence of
habit (Evid. R. 49 & 50, now N.J.R.E. §406(a) & (b)) to
prove intoxication at the time of the fatal accident.
Aggravated manslaughter was supported by evidence
from which the jury could infer that the defendant was
highly intoxicated at the time of the fatal accident, was
traveling at a high rate of speed, and fled the scene
without attempting to render aid to the victims.
State v. Oriole, 243 N.J. Super. 688 (Law Div. 1990),
a prosecution for vehicular homicide under N.J.S.A.
2C:11-5, or assault or aggravated assault by auto,
N.J.S.A. 2C:12-1, held the State can introduce expert
testimony to extrapolate a breath or blood alcohol
reading back to the time of operation of the vehicle, since
an element of the offense is recklessness, not intoxication.
Thus, the level of intoxication at the time of operation of
the vehicle becomes probative to the finder of fact, where
in a DWI offense, the level of the breath or blood alcohol
result only establishes a per se offense. The court also
determined that the holding in Tischio did not preclude
extrapolation in indictable offenses, or for that matter in
the proofs of an observational DWI offense - operating
while intoxicated as opposed to the per se offense of
operating with a blood alcohol level of 0.10% or more.State v. Mara, 253 N.J. Super. 204 (App. Div. 1992)
and State v. Scher, 278 N.J. Super. 249 (App. Div. 1994),
certif. denied 140 N.J. 276 (1994), both approved the
holding in Oriole, permitting the admission of expert
testimony to extrapolate a blood or breath test result to
the time of operation of a motor vehicle for purposes other
than proving a DWI offense. In Scher, defendant was
convicted of reckless manslaughter, assault, assault by
auto, DWI and other traffic offenses. The Appellate
Division ruled that the reckless manslaughter statute was
not vague as it applied to vehicular homicides cases.State v. Pineda, 119 N.J. 621 (1990), ruled on the
application of the sentencing provisions of N.J.S.A.
2C:11-5b, death by auto statute, and held that it was
inappropriate for the trial court to impose a split
sentence, when the statute required either imprisonment
without parole or community service. The Supreme
Court also ruled that the trial court could not consider
the victim’s death as an aggravating factor in imposing
sentence for a conviction under the provisions of N.J.S.A.
2C:11-5.State v. Kately, 270 N.J. Super. 356 (App. Div. 1994),
relying on the holding in State v. Radziwil, 235 N.J.
Super. 557 (App. Div. 1989), aff’d o.b., 121 N.J. 527
(1990), concluded that evidence of regular drinking
parties
attended by the defendant was properly admitted as
evidence of habit under Evid. R. 49, now N.J.R.E. 401,
and further found there was no prejudice by the
introduction of this evidence.State v. Kromphold, 162 N.J. 345 (2000), affirmed an
Appellate Division opinion modifying the sentence of the
defendant on the grounds that the trial court had erred