Approximately 17 years ago, an Appellate Division panel determined that a prior conviction for refusaling to participate in a breath test can not be used to enhance a penalty for a subsequent drunk driving (DWI/DUI) conviction.  The core of that decision was grounded upon two considerations.  One was the court’s opinion that the refusal statute was “civil in character,” because the proof necessary to establish a conviction was by a preponderance of the evidence. The other related to that portion of the Drunk Driving Statute that allows for enhancement penalties only where there were “subsequent offenses under this section” and, since the refusal offense was not under the section that prohibited DWI/DUI the court concluded that a refusal offense could not increase the penalty for a subsequent DWI/DUI conviction.

However, a recent appellate division decision has concluded that a prior refusal conviction can be used to increase penalties for subsequent drunk driving (DWI/DUI ) convictions because, in 2005, the New Jersey Supreme Court held that the standard of proof for a refusal case was beyond a reasonable doubt, despite the preponderance of the evidence standard required by the statute.  Moreover, this new Appellate Division case observed that the “subsequent offenses under this section” language should not be unduly emphasized .  Indeed, the appellate panel concluded that any other interpretation would be absurd, given the statutory scheme associated with drunk driving DWI/DUI.”