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
interests of brevity, portions of any opinion may not have been summarized).

State v. Eileen M. Ciancaglini (A-92/93-09)

Argued November 8, 2010 -- Decided January 19, 2011

STERN, J. (temporarily assigned), writing for a unanimous Court.

The Court considers whether a conviction for refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a, can
be used to enhance a sentence for driving while intoxicated (DWI), N.J.S.A. 39:4-50.

On May 1, 2008, police stopped defendant Eileen Ciancaglini for reckless driving and failure to stay in her lane.
During the stop, she appeared to be intoxicated. She consented to a breathalyzer test, which revealed a 0.17% blood
alcohol concentration. She was charged with DWI, pursuant to N.J.S.A. 39:4-50. Ciancaglini previously had been
convicted of DWI in 1979. She also had a prior 2006 conviction for refusing to submit to a breathalyzer test.

On September 10, 2008, Ciancaglini appeared in municipal court and pled guilty to DWI. Despite her prior
convictions, she argued that she should be treated as a first offender. She relied on State v. DiSomma, 262 N.J.
Super. 375 (App. Div. 1993), which held that a refusal conviction is not a prior violation under the DWI statute. If
her refusal conviction was not considered, Ciancaglini’s 2008 DWI conviction was not within ten years of her 1979
conviction and a step-down provision in the DWI statute applied. After finding that the reasoning of the court in
DiSomma had been undermined by State v. Cummings, 184 N.J. 84 (2005), the judge sentenced Ciancaglini as a
third offender under the DWI statute. Along with fines and other penalties, Ciancaglini received a six-month jail
term, a ten-year license suspension, and a ten-year suspension of the registration on any vehicle that she owned.

Ciancaglini appealed to the Law Division, which held that she should have been sentenced as a first offender
because no case law supported the use of a refusal conviction as a prior offense under the DWI statute. Along with
fines and other penalties, she was sentenced to a thirty-day jail term and a twelve-month license suspension.

The Appellate Division reversed the Law Division judgment and re-imposed the municipal court’s sentence.
411 N.J. Super. 280 (App. Div. 2010). The panel held that a refusal conviction qualifies as a prior violation under
the DWI statute. Explaining that Cummings changed the burden of proof for a refusal conviction from a
preponderance of the evidence to proof beyond a reasonable doubt—the same burden as required for DWI
convictions—the panel found no justification for declining to count a refusal as a prior offense under the DWI
statute.

The Supreme Court granted certification to resolve the conflict between the Appellate Division’s decisions in
DiSomma and in this matter. 202 N.J. 43 (2010).

HELD: Defendant Ciancaglini’s conviction in 2006 for refusing to take a breathalyzer test does not constitute a
prior conviction for purposes of determining her sentence for driving while intoxicated in 2008.

1. To interpret a statute, courts look to the Legislative intent, examining first the plain language of the statute. If the
statute is clear on its face, courts enforce it; if it is ambiguous or open to more than one meaning, courts may
consider extrinsic evidence, including legislative history and committee reports. Any reasonable doubt concerning
the meaning of a penal statute must be strictly construed in favor of the defendant. (Pp. 10-11)

2. Although N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.4 are both part of a statutory complex designed to rid the
highways of drunk drivers, each is a separate section with a different, albeit related, purpose, and each has different
elements. Under the DWI statute, N.J.S.A. 39:4-50, operating a motor vehicle while intoxicated subjects the
defendant to penalties that are based on the number of prior offenses the defendant has committed. For a first
offense in which the driver’s blood alcohol content is .10% or higher, the sentence includes a license suspension of
seven months to one year, a fine, and a jail term of not more than 30 days. For a second violation, the sentence
includes a two-year license suspension, a fine, and a jail term of up to ninety days. For a third or subsequent
violation, the sentence includes a ten-year license suspension, a fine, and a jail term of 180 days. However, the DWI
statute contains a “step-down” provision that states 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
conviction for sentencing purposes.” 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. It requires the revocation
of the right to operate a motor vehicle by any driver who, after being arrested for DWI, refuses to submit to a
breathalyzer test. The length of license suspension for refusal mirrors the length of the license suspensions for DWI.
However, no custodial sentence is authorized for refusal convictions. (Pp. 11-14)

3. Until the Appellate Division in this case reached the opposite conclusion, DiSomma represented the controlling
case for sentencing DWI offenders with a prior refusal conviction. In DiSomma, the Appellate Division examined
both the DWI statute and the refusal statute and determined that their provisions were intended to be separate.
Concluding that a prior refusal conviction cannot serve as the basis to enhance a subsequent DWI conviction, the
defendant, who had a prior conviction for refusal, was sentenced as a first offender after his DWI conviction. Since
DiSomma, there have been no legislative revisions to the DWI or refusal statutes suggesting an integration of refusal
convictions into DWI sentencing. Although a 1997 amendment to both the DWI and refusal statutes was designed
to ensure that DWI and refusal convictions in other jurisdictions qualify as prior offenses under the respective
sections in New Jersey, the Legislature never endeavored to provide that a prior refusal conviction could be treated
as a prior DWI. (Pp. 15-17)

4. The DWI statute contains no reference whatsoever to the refusal statute, and nothing suggests that the references
to prior violations in the DWI statute’s lists of penalties are meant to refer to anything beyond DWI convictions.
Without any statutory cross-reference, or similar expression, the most natural reading of the DWI statute suggests
that the “prior” violations described in N.J.S.A. 39:4-50 are meant to refer only to the DWI section in which they are
contained. Such a reading is consistent with the well-established principle that penal statutes must be strictly
construed. (Pp. 17-18)

5. While the record is not clear as to whether Ciancaglini’s 2006 refusal conviction was or was not incident to an
acquittal of DWI, it cannot be reasonably suggested that someone convicted of refusal when found not guilty of
DWI can be treated as if he or she were convicted of the DWI offense. If the Legislature wanted to treat a refusal
conviction as an enhancer for SWI, even after an acquittal of DWI, it would have to do so in clearer language. (P.
18)

6. The Court determines that it need not decide in this case whether a person can twice take advantage of a step-
down under N.J.S.A. 39:4-50 because Ciancaglini’s refusal conviction cannot be considered a prior DWI violation
for enhancement purposes. As such, she is not precluded from the benefit of the step-down since her first DWI
conviction in 1979 was more than ten years prior to her second, the 2008 DWI conviction. (Pp. 19-20)
The judgment of the Appellate Division is REVERSED and the Law Division’s sentence is REINSTATED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS
join in JUDGE STERN’s opinion.

2
 SUPREME COURT OF NEW JERSEY
A-92/93 September Term 2009

STATE OF NEW JERSEY,

Plaintiff-Respondent
and Cross-Appellant,

v.

EILEEN M. CIANCAGLINI,

Defendant-Appellant
and Cross-Respondent.

Argued November 8, 2010 – Decided January 19, 2011

On certification to the Superior Court,

Appellate Division, whose opinion is
reported at 411 N.J. Super. 280 (2010).

Stephen M. Pascarella argued the cause for

appellant.

Mary R. Juliano, Assistant Prosecutor,

argued the cause for respondent (Luis A.
Valentin, Monmouth County Prosecutor).

Jeffrey Evan Gold argued the cause for

amicus curiae New Jersey State Bar
Association (Richard H. Steen, President,
attorneys; Mr. Gold, Mr. Steen, and James J.
Gerrow, Jr., on the brief).

JUDGE STERN (temporarily assigned) delivered the opinion of

the Court.

The critical issue presented by this appeal is whether a

conviction for refusing to submit to a breathalyzer test,

N.J.S.A. 39:4-50.4a, can be used to enhance a sentence for

driving while intoxicated (DWI), N.J.S.A. 39:4-50. In State v.

DiSomma, 262 N.J. Super. 375, 383 (App. Div. 1993), the

Appellate Division held that “a prior refusal conviction cannot

serve as the basis” to enhance a subsequent DWI conviction. In

this case, however, the Appellate Division held that a refusal

conviction does qualify as a “prior violation” under the DWI

statute. State v. Ciancaglini, 411 N.J. Super. 280, 288 (App.

Div. 2010). We granted certification to resolve the conflict

and hold that the defendant’s prior refusal conviction cannot be

considered as a “prior conviction” for purposes of her

subsequent DWI conviction.

I.

On May 1, 2008, Rumson police stopped defendant for

reckless driving and failure to stay in her lane. During the

stop, she appeared to be intoxicated and consented to a

breathalyzer test, which revealed a 0.17% blood alcohol

concentration. As a result, she was charged with failure to

maintain a lane, N.J.S.A. 39:4-88, reckless driving, N.J.S.A.

39:4-96, and driving while intoxicated, N.J.S.A. 39:4-50.

On September 10, 2008, defendant appeared in the Rumson

Municipal Court and pled guilty to driving while intoxicated.

The other two charges were dismissed. Defendant previously had

been convicted of DWI on March 29, 1979, and of refusal on May

2
18, 2006.1 Upon sentencing for the 2008 DWI in this case,

defendant argued she should be treated as a first offender.

Specifically, she argued that her 2006 conviction for refusal,

N.J.S.A. 39:4-50.4a, does not qualify as a prior violation under

the DWI statute, N.J.S.A. 39:4-50. She relied on DiSomma,

supra, in which the Appellate Division held that a conviction

for refusal is not a prior violation under the DWI statute. 262

N.J. Super. at 383.

The State argued that, although DiSomma had not been

overruled, subsequent developments in the law undermined its

reasoning so as to require an opposite conclusion. When DiSomma

was decided, a refusal conviction required a preponderance of

the evidence burden of proof, whereas a DWI conviction required

proof beyond a reasonable doubt. In 2005, however, we held in

State v. Cummings, 184 N.J. 84 (2005), that breathalyzer refusal

cases are quasi-criminal in nature and, therefore, require the

1
A transcript of the 2006 proceedings has not been presented to
us, and it is not entirely clear from the record if the 2006
conviction was the result of a trial at which she was found not
guilty of DWI, or a plea independent of a trial. The latter is
unlikely if the defendant was also charged with DWI. See,
Guidelines for Operation of Plea Agreements in the Municipal
Courts of New Jersey, Guideline 4, Pressler & Verniero, Current
N.J. Court Rules, Appendix to Part VII (2011). An acquittal of
DWI in 2006 when the refusal conviction was entered would be
significant for purposes of the issue before us. The amicus has
presented municipal court certifications that defendant was
found not guilty of DWI, but guilty of the refusal on the 2006
charges. The certifications do not provide the nature of the
proceeding at which those findings were made.

3
State to prove its case by proof beyond a reasonable doubt. Id.

at 95-96. Because the different burdens of proof necessary for

a conviction weighed heavily in the DiSomma court’s analysis,

DiSomma, supra, 262 N.J. Super. at 380-81, the State argued that

its rationale was no longer applicable. Consequently, the State

urged that defendant’s refusal conviction qualifies as a prior

offense and that she should be sentenced as a third offender.

Moreover, post-DiSomma amendments to N.J.S.A. 39:4-50.4a brought

the sentencing provisions of that statute into line with

N.J.S.A. 39:4-50 in many respects, except for the imposition of

custodial terms, so as to warrant treating a refusal as if

defendant were guilty of DWI because proof thereof was precluded

by defendant’s conduct.

The Municipal Court found that Cummings effectively

undermined DiSomma, changing “the whole underpinning” for that

decision. The court therefore held that defendant was a third

offender under the DWI statute. She was sentenced to pay a fine

of $1,006,2 a six-month jail term, a ten-year license suspension,

a ten-year suspension of the registration on any vehicle that

she owned, a twelve-hour commitment at the Intoxicated Driver

Resource Center, and costs and surcharges totaling $358. The

court stayed the sentence pending her appeal.

2
The municipal court judgment is not in the record and the last
digit of the $1,006 figure may include a typographical error in
the transcript.

4
 Defendant appealed her sentence to the Law Division. Both

defendant and the State largely repeated the same arguments they

presented to the Municipal Court. See R. 3:23. On de novo

review, the Law Division held that defendant should have been

sentenced as a first offender because no case law supported the

use of a refusal conviction as a prior offense under the DWI

statute. The court did not find persuasive the argument that

Cummings undermined DiSomma, reasoning that the underlying

premise of DiSomma was not that the two statutes had differing

standards of proof, but rather that the two statutes were not

interchangeable for sentencing purposes. The court further held

that the “step-down” provision of N.J.S.A. 39:4-50 applied, thus

preventing defendant’s 1979 DWI conviction from counting as a

prior DWI conviction because, as the prior refusal was not the

equivalent of a DWI conviction, she had no DWI conviction within

the past ten years. The Law Division sentenced defendant to a

fine of $500 (plus $336.50 in fees, surcharges and costs), a

thirty-day jail term, a twelve-month license suspension, a

twelve-hour commitment at the Intoxicated Driver Resource

Center.

The State appealed the Law Division’s decision. Before the

Appellate Division, the parties again repeated their statutory

arguments. In addition to the statutory arguments, defendant

argued that re-imposition of her Municipal Court sentence would

5
violate her rights under the Double Jeopardy Clauses of the

Federal and State Constitutions.

As already noted, the Appellate Division reversed the Law

Division judgment and re-imposed the original sentence.

Ciancaglini, supra, 411 N.J. Super. at 288. The panel noted

that DiSomma gave four primary reasons for its holding: first,

refusal convictions at the time required proof by a

preponderance of the evidence while DWI convictions required

proof beyond a reasonable doubt; second, principles of statutory

construction indicated that the refusal statute’s reference to

“a subsequent offense under this section” meant that prior

convictions should be counted only if they resulted from a

violation under the same section; third, the DWI and refusal

statutes were enacted separately even though compiled “within

the same Title and Chapter;” fourth, penal measures like the DWI

statute “should be strictly construed.” Id. at 285 (citing

DiSomma, supra, 262 N.J. Super. at 380-83).

The Ciancaglini panel concluded, however, that “[n]one of

these reasons has stood the test of time and analysis in other

decisions.” Ibid. The court emphasized that after Cummings,

convictions under both the refusal and DWI statutes required

proof beyond a reasonable doubt. Id. at 285-86. Consequently,

that justification for declining to count a refusal as a prior

offense under the DWI statute was no longer applicable. Id. at

6
286. The panel also noted that in the opposite situation,

courts have held “invariably” that a DWI conviction qualifies as

a prior offense under the refusal statute. Ibid.3 It added that

these interpretations are more consistent with the purpose of

the statute, as “it is unlikely that the Legislature intended to

impose a lesser fine or period of license revocation on one

convicted of a DWI after an earlier refusal conviction than one

convicted of refusal after an earlier DWI conviction.” Id. at

287-88. Therefore, the Ciancaglini panel concluded that a

violation of the refusal statute is a prior conviction for

purposes of the DWI statute. Id. at 288.

The panel further held that double jeopardy rights are not

violated when the State successfully appeals an illegal sentence

or is “granted the right to appeal a lenient sentence.” Id. at

289. Finding that the Law Division’s sentence conformed with

DiSomma and was therefore not an illegal sentence at the time it

was imposed, the panel nevertheless held that no double jeopardy

violation results when a sentence is re-imposed after being

“mistakenly decreased.” Ibid. (citing State v. Pomo, 95 N.J. 13

(1983)). Defendant therefore could not have had a “reasonable

expectation of finality” in the Law Division’s sentence because

3
See In re Bergwall, 85 N.J. 382 (1981), rev’g on dissent, 173
N.J. Super. 431 (App. Div. 1980). See also, e.g., State v.
Fielding, 290 N.J. Super. 191 (App. Div. 1996); State v. Tekel,
281 N.J. Super. 502, 505 (App. Div. 1995).

7
she had knowledge of the appeal process which already resulted

in one alteration of her sentence. Id. at 290. As a result,

the Appellate Division vacated the Law Division’s sentence and

remanded with instructions to reinstate the Municipal Court’s

original sentence. Id. at 291.

Defendant filed a Notice of Petition for Certification and

then filed an emergent application in the Appellate Division to

stay the sentence pending this Court’s review. The Appellate

Division granted the application in part and stayed her

incarceration only. However, the thirty-day sentence imposed by

the Law Division had been served by the time of its decision.

411 N.J. Super. at 283. The State filed a Notice of Cross-

Petition for Certification, restricted to reviewing the

Appellate Division’s determination that the Law Division did not

impose an illegal sentence. We granted both the Petition for

Certification and the Cross-Petition. State v. Ciancaglini, 202

N.J. 43 (2010).

Ciancaglini presents two arguments: (1) she is properly a

first offender under the DWI statute; and (2) the State’s appeal

of the Law Division sentence violates the Double Jeopardy

Clauses of the State and Federal Constitutions.

II.

A municipal appeal requires de novo review in the Law

Division. R. 3:23-8. The sentence must be imposed as if the

8
municipal court had not imposed one, although it cannot in most

instances be greater than that imposed by the municipal court.

See State v. Kashi, 180 N.J. 45, 49 (2004); State v. Pomo, 95

N.J. 13, 16 (1983); State v. Nash, 64 N.J. 464 (1974); State v.

DeBonis, 58 N.J. 182 (1971); State v. Mull, 30 N.J. 231, 238-40

(1959); State v. Taimangelo, 403 N.J. Super. 112, 120-21 (App.

Div. 2008). Partial execution of a legal sentence may preclude

appellate review even if there is statutory authorization to

permit the appeal. United States v. DiFrancesco, 449 U.S. 117,

133-37, 101 S. Ct. 426, 435-37, 66 L. Ed. 2d 428, 443-46 (1980);

State v. Sanders, 107 N.J. 609, 616-21 (1987); State v. Ryan, 86

N.J. 1, 10, cert. denied, 454 U.S. 880, 102 S. Ct. 363, 70 L.

Ed. 2d 190 (1981).4 We need not consider the double jeopardy

issue at length, however, because the issue before us is whether

the sentence was, in fact, legal, and defendant seeks a

determination that the sentence ordered by the Appellate

Division was not. Moreover, although the Law Division’s

sentence in a “two-tier” system like New Jersey’s municipal

appeal procedure is de novo, the original sentence imposed by

the municipal court must be considered for purposes of

concluding that defendant could have no “reasonable expectation

4
For example, N.J.S.A. 2C:44-1f(2) authorizes the State to
appeal from a sentence of probation or a noncustodial sentence,
or from a downgraded sentence, on first- and second-degree
crimes. The statute provides for an automatic stay of ten days
to permit the appeal. See also R. 2:9-3(d); R. 2:9-10.

9
of finality.” Cf. State v. Smith, 195 N.J. 421 (2007); State v.

Sanders, supra, 107 N.J. at 619-20; State v. Baker, 270 N.J.

Super. 55, 71-77 (App. Div.) (no reasonable expectation of

finality), aff’d o.b., 138 N.J. 89 (1994). In any event, the

State can appeal from imposition of an illegal sentence. State

v. Fearick, 132 N.J. Super. 165, 170 (App. Div. 1975), aff’d 69

N.J. 32 (1976); State v. Sheppard, 125 N.J. Super. 332 (App.

Div.), certif. denied, 64 N.J. 318 (1973). And despite the fact

the panel below could not overrule another panel of the same

court, and therefore concluded the Law Division’s sentence was

legal when imposed, the panel in essence concluded the Law

Division’s sentence was illegal under its rationale.

III.

When determining the meaning of a statute, the central

focus is the Legislature’s intent, “and, generally, the best

indicator of that intent is the statutory language.” DiProspero

v. Penn, 183 N.J. 477, 492 (2005). See also, e.g., Lee v. First

Union Nat’l. Bank, 199 N.J. 251, 258-59 (2009). The first step

“is to look at the plain language of the statute.” Hubbard v.

Reed, 168 N.J. 387, 392 (2001). If “the language of a statute

is clear on its face, ‘the sole function of the courts is to

enforce it according to its terms.’” Ibid. (quoting Sheeran v.

Nationwide Mut. Ins. Co., 80 N.J. 548, 556 (1979)). See also

Pizzullo v. N.J. Mfrs. Inc. Co., 196 N.J. 251, 264 (2008);

10
D’Annunzio v. Prudential Ins. Co. of America, 192 N.J. 110, 119-

20 (2007). However, “[i]f the plain language of a statute is

ambiguous or open to more than one plausible meaning, we may

consider extrinsic evidence including legislative history and

committee reports.” State v. Marquez, 202 N.J. 485, 500 (2010);

see also e.g., Marino v. Marino, 200 N.J. 315, 329 (2009); Lee

v. First Union Nat’l. Bank, supra, 199 N.J. at 258-59. And any

reasonable doubt concerning the meaning of a penal statute must

be “strictly construed” in favor of the defendant. State v.

D.A., 191 N.J. 158, 164 (2007); State v. Valentin, 105 N.J. 14,

17-18 (1987); State v. Provenzano, 34 N.J. 318, 322 (1961).

In this case, although N.J.S.A. 39:4-50 and N.J.S.A. 39:4-

50.4 are both part of a statutory complex designed to rid the

highways of drunk drivers and to make our roads safer, each is a

separate section (each referring to “this section”) with a

different, albeit related, purpose, and each has different

elements.

N.J.S.A. 39:4-50 provides, in relevant part,5 that “a person

who operates a motor vehicle while under the influence of

intoxicating liquor . . . or operates a motor vehicle with a

blood alcohol concentration of 0.08% or more . . . shall be

subject” to certain penalties. N.J.S.A. 39:4-50(a). Penalties

5
The section has been amended since defendant’s arrest, but not
in a manner relevant to this case.

11
vary based on the number of prior “offenses” or “violations”

that the defendant has previously committed. Ibid. The statute

sets forth the penalties “[f]or the first offense” based upon

the blood alcohol concentration of the driver. N.J.S.A. 39:4-

50(a)(1). If the concentration is 0.08% or higher but less than

0.10%, the driver is subject to a three-month license

suspension, a $250 to $400 fine, and a jail term of “not more

than 30 days.” N.J.S.A. 39:4-50(a)(1)(i). If the concentration

is 0.10% or higher, the driver is subject to a sentence

including a license suspension of seven months to one year, a

$300 to $500 fine, and a jail term “of not more than 30 days.”

N.J.S.A. 39:4-50(a)(1)(ii).

“For a second violation,” the sentence must include a two-

year license suspension, a $500 to $1,000 fine, a jail term of

up to ninety days, forty-eight consecutive hours of which “shall

not be suspended or served on probation,” and mandatory

installation of an ignition interlock device. N.J.S.A. 39:4-

50(a)(2). “For a third or subsequent violation,” the driver is

subject to a sentence including a ten-year license suspension, a

$1,000 fine, a jail term of 180 days of which up to ninety days

may be served in “a drug or alcohol inpatient rehabilitation

12
program,” and mandatory installation of an ignition interlock

device. N.J.S.A. 39:4-50(a)(3).6

Thus, the number of prior violations is significant in

sentencing defendant. However, the DWI statute contains a so-

called “step-down” provision, providing 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).]

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 concentration

of 0.10% or more), second, or third or subsequent violation of

the DWI statute. The first offense will result in a suspension

6
Attendance at Intoxicated Driver Resource Centers is also
mandated upon convictions.

13
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.

Once it is determined beyond a reasonable doubt7 that “the

arresting officer had probable cause to believe that the person

had been driving . . . under the influence of intoxicating

liquor” and that the driver was actually arrested and refused to

submit to the test, the driver can be subject to further

penalties. 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.8 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. See State

v. Widmaier, 157 N.J. 475, 499-500 (1999) (“[E]xcept for the

jail sentences authorized by the DWI statute, N.J.S.A. 39:4-50,

the sanctions for violating the refusal statute are

7
The statute calls for a determination only “by a preponderance
of the evidence,” but, as already noted, we have held that
because the nature of the offense is quasi-criminal, it requires
proof beyond a reasonable doubt. Cummings, supra, 184 N.J. at
95.
8
Also, installation of an ignition interlock device may be
ordered and reference to an Intoxicated Driver Resource Center
is required.

14
substantially similar to those imposed for violation of the DWI

statute.”).

In DiSomma, supra, 262 N.J. Super. at 377, the defendant

was convicted of refusal in 1986 and of driving while

intoxicated in 1992. At the later sentencing, defendant argued

that he was a first offender because he had no prior DWI

offenses, but the State argued that the refusal conviction made

defendant a second DWI offender. Ibid. Examining the refusal

and DWI statutes together, the Appellate Division held that the

provisions are intended to be separate, emphasizing that the

State’s construction of the statutes “blur[red] the distinction

between the two provisions and disregard[ed] the different

burdens of proof which the State must meet as to each.” Id. at

380.

The panel then considered the refusal statute, closely

examining “the reference to ‘a subsequent offense under this

section’” in the first paragraph and concluding that it must be

viewed as an internal reference to the refusal statute.9 Id. at

381. The court acknowledged the potential for a competing view

whereby “the greater offense includes the lesser” so that a DWI

9
The court carefully examined whether the word “section”
referred to the legislation that converted violation of the
refusal statute from an administrative procedure to a quasi-
criminal proceeding or related to the refusal section itself.
See L. 1981, c. 512. See also State v. Wilhalme, 206 N.J.
Super. 359, 362-63 (App. Div. 1985).

15
conviction would enhance the sentence for a subsequent refusal,

but it rejected that reading and concluded that even if that

interpretation were adopted, it would not automatically follow

that a refusal conviction enhances a subsequent DWI. Id. at

381-82. The panel added that its conclusion “is fortified by

the requirement for strict construction of the relevant statutes

since a penal conviction is involved.” Id. at 383 (citing State

v. Meinken, 10 N.J. 348 (1952)). Thus, the court concluded that

the defendant should be sentenced as a first offender under the

DWI statute. Ibid.

Until the Appellate Division in this case reached the

opposite conclusion, DiSomma represented the controlling case

for sentencing DWI offenders with a prior refusal conviction,

and, despite other statutory amendments to both sections, there

was no relevant amendment to either N.J.S.A. 39:4-50 or N.J.S.A.

39:4-50.4a.10 Neither the revisions to the DWI or refusal

10
In In re Bergwall, supra, 85 N.J. at 383, we reversed an
Appellate Division decision holding that a DWI does not qualify
as a prior offense under the refusal statute, “substantially for
the reasons expressed in the dissenting opinion” of the
Appellate Division. In the Appellate Division dissent, Judge
Lora noted that the phrase “in connection with a subsequent
offense of this section” in the refusal statute would not make
sense if read to mean that it could only include another refusal
offense 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.” In re Bergwall, supra, 173 N.J. Super. at 437 (Lora, J.,
dissenting). Judge Lora also pointed out that even absent this
language, the legislative history, including a chart in the

16
statute, nor any accompanying statements referred to us, suggest

any integration of refusal convictions into DWI sentencing. On

the other hand, a 1997 amendment to both the DWI and refusal

statutes was designed to ensure that DWI and refusal convictions

in other jurisdictions would qualify as prior offenses under the

respective sections in New Jersey. L. 1997, c. 277, § 1-2,

effective December 30, 1997. The Legislature clearly understood

how to provide for enhanced sentences by reference to prior

convictions, but never endeavored to provide, even after our

decision in Cummings, that a prior refusal conviction could be

treated as a prior DWI.

N.J.S.A. 39:4-50 contains no reference whatsoever to the

refusal statute. When listing the penalties for driving while

intoxicated, it categorizes them based on being “[f]or the first

offense,” “[f]or a second violation,” and “[f]or a third or

subsequent violation.” N.J.S.A. 39:4-50(a)(1), (2), (3).

Nothing suggests that those references to prior “violations” are

meant to refer to anything beyond DWI convictions in violation

of N.J.S.A. 39:4-50, and the Legislature made no relevant

Report of the New Jersey Motor Vehicle Study Commission listing

different sentence lengths, suggested that the Legislature
believed a DWI conviction would qualify as a prior offense under
the refusal statute. Id. at 438-40. In 1981, after our
decision in Bergwall, the Legislature transferred jurisdiction
over refusal cases from the Division of Motor Vehicles to the
municipal courts. L. 1981, c. 512.

17
amendment to the DWI or refusal statute while otherwise

strengthening the latter. Indeed, without any statutory cross-

reference, or similar expression, the most natural reading of

the statute would suggest that the “prior” violations described

in the three subsections of N.J.S.A. 39:4-50 are meant to refer

only to the section of Title 39, Chapter 4, in which they are

contained, that is N.J.S.A. 39:4-50. Such a reading is

consistent with the well-established principle that penal

statutes must be strictly construed. See D.A., supra, 191 N.J.

at 164; Valentin, supra, 105 N.J. at 17-18; see also N.J.S.A.

39:4-50.4a(a) (requiring arrest for violation of DWI statute as

pre-condition for breath test request and refusal determination,

but not vice versa).

Moreover, while the record was not fully developed as to

whether defendant’s 2006 refusal conviction was incident to an

acquittal of DWI,11 it cannot be reasonably suggested that

someone convicted of refusal when found not guilty of DWI can be

treated as if he or she were convicted of the DWI offense. If

the Legislature wanted to treat a refusal conviction as an

enhancer for DWI, even after an acquittal of DWI, it would have

had to do so in clearer language.

11
The amicus did not appear in the Appellate Division, and the
material provided by it was not presented in that court.

18
 IV.

The State argues that even if a refusal conviction does not

qualify as a prior violation under the DWI statute, defendant is

still a second offender because she already availed herself of

one step-down when she was sentenced as a first-time offender

for refusal in 2006. See, e.g., State v. Conroy, 397 N.J.

Super. 324, 332-33 (App. Div. 2008) (uncounselled DWI conviction

not counted when considering eligibility for a “step-down”);

State v. Burroughs, 349 N.J. Super. 225, 227 (App. Div. 2002)

(where defendant given “step-down” on second DWI conviction, no

“step-down” where less than ten years elapsed between second and

third convictions); see also State v. Enright, 416 N.J. Super.

391, 405-06 (App. Div. 2010) (adhering to Burroughs). Language

in Burroughs can be read to support the State’s argument.

There, defendant was convicted of driving while intoxicated in

1982, 1998, and 2000. Burroughs, supra, 394 N.J. Super. at 226.

Following the 2000 conviction, the Municipal Court erroneously

sentenced defendant as a second offender, reasoning that the

sixteen-year gap between the first and second convictions

effectively forgave the first offense in perpetuity. Id. at

226-27. The Law Division and Appellate Division disagreed, but

not because defendant could not be twice forgiven of the same

conviction. Rather, the Appellate Division simply held that the

19
Municipal Court misinterpreted the operation of the “step-down”

provision. Id. at 227. The provision dictates 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).]

Because 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.

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.

V.

For the reasons stated herein, we reverse the judgment of

the Appellate Division, and reinstate the sentence as imposed by

the Law Division.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN,

RIVERA-SOTO, and HOENS join in JUDGE STERN’s opinion.

20
 SUPREME COURT OF NEW JERSEY

NO. A-92/93 SEPTEMBER TERM 2009

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent
and Cross-Appellant,

v.

EILEEN M. CIANCAGLINI,

Defendant-Appellant
and Cross-Respondent.

DECIDED January 19, 2011

Chief Justice Rabner PRESIDING
OPINION BY Judge Stern (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

CHECKLIST REVERSE AND

REINSTATE
CHIEF JUSTICE
X
RABNER
JUSTICE LONG X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE RIVERA-SOTO X

JUSTICE HOENS X

JUDGE STERN (t/a) X

TOTALS 7