Decades ago, the courts in New Jersey determined that a prior conviction for refusing to submit to a breathtest could not be used to enhance the penalties in a subsequent drunk driving (DWI) conviction.  Last year, an Appellate Division panel revisited that well-established principle of law and concluded that the underlying philosophies of the principal were no longer valid and, as a result, ruled that a refusal conviction could enhance the penalties for a subsequent drunk driving (DWI) conviction. That case was taken to the Supreme Court and three it was ruled that, despite the Appellate Division’s thoughts the contrary, a refusal conviction could not be used to enhance penalties in a drunk driving conviction. One of the reasons offered by the court was that the legislative scheme associated with drunk driving (DWI) cases did not contemplate penalty enhancement for a prior refusal conviction.

Recently, two Monmouth County legislators sought to amend the drunk driving (DWI) statute to require a prior refusal to be considered as an enhancement factor. One noted commentator pointed out that given the statutory scheme and a directive from the Supreme Court with respect to plea bargaining in a drunk driving case, a defendant with only a refusal conviction would have had to be acquitted of the underlying DWI accusation and to that extent the new amendment would blink and reason.