Appellate Court Rules DWI Refusal Statute Not The Same As CDL DWI Refusal

Yesterday, the Appellate Division issued a decision regarding DWI issues.

In the case, defendant was pulled over while driving a commercial vehicle, and charged under NJSA 39:3-10.13, which is the DWI provision applicable to CDL licensees, and which prohibits operation where alcohol level is 0.04% or higher. After Defendant refused an Alcotest (by repeatedly failing to blow properly into the device), he was also charged under the general refusal statute, NJSA 39:4-50.4a, rather than the refusal statute applicable to CDL drivers, NJSA 39:3-10.24. When the matter came on for trial, the State tried to amend the refusal charge, even though it was after the 90 day statute of limitations applicable, but municipal judge rejected the attempt; Law Division judge concurred. State appealed on the refusal charge.

Appellate Division held that where CDL driver is charged not under generally applicable DWI statute, but under the statute specifically applicable to commercial drivers, with its lower alcohol limit, then the only refusal charge cognizable is the refusal charge specific to CDL drivers. The Court rejected the arguments that the amendment was “technical” and so permitted under Rule 7:2-5. In so ruling, the Court wrote, “allowing an amendment to cite a different offense is fundamentally different than amending to correct a minor defect, such as the lack of a signature or naming the wrong jurisdiction in which the offense occurred.” The other situations had been held in earlier cases to be the sort of technical errors that could be corrected under the Rule. The Court also rejected the arguments that CDL refusal was substantially the same offense or was a lesser included offense and so the amendment should have been permitted under Rule 7:14-2. In part, this was based on the differences under the two DWI statutes; under the CDL DWI statute, the offense is only established by a finding that the driver operated the vehicle with BAL of .04% or higher, whereas the general DWI statute can be established in two ways: either by proving a BAL of .08% or higher, or by proving that the driver was under the influence of intoxicating liquor (defined in case law as being where the driver’s “physical coordination or mental faculties are deleteriously affected”).

Court did note that if driver is charged under both generally applicable DWI statute and CDL statute, then driver is also subject to charges under both refusal statutes, assuming driver is notified of consequences as to each refusal.

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