                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-3923-13T2

STATE OF NEW JERSEY,
                                        APPROVED FOR PUBLICATION
         Plaintiff-Respondent,
                                                May 11, 2015
v.                                           APPELLATE DIVISION

THOMAS TAYLOR,

         Defendant-Appellant.



         Argued telephonically       April     27,   2015      –
         Decided May 11, 2015

         Before Judges Alvarez, Waugh, and Carroll.

         On appeal from the Superior Court of New
         Jersey,   Law  Division,   Monmouth County,
         Municipal Appeal No. 13-067.

         John Menzel argued the cause for appellant.

         Monica do Outeiro, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued
         the cause for appellant (Christopher J.
         Gramiccioni,    Acting     Monmouth  County
         Prosecutor, attorney; Ms. do Outeiro, of
         counsel and on the brief).

     The opinion of the court was delivered by

CARROLL, J.A.D.

     On October 29, 2013, defendant Thomas J. Taylor entered a

conditional guilty plea to refusal to submit to a breath test in

violation of N.J.S.A. 39:4-50.2, reserving the right "to appeal
[] any and all issues, including sentencing."                                  Defendant was

sentenced by the municipal judge as a "third offender," N.J.S.A.

39:4-50.4a,       to     a    $1006     fine,       $33    in    court    costs,          a    $100

surcharge, forty-eight hours of attendance at the Intoxicated

Driver Resource Center (IDRC), a ten-year suspension of driving

privileges, and installation of an interlock device for a period

of two years.

    There        is      no    dispute        that        defendant      had        two       prior

convictions       for        driving    while        under      the   influence            (DWI),

N.J.S.A. 39:4-50, in 1985 and 1996, but no prior convictions for

refusal.        In his appeal to the Law Division, defendant argued,

among other things, that his prior convictions for DWI did not

qualify as prior offenses within the meaning of N.J.S.A. 39:4-

50.4a.     Defendant contended that State v. Ciancaglini, 204 N.J.

597 (2011), controlled and mandated that he be sentenced as a

first offender for refusal.

    The     Court       in    Ciancaglini       considered        whether       a    defendant

previously       convicted       of     refusal       under       N.J.S.A.       39:4-50.4a,

should     be    sentenced       as     a    first        or    second    offender            on    a

subsequent DWI conviction under N.J.S.A. 39:4-50, which provides

for enhanced penalties for repeat offenses.                           Id. at 600.                  The

Court    held     that       N.J.S.A.       39:4-50       precludes      use    of    a       prior

refusal conviction to enhance the sentence on a subsequent DWI,




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and thus Ciancaglini had to be sentenced as a first offender.

Id.    at     610-11.        In     its   ruling,    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 under N.J.S.A. 39:4-50.4a.

Ciancaglini, supra, 204 N.J. at 610 n.10.

      Specifically,          the    Court    in   Ciancaglini    reiterated       Judge

Lora's analysis that the phrase "in connection with a subsequent

offense of this section" in N.J.S.A. 39:4-50.4 included prior

DWI offenses because "'a refusal cannot be "in connection with"

another refusal.        Rather, it can only be "in connection with" an

arrest for drinking-driving and a request to take the breath

test.'"     Id. (quoting Bergwall, supra, 173 N.J. Super. at 437).

      Here,    the   Law     Division       judge   concluded,   correctly,        that

defendant's reliance on Ciancaglini was misplaced.                           The judge

determined      that    he    remained      bound   by   Bergwall,     and    affirmed

defendant's sentence.              We note that since this case was decided,

our Supreme Court has reaffirmed the vitality of Bergwall that a

prior DWI conviction will enhance the sentence on a subsequent

refusal conviction.           State v. Frye, 217 N.J. 566, 568-69 (2014).




                                             3                                 A-3923-13T2
    On     appeal,     defendant    advances        two   new    arguments     not

previously raised in the Law Division:

           I.     THE COURTS BELOW IMPROPERLY SENTENCED
           DEFENDANT AS A THIRD OFFENDER OF BREATH TEST
           REFUSAL BECAUSE HE HAD TWO PRIOR DWI
           CONVICTIONS FOR OFFENSES OCCURRING MORE THAN
           TEN YEARS AGO, THEREBY ENTITLING HIM TO BE
           TREATED AS A SECOND OFFENDER.

           II. THE UNEXPLAINED DELAY OF MORE THAN ONE
           YEAR BETWEEN ISSUANCE OF THE COMPLAINT AND
           CONVICTION WARRANTS DISMISSAL AS A VIOLATION
           OF DEFENDANT'S RIGHT TO A SPEEDY TRIAL.

We address each of these arguments in turn.

    The    penal     consequences   that     flow    from   a    DWI   conviction

escalate with each subsequent DWI conviction.                  N.J.S.A. 39:4-50.

"Thus,    the   number    of   prior       violations     is    significant     in

sentencing [a] defendant."         Ciancaglini, supra, 204 N.J. at 607.

As the Court further noted:

                The refusal statute, N.J.S.A. 39:4-
           50.4a,    is    similarly    structured    with
           penalties based on whether the conviction is
           the driver's first, second, or third or
           subsequent offense.      The statute provides
           that "the municipal court shall revoke the
           right to operate a motor vehicle of any
           operator who, after being arrested for a
           violation of [the DWI statute], shall refuse
           to submit to a [breath test] when requested
           to do so."      N.J.S.A. 39:4-50.4a(a).     The
           length of the license suspension under a
           first,   second,   or   third   or   subsequent
           offense mirrors the length of the suspension
           for   a   first   (with   a   [blood   alcohol]
           concentration of 0.10% or more), second, or
           third or subsequent violation of the DWI
           statute. The first offense will result in a



                                       4                                 A-3923-13T2
         suspension of seven months to one year; if
         "the refusal was in connection with a second
         offense under this section," it will result
         in a suspension of two years; and if "the
         refusal was in connection with a third or
         subsequent offense under this section," it
         will result in a suspension of ten years.
         Ibid.

              . . . . A first offender is subject to
         a $300 to $500 fine; a second offender is
         subject to a $500 to $1,000 fine; a third
         offender is subject to a $1,000 fine. Ibid.
         Therefore, the penalties for each refusal
         offense now essentially mirror the penalties
         for each offense of DWI, but no custodial
         sentence is authorized as the result of a
         refusal conviction.

         [Ciancaglini, supra, 204 N.J. at 607-08
         (first and second alterations in original)
         (footnote omitted).]

However, unlike the refusal statute, the DWI statute contains a

so-called "step-down" provision, which provides that

         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).]

    Defendant   now   argues   that   we   should   engraft   a   similar

"step-down" provision into the refusal statute, and treat his

refusal conviction as a second rather than a third conviction




                                  5                               A-3923-13T2
for sentencing purposes since it followed more than ten years

after his second DWI conviction.

    Defendant's argument finds support in our prior holding in

State v. Fielding, 290 N.J. Super. 191 (App. Div. 1996).                                In

Fielding, the defendant had two prior DWI convictions in 1981.

Id. at 193.         The defendant was then convicted of refusal in

1994.    Id.       at    192.      The    sole    issue     on   appeal   was   whether

Fielding was properly sentenced as a second offender, requiring

a two-year license revocation, or whether he should have been

sentenced     as    a     first    offender        under     the   refusal      statute,

N.J.S.A. 39:4-50.4a, in which event "his license would have been

revoked for only six months."                    Id. at 193.       In upholding the

two-year suspension for refusal, we concluded:

             Fielding had two prior DWI convictions in
             1981.    Thus, while he received the benefit
             of   one   step-down,  avoiding  a  ten-year
             suspension, he properly was sentenced as a
             second offender.

             [Id. at 195.]

Thus,   at   least        by    implication,       defendant's     penalty      for   his

refusal conviction, which was enhanced due to his two prior DWI

convictions,       was    likewise       reduced      by   the   step-down   provision

applicable to enhanced DWI penalties.

    We   view       the    issue    as    one    of    fundamental    fairness.         As

noted, N.J.S.A. 39:4-50.4a has been consistently interpreted as




                                            6                                   A-3923-13T2
requiring      that      a    prior       DWI    conviction   be    deemed      a    prior

violation for purposes of the enhanced refusal penalty.                               Frye,

supra,   217      N.J.       at    569;    Bergwall,    supra,     85    N.J.   at     383;

Fielding,    supra,          290    N.J.    Super.    at   193.     If    the       penalty

attendant to a driver's refusal conviction is enhanced by a

prior conviction under the DWI statute, fairness dictates that

it be similarly reduced by the sentencing leniency accorded a

driver under the "step-down" provision of that statute where

there is a hiatus of ten years or more between offenses.

    In      the    present          case,       had   defendant    consented         to   a

breathalyzer test and been convicted of DWI, he would have been

treated as a second rather than a third offender because his

second DWI conviction occurred more than ten years ago in 1996.

Consequently, his driving privileges would have been revoked for

two, rather than ten, years.                    We see no reason why a comparable

result should not be reached here, and a "step-down" applied to

the same DWI convictions that serve as the basis to enhance

defendant's refusal sentence.

    As noted, defendant did not previously raise the argument

that he is entitled to a "step-down" sentence for the instant

refusal conviction.               Nonetheless, the Law Division judge appears

to have determined that defendant was ineligible for a second

"step-down" because he was previously granted "step-down" status




                                                7                               A-3923-13T2
due to the ten-year lapse of time between his first and second

DWI convictions.         The judge reasoned:

             [D]efendant was not entitled to a step-down
             provision   in  this   particular  case  and
             whether to consider this [] a third offense
             because he had previously been afforded a
             step-down – and case law indicates that
             you're entitled to one step-down and one
             only – and on a third or more offense, the
             prior two offense[s] are counted as separate
             offenses so he was not entitled to a step
             down.   That argument, I note, has not been
             made and that's probably the reason.     The
             law says it cannot be.

      After the Law Division judge issued his decision, and while

this appeal was pending, our Supreme Court clarified "that a

repeat     DWI     offender    may     invoke     the    statutory      'step-down'

provision [N.J.S.A. 39:4-50(a)(3)] a second time, provided that

more than ten years have passed with no infraction since the

defendant's most recent DWI offense."                  State v. Revie, 220 N.J.

126, 129 (2014).         Therefore, as the State concedes, defendant's

prior use of a "step-down" would not bar a second application of

the step-down provision.              As applied to the present case, we

conclude that defendant should have been sentenced as a second

offender     due    to   the   ten-year        lapse   between    his   second   DWI

offense and the instant refusal offense.

      Next, we have considered defendant's speedy trial argument

in   light   of    the    record     and   applicable     legal   principles     and

conclude it is without sufficient merit to warrant discussion in



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a written opinion.   R. 2:11-3(e)(2).   Directive #1-84, on which

defendant relies, established a sixty-day dispositional goal for

DWI cases, not a bright-line try-or-dismiss rule.       State v.

Cahill, 213 N.J. 253, 270 (2013).       After balancing the four

factors in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.

Ed. 2d 101 (1972), which govern the evaluation of speedy trial

violations in DWI cases, Cahill, supra, 213 N.J. at 271, we

conclude that the limited record provided fails to establish

that defendant ever asserted his right to a speedy trial, that

the State caused any undue pre-trial delay, or that defendant

sustained any prejudice.

    Affirmed in part and reversed and remanded for sentencing

as a second offender.




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