DWI Appeal - New Jersey CDL Driver Wrongfully Charged with Refusal

In State of New Jersey v. Nunnally, --- A.3d ----, 2011 WL 1660628 (N.J.Super.A.D.) the defendant was arrested for a violation of the NJ statute prohibiting operation of a commercial motor vehicle by a driver “with an alcohol concentration of 0.04% or more.”. After defendant refused to submit to the breath test, the arresting officer also charged him with violating the general refusal statute instead of the statute pertaining to refusal by a person driving a commercial vehicle (CDL refusal statute). In New Jersey, a complaint for refusing a breath test must be made within ninety days after the commission of the offense, which had already passed. The Law Division dismissed the refusal charge, agreeing with the municipal judge that the State could not prosecute defendant under the general refusal statute in these circumstances and the State could not amend the complaint to charge defendant with CDL refusal, on the day of trial and after the ninety-day statute of limitations had run. The State appealed.


On appeal, the State raised three arguments. First, it contended that the proposed amendment was solely to correct a “technical defect” in the complaint. The appeals court concluded that a failure to cite the correct substantive offense was not a “technical defect” subject to amendment.



Second, the State argued that the amendment should have been permitted because “a CDL refusal is the same substantive offense or a lesser included offense of a general refusal.” The appeals court concluded that CDL refusal was not a lesser included offense of general refusal, because the two offenses require proof of different facts.



Finally, the State asserted that it can prosecute defendant for violating the general refusal statute, which was cited in the complaint. The appeals court concluded that this driver could not be charged with a general refusal because he was arrested for CDL DUI (0.04% and above) but was never arrested for a general DUI (i.e. 0.08% or above):

"It therefore makes logical sense that an arrest for the predicate offense is an element of the corresponding refusal offense, because the purpose of the breath test is to obtain “scientific evidence” to prove the offense for which the person was arrested. Marquez, supra, 202 N.J. at 497. Of course, the Legislature conceivably could have structured the general and CDL refusal laws differently, to permit prosecution for general refusal based on an arrest for CDL DUI, but that is not how the laws were written. Further, even if we deemed the refusal statutes to be ambiguous, because they are quasi-criminal we would be constrained to construe them narrowly, in favor of the defendant."

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