One Prior DWI and One Prior Refusal Sufficient for N.J.S.A. 2C:40-26

On July 10, 2018, the New Jersey Appellate Division decided State v. James T. Dougherty. In this case, the defendant had a prior conviction for DWI and a separate conviction for refusal to submit to a breath test. The defendant’s license was suspended for the refusal when he was charged with the indictable offense of driving while suspended under N.J.S.A. 2C:40-26(b).

N.J.S.A. 2C:40-26(b) states that: “It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of R.S.39:3-40, if the actor’s license was suspended or revoked for a second or subsequent violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a).”

The defendant argued that the statute requires two prior convictions for DWI or two prior convictions for refusal. Since he had only one of each, the defendant believed that the statute did not apply.

However, the trial court denied the defendant’s motion to dismiss the indictment and the defendant was found guilty. On appeal, the Appellate Division affirmed the trial court. The Appellate Division ruled that DWI and refusal convictions are interchangeable for the purposes of the statute.

The cite for the case is: State v. James T. Dougherty, Docket No. A-2045-16T4 (July 10, 2018).

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